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A.S. Naidu, J.—Cuttack Municipal Corporation has filed W.P.(C) No. 12031/2006 assailing the Order Dated 24.2.2004 (Annexure-12) passed by the Joint Commissioner, Settlement & Consolidation, Orissa, Cuttack in R.P. Case No. 2161/2001. It has also filed W.P.(C) No. 12032/2006 (renumbered as R.P. Case No. 1612/2003) assailing the Order Dated 24.2.2004 passed by the Joint Commissioner, Settlement & Consolidation. Orissa, Cuttack. In R.P. Case Nos. 2162/2001 (renumbered as R.P. Case No. 1613/2003). The facts & points of law in both the cases being same, by consent of Learned Counsel, both the Writ Petitions are heard together & disposed of by this common Judgment.
Bereft of unnecessary details, the facts which are necessary for effectual adjudication are stated herein below :
Gajendra Kumar Acharya was the intermediary in respect of lands appertaining to Tauzi No. 2499. The said Tauzi consisted of Ac.3582.08 decs. of lands under three khatas. The disputes cropped up between the agnates of the intermediary with regard to right, title & interest oyer the lands. The said dispute was decided by the then Sub-ordinate Judge, Cuttack in T.S. No. 94/1924. The dispute travelled up to the Privy Council, where it was held that Gangadhar has a share in the property. The decision of the Privy Council is reported in AIR 1931 84 (Privy Council) .
During pendency of the disputes in the year 1931 settlement operations commenced in the area & a portion of the lands appertaining to Sabik Khata No. 917 consisting of Plot No. 1135/3776 measuring Ac.0.606 decs, were recorded in favour of the Cuttack Municipality (hereinafter called-as Municipality), which was the adjoining owner.
In the meanwhile the Estate vested within the State. After the death of Gajendra Kumar Acharya, his son Naba Kumar Acharya applied to settle the lands measuring Ac.0.606 decs (more fully described above) in his favour under the provisions of O.E.A. Act. The said petition was registered as O.E.A. Case No. 3699/1976. After observing all paraphernalia, the O.E.A. Collector settled the lands in favour of Naba Kumar Acharya by Order Dated 17.1.1978. After the order of settlement was passed Naba Kumar Acharya paid salami & rent to the administration for the period from 1953-54 to 1980-81.
In the year 1983 the Municipality preferred an appeal assailing the order of settlement passed under the O.E.A. Act settling the lands in favour of Naba Kumar Acharya. The said appeal was registered as Appeal Case No. 1673/1983. In the year 1984-85, it is submitted that the appeal was allowed mainly on the ground that the Addl. Tahasildar had no jurisdiction to settle the Municipality lands under the provisions of O.E.A. Act. However, no document was filed in support of such pleadings. In the year 1987 Naba Kumar Acharya sold lands appertaining to Hal Plot Nos. 482, 283 Part & 286 in favour of Opp. Party No. 2 (Gobinda Prasad Pattnaik) & Smt. Baisali Mohanty under a registered sale deed. In the same year, i.e. 1987 the Record of Rights were published by the Settlement Authorities recording the lands in favour of the Municipality with a note of possession of Naba Kumar Acharya in respect of Hal Plot Nos. 282, 286 & 296. In the year 1995 Opp. Party No. 2, the purchaser, filed Mutation case Nos. 1749/1995, 1750/1995 & 1751/1995 before the Tahasildar (Sadar), Cuttack, with a prayer to record the lands in his favour on the strength of the registered sale deed executed by Sri Naba Kumar Acharya as well the order of settlement made in favour of Naba Kumar Acharya by the O.E.A. authorities in O.E.A. Case No. 3699/ 1976. After giving opportunity of hearing to all the parties by Order Dated 30.5.1996 both the Mutation Cases were allowed by the Tahasildar & the lands were directed to be recorded in favour of Opp. Party No. 2. Being aggrieved by the said order in the year 1996, the Municipality preferred Mutation Appeal Nos. 87/1996, 88/1996 & 89/1996 before the Sub-Collector (Sadar), Cuttack. The Appellate authority after hearing Learned Counsel for the parties, after going through the order of settlement passed by O.E.A. authorities & considering the nature of the lands, dismissed the appeals filed by the Municipality & confirmed the order of mutation. The Municipality thereafter preferred M.R.C. Nos. 20/1998, 21/1998 & 22/1998 before the Board of Revenue assailing the order passed by the Sub-Collector in Mutation Appeal.
