Rabindranath Ojha vs State of Orissa and Others

C.R. Dash, J.—Alleging that the property of the Petitioner has been grabbed in violation of his rights guaranteed under Article 300A of the Constitution of India, the Petitioner, through his power of attorney holder, has preferred this writ application for issuance of a writ of mandamus directing the Opp. Parties to recognize the tenancy right of the Petitioner in respect of the property more fully described in the schedule attached to the Writ Petition & for other ancillary reliefs.

Facts giving rise to filing of the Writ Petition are as follows:

The schedule property stood recorded originally in the name of one Madan Mohan Harichandan Mohapatra in the R.O.R. published in the year, 1910-1911 vide Tauji No. 88 under the Mageri Mahal situated in the district of Puri. The said Madan Mohan Harichandan Mohapatra was the then Zamindar. He died in the year 1918 leaving behind his only son named Harekrushna Harichandan Mohapatra. Said Harekrushna Harichandan Mohapatra inducted Achyuta Ojha, father of the present Petitioner as a ''sthitiban'' tenant in respect of the schedule land & executed a registered ''patta'' to that effect. Achyuta Ojha accordingly started possessing an area of Ac. 8.00 decimals of land as a tenant under the ex-zamindar on payment of Rs. 8 per year towards rent. By coming into force of the Orissa Estate Abolition Act, 1951 (in short ''O.E.A. Act''), all the estates held by the erstwhile landlords & zamindars/intermediaries vested in the State free from all encumbrances. However, the ex- Zamindar submitted Zamabandi No. 267 recognizing Achyuta Ojha as a tenant under him & such fact was recorded in Munsarim Mistake No. 215 dated 09.12.1954 (Annexure-1).

Achyuta Ojha being illiterate & ignorant of law, could not take appropriate steps during the proceeding under the Estate Abolition Act, & an area of Ac 4.520 decimals of land came to be reflected in the name of Achyuta Ojha in respect of Hal Plot No. 48 in the remarks column of the concerned R.O.R. vide Annexure-2, but the land was recorded by the authorities concerned as ''Anabadi''. Hal Plot Nos. 51 & 52, which are pan of the tenancy granted in favour of Achyuta Ojha, came to be recorded in Government Khata in Annexure-3 without reflecting in any manner the claim of Achyuta Ojha in the remarks column. The Petitioner, after death of his father, continued to enjoy the land tenanted by the ex-Zamindar without any disturbance from any quarter. Some months prior to filing of the Writ Petition, when some persons came to measure the disputed land, the Petitioner became aware &, on enquiry, came to know that the land has already been recorded in Government Khata vide Annexures 2 & 3. On 30.07.2008 when the Petitioner came to know that the disputed lands are to be leased out in favour of some outsiders, he filed the present Writ Petition.

Opp. Part Nos. 1 & 2 have filed counter affidavit denying the claim of the Petitioner. It is asserted by Opp. Parties 1 & 2 that the Petitioner having not filed the Plot Index to show the correspondence between pre-Sabik plot, Sabik plot & Hal Plot, it is misconceived to say that lands recorded in Annexures 2 & 3 are the same land in respect of which Petitioner''s father was a tenant under the ex-intermediary. Plot No. 51 with an area of Ac. 2.56 decimals & plot No. 52 with an area of Ac. 6.725 decimals stand recorded in ''Anabadi'' Khata No. 201 & the kisam of the land is ''Puruna Patita''. The lands being ''Puruna Patita'' & ''Anabadi, are species of uncultivable lands & no grant of tenancy could have been given in favour of Achyuta Ojha, so far as the disputed lands are concerned. The claim of the Petitioner that he is continuing in possession is therefore, misconceived. It is further asserted by Opp. Part Nos. 1 & 2 that in order to question the validity of recording in the R.O.R., the Petitioner could have preferred an appeal u/s 22 of the Orissa Survey & Settlement Act, 1958 or a revision u/s 15 of the said Act for non-recording of the land in his favour. It is further asserted by Opp. Parties 1 & 2 that an area measuring Ac. 1.80 decimals out of plot No. 51 & an area measuring, Ac. 6.05 decimals out of plot No. 52 have already been leased out in favour of different lessees & they are in possession over the said lease-hold lands & there is no manner of possession of the Petitioner or evidence to show that the present Petitioner is in possession over the remaining part of plot Nos. 51 & 52.

