K.R. Mohapatra, J.—Legality and propriety of the order dated 10.11.1995 passed by the Member, Board of Revenue, Orissa, Cuttack in O.E.A. Revision Case No. 9 of 1994 under Section 38-B of the Orissa Estate Abolition Act, 1951 (for short ''the Act'') is under challenge in this writ petition.
2. The dispute relates to C.S. Plot No. 583 to an extent of Ac.2.00 under Khata No.168 of village Nuagaon, Nimapara Tahasil, Kissam "Kanta Jangal-Anabadi" in the district of Puri (for short ''the case land''). The case land was a part of intermediary estate recorded in the name of Mahanta Gadadhar Ramanuj Das Goswami of Emar Math.
The case of the petitioner in nut shell is that on 02.09.1938, the exintermediary granted permanent lease in favour of the father of the petitioner, namely, late Nalu Nayak, for the purpose of agriculture and inducted him as a tenant on payment of rent. In the year 1953-54, the estate vested to the State free from all encumbrances. On the date of vesting, the father of the petitioner was in cultivating possession over the disputed land by virtue of the said permanent lease. In the year 1973, said Nalu Nayak initiated OEA Case No. 595 of 1973 to recognise him as a tenant under the State and to accept the rent from him. Thus, the Tahasildar, Nimapara on 14.08.1973 directed the R.I. to make an enquiry in respect of the claim of said Nalu Nayak and submit a report to that effect. The R.I. conducted an enquiry and submitted his report on 16.11.1973 stating that the father of the petitioner was inducted as a tenant by the ex-Landlord and was continuing in possession over the same till the date of submission of the report. Taking into consideration the report of the R.I., the Tahasildar, Nimapara vide his order dated 25.1.1974 directed for realisation of rent from the petitioner accepting him as a tenant under the State over the case land. Accordingly, rent was accepted from the petitioner on 26.5.1974 with effect from 1953-54 and he was recognised as a tenant under the State on payment of rent for a period of twenty years. However, some of the villagers filed an application before the Tahasildar, Nimapara on 01.07.1975 challenging the correctness of the said proceeding under which the petitioner was recognised as a tenant by the State. Considering the grievance of the villagers, the Tahasildar, Nimapara on 06.08.1975 reopened the matter and directed for fresh hearing of the matter. On 28.4.1976, the Tahasildar, Nimapara reviewed his own order and cancelled the Patta issued in favour of the father of the petitioner. Assailing the same, the father of the petitioner, namely, Nalu Nayak, preferred OEA Appeal No. 2 of 1976. The Sub-Collector, Nimapara by his order dated 23.05.1979, set aside the order of cancellation dated 28.04.1976 and restored the original order dated 25.01.1974. Subsequently, on recommendation of the Tahasildar, Nimapara, the Collector, Puri referred the matter to the Member, Board of Revenue, Cuttack for initiation of the proceeding under Section 38- B of the Act to revise the order of settlement made in favour of the petitioner. On the basis of the said reference, OEA Revision Case No. 9 of 1994 was initiated by the Member, Board of Revenue, Orissa, Cuttack-opposite party No. 2. The opposite party No. 2 taking into consideration several aspects of the matter allowed the revision holding that the order dated 25.01.1974 of the Tahasildar, Nimapara is not sustainable in the eye of law and set aside the same. The petitioner being aggrieved by the said order has filed this writ petition.
3. The petitioner assailed the order of the Member, Board of Revenue, Orissa, Cuttack mainly on the ground of maintainability of the revision contending that the instant revision cannot be entertained after lapse of twenty one years of passing of the order by the Tahasildar, Nimapara. Further, he challenged the findings recorded in the impugned order on merit.
