| Reportable |
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 9085 of 2012
( Arising out of SLP (Civil) Nos.14618 of 2009)
Chandradhoja Sahoo … Appellant(s)
Versus
State of Orissa and others. … Respondent(s)
With
CIVIL APPEAL No. 9086 of 2012
( Arising out of SLP (Civil) No. 14751 of 2009)
J U D G M E N T
RANJAN GOGOI, J
1. Leave granted.
2. Both the appeals are directed against two separate but identical
orders dated 13.05.2009 passed by the High Court of Orissa whereby the High
Court has held that no legal or valid right has accrued to the two
appellants under the lease(s) granted in respect of two separate areas of
land as claimed by them. As the facts of the two cases are identical, for
brevity, reference to the facts in the appeal arising out of S.L.P. (C)
No.14618 of 2009 [Chandradhoja Dahu versus State of Orissa and others]
would suffice. Similarly, reference to the appellants, hereinafter, is
being made in the singular for purpose of clarity.
3. The appellant had instituted a writ petition (W.P.(C) No. 337/2008)
before the High Court of Orissa contending that sometime in the year 1979
he, as a landless person, had applied for grant of a lease of government
wasteland. On the basis of the aforesaid application W.L. Case No. 71/1979
was registered in the file of the Tehsildar, Bhubaneswar. Notices were duly
issued and served and the report of the Amin was called for and considered
by the Tehsildar. Thereafter an order dated 26.3.1979 was passed settling
the land mentioned below in favour of the appellant for agricultural
purposes with the liability to pay rent as a “bagayatdui”:
“LAND SCHEDULE
MOUZA– Patia, Khata No.493, Plot No.516, Area Ac.1.107 decs
301 Area Ac 0.93 decs.
Ac.2.00 ”
4. Specifically, the appellant had claimed that in the report of the
Amin it was mentioned that the settlement operations of village Patia had
been completed and in the Record of the Rights of the said village
published in the year 1973, plot numbers 516 and 301 have been recorded as
“Kanta Jungle”. However, the said land did not find any place in the
reservation proceedings. As the land had not been reserved for any specific
purpose it was stated in the aforesaid report that the same was surplus
land. Furthermore, according to Amin, spot enquiries had revealed that
there was no forest growth over the land and therefore the surplus land
could be settled for agricultural purposes. Consequently, by the order
dated 26.3.1979, settlement of the land was made in favour of the
appellant. Thereafter, by order dated 28.5.1979, the Tehsildar had directed
for correction of the Record of Rights and issuance of patta in favour of
the appellant.
5. As the Record of Rights was not corrected and patta was not issued
inspite of the order of the Tehsildar the appellant approached the
Tehsildar once again in the year 2004. The Tehsildar called for a detailed
report in the matter from the Revenue Inspector. According to the
appellant, the report of the Revenue Inspector was submitted on 6.7.2004
specifically mentioning that the Record of Rights had not been corrected
and patta had not been issued to the appellant and the other persons
mentioned in the report of the Revenue Inspector. On the basis of the
report of the Revenue Inspector dated 6.7.2004, the Tehsildar addressed a
communication dated 27.8.2004 to the Sub-Collector, Bhubaneshwar, seeking
his instructions as to whether the Record of Rights is to be corrected and
pattas are to be issued to the concerned persons including the appellant.
Despite the above, as no steps were taken in the matter the appellant moved
the Board of Revenue seeking appropriate directions. The learned Board by
order dated 7.1.2005 directed the Tehsildar to correct the Record of Rights
in terms of the order dated 26.3.1979 passed in W.L. Case No. 71 of 1979
within a period of 15 days and, thereafter, report compliance of the action
taken.
6. As the order of the Board of Revenue dated 07.01.2005 was also not
implemented a Writ Petition i.e. WP(C) No.281 of 2007 was filed by the
appellant before the High Court for appropriate directions commanding the
respondents therein to give effect to the said order of the Board. The
Writ Petition was disposed of by the High Court, at the admission stage, on
26.02.2007 directing the Tehsildar, Bhubaneswar to forthwith comply with
the directions issued by the Board of Revenue by its order dated
07.10.2005.
