Sradhakar Naik vs State of Orissa and Another

K.S. Raghupathi, Member

This is a Second Appeal u/s 13(2) of the Orissa Merged Territories (Village Offices Abolition) Act against the order of the Additional District Magistrate, Sundergarh passed on 27 October 1973 in his case Revenue Appeal No. 22 of 1972.

In an objection filed in regard to the Draft Jamabandi, relating to settlement of Bhogra Lands of village Bhedabahal in the district of Sundergarh, Sradhakar Naik and Sashidhar Naik had claimed that certain plots which had been excluded for settlement were in their joint enjoyment and possession, as co-sharers, and ought therefore to be settled with them. The objection was overruled. An appeal taken to the Additional District Magistrate was dismissed. Hence this second appeal. Sashidhar Naik has however dissociated himself in the second appeal and has been impleaded as a Respondent.

The law is now well settled with the decision of the Supreme Court in Maguni Charan Dwivedi Vs. State of Orissa and Another, , and the Orissa Merged Territories (Village Offices Abolition) Amendment Act 1976. Accordingly with the consent of the parties, the hearing before the Board of Revenue has been confined within the law as now settled.

Plots 270, 255, 269, 285, 275/1, 286/2, 3/2, 10/2233 and 5 are all classified as Bandhas, Mundas and Katta Adis. Sections 2 and 3 of the Amendment Act of 1916 will preclude settlement of these plots unless it be established that they were not water reservoirs used for irrigation or for communal purposes. It has been argued that plots 3/2. 5 and 10/2233 and plots 285/1 and 285/2 were not such water reservoirs on the appointed date. It is claimed that they had been converted into paddy lands and were in the actual cultivating possession of Sradhakar Naik.

On the other hand in the case of plots 733, 733/1, 745/1, 745/2, 747, 747/1, 747/4 and 748 which had been described as Goda, Panibahal and Mal in settlement records but which had been converted into a water reservoir well before the appointed date it is conceded that the water reservoir is used for irrigation exclusively of the lands of the Appellant and Respondent No. 2 and not for any communal purpose.

Section 2 of the Amendment Act of 1976 reads-

In Section 5 of the Orissa Merged Territories (Village Offices Abolition) Act 1963 (hereinafter referred to as the principal Act), after Sub-section (1), the following proviso shall be and shall be deemed always to have been inserted, namely:

Provided that no water reservoir, whether known as tank, munda, bandha, kata or by any other name whatsoever, which forms part of such bhogra land and which was being used for the purposes of irrigation or for any communal purpose, shall be settled with the holder of the village office or with any other person as aforesaid.

The 2. 245 acres, out of plot No. 285, which are claimed to have been brought under cultivation of paddy, for a number of years would not be hit by the Amendment Act if it were established that those 2. 45 acres were not in use as a water reservoir. It is not enough if it were cultivated in some years when the level of water in the reservoir had gone down. However, it is not necessary for the case to be remanded on this score, for further enquiry by the local revenue authority. This land was admittedly, in joint possession and not in separate and actual cultivating possession of the Appellant. It is now well settled law that for any parcel of Bhogra land to be settled with an eligible person it must now only have been in his actual cultivating possession but that it must have been in such possession separately from any other person.

For the same reasons the claim to Acs. 1.02 of plots 3/2, 5 and 10/2233 will fail.

In regard to the water reservoirs formed out of plots 733, 745, 747 and 7-18 it has been argued that there are no communal rights and that the water reservoir was being used to irrigate the lands of the Appellant and Respondent No. 2 exclusively. I find from the records that there is an error in this statement. The water from the reservoir was used to irrigate, in addition to the lands claimed by the Appellant and Respondent No. 2, other Bhogra lands. Further, there is a distinction drawn in the new proviso, inserted through the Amendment Act of 1976, between water reservoirs used for irrigation and those used for other purposes like bathing, drinking or any, rearing of fish. It is not necessary in the case of a reservoir used for irrigation that it need be used for any communal purpose for it to come within the ambit of the Amendment Act. On the other hand, in the case of a tank which is not used for irrigation, it is necessary that it is used for communal purposes.

The appeal would accordingly fail and is dismissed.

Appeal dismissed.