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2009 Supreme(Ori) 142
2009 (II) OLR (SC) — 229
Dr. ARIJIT PASAYAT AND LOKESHWAR SINGH PANTA, JJ.
State of Orissa and Ors....Appellants
Versus
Harapriya Bisoi...Respondent
CIVIL APPEAL NO. 2656 OF 2009
(Arising out of S.L.P. (C) No. 10223 of 2007)
(With Civil Appeal 2657/2009 @ SLP (C) No.11960/2007)
Decided on 20th April, 2009.
Headnote:1. ORISSA ESTATES ABOLITION ACT, 1951 - Sec. 2(h), 2(hh), 2(n) - "Intermediary", "intermediary interest", "Raiyat" - Meaning of - An "intermediary" and an "intermediary interest" cover all the holders or owners of interest in land between the State and the "Raiyat".
Section 2(h) defines an ‘intermediary’ as follows:
“Intermediary’ with reference to any estate means a proprietor, sub-proprietor, landlord, land holder, malguzar, thikadar, gaontia, tenure-holder, under-tenure holder and includes an inamdar, a jagirdar, Zamindar, Illaquedar, Khorposhdar, Parganadar, Sarbarakar and Maufidar including the ruler of an Indian State merged with the State of Orissa and all other holders or owners of interest in land between the raiyat and the State.”
Section 2(hh) defines as ‘intermediary interest’ as an estate or any rights or interest therein held or owned by or vested in an Intermediary.
‘Raiyat’ is the actual tiller of the soil, and is defined in section 2(n) as:
‘Raiyat’ means any person holding the land for the purpose of cultivation and who has acquired the right of occupancy according to the tenancy law or rules for the time being in force in that area or in the absence of such law or rules, the custom prevalent in that area. (Paras - 13 to 16)
2. ORISSA ESTATES ABOLITION ACT, 1951 - Secs. 3, 3A, 4 - Upon a notification being issued under the provisions of the sections, the entire estate vests in the State free from encumbrances and the intermediary ceases to have any interest in such estate other than the interest expressly saved under the Act.
Section 3 of the Act empowers the State to declare,, by notification, that the estate specified in the notification has passed to and become vested in the State free from all encumbrances. In similar vein, Section 3A empowers the State to declare by notification that the intermediary interests of all intermediaries or a class of intermediaries in the whole or part of the estate have passed to and become vested in the State free from all encumbrances.
(Paras - 17 and 18)
3. ORISSA TENANCY ACT, 1913 - "Holding" - It means a parcel or parcels of land held by a raiyat and forming the subject of a separate tenancy. (Para - 19)
4. ORISSA ESTATES ABOLITION ACT, 1951 - Sec. 8 - Any person who immediately before the vesting of an estate in the State Government was in possession of any holding as a tenant under an intermediary, would on the from the date of the vesting, be deemed to be a tenant of the State Government. (Para - 19)
5. TRANSFER OF PROPERTY ACT, 1882 - Sec. 107 read with Indian Registration Act - Sec. 17 - It mandates that the conveyance of title through a written instrument of any immovable property worth more than Rs. 100/- for a period of one year or more must be registered - If such an instrument is not registered then Sec. 49 of the Registration Act read with Sec. 91 of the Indian Evidence Act, 1872 precludes the adducing of any further evidence of the terms and contents of such a document. (Para - 23)
6. ORISSA ESTATES ABOLITION ACT, 1951 - Sec. 2(h) - It defines 'intermediary' to include 'tenure-holder' - A 'tenure holder' being an 'intermediary' under the Act the rights and liabilities of such tenure holder would stand extinguished under the Act.
(Para - 24)
7. WORDS AND PHRASES - "Fraud" - What it means, stated.
(Paras - 33 to 35)
8. INDIAN CONTRACT ACT, 1872 - Sec. 17 - "Fraud" - An act committed by a party to a contract with intent to deceive another. (Para - 36)
JUDGMENT
Dr. ARIJIT PASAYAT. — 1. Leave granted.
2. Challenge in these appeals is to the order passed by a Division Bench of the Orissa High Court allowing the writ petition filed by the respondent in Writ Petition (C) No.8282/2004 dated 27.10.2005 and the order dated 10.1.2007 passed in the Review Petition No.13/2006 arising out of said writ petition.
3. The background facts as highlighted by the appellants are as follows:
The dispute relates to an alleged lease of 53.95 acres of land executed by Hatapatta dated 25.1.1933 by erstwhile intermediaries i.e. Chakradhar Mohapatra and Ramakrushna Mohapatra in favour of one Kamala Devi. The respondent Harapriya Bisoi claimed to be the successor in interest of Kamala Devi. Undisputedly, the alleged Hatapatta is an unregistered document. The land is presently situated in the capital city of Bhubaneswar in the State of Orissa. The purported Hatapatta described the land as being for permanent cultivation but as per records or rights published in 1930-31 the land is classified as “uncultivable” within Anabadi Land. The land is further described as Jhudi jungle i.e. bushy forest. The estate of intermediaries Chakradhar Mohapatra and Ramakrushna Mohapatra is vested in the State by virtue of a Notification dated 1.5.1954 issued under Section 3 of the Orissa Estate Abolition Act, 1951 (in short the ‘Act’). In respect of the land in question the Orissa Estate Abolition Case 4 of 1970 was registered. Originally the case was registered as OEA 18 of 1967 with OEA Collector, Cuttack. On transfer of certain villages from Cuttack district to Puri District, the case was transferred to OEA Collector, Bhubaneswar and was re-numbered as OEA Case No.4 of 1970.
By order dated 6.1.1971 in the said OEA case the OEA Collector set aside the disputed lease deed on the ground of not being genuine. The Collector found that since the lands were lying fallow, the rent receipts were not genuine. The Ekpadia or Zamabandi Register in the Tahsil Officer had no mention of Kamala Devi as a lessee. The lease was unregistered even though vast tracts of land were transferred. It was thus held that the lease deed was back dated and was created with the object of defeating the purpose of the Act. The said order dated 6.1.1971 was upheld by Additional District Magistrate, Puri by order dated 28.5.1974.
Between the period 1962 to 1973 settlement proceedings were carried out under the Orissa Survey and Settlement Act, 1958 (in short the ‘Settlement Act’). By publication dated 6.12.1973, the State was recorded as the owner/title holder of the entire land of 1056.8 acres under Khatian No.1076 of village Gadakana of which the disputed land is a part. Further, by Revenue Department Notification No.13699-EA-1-ND-1/74/R published in the Extraordinary Gazette No.371 dated 18.3.1974, the Government of Orissa notified that the intermediaries interest of all intermediaries in respect of all estates other than those which have vested in the State have passed to and became vested in the State free from all encumbrances.
The order dated 28.5.1974 was challenged before the Orissa High Court by filing OJC No.882 of 1974. The High Court by order dated 29.10.1976 directed the OEA Collector, Bhubaneswar to examine the matter afresh by issuing notice to the lessor and the lessee and also to ensure that the interest of the State was protected. Pursuant to the order of the High Court dated 29.10.1976 remanding the matter to the OEA Collector, the Collector heard the matter afresh and by order dated 24.4.1989 held that the lease was entered into prior to 1.1.1946. But he found that the claimant was only in possession of 7 acres of land and hence recommendation was made only for registering a settlement in respect of such 7 acres of land. Significantly, the General Administration Department (in short GA Department) was not brought on record in the proceedings. The record was then submitted to the Board of Revenue. By order dated 27.4.1991, the B