7. Thereafter on 25.08.2007 and while Writ Petition No.281 of 2007 was
pending, the State of Orissa filed an application before the Board of
Revenue for recall of its order dated 07.01.2005. By order dated
12.10.2007 the said application (registered as Misc. Case No.8 of 2007) was
entertained and the earlier order of the Board dated 07.10.2005 was
suspended. While the matter was so situated the State filed a Letters
Patent Appeal (Writ Appeal No.129 of 2007) before the High Court
challenging the order dated 26.02.2007 passed in Writ Petition No. 281 of
2007, inter-alia, on the ground that the said order was passed ex-parte in
so far as the State is concerned. The aforesaid LPA was disposed of on
25.07.2008 remanding the matter to the learned Single Judge for a de novo
consideration after taking into account the stand of the State in the
matter. It is at this stage that WP(C )No.337 of 2008 was filed by the
appellant challenging the proceedings before the Board of Revenue (Misc.
Case No. 8 of 2007) seeking recall of its order dated 07.01.2005. It is in
the said Writ Petition that the impugned order has been passed giving rise
to the present appeals.
8. We have heard Mr. Ranjit Kumar, Ms. Pinky Anand, Mr. J.K. Das, Mr.
Pramod Swarup, learned senior counsels and Mr. Rajdipa Behura, learned
counsel on behalf of the contesting parties.
9. The case urged by the appellant before the High Court has already
been noticed. We may therefore proceed to take note of the stand taken on
behalf of the official respondents before the High Court.
In the counter affidavit filed by the Tehsildar, Bhubaneswar it was
averred that on receipt of a copy of the order dated 26.02.2007 passed in
WP(C )No. 281 of 2007, the Tehsildar, Bhubaneswar, examined the case
records of W.L. Case No.71 of 1979. On such examination it was found that
the record of the said case including the report of the Amin and the order
dated 26.3.1979 passed therein are forged and fabricated. The report dated
06.07.2004 of the Revenue Inspector to the Tehsildar and the communication
dated 27.8.2004 of the Tehsildar to the Sub-Collector are claimed to be non-
existent. The signatures of the Tehsildar at different places in the record
of the proceedings of W.L. Case No.71 of 1979 including those appended
below the orders passed, including the orders dated 26.3.1979 and
28.5.1979, are forged and fabricated. The case registered as W.L. Case
No.71 of 1979 was entered in the Case Register on 22.1.1979 though W.L.
Case Nos. 71-77 of 1979 were already entered in the Register on a previous
date i.e. 19.1.1979. No notice was issued to the Gram Pancayat or
published by beating of drums. No proper enquiry was conducted whether the
appellant was a landless person so as to be eligible for grant of a lease.
In the said affidavit it was further mentioned that though, according to
the appellant, the lease was granted by the order of Tehsildar dated
26.03.1979 the case record was not available in the record room of the
Tehsil. In fact, according to the official respondents, the appellant had
obtained certified copies of the orders in the W.L. Case No.71 of 1979 in
the year 2004 i.e. after nearly 25 years of the grant of lease claimed to
have been made by the order dated 26.03.1979. It is on the basis of the
copies of such orders, obtained belatedly and in highly suspicious
circumstances, that the appellant had approached the different forums
claiming relief, as already noticed. The above, in substance, was the stand
of the State in the writ proceeding before the High Court.
10. In the affidavit filed, alternatively, it was claimed that the
plots in question were recorded in the Record of Rights as ‘Kanta jungle”
which entries would have the effect of bringing the land within the purview
of the Orrisa Communal Forest and Private Lands (Prohibition of Alienation)
Act, 1948 (hereinafter referred to as the Act of 1948). According to the
respondents, the land is covered by the definition of ‘Communal land’ or
‘Forest land’ under the Act of 1948. The same, therefore, could not have
been leased out to any person without the previous sanction of the
Collector. Any such transfer after the notified date i.e. 01.04.1996 would
be invalid unless such invalidation is saved by the proviso to Section 4
which is not so in the present case. Furthermore, according to the State,
the expression “landlord” defined by Section 2(d) of the Act of 1948 is
comprehensive enough to include the State.
11. It would thus appear from the stand taken by the State that the
claim made by the appellant in the Writ Petition filed before the High
Court was resisted on two principal grounds, namely :
1) No valid order passed on the basis of an appropriate
proceeding in law exists so as to recognize any right
in the appellant to the land under the lease claimed;
and
(2) The land having been shown as “kanta jungle’ in the Record
of Rights lease of the said land, even if assumed, is void being
contrary to the provisions of the Act of 1948.
