K.C. SINGH DEOversusNILADRI SAHU (DEAD) BY LRS. AND ORS.

A                                K.C. SINGH DEO
                                          v.
                 NILADRI SAHU (DEAD) BY LRS. AND ORS.

                                  MAY 12, 1999

B              [S. RAJENDRA BABU AND S.N. PHUKAN, JJ.]


          Orissa Land Reforms Act, 1960-Section 4(1) (h)-Raiyats--Claim of
    status of-Vested land-Possession of land is a condition for acquiring such
    Raiyati right-Date of possession-Held, it would depend on nature of claim
C   put up by a person for his Raiyati right.

          Respondents filed an application for declaration as Raiyats u/s 4(1) (h)
    of Orissa Land Reforms Act, 1960. The estate was abolished by Orissa
    Estate Abolition Act, 1951 and the land vested in the Government free from
D   all encumbrances w.e.f. 1-6-1953. The appellant filed objection.on the ground
    that the land in question belonged to the deity of Sri Jagannath of which the
    appellant was a trustee. The Revenue Officer rejected both the applications
    while holding that the respondents failed to prove possession of the land and
    the appellant also did not take any step for declaration that it was a trust
    estate. In appeal the High Court after interpreting Section 4 (1) (h) of the
E   Act of 1960 did not agree with the findings of the Board of Revenue that
    possession of land by the person on date of visiting is necessary for the
    purpose of declaration as a Raiyat. This appeal has been filed against the
    judgment of the High Court.

         Allowing the appeal partly, this Court
F
          HELD : To acquire the status of Raiyat under Clause (h) of sub-section
    (1) of Section 4 of the Orissa Land Reforms Act, 1960, 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
G   cultivation on the land for agriculture purpose or (b) holds it mediately or
    immediately under temporary lessee or (c) is successor in interest of any
    such person. Therefore, possession of the land is a condition for acquiring
    such Raiyati right. (542-F-H]

          1.2. By the Orissa Estates Abolition Act of 1951, right, title and
H   interest of all intermediaries over land were abolished and such rights in
                                         538
                     K.C. SINGH DEO v. N. SAHU [S.N. PHUKAN, J.)                539
     respect of the land vested in the Government free from all encumbrances.           A
     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. (542-H; 543-A]

           1.3. After the enactment of the Act of 1951 legislature enacted the
     present Act and from the preamble of the Act one can find that it was so
     enacted as a j>rogressive price of legislation relating to agrarian reforms of     B
     land in order to confer better rights on agriculturists. After abolition of
     right of intermediateries, steps had to be taken by enacting the Act to give
     rights on land to the tillers of the soil. Unless a person is in actual physical
     possession of land the question of personal cultivation could not arise and,
     therefore, he cannot claim Raiyat right. Therefore, possession is a must for       C
     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.
                                                                           [543-B-F]

          1.4. Date of possession would depend on nature of the claim put up by
     a person of his Raiyati right and this date is to be decided by the revenue        D
     authority in ttrms of sub-section (2) of Section 4 of the Act. (544-B-C)
             CIVIL APPELLATE JURISDICTION : Civil Appeal No. I 0361 of
     1996.
           From the Judgment and Order dated 24.12.86 of the Orissa High Court
     in O.J.C. No. 602of1978.                                                           E
             Janaranjan Das for the Appellant.

          P.N. Mishra, (S. Mishra) for Ms. Rekha Palli and Ms. R.S. Jena for the
     Respondents.


-            The following Judgment of the Court was delivered by

           S.N. PHUKAN, J. This appeal is directed against the judgment of the
                                                                                        F


     Orissa High Court in O.J.C. No. 602of1978. 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      G
     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(l)(h) of the Act for Survey Plot Nos. 719, 915, 804,       H
    540                      SUPREME COURT REPORTS                   [1999] 3 S.C.R.

