The main legal point established in the judgment is that the appeal under Section 9 of the OEA Act would not be maintainable as the settlement of the land has been by virtue of Annexure-1.

JUDGMENT :

R.K. Pattanaik, J

1. The Petitioners have filed the instant writ petition invoking under Article(s) 226 and 227 of the Constitution of India, 1950 challenging the impugned order dated 9th March, 2004 passed in O.E.A. Appeal No.6 of 2003 (Annexure-3) by the learned Additional District Magistrate, Dhenkanal (O.P.No.2) on the grounds inter alia that the jurisdiction was wrongly exercised and therefore, it is not tenable in law and thus, liable to be interfered with.

2. The Petitioners contention is that by virtue of an executive instruction of the Government dated 6th December, 2012 (Annexure-1), the land in question which had vested and recorded as bebandobast, was settled in their favour by order dated 14th August, 2001 of O.P.No.3 which was appealable to the Sub-Collector but, O.P.No.2 erroneously entertained an appeal in terms Section 9 of the Orissa Estates Abolition Act, 1951 (hereinafter referred to as ‘the OEA Act’) and then, passed the impugned order under Annexure-3 which is, therefore, untenable in law.

3. It is pleaded that the subject in question stood recorded under Khata No.8 measuring Ac.13.15 dec. in Sabik ROR as debottar bahel interest of O.P.No.4 which corresponds to Hal Khata No.199 with an area of Ac.12.77 dec. which was, however, subsequently recorded in the name of O.P.No.4 in bebandobast status. The Petitioners claimed to be in cultivating possession of the case land on payment of rent to O.P.No.4 prior to the merger of princely State with State of Orissa, inasmuch as, intermediary interest was vested in 1972 and since the subject was not in khas possession, O.P.No.4 did not apply for statutory settlement in terms of Section 8-A of the O.E.A. Act and hence, was recorded in bebandobast status. It is the further case of the Petitioners that the State Government in order to convert bebandobast lands for use released the executive instruction under (Annexure-1) with a provision to initiate suo motu lease proceeding to settle it in favour of persons in actual cultivating possession since the date of vesting on realization of salami and payment of back rents and in case of rejection of any one’s claim, appeal within thirty days to lie before the Sub-Collector. In so far as the present case is concerned, O.P.No.2 entertained the appeal under Section 9 of the OEA Act which has been challenged by the Petitioners on the ground that it should have been before the Sub-Collector as per Annexure-1 but then, such a preliminary objection was rejected. According to the Petitioners, the appeal was not maintainable since because it was to be filed before the Sub-Collector in view of clause XXIII of the executive instruction i.e. Annexure-1. It is also claimed by the Petitioners that since the schedule land was settled under the lease principles, O.P.No.2 in any case could not have admitted the appeal filed under Section 9 of the OEA Act. The Petitioners on the aforesaid grounds have questioned the legality and judicial propriety of the impugned order under Annexure-3 passed by the O.P.No.2.

4. Heard Mr. S. Mishra-2, learned counsel for the Petitioners; Mr. D. Mohanty, learned AGA and Mr. H.N. Mohapatra, learned counsel appearing for O.P. Nos.1 to 3 and O.P.No.4 respectively.

5. Mr. Mishra-2 contended that O.P.No.2 committed gross error in law by entertaining the appeal under Section 9 of the OEA Act when the scheduled land was settled with the Petitioners as per Annexure-1 and furthermore, the appeal was to lie before the Sub-Collector in view of clause XXIII thereof and the above provision was not duly taken cognizance of, while examining the jurisdictional objection raised by the Petitioners before O.P.No.2 and therefore, Annexure-3 cannot be sustained in law.

6. However, Mr. Mohanty, learned AGA and Mr. Mohapatra appearing for O.P.No.4 justified the decision of O.P.No.2 in so far as the maintainability of the appeal under Section 9 of the OEA Act is concerned by contending that since it is a case where the clai