Brundaban Jena And Others vs Union Of India And Others

I.A. No.5331 of 2021

For the reasons stated therein, the application for substitution is allowed. The legal heirs of deceased Petitioner No.3 be brought on record.

The I.A. is disposed of.

W.P.(C) No.2102 of 2002

This Court has heard the submission of Mr. G. Mukherji, learned Senior Counsel for the Petitioners and Mr. Debakanta Mohanty, learned Additional Government Advocate for the State Opposite Parties.

The issue concerns six Petitioners who claimed to have been cultivated cashew plantation pursuant to a Rehabilitation scheme of the Government of India, implemented by the Government of Odisha for over 30 years now.

At one stage the Tahasildar, Balikuda, Dist-Jagatsinghpur filed an affidavit dated 15th September, 2003 where in para 5 it was stated as under:

“5) That in the case in hand, 52 acres of land was identified in village Keupada, Bramhanidihi and Tentulibelari. The Soil Conservation Department of the State Government has undertaken the Kaju Plantation on these lands. But unfortunately, the lands were recorded as ‘Gramya Jungle’ and not waste land. But for the purpose of Kaju Plantation, the entire expenses were borne by the Soil Conservation Department. When the Plants became fit for production, then patch of 2 acres each was allotted in favour of 26 beneficiaries including the present petitioners and the lands were distributed on 15-2-1986 on the recommendation of the Village Committee in presence of Assistant Soil Conservation Officer, Jagatsinghpur Block Development Officer, Balikuda, Chairman, Balikuda; Panchayat Samiti, Balikuda; Sarpanch, Anantapur G.P. and other officials under Annexure- 2. A close reading of Annexure-2 goes to show as follows:-

“xx xx From today, the beneficiaries will enjoy ‘Phala bhoga Satwa’ by taking care of their respective cashew plants. The plantations will be taken care of till the aid available from the Govt.”

Therefore, it is clear from the allotment and delivery of possession letter under Annexure-2 that the petitioners were conferred with ‘Dafayati’ right, but not ownership right. Therefore, the claim of the petitioners that the lands should be settled with them by the Tahasildar is not tenable in law and as such, the writ application is misconceived one and is based on misconception and misreading of the Scheme under Annexures 1 and 2.”

Subsequently, an affidavit was filed by the Tahasildar, Balikuda on 15th March, 2019 where this time in para 5 it was stated that the Petitioners were conferred with ‘Dafayati’ right but not ownership right; that with the land being an ‘objectionable one’ encroachment proceedings were initiated against the present Petitioners and fine and penalty had been collected from them.

An interim order was passed in the present petition way back on 24th March, 2003 directing the status quo to be maintained. As a result for nearly 35 years now the Petitioners have been on the land, cultivating it and enjoying the fruits of such cultivation. In the considered view of the Court, the State Government should seriously consider whether a fresh policy or scheme needs to be formulated recognizing the possession of the Petitioners over the land in question for well over three decades. A direction is issued to the Secretary of the Department of Agriculture to place on record the present stand of the State of Odisha in this regard in the form of an affidavit to be filed within one week prior to the next date.

List on 23rd June, 2022. Interim order to continue. An urgent certified copy of this order be issued as per rules.

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