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State of Orissa and Ors. Versus Harapriya Bisoi

2009 (4) TMI 1006 - SUPREME COURT OF INDIA

Civil Appeal No. 2656 of 2009 (Arising out of S.L.P. (C) No. 10223 of 2007) and Civil Appeal 2657/2009 (Arising out S.L.P. (C) No. 11960/2007) - Dated:- 20-4-2009 - Dr. Arijit Pasayat and L.S. Panta For the Appellant/Petitioner/Plaintiff: Gopal Subramanium, ASG, Arunav Patnik, Subir Palit, Mukul Kumar, Mino Kumar and Milind Kumar, Advs For the Respondents/Defendant: Altaf Ahmad, U.U. Lalit, Sr. Advs., Jana Kalyan Das, Banshidhar Baug, Avijett Bhujabal and Sabyasachi Burma, Advs. JUDGMENT Arijit .....

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d 25.1.1933 by erstwhile intermediaries 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 lan .....

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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 in the said OEA case the OEA Collector set aside the disputed lease deed on the ground of not being genuine. The Collector found that since the lands were lying fallow, the rent receipts were not genuine. The Ekpadia or Zamabandi Register in the Tahsil Officer had .....

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By publication dated 6.12.1973, the State was recorded as the owner/title holder of the entire land of 1056.8 acres under Khatian No. 1076 of village Gadakana of which the disputed land is a part. Further, by Revenue Department Notification No. 13699-EA-1- ND-1/74/R published in the Extraordinary Gazette No. 371 dated 18.3.1974, the Government of Orissa notified that the intermediaries interest of all intermediaries in respect of all estates other than those which have vested in the State have .....

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ector heard the matter afresh and by order dated 24.4.1989 held that the lease was entered into prior to 1.1.1946. But he found that the claimant was only in possession of 7 acres of land and hence recommendation was made only for registering a settlement in respect of such 7 acres of land. Significantly, the General Administration Department (in short GA Department) was not brought on record in the proceedings. The record was then submitted to the Board of Revenue. By order dated 27.4.1991, the .....

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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 proceedi .....

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etition bearing No. OJC 15984 of 1997 praying for a direction to the State to accept rent in respect of the disputed property. Again, the GA Department was not arrayed as a party in the case at the time of filing of the writ petition. The GA Department was later arrayed as a party pursuant to the order dated 3.8.2000 passed in said OJC. One Anup Kumar Dhirsamant who was the Power of Attorney holder of Kishore Chandra Pattnaik executed a sale deed dated 6.3.2000 covering 23.30 acres of land on be .....

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ty. On 8.4.2002, a Settlement Rent Objection case under the Settlement Act bearing case No. 4013 of 2002 was instituted by the Assistant Settlement Officer, Gadakna on the strength of the petition filed by GA Department for recording the case land in favour of GA Department. The petition was allowed on 30.12.2002 in favour of the GA Department. Against the said order, Settlement Appeal cases were preferred by Kishore Chandra Pattnaik and present respondent Harapriya Bisoi. The appeals were dispo .....

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the findings of the High Court related only to the power and jurisdiction of the Collector and the Board of Revenue. Respondent filed OJC 8282 of 2004 seeking a direction to the State to accept rent from her in respect of 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 .....

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n 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, the Court held that the OEA Collector had no jurisdiction to decide the question of a .....

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e the vesting and on the date of vesting and was in possession of the entire disputed property - hence Late Kamla Devi was a deemed tenant under Section 8 (1) of the OEA Act. (iv) In view of the decision of the High Court in OJC No. 2063/1992, late Kamla Devi and thereafter her successor Kishore Chandra Pattnaik are deemed to be tenants under the State Government and therefore the Tahasildar, Bhubaneswar was duty bound to collect rent from them. (v) Kishore Chandra Pattaik being deemed to be a t .....

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egard to the genuineness of the lease deed of 1933. The only issue before the High Court was whether the OEA Collector had exercised its powers correctly under Section 5(i) of the Act. No further issue was under consideration of the High Court. Only the scope and jurisdiction of the Collector and the Board of Revenue was decided. In the said decision the High Court had not returned any finding that late Kamala Devi was a tenant under the ex-intermediaries before the vesting and on the date of ve .....

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EA 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 onl .....

