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PETITIONER:

K.C. SINGH DEO

Vs.

RESPONDENT:

NILADRI SAHU(DEAD) BY L.RS. & ORS.

DATE OF JUDGMENT: 06/05/1999

BENCH:

S.R.Babu, S.N.Phukan

JUDGMENT:

S.N. PHUKAN,J.

This appeal is directed against the judgment of the

Orissa High Court in O.J.C. No.602 of 1978. By the

impugned judgment and order, the High Court after

interpreting Section 4(1)(h) of Orissa Land Reforms Act,

1960 (for short the Act) did not agree with the findings of

the Board of Revenue that under the above section possession

of land by the person on date of vesting is necessary for

the purpose of declaration as a Raiyat.

Shortly stated facts are as follow: Respondent Nos.

1, 2 and 3 filed an application for declaration as Raiyats

under Section 4(1)(h) of the Act for Survey Plot Nos. 719,

915, 804, 805, 297, 266 and 957 in village Padampur where

respondents reside. This village was part of the estate of

Badagada and the estate was abolished by Orissa Estates

Abolition Act, 1951(for short the Act of 1951) and the land

vested in the Government free from all incumbrances w.e.f.

01.06.1953. In the above application for being declared as

Raiyats, the appellant before us filed objection on the

ground that the land in question belonged to the Deity of

Sri Jagannath Mahaprabhu of which the appellant was a

trustee. The Revenue Officer held that the respondents

herein failed to prove possession of the land and the

appellant also did not take any step for declaration that it

was a trust estate and, therefore, rejected both the

applications . In appeal filed by the appellant it was held

that the appellant should have put forth his claim of

heriditory trustee before the Orissa Estate Abolition

Collector appointed under Act of 1951. Therefore, the plea

of the appellant was not accepted. Regarding Respondent

Nos. 1,2 and 3 it was held that they failed to prove their

possession and, therefore, could not be declared as Raiyats.

This finding was also accepted by the Revisional Authority.

A reference was made to the Board of Revenue by the

Revisional Authority and the Board also agreed with the

findings of the Revenue Authorities regarding personal

cultivation of the land by Respondent Nos. 1 to 3 and,

therefore, reference was rejected. The Tribunal constituted

under Act of 1951 declared the Deity Sri Jagannath

Mahaprabhu as religious trust of public nature on an

application filed by the appellant. The order of Board of

Revenue was challenged before the High Court by the

Respondent Nos. 1 to 3 and the High Court by the impugned

order held, inter alia, as follows: (1) under Section

4(1)(h) of the Act for giving status of Raiyat requirement

that the person would be holding the land on the date of

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vesting of the land on the government was not envisaged

under the above sub-section and, therefore, finding of the

Board of Revenue was contrary to law. (2) according to the

High Court the requirements for a declaration that the

person is a Raiyat are (i) the land is in a vested estate

(ii) such land is held by the person under the Government

and(iii) (a) the person holding land is a temporary lessee

in personal cultivation of the land for agricultural

purposes, or (b) holds in mediately or immediately under

such temporary lessee or (c) is a successor in interest of

any such persons. Regarding factual aspects, the High Court

confirmed the declaration of the Revenue Officer that the

respondents are Raiyats in respect of land covered by Survey

No. 719; the claim of the respondents for declaration of

Raiyats in respect of Survey No. 957, 804 and 805 was

rejected and the Board of Revenue was directed to consider

the matter afresh in light of the judgment in respect of

Survey No. 915, 266 and 297. We have heard Mr. Janaranjan

Das, learned counsel for the appellant and Mr. P.N.

Mishra, learned counsel for the respondent. We extract

below the relevant provisions of the Act namely Clause(h) of

Sub-section(1) and Sub-sections (2),(3) and (4) of Section

4:

"4.Raiyats-(1) The following persons shall be deemed

to be raiyats for the purpose of this Act in respect of the

lands held by them, namely: (a)........... (b)...........

(1)(h) - subject to the provisions of Sub-sections

(2),(3) and (4) persons who are temporary lessees in

personal cultivation of lands in the vested estates held

under Government for agricultural purposes, persons who are

in personal cultivation of such lands held either mediately

or immediately under such temporary lessees and the

successor- in-interest of any such persons:

Provided that nothing in this clause shall apply to

char or diara lands or lands held under the custom of

Utabandi or similar other customs;

(i)..........