The Petitioner has invoked the extraordinary jurisdiction of this Court alleging violation of his right guaranteed under Article 300A of the Constitution of India. It is well settled in law that deprivation of property may take place in various ways, such as, destruction or confiscation or revocation of a proprietary right granted by a private proprietor, seizure of goods or immovable property from the possession of an individual or assumption of control of a business in exercise of the ''police power'' of the State. In the present case the Petitioner having alleged that the State authorities have acted arbitrarily & illegally in recording the land tenanted in favour of his father by the ex-Zamindar in the Govt. Khata, the deprivation alleged, if found to exist, is to be held to be violative of Article 300A of the Constitution. ''Deprivation'' in relation to property is the state of being deprived from holding, or enjoying or possessing property in the manner the substantive rights of the person deprived entitles him to hold or enjoy or possess. In the case of S.R. Ejaz Vs. The Tamil Nadu Handloom Weavers Co-operative Society Ltd., , Hon''ble Apex Court held that in view of provisions contained in Article 300A of the Constitution of India, a citizen has the right to protect the property & he can be deprived of or dispossessed from the same only by resorting to the procedure established by law. Article 300A can, however, be invoked only by a person, who has been deprived of his property &, in order to succeed, the Petitioner must establish his right to the property in question. We, at the out set, therefore, propose to find out what are the materials, on which the Petitioner is relying to establish his right to property in question & whether there has been violation of Article 300A of the Constitution of India, as alleged.

The Petitioner''s father is asserted to be a tenant under the ex-intermediary in respect of Ac. 8.00 decimals of land for annual rent of Rs. 8. The tenancy is asserted to have been created by a registered patta. The Petitioner is asserted to have continued as tenant after death of his father. In between the creation of tenancy in favour of Petitioner''s father & his death, Orissa Estates Abolition Act, 1951 came into force. Section 8 of the said Act saves continuity of tenure of tenants & the settlement contemplated in favour of a tenant under aforesaid Section 8 (1) of the O.E.A. Act is held to be declaratory in nature & the enquiry thereunder is held to be administrative in nature in a catena of decisions.

Rent is a necessary condition of tenancy. Rent receipts granted by the lessor is the best evidence so far as creation or existence of a tenancy is concerned. Though in the present case it is asserted that tenancy in favour of the Petitioner''s father was created by registered patta, no such document has been annexed to the Writ Petition to show prima facie the creation of tenancy. Though it is asserted that annual rent for Ac. 8.00 decimals of land had been fixed at Rs. 8 by the ex-intermediary, no rent receipt has been filed to show continuance of tenancy under the ex-intermediary. After vesting of estate u/s 3 of the O.E.A. Act or vesting of intermediary interest u/s 3(A) of the said Act, whatever might have been the event in the present case, the State became the owner of the land & the tenant under the ex-intermediary was transformed to be a tenant under the state with the same rights & obligations as he was subjected to under the ex-intermediary. It has been held by the Full Bench of this Court in the case of Smt. Basanti Kumari Sahu Vs. State of Orissa and Others, followed by this Court in the case of Daitary Rout Vs. State of Orissa and Others, on the point of revisability of the order passed by the Tahsildar u/s 8 (1) of the O.E.A. Act, that where a person comes forward & offers rent for acceptance, the Tahsildar is under obligation to satisfy himself that the claim put forward by that person for acceptance of rent as a tenant is justified & that person as a tenant is entitled to offer rent & the Government is under obligation to accept the same from him; such enquiry perforce has to be administrative in nature. It was, therefore, held that though no enquiry is contemplated & the decision may partake the trappings of adjudication, it is not one in exercise of power u/s 8 (1) of the Act, which does not authorize a proceeding or adjudication, but the enquiry is akin to an enquiry necessitated to be undertaken by an agent of landlord. Such being the position of law & scope of Section 8 (1) of the O.E.A. Act, there is nothing on record to show that the Petitioner or his father at any point of time offered rent to the State & the State denied to receive the rent from them. Obviously, therefore, there is no document to show receipt of rent by State or its agent after the vesting of disputed land under O.E.A. Act.