While matter stood thus, in the year 1998 the Municipality filed a petition before the Collector, Cuttack, to cause an enquiry regarding the orders passed in O.E.A. Case No. 3699/1976 & the said petition was registered as R.M.C. No. 4/1998. The Collector disposed of the said case with an observation that the Municipality may assail the order passed by the Sub-Collector in Mutation Cases. The said order, it appears, is assailed by Opp. Party No. 3 In O.J.C. No. 15822/2001.
In the year 2001, Opp. Party No. 2 & Smt. Baisali Mohanty who had purchased the lands from the ex-intermediary Naba Kumar Acharya by registered sale deeds, filed R.P. Case Nos. 2161/2001 & 2162/2001, in the Court of Commissioner of Land Records & Settlement with a prayer to correct the Record of Right of 1987 & to record the lands in their favour on the strength of the registered sale deeds as well as the order of settlement made in favour of Naba Kumar Acharya under the O.E.A. Act. The said revision, it appears, was dismissed for non-joinder of necessary parties. A petition was filed to set aside the said order on the ground that the intermediary is not a necessary party. The matter was taken up by the Joint Commissioner who in exercise of powers conferred upon him under the Orissa Survey & Settlement Act restored R.P. Case Nos. 2161/2001 &2162/2001 &directed to issue notice. The said case was renumbered as R.P. Case Nos. 1612/ 2003 & 1613/2003 respectively. After hearing Learned Counsel for the parties, the Joint Commissioner by Order Dated 24.2.2004 allowed both the cases in favour of Opp. Party No. 2 & Baisali Mohanty, holding that they were bonafide purchasers from the ex-intermediary Naba Kumar Acharya, in whose favour the lands were settled in O.E.A. Case No. 3699/1976 by the Addl. Tahasildar, Cuttack. The said order dtd. 24.2.2004 (Annexures-12 & 15) are assailed in these Writ Petitions.
After receiving the Rule, a detailed counter affidavit has been filed on behalf of Opp. Party No. 2 taking a positive stand that the lands in dispute originally belonged to Gajendra Kumar Acharya, who was an intermediary. The Privy Council in its decision reported in AIR 1931 84 (Privy Council) declared the title of Gajendra. According to Opp. Party No. 2 during pendency of such civil litigation settlement operations commenced & in the year 1931 inadvertently the lands were recorded with the Municipality, which was the adjacent owner. The said recording was without any basis as the Municipality never owned or possessed the lands in question.
According to Opp. Party No. 2, in consonance with the provisions of O.E.A. Act, the Estate vested with the State Government, free from all encumbrances & thereafter the same were settled in favour of Naba Kumar Acharya, son of Gajendra Kumar Acharya, who had succeeded as intermediary after the death of his father. By virtue of the said order of settlement, Naba Kumar Acharya became the absolute owner having valid right, title & interest over the lands. Thereafter, he had executed two registered sale deeds & alienated the properties in favour of Opp. Party No. 2 and Anr.. By virtue of the said sale deeds, it is stated, Opp. Party No. 2 became the absolute owner & the settlement authorities have rightly recorded the land in his favour by the impugned order. In the counter affidavit, several other facts have also been averred, alleging the overt acts committed by the Municipality & the attempt made by it to grab the lands, but then as all those allegations are not very much relevant for the purpose of deciding the controversy in issue.
Mr. S.P. Mishra, Learned Senior Advocate appearing for the Cuttack Municipal Corporation, has taken pains to refer to several documents & orders & submitted that the order of settlement under the O.E.A. Act was passed in favour of Naba Kumar Acharya by practicing fraud & on that ground alone the order passed by the Joint Commissioner, Settlement should be set side. It is further submitted that the dispute has a chequered career, inasmuch as, it has travelled from authority to authority & is also pending before this Court in O.J.C. No. 15822/2001. In short, according to Mr. Mishra, in view of the fact that the case lands were recorded in the name of Municipality by the settlement authorities, way back in the year 1931 & the said recording has not been assailed or deferred & the further fact that the settlement in favor of Naba Kumar Acharya was made under the O.E.A. Act without following the required paraphernalia & by practicing fraud, it is a fit case where the impugned order passed by the Joint Commissioner directing to record the lands in favour of Opp. Party No. 2 and Ors. may be set aside.
