http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

     (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.