12. To appreciate the respective stands of the parties before the High
Court it will be useful to notice the definition of ‘Communal land’ and
‘Forest land’ as defined in Section 2(a) and (c) of the Act of 1948:
“(a) “Communal land” means –
(i) in relation to estates governed by the Madras Estates Land Act,
1908 (Mad. Act I of 1908), land of the description mentioned in sub-
clause (a) or sub-clause (b) of C1. (16) of Sec.3 of that Act; and
(ii) in relation to cases governed by the Orissa Tenancy Act, 1913
(B.& O. Act 11 of 1913), lands recorded as gochar, rakshit or
sarbasadharan in the record-of-rights or waste lands which are
either expressly or impliedly set apart for the common use of the
villagers, whether recorded as such in the record-of rights.
x x x x x
(c) “forest land” includes any waste land containing shrubs and
trees and any other class of land declared to be forest land by a
notification of the [State][1] Government.”
13. Certain other significant facts must be taken note of now. It
appears that during the pendency of the present appeals, impleadment
applications have been filed on behalf of the Orissa Industrial
Infrastructure Development Corporation –IDCO, (impleaded as respondent
No.6) and one Smt. Malaya (no formal orders for impleadment has been
passed). According to the aforesaid respondent No.6 by a Government order
dated 24.01.1986 sanction for alienation of Government land to the extent
of Ac 707.93 in Patia village under the Bhubneshwar Tehsil had been
accorded in favour of the Managing Director, IDCO for establishment of the
Chandaka Industrial Nucleus Complex on payment of premium and ground rent.
Possession of the said land was already handed over to IDCO on 14.10.1985
and a lease deed bearing No. 1381 dated 05.02.1986 was executed between the
Collector, Puri and IDCO in respect of the land for a total consideration
of Rs.17,69,825. The aforesaid documents i.e. sanction order dated
24.01.1986; letter of handing over possession dated 04.10.1985 and lease
deed No.1381 dated 05.02.1986 have been brought on record by the aforesaid
respondent No.6. The schedule of the land mentioned in the said documents
would go to show that a part of the land in respect of the which the
present claim had been made by the appellant (Khatta No.493 plot No.516)
had been allotted to IDCO on the basis of the documents referred to
hereinabove. The respondent No.6 further claims that the entire land
covered by Plot No.561 allotted to it had been developed and handed over to
different units/establishments for starting their respective projects and
possession of such land had also been handed over to such units long back.
In fact, the other applicant who had sought impleadment claims to have
been allotted a part of the land covered by plot No.516 (Ac 0.500 decimals)
located at Industrial Estate, Chandka, Bhubneswar by the IDCO by letter
dated 27/29.06.2001.
14. As already noticed two questions had arisen for determination
before the High Court on the conspectus of the facts noted above. The first
is whether the case record of W.L. Case No. 71 of 1979, including the
reports and orders passed therein, are forged and fabricated. The second is
assuming the lease as claimed by the appellant to have been granted whether
the same is permissible under the provisions of the Act of 1948. The
questions posed above not only indicates that the second may be contingent
on an answer to the first and, in any case, as discussed hereinafter, there
is a fair amount of co-relation between the two questions though the same
may appear to be independent of each other.
15. The High Court did not record any specific finding with regard to the
allegations of forgery and fabrication of the case record of W.L. Case No.
71 of 1979 and the orders passed therein on the basis of the claims and
counter claims raised before it. The conclusion of the High Court that
“serious irregularities had been committed while granting the lease about
which it was stated in the counter affidavit” and that “it is also revealed
from the counter affidavit that before grant of lease no enquiry was ever
conducted” indicates a mere passive acceptance of the stand projected by
the State without any attempt to verify the correct position on the issue.
Infact a reading of the judgment would indicate that the High Court did not
go into the first question raised before it in any acceptable manner.
Instead, the High Court thought it proper to proceed on the basis that the
land in respect of which claims had been made by the appellant is covered
by the provisions of the Act of 1948 and the leases granted, as claimed,
were void as the conditions precedent for the grant of such leases, as
prescribed by the statute, had not been complied with. On the said basis
the High court came to the conclusion that no legal right in respect of the
land in question can be recognized in the appellant. Accordingly,
directions were issued for resumption of the land in question by the State.
16. It has already been indicated in the earlier part of this order that
the two questions that arose before the High Court may not be independent
of each other and infact the answer to the second question may be
contingent on an effective resolution of the first. Having given our
anxious consideration to the matter we are of the view that the manner in
which the High Court had proceeded to decide the writ petition, namely, by
an inconclusive and vague determination of the first issue and instead, by
attempting to answer the second is not only unacceptable but certain
fundamental errors are inherent and, therefore, writ large in the said
approach, to which area we must now travel.