Learned Counsel for the Petitioner relies heavily on Munsarim Mistake No. 215 vide Annexure-1, where name of Petitioner''s father finds mention. But in Annexure-1 Order Dated 11.01.1955 of the A.S.O. reads thus-

the ex-Zamindar says that the lessee was granted a registered patta, but he has possession. The plot No. 48 is a waste land.

From the aforesaid order it is not clear as to whether the lessee was in possession of the tenanted land. Further, Munsarim Mistake. Report Stage, Khanapuri Stage are stages of collection of information, but the contents thereof cannot be said to be conclusive proof of any proprietary right. The materials/documents produced by the Petitioner, therefore, are not sufficient to give a finding on a pure question of fact like tenancy right of the Petitioner over the disputed land.

From the counter affidavit filed by Opp. Parties 1 & 2, it is found that the R.O. Rs. vide Annexures 2 & 3 were published in 1962. There is nothing on record to show that after vesting of the estate by operation of the O.E.A: Act, the Petitioner had ever approached the State or its agent for acceptance of rent in respect of the disputed land. Forty-eight years have already been passed after publication of R.O. Rs. vide Annexures 2 & 3, recording the disputed lands in Government Khata. The Petitioner can be shown the door of the Court on grounds of delay by applying the doctrine contained in the maxim "Vigilantibus Non Dormientibus Jura Subveniunt" (Law assists those who are vigilant & not those who sleep over their rights). Learned Counsel for the Petitioner relies on the case of State of M.P. and Anr. v. Pradeep Kumar and Anr. 2000 (4) CCC 53 (SC) to contend that on the ground of technicalities like delay, a party should not be debarred from seeking justice. He relies on paragraph-12 of the Judgment, which reads thus

It is true that the pristine maxim "Vigilantibus Non Dormientibus Jura Subveniunt" (Law assists those who are vigilant & not those who sleep over their rights). But even a vigilant litigant is prone to commit mistakes. As the aphorism "to err is human" is more a practical notion of human behaviour than an abstract philosophy, the unintentional lapse on the part of a litigant should not normally cause the doors of the judicature permanently closed before him. The effort of the Court should not be one of finding means to pull down the shutters of adjudicatory jurisdiction before a party who seeks justice, on account of any mistake committed by him, but to see whether it is possible to entertain his grievance if it is genuine.

The aforesaid decision, on fact, does not apply to the fact of the present case, inasmuch as Hon''ble Supreme Court in the aforesaid case was dealing with the question of rejection of the Second Appeal on grounds of delay for non-filing of a petition for condonation of delay along with the Second Appeal. Hon''ble Supreme Court held the defect to be a curable one & ruled in favour of ignoring such technicalities for the cause of substantive justice. In the case in hand, however, question of procedural lapses for ignorance is not involved. What is involved is inaction/non-action by the Petitioner to protect his asserted right for long period of 48 years or more.

From our discussions supra, it is clear that alleged right of the Petitioner is based on bundle of facts & alleged deprivation of the Petitioner gives rise to further facts. Such questions of fact for deficiency of materials before us cannot be gone into in the present proceeding especially in view of its nature. Further, the questions posed before us being disputed questions of facts, cannot appropriately be adjudicated in exercise of our extraordinary jurisdiction under Article 226 of the Constitution. Otherwise, the Petitioner having failed to establish his right over the disputed property on the basis of available materials before us, the allegation of deprivation resulting in violation of his right under Article 300A of the Constitution is unfounded.