(2) - The Revenue Officer, on an application in that

behalf in the prescribed form and manner by a person

referred to in Clause (h) of Sub-section(1) made not later

than ninety days from the commencement of this Act or within

such further period not exceeding thirty days as such

officer in his discretion allows, may after such enquiry as

may be necessary by order declare that such person shall be

a raiyat holding immediately under Government in respect of

the land held as specified in the said clause with effect

from the begining of the year next following the date of the

order:

Provided that any such person as aforesaid,who has

failed to make an application within the said period, may

make such application within ninety days from the date of

commencement of the Orissa Land Reforms (Ammendment) Act,

1966(Act 8 of 1967;

Provided further that any such person as aforesaid who

has failed to make an application within any of the periods

specified in this sub-section may make such application

within a period of two years from the commencement of the

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Orissa Land Reforms (Amendment) Act, 1973(President's Act 17

of 1973:

Provided further that any such application made after

the expiry of the period specified in this sub-section and

before the aforesaid date shall, for all purposes, be

treated as an application filed within the period of

limitation;

Provided further that an application under this sub-

section may, if it relates to any land situate in an estate

vested in the Government after the 30th day of September,

1965, be filed within two years from the date of

commencement of the Orissa Land Reforms (Second Amendment)

Act, 1975 or the date of vesting of the estate, whichever is

later.(emphasis supplied)

(3) - While making an order under Sub-section (2) the

Revenue Officer shall determine the permium in respect of

the raiyati right to be so acquired to be paid to Government

which shall be an amount calculated at the rate of eight

hundred rupees per standard acre of the land.

(4) - The permium determined under Sub-section (3)

shall be payable in five equal annual instalments on such

dates as may be fixed by the Revenue Officer and the amount

of premium or any portion thereof remaining unpaid shall be

recoverable as arrears of land revenue."

We agree with the High Court that to acquire the

status of Raiyat under Clause(h) of sub-section(1) of

Section 4 of the Act, the land has to be a vested estate and

such land is held by the person under the Government and (a)

the person holding the land is a temporary lessee doing

personal cultivation on the land for agricultural purposes

or (b) holds it mediately or immediately under temporary

lessee or (c) is successor-in-interest of any such person.

We, however, do not agree with the High Court that

possession of the land is not a condition for acquiring such

Raiyati right for the reasons stated hereinafter. By the

Act of 1951, right, title and interest of all intermediaries

over land were abolished and such rights in respect of the

land vested in the Government free from all incumbrances.

Such land after vesting is called vested land. There is no

dispute in the case in hand that the land in question is a

vested land.

After the enactment of the Act of 1951 legislature

enacted the present Act and from the preamble of the Act we

find that it was so enacted as a progressive piece of

legislation relating to agrarian reforms of land in order to

confer better rights on agriculturists. In other words

after abolition of rights of intermediaries, steps had to be

taken by the enacting the Act to give rights on land to the

tillers of the soil. The expression "personal cultivation"

has been defined in Clause(22) of Section 2 of the Act. The

said Clause is extracted below:

"(22) "personal cultivation" with its grammatical

variations and cognate expressions means to cultivate on

one's own account-

(a) by one's own labour; or

(b) by the labour of any member of one's family; or

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(c) by servants or hired labour on wages, payable in

cash or kind, but not in crop-share, under one's personal

supervision or the person supersion of any member of one's

family;

Explanation- 'Family' in relation to an individual,

means the individual, the husband or wife, as the case may

be, of such individual and their children, whether minor or

major;"

Therefore, unless a person is in actual physical

possession of land the question of personal cultivation

could not arise and, therefore, he cannot claim Raiyati

right. We are, therefore, of the opinion that possession is

a must for the purpose of considering whether a person has

acquired the status of Raiyat under Clause (h) of sub-

section(1) of Section 4 of the Act. Regarding the date of

possession we have to consider sub-section(2) of Section 4

of the Act. Under sub-section (2) a person can make an

application for declaration of Raiyati right under Clause(h)

of sub-section(1) of Section 4. The period within which

such application is to be made is fixed by sub-section (2)

and, it is clear from the said sub- section that the period

is to be counted, under main sub- section, from the date of

commencement of the Act. Under the first proviso it would

be from the date of commencement of Orissa Land Reforms

(Amendment) Act, 1966, under the second proviso from the

date of commencement of Orissa Land Reforms Act, 1973 and

under the 4th proviso from the date of commencement of

Orissa Land Reforms(Second Amendment) Act, 1975 or on the

date of vesting of the estate in the Government, whichever

is later.

Unless a person is in possession of the vested land he

cannot make an application as would appear from sub-

section(2) of Section 4. Therefore, date of possession

would depend on nature of the claim put up by a person for

his Raiyati right and this date is to be decided by the

revenue authority in terms of the above sub-section(2). For

the reasons stated above the appeal is partly allowed and

the impugned judgment is modified to the extent that the

revenue authority, as directed by the High Court shall also

consider the question of possession as indicated above along

with the claim of the appellant. Parties shall bear their

own costs.