(A.M. Khanwilkar and Abhay S. Oka and C.T. Ravikumar, JJ.)
Special Sec. to Govt. of Orissa ___________________ Appellant;
v.
Bansidhar Naik (Dead) By Lrs. and Others ___________ Respondent(s).
Civil Appeal No. 8512 of 2009, decided on April 21, 2022
The Order of the court was delivered by
Order
This appeal takes exception to the judgment and order dated 30.08.2007 passed by the High Court of Orissa, Cuttack in First Appeal No. 135 of 2000.
For the nature of order that we propose to pass, it is unnecessary to dilate on the factual matrix of the case.
Suffice it to observe that the land in respect of which the respondent(s)-plaintiff(s) had filed suit for declaration of his title, confirmation of his possession over the suit land, for issuance of permanent injunction restraining the defendant(s) from interfering in his possession over the same and also for direction to the defendant(s) to declare that the record of the suit land prepared by the settlement authorities is wrong and illegal and to prepare the record of rights for the suit land in his name and to disburse that record of rights to him.
This very land described as jhudi jungle (i.e., bushy forest) and the question as to whether any relief as claimed by the respondent(s)-plaintiff(s) to declare him as having title therein including on the basis of Hata Patta was subject matter in State of Orissa v. Harapriya Bisoi reported in (2009) 12 SCC 378. In paragraphs 2 and 3 of that judgment, the Court has referred to this aspect.
Eventually, the question has been answered in paragraphs 26 to 28 in the following words:
“26. By virtue of Section 8, any person who immediately before the vesting of an estate in the State Government was in possession of any holding be as a tenant under an intermediary, would on and from the date of the vesting, be deemed to be a tenant of the State Government. The words “holding as a tenant” mean the “raiyat” and not any other class of tenant: reference in this regard may be drawn to the definition of “holding” in the Orissa Tenancy Act, 1913:
“3(8) ‘holding’ means a parcel or parcels of land held by a raiyat and forming the subject of a separate tenancy;”
Section 8 thus confers protection only on the “raiyat” i.e. the actual tiller of the soil.
27. Significantly, a “lease” and “lessee” on the one hand are defined separately from the “raiyat” under the Act. Thus, the mere execution of a lease by the intermediary in favour of a person would not confer the status of a “raiyat” on the lessee nor would protect the possession of such lessee under Section 8. In fact, a “lease” would amount to a transfer of an interest of the intermediary in the land to the lessee would in fact step into the shoes of the intermediary with his interest being liable for confiscation and his entitlement limited to compensation from the State.
28. On the other hand, for protection under Section 8, one has to be raiyat cultivating the land directly and having the rights of occupancy under the tenancy laws of the State. Thus, a “lessee” who is not actually cultivating the land i.e. who is not a “raiyat”, would not be within the protection of Section 8 of the Act. Section 2(h) of the Act in its residuary part states that “intermediary” would cover all owners or holders of interest in land between the raiyat and the State.”
This Court also dealt with the argument regarding fraud and has answered the same in the said reported judgment. We may usefully reproduce relevant portion of paragraphs 42 and 43, which reads thus:
“42. ….
In view of the aforesaid conclusions we are of the considered view that the matter needs to be reconsidered by the High Court. The High Court while rehearing the matter shall also consider the effect of the aforesaid observations of this Court, and various aspects highlighted above.
43. In the background of the massiveness of apparent fraud involved, effective and participative role of officials of the State cannot be lost sight of. Without their active and effective participation manipulation of records, tampering with documents could not have been possible. The State would do well to pursue the matter with seriousness to unravel the truth and punish the erring officials and take all permissible actions (including criminal action) against everyone involved.”
From the impugned judgment, it is noticed that the respondent(s)-plaintiff(s) have raised their claim mainly on the basis of Hata Patta (Exhibit-1) and rent receipt (Exhibit-2) series issued by the ex-intermediary.
In light of the reported decision of this Court, the issue under consideration stands answered against the respondent(s)-plaintiff(s).
Notably, when the impugned judgment was passed on 30.08.2007, the High Court did not have the benefit of the judgment of this Court, which was pronounced on 20.04.2009.
As a result, in the interest of justice, we deem it appropriate to set aside the impugned judgment and order and relegate the parties before the High Court for reconsideration of other issues, if any, to be decided on its own merits and in accordance with law.
We take note of the intervention of the third parties in the present proceedings. They are free to pursue their claim before the High Court or by way of appropriate proceedings as may be permissible in law for redressal of their grievances, if any.
We may not be understood to have expressed any opinion either way on the merits of such claim which may or may not be dependent on the final decision, to be reached by the High Court in the remanded proceedings.
Accordingly, this appeal is allowed. The impugned judgment and order is set aside and the parties are relegated before the High Court of Orissa by restoring the appeal to its original number for being decided afresh in accordance with law on other issues, which may be available to the parties (besides the question answered in the reported decision).
As the dispute pertains to the suit filed in the year 1998, the High Court may dispose of the remanded appeal expeditiously.
The appeal is disposed of in the above terms.
Pending applications, if any, stand disposed of.
SUPREME COURT OF INDIA
RECORD OF PROCEEDINGS
Civil Appeal No(s). 8512/2009
Special Sec. to Govt. of Orissa … Appellant(s);
Versus
Bansidhar Naik (Dead) By Lrs. and Others … Respondent(s).
Date: 21-04-2022 These matters were called on for hearing today.
(Before A.M. Khanwilkar and Abhay S. Oka, JJ.)
For Appellant(s) Mr. Vikash Singh, Adv.
Mr. Shibashish Misra, AOR
For Respondent(s) Mr. Jayant Bhushan, Sr. Adv.
Mr. Ambar Qamaruddin, Adv.
Mr. Tejasvi Kumar, Adv.
Mr. Syed Sarfaraz Karim, Adv.
Mrs. M. Qamaruddin, AOR
Mr. A. Venayagam Balan, AOR
Ms. Haripriya Padmanabhan, Adv.
Respondent Nos. Mr. V. Shyamohan, Adv. 3 and 4 Mr. Surya Prakash, Adv.
Ms. Tanya Srivastava, Adv.
Mr. Rajeev Maheshwaranand Roy, AOR
Mr. Kuriakose Varghese, Adv.
Respondent Nos Mr. V. Shyamohan, Adv. 5,6 and 7 Mr. Surya Prakash, Adv.
Mr. K. Rajeev, AOR
UPON hearing the counsel the Court made the following
ORDER
The appeal is disposed of in terms of the signed order.
Pending applications, if any, stand disposed of.
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