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1984 Supreme(Ori) 53
High Court Of Orissa
P. C. MISRA, G. B. PATTANAIK
SADANANDA SA - Appellant
Versus
COMMR.OF CONSOLIDATION, CUTTACK - Respondent
ORIGINAL JURDN. CASE 915 Of 1982
Decided On : 03/27/1984
R.MOHANTY, R.N.SINHA, S.C.MOHAPATRA
Excavation of a tank does not confer a right of occupancy on the excavator under the Sonepur Land Laws. An entry in the Record-of-Rights does not create or extinguish title. Mere acceptance of rent does not create a right of occupancy on the person paying the rent.
Headnote:
LAND REVENUE - CONSOLIDATION OF HOLDINGS - ORISSA CONSOLIDATION OF HOLDINGS AND PREVENTION OF FRAGMENTATION OF LAND ACT, 1972 - S. 55, 56 - RIGHT OF OCCUPANCY - ACQUISITION - EXCAVATION OF TANK - WHETHER CONFERS RIGHT OF OCCUPANCY - SETTLEMENT ENTRY - EFFECT - ACCEPTANCE OF RENT - EFFECT.
Fact of the Case:
Petitioners claimed ownership of three plots of land, recorded as 'talikata', 'uparikata' and 'trishulbandha' in the Record-of-Rights, alleging that their forefather excavated the tank in question and that they were recorded as raiyats in the fourth Settlement Record-of-Rights. The Grama Panchayat claimed that the lands were transferred to them and should be recorded in their name.
Finding of the Court:
The Consolidation Officer, Deputy Director of Consolidation, and Consolidation Commissioner dismissed the petitioners' objections and appeals, holding that there was no evidence to prove that the tanks were situated on the petitioners' raiyati land, that the Settlement Record-of-Rights prepared during the fourth Settlement did not confer a raiyati status on the petitioners, and that the title to the tanks remained with the State Government.
Issues: 1. Whether the excavation of a tank confers a right of occupancy on the excavator under the Sonepur Land Laws? 2. Whether an entry in the Record-of-Rights creates or extinguishes title? 3. Whether the acceptance of rent creates a right of occupancy on the person paying the rent?
Ratio Decidendi: 1. The Court held that there is no provision in the Sonepur Land Laws conferring a status of occupancy on the petitioners with respect to the tanks in question. The act of excavation, under the land laws, would not confer a right of occupancy on the excavator. 2. The Court held that an entry in the Record-of-Rights does not create or extinguish title. The Settlement Authorities appear to have been influenced by the inspection report of the Member, Board of Revenue, and recorded the petitioner's names as raiyats in the last Settlement Record-of-Rights erroneously. 3. The Court held that the mere acceptance of rent would not create a right of occupancy on the person paying the rent. The rent has been accepted because of the entry of the petitioner's names as raiyats in the Record-of-Rights. In that entry does not confer the status of an occupancy raiyat on the petitioners, the subsequent conduct of acceptance of rent would not confer any right of occupancy.
Final Decision: The Court dismissed the writ petition, holding that there were no errors of law apparent on the face of the orders of the Tribunals under the Act.
G. B. PATNAIK, J.
( 1 ) THE petitioners have invoked the jurisdiction of this Court under Art. 227 of the Constitution seeking for issuance of Writ of Certiorari to quash the orders of the authorities under the provisions of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereafter called the 'act'), the orders of the said authorities having been annexed as Annexs. 6, 7 and 8 to the writ petition. The dispute centres round three plots bearing number 435 measuring 6. 81 acres : No. 589 measuring 9. 18 acres and Na 590 measuring 2. 00 acres of 1921 Settlement appertaining to village Cherupalli of ex-State of Sonepur. These three plots are recorded as "talikata", 'uparikata' and 'trishulbandha' respectively in the Record-of Rights in 2nd and 3rd Settlement, vide Annexs. 1 and 2, and 'sri Zemindar has been recorded as the owner. It has further been mentioned that the forefather of the present petitioners who was Gountia of the Village excavated the tank in question. In the fourth Settlement Record-of-Rights (Annex. 3) in respect of corresponding plots Nos. 227, 230, 231 and 262/1145, Sadananda Sa, Daulat Sa and Rushav Sa, who are the petitioners in this writ application, have been recorded as raiyats. During the Consolidation operations in the area, Rushav filed an objection case impleading the two other brothers claiming for partition amongst them of the lands in question The Grama Panchayat at Cherupalli, on the other hand, filed another objection case that the lands have been transferred to the Grama Panchayat and, therefore, the lands should be recorded in the name of the Grama Panchayat. Both these objection cases were heard together and the Consolidation Officer disposed of both the objections by a common order (Annex. 61 ). The Consolidation Officer on scrutiny of available materials on record held that there was no evidence to prove whether the tanks in question were situated on the raiyati land of the present petitioners. It was further held that the Record-of-Rights prepared during the fourth Settlement recording the present petitioners as raiyats did not confer a raiyati status on the petitioners since it has been so prepared on the basis of a mis-reading of the instructions issued by the Member, Board of Revenue, while inspecting the area. It was further found that the water reservoirs and the tanks in dispute were situated on Government land. He also held that there was a collusion between the parties for preparation of the Record-of-Rights during the fourth Settlement operation in the names of Rushav Sa and others and the said Settlement Record-of-Rights having been prepared on mis-interpretation of instructions issued by the Member. Board of Revenue, did not confer any right on the petitioners. He also found that the title with respect to the tanks in question remained with the State Government, but the management of the tanks had been transferred to the Grama Panchayat and the Grama Panchayat was owning and possessing the same and exercising right of ownership. On these findings the objections were rejected. The present petitioners carried an appeal to the Deputy Director of Consolidation who dismissed the same by his order dt. 24-10-1981 (Annex. 7) in Appeal Case No. 73 of 1981. Two other appeals were also preferred and the same were disposed of on 31-10-1981. The Appellate Authority noted in its order that it was not the case of the appellants (the present petitioners) that the disputed plots were either their raiyati land or formed part of their Bhogra holding. He further recorded a finding that the plots in question were all along being treated as Government land with the proprietary interest of ex-Zamindar of Sukha Estate and the present petitioners had no raiyati right over the lands. He further held that a mere entry of the names of the petitioners in the Settlement Record-of-Rights could not be said to have established their raiyati status on the lands since the esta
