Sahadev Rout vs Director Of Estates, Bhubaneswar And Others

R.K. Pattanaik, J

Instant writ petition is filed by the petitioner assailing the impugned orders dated 1st June, 2022 (Annexure-10) and 8th March, 2022 (Annexure-8) passed by the learned Director of Estates, Odisha, Bhubaneswar and the Estate Officer, G.A. & P.G. Department, namely, opposite party Nos.1 and 2 in connection with OPP Appeal Case No.23 of 2022(L) and OPP Case No.02 of 2018(L) respectively with an alternative relief carrying a direction to the opposite parties to settle the schedule land in his favour on the grounds stated therein.

The petitioner seeks to challenge the decisions on the ground that it has been in violation of the principles of natural justice as no opportunity of hearing was provided to him which is also without taking into consideration the show cause reply and furthermore, when the same is without jurisdiction, inasmuch as, the Orissa Public Premises (Eviction of Unauthorized Occupants) Act, 1972 (hereinafter referred to as ‘the OPP Act’) does not have any application to the case at hand. It is contended that both the authorities below have not taken cognizance of the possession of the land in question through his predecessor-in-interest from 1937 and onwards much prior to the same vested in the State Government but instead directed eviction. The claim of the petitioner is based on the premise that the land was recorded in the name of erstwhile Ruler of Kanika by then known as Patia Estate, who had inducted tenants including his grandfather on the strength of a Hat Patta in respect of Ac 2.10 decimals of land for cultivation purpose and despite having approached, settlement of it was not considered on the ground that the same stood vested in the State Government under the Orissa Estates Abolition Act 1951 (in short ‘the OEA Act’). It is further claimed that the OEA Collector-cum-Additional Tahasildar, Bhubaneswar without any appreciation of facts rejected the claim for settlement in respect of the schedule land while disposing of Vesting Misc. Case No.122 of 1981 which was confirmed in OEA Revision No.86 of 2000 challenging which W.P.(C) No.6509 of 2008 was filed which was also dismissed by order dated 9th February, 2022 as against which, the petitioner has approached the Apex Court in SLP (Diary No. 17130 of 2022) and the same is pending disposal but in the meanwhile, opposite party No.2 issued notice in OPP Case No.02 of 2018(L) under the OPP Act disposed by order under Annexure-8 and confirmed vide Annexure-10 which is not tenable in law.

Heard Mr. Lenka, learned counsel for the petitioner and Mr. Mohanty, learned AGA for the opposite parties.

Mr. Lenka, learned counsel for the petitioner submits that the possession of the petitioner is from the time of his grandfather, who was inducted as a tenant like others by the Ex-Ruler of Kanika and such possession is ever since 1937 and notwithstanding the vesting of the same in the State Government, it has been continued uninterruptedly. It is further submitted that the possession is on the strength of a Hat Patta issued by the Ex-Ruler which was not duly appreciated by the authorities below while initiating action for eviction from the schedule land. Mr. Lenka also submits that notwithstanding dismissal of W.P.(C) No.6509 of 2008 and confirmation of the order in OEA Revision No.86 of 2000, as the matter is subjudice before the Supreme Court in SLP, the impugned orders dated 1st June, 2022 and 8th March, 2022 are not sustainable in law and hence, liable to be set aside for the reason that the impugned decision is not in accordance with the principles of natural justice and violative of Articles 14 and 21 of the Constitution of India. While advancing such an argument, Mr. Lenka, learned counsel for the petitioner refers to a judgment of the Apex Court in Raj Kumar Divender Singh and Another Vrs. State of Punjab and others reported in AIR 1973 SC 66 to contend that the possession cannot be unauthorized, if it has been prior to the vesting.

Mr. Mohanty, learned AGA appearing for and on behalf of the opposite parties would submit that the proceeding under the OPP Act is in accordance with law and perfectly justified since the petitioner is in unauthorized occupation of the schedule land and so far as the claim as a tenant under the State Government is concerned, the same was rejected by the OEA Collector-Cum-Additional, Tahasildar, Bhubaneswar in Vesting Misc. Case No.122 of 1981 and confirmed in OEA Revision No.86 of 2000 and further upheld in W.P.(C) No.6509 of 2008. The aforesaid fact weighed the mind of the authorities below and for that matter, the grandfather of the petitioner since could not be held as a tenant duly inducted by the Ex-ruler, Mr. Mohanty lastly submits that there remains no right for the petitioner to possess the schedule land and hence, the impugned orders under Annexures-8 and 10 call for no interference.

Admittedly, the claim of the petitioner did not find favour with the OEA Collector-cum-Additional, Tahasildar, Bhubaneswar in Vesting Misc. Case No.122 of 1981 duly confirmed by the Board of Revenue in OEA Revision No.86 of 2000 and also upheld in W.P.(C) No. 6509 of 2008, wherein, it has been held that no settlement of any tenanted land is contemplated under section 8(1) of the OEA Act. As it is submitted that the matter is presently subjudice before the Apex Court, Mr. Lenka, learned counsel for the petitioner, however, fairly admits that there is no interim order of stay in the SLP. The order dated 9th February, 2022 in W.P. (C) No.6509 of 2008 with its case record, which is made available to the Court, are perused. As a matter of fact, this Court while disposing of W.P.(C) No.6509 of 2008 concluded that consequences of vesting of an Estate stand described in Section 5 of the OEA Act and in so far as a tenant under the ex-intermediary is concerned, as according to Section 8(1) thereof, he shall be deemed as a tenant under the State Government. In other words, by a legal fiction, a tenant before vesting is treated as a tenant under the State in view of Section 8(1) of the OEA Act and for the said purpose, the OEA authority is to verify the revenue record and for that purpose, only to hold an inquiry which is an administrative action and not a quasi-judicial adjudication and with such a conclusion, the decision of the Board of Revenue in OEA Revision No.86 of 2000 was upheld by this Court while disposing of W.P.(C) No.6509 of 2008. In absence of any interim order from the Apex Court in the SLP, the petitioner, as it is contended by Mr. Mohanty, learned AGA, possesses no right to occupy the schedule land which is owned by the Government in respect of which the proceeding under the OPP Act stands initiated.

In view of the order dated 9th February, 2022 in W.P.(C) No.6509 of 2008 and the fact that the petitioner was not treated

and accepted as a deemed tenant under the State Government in view of Section 8(1) OEA Act, rightly, therefore, in the considered view of the Court, the proceeding so initiated in OPP Case No.02 of 2018(L) by opposite party No.2 vis-à-vis the schedule land is absolutely justified and in accordance with law. As the OEA authority declined to consider the petitioner as a tenant under the State Government, a decision confirmed in Revision and thereafter, in W.P.(C) No.6509 of 2008, the Court is of the humble view that opposite party No.2 did not commit any illegality in directing the petitioner to vacate the schedule land by an order in OPP Case No.02 of 2018(L). Law is well settled that a scheme of procedure is prescribed under the OEA Act for a declaration of deemed tenancy and when the petitioner has not been so treated by the OEA authority, any such possession of the schedule land by him later to the vesting of it in the State Government has to be held as unauthorized. So, therefore, in view of the final order in W.P.(C) No. 6509 of 2008 and in absence of any interim order by the Apex Court in SLP which is stated to be pending, the Court has no other option except to reach at a conclusion that the possession being unauthorized rightly, therefore, the authorities below directed his eviction. In other words, the Court finds no justification or any such ground to interfere with the impugned orders under Annexures-8 and 10.

Accordingly, it is ordered.

In the result, the writ petition stands dismissed.

…………………………