4. The opposite parties filed their counter affidavit refuting the allegations made in the writ petition. Admitting the chronology of events set out in the writ petition, the opposite parties stated that since the Tahasildar, Nimapara has settled the land in favour of father of the petitioner in exercise of power under Section 8(1) of the Act in OEA Case No.595 of 1973, the same is amenable to the revisional jurisdiction of the Member, Board of Revenue, Orissa, Cuttack. It is further contended in the counter affidavit that the case land was never leased out in favour of the father of the petitioner and unregistered lease deed (Annexure-1) is not admissible under law. The case land is incapable of being leased out as it is a Kanta Jungle kissam of land, the rent receipts alleged to have been issued by the Ex-intermediary are forged and fabricated for the purpose of this case. After vesting of the estate in the year, 1953 under Section 3 of the Act read with G.O. No. 3026/E.A. dated 27.11.1953, the Ex-intermediary did not furnish any Zamabandi in favour of Nalu Nayak, the father of the petitioner. Further, relying upon a decision in the case of State of Orissa v. Brundaban Sharma, reported in (1995) Supp.3 SCC 249, the opposite parties submitted that conferment of tenancy right by the Tahasildar, Nimapara without confirmation of the Member, Board of Revenue, Orissa, Cuttack, is without jurisdiction. Though proclamation issued by the Tahasildar, Nimapara in his order dated 28.11.1973 inviting public objection was stated to have been served in the locality and Bhaskar Lenka, Khetra Mohan Biswal, Achambit Lenka, Nishakar Lenka and Maheswar Lenka were stated to have signed on the body of the said proclamation, but subsequently they filed affidavits stating that they had not signed on the proclamation and their signatures were forged. They also stated in the affidavits that the villagers came to know about the settlement of the land in favour of the present petitioner, when he removed the embankment of the tank which was used for public and charitable purpose. This necessitated the Tahasildar, Nimapara to review his own order and cancelled the Patta issued in favour of Nalu Nayak vide his order dated 28.4.1976. However, the order of the Tahasildar, Nimapara dated 28.4.1976 was set aside by the Sub-Divisional Officer, Puri in OEA Appeal No.2 of 1976 and the order dated 25.1.1974 passed by the Tahasildar, Nimapara was restored. The said fact was brought to the knowledge of the Tahasildar, Nimapara by the villagers in the year, 1992. The Tahasildar, Nimapara after verifying the case record in OEA Lease Case No. 595 of 1973 submitted a proposal to the Collector, Puri for filing of a revision under Section 38-B of the Act. The petitioner assailing initiation of OEA Revision Case No. 9 of 1994 moved this Court in OJC No. 2540 of 1995. The said writ petition was disposed of on 8.5.1995 with an observation that the writ application was premature. Further, this Court held that all the points with regard to the maintainability of the OEA Revision so also merit of the case can be agitated before the Member, Board of Revenue, Orissa, Cuttack. Accordingly, the Member, Board of Revenue, Orissa, Cuttack proceeded with the Revision Case No. 9 of 1994 and passed the impugned order. All the four issues raised by the petitioner have been discussed in thread bare by the Member, Board of Revenue, Orissa, Cuttack while adjudicating the matter. It is also contended that the Member, Board of Revenue, has dealt with the matter in its proper perspective and passed the reasoned order referring to the facts and law involved in the case. As such, the same warrants no interference by this Court.
5. Mr. N.K. Sahu, learned counsel for the petitioner assailing the impugned order raised the following points for consideration.
(i) The order dated 25.01.1974 passed by the Tahasildar, Nimapara in OEA No.595 of 1973 cannot at all said to be an order of settlement made under the provisions of the Act. It is merely the order of recognition of tenancy of the petitioner under Section 8 (1) of the Act;
(ii) Thus, the Revision under Section 38-B of the Act is not maintainable and the Member, Board of Revenue has no jurisdiction to exercise power under Section 38-B of the Act;
(iii) The Revision is not entertain able after lapse of 21 years of passing of the order dated 25.01.1974 by the Tahasildar, Nimapara.
(iv) The findings recorded by the Member, Board of Revenue are devoid of any merit and thus, the impugned order is not sustainable in the eye of law.
