TMI Blog2009 (4) TMI 1006X X X X Extracts X X X X X X X X Extracts X X X X ..... mediaries i.e. Chakradhar Mohapatra and Ramakrushna Mohapatra in favour of one Kamala Devi. The respondent Harapriya Bishoi claimed to be the successor in interest of Kamala Devi. Undisputedly, the alleged Hatapatta is an unregistered document. The land is presently situated in the capital city of Bhubaneswar in the State of Orissa. The purported Hatapatta described the land as being for permanent cultivation but as per records or rights published in 1930-31 the land is classified as uncultivable within Anabadi Land. The land is further described as Jhudi jungle i.e. bushy forest. The estate of intermediaries Chakradhar Mohapatra and Ramakrushna Mohapatra is vested in the State by virtue of a Notification dated 1.5.1954 issued under Section 3 of the Orissa Estate Abolition Act, 1951 (in short the `Act'). In respect of the land in question the Orissa Estate Abolition Case 4 of 1970 was registered. Originally the case was registered as OEA 18 of 1967 with OEA Collector, Cuttack. On transfer of certain villages from Cuttack district to Puri District, the case was transferred to OEA Collector, Bhubneshwar and was re-numbered as OEA Case No. 4 of 1970. By order dated 6.1.1971 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e matter was returned to the Collector for fresh enquiry. Interestingly, the order of OEA Collector dated 24.4.1989 was challenged in OJC 2063 of 1992 in the High Court. There was, however, no challenge to the order passed by the Board of Revenue dated 27.4.1991. By order dated 2.11.1992 the High Court allowed the writ petition being of the view that the finding of the Collector was to the effect that the lease was not executed after 1.1.1946, so as to defeat the provisions of the Act. Therefore, the OEA Collector had no jurisdiction to proceed further in the matter. Thus (a) the determination of the extent of possession of the parties and (b) referral of the matter to the Board of Revenue was beyond jurisdiction of the Collector. The High Court quashed the order of the Collector directing settlement of portion of the leased property and declared the proceedings before the Board of Revenue to be non est. The High Court confined its order only to issue of jurisdiction and the scope of power under Section 5(i) and there was no finding recorded regarding the genuineness of the lease dated 25.1.1933. Additionally, the GA Department of the State which is the relevant Department under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case land, for a declaration of tenancy in her favour and for an injunction against the State restraining them from interfering with her possession. By order dated 27.10.2005 the High Court allowed the writ petition and that is the subject matter of challenge in one of the present appeals. It is to be noted that in its order dated 27.10.2005 the High Court relied upon the earlier judgment in OJC 2063 of 1992 and held that in view of the finding in that case Kamala Devi and Kishore Chandra Pattnaik were deemed to be tenants under the State government under Section 8(1) of the Act and the present respondent being successor in interest of Kamala Devi was to step into her shoes and has to be treated as a tenant under the Act. The relevant findings of the High Court in the judgment are as follows: (i) In paras 10 and 11 of the judgement of the High Court in OJC No. 2063/1992 it was held that the lease deed having been executed prior to 1.1.1946 and the same have been found to be a genuine document, the OEA Collector could not have proceeded with the case any further and he should have dropped the proceeding. (ii) In the subsequent paras in the judgment in OJC No. 2063/1992, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. It is pointed out that the proceedings in OEA Case No. 4 of 1970 were under Section 5(i) of the Act and not under Section 8(1) of the Act. Neither the order of OEA Collector in OEA Case No. 4 of 1970 dated 24.4.1989 nor the High Court's order in OJC 2063 of 1992 recognizes the predecessors in interest of the respondent as tenants under Section 8(1) of the Act. The OEA Collector had categorically held in the order dated 24.4.1989 that the plea of the claimants that the proceedings to be treated as one under Section 8(1) does not hold water. The OEA Collector was therefore conscious of the fact that there was no exercise of power under Section 8(1) of the Act, but only under Section 5(i) of the Act. Further, the High Court was in error in its interpretation of Section 5(i) of the Act. The settlement of the lease in favour of the lessee under the first proviso of Section 5(i) has to be necessarily confirmed by a member, Board of Revenue. 5. It has also been highlighted that a decision of this Court in State of Orissa v. Brundaban Sharma has been completely lost sight of. The conceptual different between Section 5(i) of the Act and Section 8 has been lost sight of. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.4.1991 while considering the decision of the OEA Collector in OEA Case No. 4 of 1970, had observed that a detailed enquiry had not been made by the OEA Collector to ascertain who was in possession of the case land prior to 1.1.1946 and from 1.1.1946 to 1.5.1954 (date of vesting of estate) and thereafter . The Member, Board of Revenue, had further stated that, the OEA Collector should have verified the records to ascertain who were the ex-intermediaries (lessors) and if they had right to alienate the land and if they have got compensation under Section 28 of the OEA Act . Further, the O.Ps did not press their claim for a considerable period of time and after notice was published in the newspaper 'Prajatantra' dated 22.7.87, a number of interveners have preferred their claims before the OEA Collector , who have not been examined. 10. The Member, Board of Revenue in its order had concluded that, the case land are within Bhubaneswar Municipality where the capital of state has been established and a number of Government institutions have developed.. In view of the above points it is necessary on the part of the OEA Collector to conduct a detailed enquiry . 11. With ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch estate other than the interests expressly saved under the Act. Where a lease or transfer has been made prior to 1.1.1946, solely with the object of defeating the provisions of the Act or to claim higher compensation, Section 5(i) empowers the collector to set aside such lease, settlement or transfer and take possession of the land from such person. 19. By virtue of Section 8, any person who immediately before the vesting of an estate in the State government was in possession of any holding as a tenant under an intermediary, would on the from the date of the vesting, be deemed to be a tenant of the State government. The words 'holding as a tenant' mean the `Raiyat' and not any other class of tenant: Reference in this regard may be drawn to the definition of `holding' in the Orissa Tenancy Act, 1913. `Holding' means a parcel or parcels of land held by a raiyat and forming the subject of a separate tenancy . 