17. The publication of the Record of Rights of Mouza Patia Village in the
year 1973 showing the land covered by plot No. 516 and 301 as “Kanta
jungle” was noticed in the report of the Amin submitted to the Tehsildar.
However,
in the said report, it was mentioned that there was no forest
growth over the land and also that the aforesaid land did not find any
place in the reservation proceedings.
It was also reported that the land,
not having been reserved for any specific purpose, was surplus land
available for settlement for agricultural purposes.
Pursuant to the said
report the Tehsildar by order dated 26.3.1979 granted settlement of the
land in favour of the appellant and on 28.5.1979, on expiry of the appeal
period, it was directed that the Record of Rights be corrected and patta be
issued in favour of the appellant.
In the record of proceedings of W.L.
Case No.71 of 1979, it is also recorded that the aforesaid orders were
passed by the Tehsildar upon due service of notice.
The State contended
that the aforesaid facts are wholly non-existent and the reports mentioned
and orders issued in connection with W.L. Case No.71 of 1979 are forged and
fabricated.
In fact, according to the State, the entire claim of the
appellant was based on non-existent facts conceived in fraud and deceit and
there was no case registered as W.L. Case No.71 of 1979 in respect of the
plot Nos. 516 and 301.
If the version put forth by the appellant is
correct, the outcome/decision on the second issue before the High Court
would have certainly stood answered in his favour inasmuch as in such a
situation the question of applicability of the Act of 1948 would not arise.
If the answer to the said question was, however, to be adverse to the
appellant and in favour of the State, the appellant would not be entitled
to any relief from the Court on a more fundamental principle than what the
second question had raised inasmuch as in that event the principle that
“fraud and justice never dwell together” would come into play.
The
elaborate discussions on the said principle of law in Meghmala vs.
G.Narasimha Reddy[2] made by one of us (Sathasivam,J.) may be remembered at
this stage with abundant profit.
Besides, the additional facts now made
available to the court on behalf of the IDCO namely, that a part of the
land covered by plot Nos. 516 and 301 had been alienated in favour of IDCO
under the provisions of the Orissa Land Settlement Act would require a
closer examination of the question as to how such an alienation could have
been made in favour of the IDCO if the land was recorded as “Kanta Jungle
in the Record of Rights published in the year, 1973.
18. The discussions that have preceded reasonably lead to the conclusion
that the approach of the High Court in attempting to resolve the conflict
between the parties suffer from a fundamental error which would justify a
correction. The High Court ought not to have split up the two questions as
if they were independent of each other and on that basis ought not to have
proceeded to determine the second question without recording acceptable
findings on all aspects connected with the first.
The extracts from the
order of the High Court made above discloses mere acceptance of the version
of the State as disclosed in the counter affidavit filed without any
attempt to enter into the core questions that the conflicting claims of the
parties had thrown up. If required, the High Court could have entrusted the
required exercise to be performed by a Court Appointed Committee. In any
event, such a Committee had been constituted by the High Court by its very
same order to look into other such cases of grant of leases under the Act
of 1948.
19. We also deem it necessary to reiterate herein
a fundamental principle
of law that all courts whose orders are not final and appealable, should
take notice of. All such courts should decide the lis before it on all
issues as may be raised by the parties though in its comprehension the same
can be decided on a single or any given issue without going into the other
questions raised or that may have arisen. Such a course of action is
necessary to enable the next court in the hierarchy to bring the proceeding
before it to a full and complete conclusion instead of causing a remand of
the matter for a decision on the issue(s) that may have been left
undetermined as has happened in the present case.
The above may provide a
small solution to the inevitable delays that occur in rendering the final
verdict in a given case.
20. In the light of what has been discussed and the conclusions reached
by us we are of the view that in the present case the order of the High
Court should receive our interference and the matter should be remanded to
the High Court for a de novo decision which may be rendered as
expeditiously as possible. Accordingly, we set aside the order dated
13.05.2009 of the High Court and allow these appeals as indicated above.
...……………………J.
[P. SATHASIVAM]
………………………J.
[RANJAN GOGOI]
New Delhi,
December 14, 2012.
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[1] Subs, by the Adaptation of Laws Order, 1950, for “Provincial”.
[2] (2010) 8 SCC 383
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