6. Mr. Sahu in support of his contentions submitted that the Tahasildar, Nimapara has no jurisdiction to settle the land in purported exercise of power under Section 8(1) of the Act accepting premium for such settlement conferring tenancy right on a person. In such event, the Member, Board of Revenue has jurisdiction to entertain suo motu revision in exercise of power under Section 38-B of the Act. In the instant case, father of the petitioner made an application to recognise him as tenant by accepting rent though no application is contemplated under Section 8(1) of the Act. However, the Tahasildar dealt with such application on the administrative side and made enquiry in order to be satisfied that the petitioner was, in fact, in possession of the holding (case land) as a tenant under the ex-intermediary on the date of vesting. Thus, the order passed under Section 8(1) of the Act is not amenable to the revisional jurisdiction of the Member, Board of Revenue. The father of the petitioner, namely, Nalu Nayak, was inducted as a tenant under the ex-intermediary by virtue of an unregistered lease deed executed on 02.09.1938 (Annexure-1). Said Nalu Nayak continued to be in cultivating possession of the case land on payment of rent to the ex-intermediary till the date of vesting. Some of the receipts granted by the ex-intermediary are annexed to the writ petition as Annexure-2 series. After the date of vesting, the father of the petitioner continued to be in cultivating possession over the case land. In order to be recognised as a tenant under the State, said Nalu Nayak made an application under Section 8(1) of the Act and was accordingly recognised as a tenant on acceptance of rent (Annexure-4 series).The Tahasildar, Nimapara having no jurisdiction reviewed the said order vide order dated 28.04.1976. However, the Sub-Divisional Officer, Puri set aside the order dated 28.4.1976 in OEA Appeal No.2 of 1976 and the original order dated 25.01.1974 was restored. Accordingly, ROR was issued in favour of the petitioner under Sthitiban status (Annexure-7). Neither the order dated 23.05.1979 passed in OEA Appeal No.2 of 1976 nor the ROR was ever challenged in the higher forum within the statutory period. Thus, the same attained finality. After the lapse of 21 years, on the recommendation of the Tahasildar, Nimpara, the Collector, Puri referred the matter to the Member, Board of Revenue and the learned Member, Board of Revenue exercised its power under Section 38-B of the Act, which is without jurisdiction.
7. In order to test the veracity of the contentions raised by Mr. Sahu, this Court examined the case record produced by Mr. Kishore Kumar Mishra, learned Additional Government Advocate. On perusal of the application dated 14.08.1973, it appears that the petitioner on behalf of his father, Nalu Nayak made a prayer, inter alia to declare him as a tenant under the State and to accept rent from him with effect from the date of vesting. On consideration of his application, the Tahasildar, Nimapara vide his order dated 25.01.1974 settled the case land in favour of the petitioner subject to payment of Salamai of Rs. 11 and 22 paise. The nature of prayer made in the application and the aforesaid order passed by the Tahasildar do not come within the purview of Section 8(1) of the Act. Law is no more res integra on this issue. A Full Bench of this Court in the case of Smt. Basanti Kumari Sahu v. State of Orissa And Ors., reported in 73(1992) CLT 868 had held as follows:-
"10. Where, however, in exercise of powers under Section 8 (1), the officer settles the land with the applicant in course of a proceeding and confers tenancy right, the proceeding, the adjudication and the settlement are without jurisdiction. A proceeding in purported exercise of jurisdiction not vested, i.e., by usurpation of jurisdiction, is also a proceeding under the Act and Section 38-B would be attracted and the Board of Revenue in exercise of powers conferred by Section 38-B would be entitled to annul the same."
8. In the case of Chandra Sekhar Rath v. Collector, Dhenkanal, reported in 1988 (II) OLR 572, this Court relying upon a Full Bench decision in the case of Radhamani Dibya and others v. Braja Mohan Biswal and others, reported in 57 (1984) CLT 1 categorically came to the conclusion that a person seeking declaration/recognization as a tenant under the exintermediary can only move the common law forum, i.e., Civil Courts having competent jurisdiction for redressal of his grievance. Similar view is also taken in the case of State of Orissa v. Baidyanath Jena (since dead), reported in 2013 (II) OLR 780.