The submissions made by Mr. Mishra are strongly repudiated by Mr. N.P. Parija, Learned Counsel appearing for Opp. Party No. 2. According to him, it is well settled that the settlement records neither creates nor extinguishes title (see Trilochan Singh and Anr. v. Commissioner of Land Records & Settlement, Orissa and Ors. reported in 79 (1995) C.L.T. 507). It is submitted, rather forcefully, that the Cuttack Municipal Corporation has failed to produced many document/order to establish the fact that it had acquired title over the disputed lands. The Cuttack Municipal Corporation a Body Corporate & has to acquire title in respect of the lands in accordance with law. Though, it is an instrumentality of the State. it cannot be said that the lands vested with it by operation of any law. Thus, according to Mr. Parija in the absence of any document to establish that the aforesaid lands were ever allotted to the Municipality by the Government and/or the Municipality had acquired title over the same by any other means, its claim, only on the basis of inadvertent recording made in course of settlement operation way back in the year 1931, cannot be accepted. Mr. Parija further submits that in tile year 1931 several civil litigations were pending with regard to right, title & interest over the disputed lands. The dispute was put to rest by the Privy Council in the decision reported in 1931 P.C. 84. The findings given by the Sub- Ordinate Judge, Cuttack in T.S. No. 94/ 1924 & the decision of the Privy Council reported (supra) would override any recording made in course of settlement operations. In short, according to Mr. Parija the Privy Council having decided the title of Gajendra Kumar Acharya, the recording made in 1931 settlement operation in favour of the Municipality would not confer any title over it because the decree will prevail upon the said recording.
Mr. Parija further placed before this Court the conduct of the Municipality all through by which it has accepted the right, title & interest of Opp. Party No. 2. It is stated that in the year 1963 the Municipality assigned/allotted Holding No. 423/B in Ward No. 23 in favour of Naba Kumar Acharya with regard to his thatched house situated over the disputed land & received holding tax from him all through.
In the year 1964, the Municipality approved the plan submitted by Naba Kumar Acharya for construction of a building over Plot Nos. 1135/3776 & also permitted him to construct a septic latrine on the existing area of Ac.0.606 decs.
In the year 1968. Naba Kumar Acharya sold a portion of the lands i.e. Ac.0.140 decs. out of the said Ac.0.606 decs out of Plot Nos. 1135/3776 to Smt. Premalata Acharya, who constructed a house over the said land & is still in possession & paying holding tax. In the year 1974, Naba Kumar Acharya sold Ac.0.060 decs; of land out of balance area to Smt. Radharani Panda who had constructed a house after obtaining permission from the Municipality. The said house has been assigned holding No. 423/B/2 by the Cuttack Municipality.
In the year 1980, the Municipality gave no objection to Naba Kumar Acharya for obtaining electricity connection to his house. In the year 1982, the Municipality granted permission to Naba Kumar Acharya for running a body building unit over the disputed plots.
In the year 1985. the plan submitted by Naba Kumar Acharya for water connection was approved by the Cuttack Municipality. In the same year the Municipality permitted Naba Kumar Acharya to cut a portion of the road for water connection. In the year 1987 a portion of the land measuring Ac.0.217 decs. out of the said plot was sold in favour of Opp. Party No. 2 by Naba Kumar Acharya after obtaining permission from the Urban Land Ceiling Authorities, which was necessary at the relevant time. Another sale deed was also executed by Naba Kumar Acharya alienating Ac 0.040 decs. in favour of Smt. Baisali Mohanty on 27.11.1986.
In the year 1989, Holding No. 423/B/3 had been assigned to Opp. Party No. 2 by the Municipality & he is paying holding tax. In the year 1990, Cuttack Development Authority approved plan for construction of the building by Opp. Party No. 2. In the year 1990, the holding tax was revised by Cuttack Municipality & higher amounts were collected. Mr. Parija went on narrating several other actions taken by the Municipality accepting the title of Opp. Party No. 2 over the disputed lands. In view of the incidents narrated above, it is submitted the Cuttack Municipal Corporation is estopped from assailing the order after so many years.
