JUDGMENT

M. M. DAS, J. – In both these writ petitions, the petitioners have assailed the order dated 25.4.2008 passed by the learned Member, Board of Revenue, Orissa, Cuttack in O.E.A.R.C. No.6 of 2003.

2. Facts reveal that the land in revenue district Bhadrak, mouza Kuansh, appertaining to Sabik Plot No. 1531 corresponding to Hal Plot No. 1885 and 1885/2172 constituting a total area of Ac. 0.55 decimals originally stood recorded in the name of Ex-intermediary, Susilabala Dasi. The aforesaid land was vested with the State under the O.E.A.Act on 7.9.1953. Consequent upon vesting of the estate, the ex-intermediary filed an application for settlement and fixation of fair and equitable ground rent of the aforesaid land under Sections 6 and 7 of the O.E.A.Act. The said application was registered as Rent Fixation Case No. 33/56-57. In the said proceeding, one Radhashyam Boiti and Ratnakar Jena raised their claim of tenancy in respect of Ac. 0.05 1/2 decimals of land. By order dated 30.11.1959, the O.E.A. Collector directed fixation of rent for an area of Ac. 0.44 1/2 decimals of land in favour of the ex-intermediary, settling the balance Ac. 0.05 1/2 decimals of land in the names of the said Radhashyam Boity and Ratnakar Jena. The said order was passed basing on the enquiry report submitted by the Amin which has been annexed to the writ petition as Annexure-2. From the above report, it also revealed that plot No. 1531 under Khata No. 74 measuring an area of A. 0.50 decimals of sabik settlement was recorded as "Ghara and Bari". Against the aforesaid order, the ex-intermediary preferred O.E.A. Appeal No. 266/59-60 challenging the settlement of A. 0.05 1/2 decimals of land out of the above plot in the names of Radhashyam Boity and Ratnakar Jena. Though the said appeal was allowed by the Addl. District Magistrate, Balasore on 16.2.1962, it appears from the appellate Court order that the appellate Court set aside the order of O.E.A. Collector and remitted the matter back to the O.E.A.Collector for fresh adjudication. The O.E.A. Collector by his order dated 25.2.1972 after remand, categorically found that only Ac. 0.44 1/2 decimals of land in Plot No. 1531 under Khata No.74 is in possession of the ex-intermediary and directed settlement of the said land in her favour observing that Ac. 0.05 1/2 decimals of land out of Ac. 0.50 decimals has already been taken over possession by the Government as per the order dated 30.4.1965. Consequent upon fixation of fair and equitable rent, Sri Radhakanta Bose, grandson of the ex-intermediary sold the sad property in favour of the petitioners. In W.P.(C) No. 7678 of 2008, the petitioners claim that after purchase, the Hal R.O.R. has been published in 1988 in the name of the petitioners wherein the land has been recorded as "Gharabari". The petitioners claim to be in possession over the said property. It also appears that a civil suit was filed by the petitioner against some outsider where the Collector was a party, who has filed a written statement in the said suit, inter alia, stating that M.S. Plot No. 1885 has been recorded in the name of the present petitioners and there exists residential house of the plaintiffs-petitioners over the said plot. The final R.O.R. published in 1988 has not been challenged by anybody. The petitioners have also raised the question that the revision under Section 38-B of the O.E.A.Act initiated after 31 years from the date of fixation of rent by settling the land in the name of ex-intermediary, is hopelessly barred by time.

3. Learned counsel for the State argued that in view of the provisions of Section 6 of the O.E.A.Act not only "Kutchery Ghar" but also the land appurtenant thereto could not have been settled in favour of the ex-intermediary and has been held in the case of Kumar Simal Sinha (deceased) and after him, his legal representatives and others v. State of Orissa and others, AIR 1962 SC 1912, the legislature placed a property as 'homestead' in two categories, na