In view of the law laid down in the decision referred to supra, there is no room for doubt that the Tahasildar, Nimapara exceeded his jurisdiction by settling the land in favour of the petitioner in exercise of power under Section 8(1) of the Act and the same is amenable to the revisional power conferred on the Member, Board of Revenue under Section 38-B of the Act.
9. Mr. Sahu, further contended that the power under Section 38-B of the Act should not have been exercised after a lapse of 21 years from the date of the order, i.e. 25.01.1974, passed by the Tahasildar, Nimapara recognising the petitioner as a tenant.
10. No period of limitation has been prescribed for exercise of power under Section 38-B of the Act. Borrowing the words from the case of Brundaban Sharma (supra), it can be said that the revisional power conferred on the Board of Revenue under Section 38-B of the Act should be exercised in a reasonable manner which inheres the concept of exercise of power within a reasonable time. Absence of limitation is an assurance to exercise power with caution or circumspection to effectuate the purpose of the Act, or to prevent miscarriage of justice or violation of the provisions of the Act or misuse or abuse of the power by the lower authorities or fraud or suppression. Length of time depends upon the factual scenario in a given case. The Member, Board of Revenue has dealt with the issue of limitation at paragraph-14 of the impugned order. On assessment of the materials, he observed that the villagers as early as on 01.07.1975 raised objection with regard to settlement of the land in favour of the petitioner. On hearing the parties, the Tahasildar, Nimapara by order dated 28.04.1976 cancelled such settlement. The said order was not given effect to and the Patta issued in favour of the petitioner was not cancelled. The petitioner, however, assailed the said order in OEA Appeal No. 2 of 1976 without impleading the villagers at whose instance the settlement was cancelled as parties. When they came to know that the order dated 28.04.1976 was set aside by the appellate authority vide order dated 23.05.1979 in OEA Appeal no. 2 of 1976, they made grievance before the Tahasildar, Nimapara. Upon receiving complaint from the villagers, the Tahasildar, Nimapara verified the case record and upon being satisfied that there are illegalities and irregularities in settlement of land in favour of the petitioner, moved the Collector, Puri. The Collector, Puri in turn, on assessment of the materials on record referred the matter to the Member, Board of Revenue. The Tahasildar, Nimapara has no power or authority of conferment of a tenancy right while exercising power under Section 8 (1) of the Act as has been done in this case. An order passed without jurisdiction is non est in the eye of law and can be challenged at any time. Limitation would not stand on the way of challenging such order. Thus, taking into consideration the facts and circumstances of the case, it cannot at all be held that the power under Section 38-B of the Act was not exercised within a reasonable period.