A   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, I 95 I(for short the Act of I 95 I) 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 appeHant before us filed
B   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 hereditary 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
D   with the findings of the Revenue Authorities regarding personal cultivation
    of the land by Respondent Nos. l 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
E   filed by the appellant.

          The order of Board of Revenue wru- challenged before the High Court
    by the Respondent Nos. l to 3 and the High Court by the impugned order
    held, inter alia, as follows:

F          {l) under Section 4(l)(h) of the Act for giving status ofRaiyat requirement
    that the person would be holding the land on the date of vesting of the land
    under the government was not envisaged under the above sub-section and,
    therefore, finding of the Board of Revenue was contrary to Iaw.

          (2) according to the High Court the requirements for a declaration that
G 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 mediately or immediately under such temporary lessee
    or (c) is a successor in interest of any such persons.
                         '
H         Regarding factual aspects, the High Court confirmed the declaration of
                 K.C. SINGH DEO v. N. SAHU [S.N. PHUKAN, J.]             541
the Revenue Officer that the respondents are Raiyats in respect of land          A
covered by Survey No. 719; the claim of the respondents for declaration of
Raiyats in respect of Survey Nos. 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 Nos. 915, 266 and 297.

     We have heard Mr. Janaranjan Das, learned counsel for the appellant         B
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(l) and Sub-sections (2),(3) and (4) of Section 4:

       "4.Raiyats-(l) The following persons shall be deemed to be raiyats for C
       the purpose of this Act in respect of the lands held by them, namely:
       (a)......... ..

       (b) .......... .

       (l)(h) - subject to the provisions of Sub-sections (2), (3) and (4)       D
       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:
                                                                                 E
           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
                                                                                 F
       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 G
       holding immediately under Government in respect of the land held as
       specified in the said clause with effect from the beginning 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     H
     542                     SUPREME COURT REPORTS                       (1999] 3 S.C.R.

 A           within ninety days from the date ofcommencement ofthe Orissa Land
             Reforms (Amendment) 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
 B           the commencement of the 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 specifie~ in this sub-section and before the aforesaid
             date shall, for all purposes, be treated as an application filed within
.C           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
 D           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 premium in respect of the raiyati right to be so
             acquired to be paid to Government which shall be an amount calculated
E            ~t the rate of eight hundred rupees per standard acre of the land.

             (4) -The premium 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."
F
            We agree with the High Court that to acquire the status ofRaiyat under
     Clause (h) of sub-section( I) 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
 G   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, 4o 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 l 951, right, title and interest of all intermediaries over land
H were abolished and such rights in respect of the land vested in the Government
              K.C. SINGH DEO v. N. SAHU [S.N. PHUKAN, J.]                      543
free from all incumbrances. Such land after vesting is called vested land.            A
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        B
to confer better rights on agriculturists. In other words after abolition of rights
of intermediaries, steps had to be taken by enacting the Act to give rights
on land to the tillers of the soil.

     The expression "personal cultivation" has been defined in Clause (22)            C
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
                                                                                      D
        (b) by the labour of any member of one's family; or

        (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 personal
        supervision.of any member of one's family;
                                                                                      E
        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            F
claim Raiyati right. We are, therefore, of the opinion that po.ssession is a must
for the purpose of considering whether a person has acquired the status of
Raiyat under Clause (h) of sub-section (l) of Section 4 of the Act.

      Regarding the date of possession we have to consider sub-section (2)            G
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 t<l 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          H
     544                   SUPREME COURT REPORTS                    [1999) 3 S.C.R.

.A   Land Refonns (Amendment) Act, 1966, under the second proviso from the
     date of commencement of Orissa Land Refonns Act, 1973 and under the 4th
     proviso from the date of commencement of Orissa Land Refonns (Second
     Amendment) Act, 1975 or ori the date of vesting of the estate in the
     Government, whichever is later.

B          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
     tenns of the above sub-section (2).
c          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.
D
     R.A.                                                   Appeal partly allowed.