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t of. It was clearly observed in Brundaban's case (supra) that the order of the Collector under Section 5(i) of the Act is required to be confirmed by Board of Revenue even if Collector upholds genuineness of the lease. Several gross acts of fraud have been committed by the respondent and/or others involved. This clearly invalidates every action. The vendor's claims are pending adjudication before various courts. The record of rights has attained finality in the settlement proceedings an .....

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Department, Bhubneshwar and the Member, Board of Revenue was also a party. It is submitted that the decision in Brundaban's case (supra) was rendered in a different set up and has no application to the facts of the present case. 7. Certain factors need to be noted in the present case. 8. In Brundaban's case (supra) this Court held that even in a case where the OEA Collector "decides not to set aside the lease, he should have referred the case to the Board of Revenue. The object of .....

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that, "the' order passed by the Tehsildar (exercising powers as the OEA Collector) without confirmation by the Board is non est. A non est order is a void order and it confers no title and its validity can be questioned or invalidity be set up in any proceeding or at any stage." 9. It is important to note, that in the facts of the present case, the Member, Board of Revenue in its order dated 27.4.1991 while considering the decision of the OEA Collector in OEA Case No. 4 of 1970, h .....

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A 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 Governme .....

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ns a proprietor, sub-proprietor, landlord, land holder, malguzar, thikadar, gaontia, tenure-holder, under-tenure holder and includes an inamdar, a jagirdar, Zamindar, Illaquedar, Khorposhdar, Parganadar, Sarbarakar and Maufidar including the ruler of an Indian State merged with the State of Orissa and all other holders or owners of interest in land between the raiyat and the State. 14. Section 2(hh) defines as intermediary interest' as an estate or any rights or interest therein held or owne .....

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yat' is the actual tiller of the soil, and is defined in Section 2(n) as: 'Raiyat' means any person holding the land for the purpose of cultivation and who has acquired the right of occupancy according to the tenancy law or rules for the time being in force in that area or in the absence of such law or rules, the custom prevalent in that area. 17. Section 3 of the Act empowers the State to declare,, by notification, that the estate specified in the notification has passed to and beco .....

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have any interest in such 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 poss .....

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ction 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 execution of a lease by the intermediary in favour of a person would not confer the status of a 'raiyat' on the lessee nor would protect the possession of such lessee under Section 8. In fact, a lease' would amount to a transfer of an interest of the intermediary in the land to .....

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ho is not a 'raiyat', would not be within the protection of Section 8 of the Act. Section 2(h) of the Act in its residuary part states that intermediary' would cover all owners or holders of interest in land between the raiyat and the State. In Kumar Bimal Chandra Sinha v. State of Orissa [1963]2SCR552 , this Court while considering the scope of the Act has held as follows: the position in law is that estate" includes the interest, by whatever' name called, of all persons, w .....

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ssified as Anabadi Land i.e. uncultivable. The land is further described in the records as Jhudi jungle, i.e. bush forest. In addition, by order dated 6.1.1971 in OEA Case 4 of 1970, the OEA Collector, Bhubaneshwar had found that the lands were lying fallow and were not in physical possession of any person. The land thus not being cultivated, Kamala Devi cannot prima facie be considered as a 'Raiyat' under the Act. 23. It is the stand of the appellant-State that the 'Hatapatta' o .....

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n 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&# .....

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resumed to be a tenure-holder' (which includes her successors-in-interest) until the contrary is proved. As under the Hatapatta', purportedly more than 53.95 acres of land has been given by way of lease by the ex-intermediary to Kamala Devi, she or her successor-in-interest is presumed to be a tenure-holder' and, therefore, an intermediary' under the Act. 26. It is highlighted by learned Counsel for the appellant, as various claims on prime government land in the city of Bhubanes .....

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land has been submitted. 27. The Crime Branch Report states that the Power of Attorney through which the suit land has been sought to be alienated in favour of the Respondent herein has been tampered and manipulated by the Power of Attorney holder, Anup Kumar Dhirsamant, Managing Director, M/s Milan Developers & Builders (P) Ltd. The vendor, Kishore Chandra Pattnaik had not given any powers of alienation to his Power of Attorney holder Anup Kumar Dhirsamant. The respondent Harapriya Bisoi is .....

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a Bisoi and Anup Kumar Dhirsamant. 28. It has also come to light that the Sale Deed (RSD) No. 1196/2000 dated 6.3.2000 executed in favour of Harapriya Bisoi, the Respondent herein, has been impounded 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 .....