We have already discussed supra that Article 300A can be invoked only by a person, who has been deprived of his property. In the present case however the Petitioner has invoked extraordinary jurisdiction of this Court through a power of attorney holder & there is no whisper in the pleadings as to what necessitated the Petitioner to move this Court through a power of attorney holder.

The issue of filing a Writ Petition through Power of Attorney-holder or someone else is no more res-integra as it has been considered by the Apex Court time & again. In Chiranjit Lal Chowdhuri Vs. The Union of India (UOI) and Others, , the Constitution Bench-of the Supreme Court had that the legal rights that can be enforced in writ jurisdiction must ordinarily be the rights of the Petitioner himself/herself, who complains of infraction of such rights & approaches the Court for relief. The rights that can be enforced under Article 226 shall ordinarily be the personal or individual right of the Petitioner himself, though in the case of some of the writs like habeas corpus or quo qarranto, this rule may have to be relaxed or modified."

In the The State of Orissa Vs. Madan Gopal Rungta, , the Constitution Bench of the Supreme Court held that the language of the Article itself shows that the issue of writs or directions by the Court is founded only on its decision that a right of the aggrieved party has been infringed.

Again, a Constitution Bench of the Supreme Court considered this issue in The Calcutta Gas Company (Proprietary) Ltd. Vs. The State of West Bengal and Others, & held that except in a writ of habeas corpus or quo warranto, the person can approach the Court only for redressal of his personal grievances.

In State of Punjab Vs. Suraj Parkash Kapur etc., , the Constitution Bench of the Supreme Court observed as under:

The existence of a right & the infringement thereof are the foundation of the exercise of the jurisdiction of the Court under Article 226 of the Constitution. The right that can be enforced under Article 226 of the Constitution shall ordinarily be the personal or individual rights of the applicant.

In State of Orissa Vs. Ram Chandra Dev and Mohan Prasad Singh Deo, , the Constitution Bench of the Supreme Court held that the concluding words of Article 226 indicate that a writ or appropriate order can be issued in favour of a party who has a right & the said right is illegally invaded or threatened.

In Godde Venkateswara Rao Vs. Government of Andhra Pradesh and Others, , the Supreme Court observed as under:

that ''ordinarily'' the Petitioner who seeks the filing of an application under Article 226 of the Constitution should be one who has a personal or individual right in the subject matter of the petition.

In Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed and Others, , Hon''ble Supreme Court, while explaining the scope of the writ jurisdiction, observed as under:

Its scope and meaning depends on diverse, variable factors such as the contents & intent of the statute or which contravention is alleged, the specific circumstances of the case, the nature & extent of the Petitioner''s interest & the nature & extent of the prejudice or injury suffered by him. English Courts have sometime put a restriction & sometime a wide construction on the expression ''aggrieved person''. However, some general tests have been devised to ascertain whether an applicant is eligible for this category so as to have the necessary locus standi or "standing" to invoke certiorari jurisdiction.

In Cyril E. Fernandes Vs. Sr. Maria Lydia and Others, , the Apex Court held that a person who is "directly concerned" with the grievance can maintain the Writ Petition.

In Munnicipal Council, Waraseoni and Another and Shri Krishan Lal and Others Vs. Satish Chandra Jain and Another and Nagarpalika Parishad, Wara-seoni, , the Supreme Court held that writ is maintainable only by the aggrieved party & not by some one else & a person cannot be permitted to maintain a writ only by stealing the language of any person who was in real sense aggrieved. In the aforesaid background of law also, the Writ Petition, as laid, is otherwise bad in law & no relief can be granted to the Petitioner.

In view of the above, we do not find any merit in the Writ Petition & the same is accordingly dismissed.

L. Mohapatra, J.

I agree