11. The next question that arises for consideration is whether the impugned order is sustainable on merit. Mr. Sahu, learned counsel for the petitioner strenuously urged that the father of the petitioner, namely, Nalu Nayak was inducted as a tenant and permanent lease was granted in his favour on 02.09.1938 by executing an unregistered deed of lease (Annexure- 1). By virtue of the said lease, he continued to be in possession and paid rent to the ex-intermediary. In support of his case, the petitioner also filed copies of certain rent receipts (Annexure-2 series). The estate vested to the State in the year 1953. On the date of vesting, the father of the petitioner was in cultivating possession over the case land. Further, the Tahasildar, Nimapara initiated OEA case No. 595 of 1973 and recognised the petitioner as a tenant and accepted rent from him. Thus, he continued to be a tenant under the State on payment of the rent. He further contended that the statute does not provide the mode of enquiry to be conducted by the Tahasildar while exercising power under Section 8(1) of the Act. The Tahasildar can make such enquiry as would deem necessary for acceptance of rent from the person who has been in possession of the holding of the ex-intermediary on the date of vesting. Thus, the Patta granted by the ex-intermediary coupled with the rent receipts convey that the petitioner was a tenant under the ex-intermediary. Further, the report of the R.I. pursuant to the direction of the Tahasildar, Nimapara clearly disclosed that the father of the petitioner was a tenant under the ex-intermediary. Mr. Sahu also relied upon a letter dated 08.01.1974 purported to have been issued by the law agent of the ex-intermediary recognising the petitioner as a tenant. Thus, he claimed that the petitioner was rightly recognised as a tenant by the Tahasildar, Nimapara. Learned Member, Board of Revenue at paragraph-16 of the impugned order discussed regarding rent receipts stated to have been granted by the ex-intermediary. He has scrutinised the rent receipts meticulously. The first rent receipt stated to have been granted by the ex-intermediary bears Sl. No. 21152 and a sum of Rs. 4/- and 2 anna has been tendered as rent for 1344-45 sala and the person who alleged to have accepted the rent have signed the receipt on 05.09.1938. On scrutiny of the said rent receipt, the Member, Board of Revenue came to a conclusion that though the Chirastai Patta stated to have been executed on 02.09.1938, the rent was accepted for the period when the lease deed was not in existence, which is not permissible under law. Further, he also found some irregularities in subsequent rent receipts, such as, over-writing in the rent receipt dated 04.09.1944. Further, the Chirastai Patta (Annexure-1) stated to have been issued by the ex-intermediary is an unregistered one. Law is well-settled that an agricultural tenancy can be created orally and no deed is required to be executed for the same, but when such deed is reduced to writing, which is subject to payment of rent, it requires registration under Section 17 of the Indian Registration Act, 1908 and if the same is not registered, the deed renders inadmissible in evidence as per Section 49 of the Indian Registration Act. This view gets support from a decision in the case of Sita Maharani And Ors v. Chhedi Mahto And Ors., reported in AIR 1955 SC 328. Further, in the case of Ram Nath Mandal And Ors. v. Jojan Mandal And Ors, reported in AIR 1964 Patna 1 (FB), their Lordships held as follows:-
"�................under Section 117 of the Transfer of Property Act a lease for agricultural purposes is not necessary to be made by a written instrument. It may be effected by an oral agreement, and when so effected no registration is required, but if the transaction is reduced to writing, then, in the case of a lease from year to year or for any term exceeding a year or reserving a yearly rent, registration would be required under Section 17 of the Registration Act, and, if unregistered, the lease will be inadmissible in evidence under Section 49 of the Registration Act, and other evidence of its terms will be precluded under Section 91 of the Evidence Act�......."
The petitioner claims that his father, namely, Nalu Nayak, was in cultivating possession over the case land on the date of vesting. On the other hand, the villagers claimed that said Nalu Nayak was never in possession over the case land. They came to know about such erroneous recording of the case land in the name of the petitioner, when he created disturbance and tried to cut the ridge. To invoke a right under Section 8 (1) of the Act, two basic requirements are to be satisfied i.e. (i) a person claiming to be tenant under the ex-intermediary has to satisfy the authority that he was, in fact, inducted as a tenant under the ex-intermediary and (ii) he was in cultivating possession over the land in question on the date of vesting. Thus, question of possession plays a vital role in invoking right under Section 8 (1) of the Act. The nature of enquiry conducted by the Tahasildar, Nimapara under Section 8 (1) of the Act is administrative in nature. Thus, the Tahasildar, Nimapara while exercising the power under Section 8 (1) of the Act has no scope to adjudicate the disputed question of possession, which is under the exclusive domain of Civil Court having jurisdiction. In view of the above, none of the basic requirements of Section 8 (1) of the Act is satisfied in this case and thus, no reliance can either be placed under Annexure-1 or Annexure-2 series, i.e., Chirastai Patta and the rent receipts stated to have been granted by the ex-intermediary and the petitioner cannot derive any benefit out of the same.
12. In that view of the matter, the impugned order needs no interference. Accordingly, the writ petition fails and stands dismissed.