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eld 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 School since the year 1962-63 and comes under the premises of Sainik School. (4)The alleged possession of suit land by th .....

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abandi in respect of the suit land has been opened in the Tahsil records. (6) The Appellant adduced no evidence as regards to acquiring of right, title, interest and possession over the suit land which is Government land as per the finally published ROR of the year 1973-74. (7) Creation of tenancy right in favour of the Appellant by way of deeming provision under Section 8 (1) of the Act has also not been recognized by the Tahasildar, Cuttack/Bhubaneswar; the claim of possession by the appellant .....

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e. The Collector's order only referred to certain enquires made to confirm possession of only 7 acres of land. The High Court apparently has not considered this aspect. The High Court has also not considered the effect of alleged fraud and the fact that the relevant department was not a party in the proceedings before the High Court in OJC 2063 of 1992. 32. It is necessary to consider the effect of fraud. 33. By "fraud" is meant an intention to deceive; whether it is from any expec .....

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he 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 d .....

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ation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury enures therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court .....

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003)8SCC319 . 36. "Fraud" and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct. Michael Levi likens a fraudster to Milton's sorcerer, Comus, who exulted in his ability to, wing me into the easy hearted man and trap him into snares'. It has been defined as an act of trickery or deceit. In Webster's Third New International Dictionary "fraud" in equity has been defined as an act .....

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r 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 .....

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ading 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 comme .....

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e, a court of law will not countenance any attempt which may be made to extend the operation of the Act to something else which is quite foreign to its object and beyond its scope. Present day concept of fraud on statute has veered round abuse of power or mala fide exercise of power. It may arise due to overstepping the limits of power or defeating the provision of statute by adopting subterfuge or the power may be exercised for extraneous or irrelevant considerations. The colour of fraud in pub .....

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t non-disclosure of a fact not required by a statute to be disclosed may not amount to fraud. Even in commercial transactions non-disclosure of every fact does not vitiate the agreement. "In a contract every person must look for himself and ensures that he acquires the information necessary to avoid bad bargain. In public law the duty is not to deceive. See Shrisht Dhawan (Smt. ) v. Shaw Brothers AIR1992SC1555 . 37. In that case it was observed as follows: Fraud and collusion vitiate even t .....

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advantage against conscience over another or which equity or public policy forbids as being prejudicial 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 di .....

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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 the fact with knowledge that it was false. In a leading English case Derry v. Peek what constitutes fraud was described thus : (All Er p. 22 B-C) Fra .....

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ion of a material document would also amount to a fraud on the court. see Gowrishankar v. Joshi Amba Shankar Family Trust [1996]2SCR949 and S.P. Chengalvaraya Naidu's case (supra). 40. "Fraud" is a conduct either by letter or words, which induces 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. Although negligence is not fraud but it can be evidence on fraud; as observed in Ram Preeti Yadav .....

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Private Lands (Prohibitions of Alienation) Act, 1948 (in short Communal Forest Land'). 43. In Maganti Subrahmanyam (dead) by his Legal Representative v. The State of Andhra Pradesh [1970]1SCR329 it was observed as follows: 4. The purpose of the Act was to prohibit the alienation of communal, forest and private lands in estates in the Province of Madras and the preamble to the Act shows that it was enacted to prevent indiscriminate alienation of communal, forest and private lands in estates i .....

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nd 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 transact .....

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icable to the facts of the case so as to exclude the operation of Sub-section (1) of Section 4. Under Sub-section (3) of Section 4: If any dispute arises as to the validity of the claim of any person to any land under (i) to (v) of the proviso to Sub-section (1), it shall be open to such person or to any other person interested in the transaction or to the State Government, to apply to the District Judge of the district in which the land is situated, for a decision as to the validity of such cla .....

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ed and certain other estates in the Province of Madras, and the introduction of ryotwari settlement in such estates. Apparently because of the preamble to the Act it was contended that with the enactment of the repeal of the Permanent Settlement by the Act of 1948, which also provided for the acquisition of the rights of landholders in permanently settled estates, the Act stood repealed. We fail to see how because of the preamble to the Act it can be said that it stood repealed by the enactment .....

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ermined by the Settlement Officer, subject to an appeal to the Director within such time as may be prescribed and also to revision by the Board of Revenue. In terms the section was only prospective and it did not seek to impeach any transaction which was 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 disput .....

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