20. Section 8 thus confers protection only on the `Raiyat' i.e. the actual tiller of the soil. 21. Significantly, a `lease' and `lessee' on the one hand are defined separately from the 'Raiyat' under the Act. Thus, the mere exec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Transfer of Property Act, 1882 (in short the `T.P. Act') read with Section 17 of the India Registration Act, (in short the `Registration Act') mandates that the conveyance of title through a written instrument of any immovable property worth more than ₹ 100 for a period of one year or more must be registered. If such an instrument is not registered then Section 49 of the Registration Act read with Section 91 of the Indian Evidence Act, 1872 (in short the `Evidence Act') precludes the adducing of any further evidence of the terms and contents of such a document. See Sri Sita Maharani v. Chhedi Mahto AIR1955SC328 . There is a further requirement of registration of the instrument of conveyance/agricultural lease under Sections 15 and 16 of the Orissa Tenancy Act, 1913 (in short the `Tenancy Act'). 24. It is further submitted that even presuming that the 'Hatapatta' is legal and valid, it would, make Kamla Devi a 'tenure-holder' as opposed to a 'raiyat'. Section 2(h) of the Act defines `intermediary' to include 'tenure-holder'. Thus, a tenure holder being an intermediary under the Act- the rights and liabilities of such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for non-payment of adequate stamp duty with the deficit stamp duty and registration fee amounting to about ₹ 1.03 crores. 29. In Settlement Rent Objection Case No. 4013/2002 under the Settlement Act, the Asst. Settlement Officer by its order dated 10.3.2003 had recorded the suit land in favour of the G.A. Department. 30. Thereafter, the Respondent filed Settlement Appeal Case, being Suit No. 205 of 2003, to set aside the above order. The Settlement Officer by its order dated 7.10.2004 had dismissed the appeal holding that the draft. Record of Rights in respect of the suit land shall not be interfered with. The officer returned the following findings: (1) On perusal of the impugned order passed by the Asst. Settlement Officer in the said objection case it is revealed that necessary field enquiry was made in presence of the parties. (2) It is observed that there exists no such field/plot as found in the not final map in respect of suit land relating to Hal Plot Nos. 7590 Ac 3.000, 7592 Ac.3.400, 7626 Ac 1.940 and 7646 Ac.5.000 - the map in respect of those plots are imaginary. (3) The land relating to Hal Plot No. 7646 Ac 5.000 have been allotted to Sainik Schoo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vable or immovable or of money and it will include and any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver, will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied. See Dr. Vimla v. Delhi Administration 1963 Supp. 2 SCR 585 and Indian Bank v. Satyam Febres (India) Pvt. Ltd. AIR1996SC2592. 34. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. See S.P. Changalvaraya Naidu v. Jagannath AIR1994SC853 . 35. Fraud as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that mis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. Section 17 of the Indian Contract Act, 1872 defines fraud as act committed by a party to a contract with intent to deceive another. From dictionary meaning or even otherwise fraud arises out of deliberate active role of representator about a fact, which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of fact with knowledge that it was false. In a leading English case i.e. Derry and Ors. v. Peek (1886-90) All ER 1 what constitutes fraud was described thus: (All ER p. 22 B-C) fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false . But fraud in public law is not the same as fraud in private law. Nor can the ingredients, which establish fraud in commercial transaction, be of assistance in determining fraud in Administrative Law. It has been aptly observed by Lord Bridge in Khawaja v. Secretary of State for Home Deptt . (1983 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejudicial to another. In Black's Legal Dictionary, fraud is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right; a false representation of a matter of fact whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage; dishonest artifice or trick. According to Halsbury's Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. Section 17 of the Contract Act defines fraud as act committed by a party to a contract with intent to deceive another. From dictionary meaning or even otherwise fraud arises out of deliberate active role of representator about a fact which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d duration of the Act was specified and it is impossible to hold that merely because of the above preamble the Act became a temporary Act. The definition of `forest land' is given in Section 2(b) of the Act reading: `forest land' includes any waste land containing trees and shrubs, pasture land and any other class of land declared by the State Government to be forest land by notification in the Fort St. George Gazette. Sub-section (1) of Section 3 prohibited landholders from selling, mortgaging, converting into ryoti land, leasing or otherwise assigning or alienating any communal or forest land in an estate without the previous sanction of the District Collector, on or after the date on which the ordinance which preceded the Act came into force, namely, 27th June, 1947. Section 4(1) provided that: Any transaction of the nature prohibited by Section 3 which took place, in the case of any communal or forest land, on or after the 31st day of October, 1939 ... shall be void and inoperative and shall not confer or take away, or be deemed to have conferred or taken away, any right whatever on or from any party to the transaction: * * * This Sub-section had a proviso w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effected before the Act and was not applicable to transactions anterior to the Act. In our opinion Section 56(1) of the later Act to which our attention was drawn by the learned Counsel does not fall for consideration in this case and the disputes covered by that section do not embrace the question before us. 5, Madras General Clauses Act 1 of 1891, deals with the effect of repeals off statutes Section 8, Sub-section (f) thereof provides that: Where any Act, to which this Chapter applies, repeals any other enactment, then the repeal shall not- (a)-(e) * * * (f) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, fine, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such fine, penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed. This shows that even if there was a repeal any investigation started before the repeal would have to be continued and legal proceedings under the Act could be prosecuted as if the repealing Act had not been passed. 6. There is also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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