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.
Reportable
IN THE SUPREME COURT OF INDIA
Chandradhoja Sahoo … Appellant(s)
Versus
State of Orissa and others. … Respondent(s)
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
9Page 10
(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]
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
Subs, by the Adaptation of Laws Order, 1950, for “Provincial”.
10Page 11
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
12Page 13
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
made by one
of us (Sathasivam,J.) may be remembered at this stage with
abundant profit. Besides, the additional facts now made
(2010) 8 SCC 383
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
18Page 19
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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