Heard Learned Counsel for the Petitioner, Learned Counsel for Opp. Party No. 2 & perused all the documents & orders meticulously. Accepting the fact that the lands were recorded in favour of the Municipality in the 1931 during settlement operation, no document has been produced to establish as to how the Municipality acquired title over the lands. On the other hand, the endeavour of the Cuttack Municipality all along is that Opp. Party No. 2 has not acquired any title over the lands. But then, in view of the clear position that settlement records neither create nor extinguished title & as the title of the ex-intermediary was virtually settled by the Civil Court & by the Privy Council. It can be safely concluded that the Cuttack Municipal Corporation cannot assail the same. Admittedly, out of the self-same area of Ac.0.606 decs. which was settled in favour of Naba Kumar Acharya, the ex-intermediary under the O.E.A. Act had executed more than one sale deed in favour of the outsiders. No steps appears to have been taken by the Cuttack Municipal Corporation to claim right over the said property. At the other hand, the Cuttack Municipal Corporation had accepted their right, title & interest. Thus, it is not open to the Cuttack Municipal Corporation to assail the title of Opp. Party No. 2 alone. Further, the Municipality is estopped from doing so in view of its past conduct.
The plea of the Cuttack Municipality that fraud had been practiced by Naba Kumar Acharya to get the lands settled in his favour under the O.E.A. Act cannot be decided under Writ jurisdiction as it is well settled that fraud is a bundle of facts & the same has to be pleaded & established beyond all reasonable doubts. It is also well settled that in exercise of power under Articles 226 & 227 of the Constitution of India, this Court does not act as a Court of appeal. It can only exercise its power of superintendence. A Writ of certiorari can be issued only for correcting errors of jurisdiction committed by Courts or tribunals. In other words, the cases where the orders are passed by inferior Courts or tribunals without jurisdiction or in excess of it, a Writ can be issued. A writ of certiorari can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly & decides a question without giving an opportunity to be heard to The party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. The jurisdiction to issue a Writ of certiorari being a supervisory jurisdiction, the High Court while exercising it is not entitled to disturb the finding of facts. This limitation necessarily means that finding of fact reached by inferior Court or Tribunal as a result of appreciation of evidence cannot be reopened or questioned in write proceedings. An error of law which is apparent on the face of record can only be corrected by a Writ Court, but not an error of fact, however grave it may appear to be. In regard to the finding of fact recorded by the Tribunal a Writ of certiorari can be issued if it is shown that while recording the said finding, the Tribunal had erroneously refused to admit admissible & material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned findings. While dealing with the aforesaid category of cases, High Court must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant & material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. Syed Yakoob Vs. K.S. Radhakrishnan and Others, ).
In the case at hand, the Municipality claims title over the property on the basis of the R.O.R. prepared by the Settlement Authorities in the in the year 1931. The Joint Commissioner, Settlement & Consolidation, Orissa, Cuttack, however by the impugned order has directed to prepare the R.O.R. in the name of Opp. Party No. 2. A R.O.R. is prepared under the Orissa Survey & Settlement Act. It is no more resintegra that by virtue of a recording made in the R.O.R. neither title is created nor the same is extinguished (see Trilochan Singh and Anr. v. Commissioner of Land Records & Settlement, Orissa and Ors. reported in 79 (1995) C.L.T. 507 & Patta Mohapatrani and Ors. v. State Anr. reported in 1972 (1) C.W.R. 670 : ILR 1972 (Cutt) 485). A person claiming title can establish the same in proper Court of law. It is also well settled that the Settlement Authorities have no jurisdiction or authority to decide disputed questions of title. 16. In view of the aforesaid clear position while not interfering with the impugned order, which neither creates nor extinguishes title, this Court disposes of both the Writ Petitions with an observation that the orders passed by the Joint Commissioner, Settlement & Consolidation, Orissa, Cuttack (Annexures-12 & 15) would be subject to any decision made in the question of title to the land. In other words, if the title is decided in favour of the Petitioner by a competent Court, the R.O.R. shall be accordingly corrected.