Holding

A lease does not confer 'raiyat' status; the land was uncultivable and no raiyat existed, so the High Court's finding of tenancy was erroneous and the matter must be reconsidered by the High Court.

Summary

The dispute concerned 53.95 acres of land in Bhubaneswar that vested in the State of Orissa under a 1954 notification of the Orissa Estate Abolition Act, 1951. The respondent, Harapriya Bisoi, claimed she was a "deemed tenant" because her predecessor had obtained a lease from the erstwhile intermediaries before vesting, and she sought rent collection and protection of possession. The Supreme Court examined whether a lessee under an intermediary's lease qualifies as a "raiyat" protected by Section 8 of the Act, whether the land was actually cultivated, and the impact of alleged fraud in the lease and sale documents. It held that a lease does not create raiyat status, the land was uncultivable and thus no raiyat existed, and the High Court had mis‑interpreted Sections 8 and 5(i). Consequently, the matter was remitted to the High Court for fresh consideration, especially in view of the fraud allegations. The appeals were allowed.

Issues considered

Whether a lessee under a lease from an intermediary is a 'raiyat' entitled to protection under Section 8 of the Orissa Estate Abolition Act, 1951.
Whether the disputed land, classified as uncultivable Anabadi land, can be deemed cultivated to qualify the predecessor as a raiyat.
Whether the alleged fraud in the lease deed and subsequent sale deed vitiates the claim of tenancy and possession.
Whether the High Court erred in interpreting Section 8 and Section 5(i) and in deeming the respondent a tenant of the State.
Whether the Collector's order under Section 5(i) required confirmation by the Board of Revenue to be valid.

Legislation cited

Indian Contract Act, 1872s. 17
Indian Evidence Act, 1872s. 91
Orissa Estate Abolition Act, 1951s. 2(h), s. 2(n), s. 3, s. 5(i), s. 8
Orissa Survey and Settlement Act, 1958
Orissa Tenancy Act, 1913s. 15, s. 16, s. 5(5)
Registration Acts. 49
Transfer of Property Act, 1882s. 107

Subjects

Orissa Estate Abolition ActraiyatleasetenancyfraudSection 8Section 5(i)land vestingBoard of Revenueproperty registrationuncultivable land

Judgment

[2009] 7 S.C.R. 34

A STATE OF ORISSA AND ORS. "'
v.
HARAPRIYA BISOI
Civil Appeal No. 2656 of 2009
APRIL 20, 2009
B
[DR. ARIJIT PASAYAT AND LOKESHWAR SINGH
PANTA, JJ]
Orissa Estate Abolition Act, 1951- ss. 8, 2(h), 2(n) and 3
- Claim for protection as 'raiyat' - Property classified as
c uncultivable, vested in State by virtue of notification issued
under the Act - Claim of Respondent that ex-intermediaries
in respect of the property had leased the same to her
predecessor-in-interest, who, immediately before vesting of
the same in the State Government, was thus in possession of
D the property as a tenant under an intermediary i.e. was a 'raiyat'
under the Act, and from date of the vesting, was a deemed
tenant under the State Government and consequently
Respondent too was a deemed tenant under the State
Government and entitled to protection of his possession - Writ
E petition filed by respondent allowed by High Court - Order
challenged - Plea raised that High Court lost sight of the
relevant provisions of the Act and did not consider the effect
of alleged gross acts of fraud committed by the respondent -
Held: On facts, matter needs to be re-considered by the High
F Court.
Words and Phrases - Fraud - Meaning and effect of -
Discussed - Indian Contract Act, 1872 - s. 17.
By virtue of a Notification issued in 1954 under
Section 3 of the Orissa Estate Abolition Act, 1951, the
G
disputed property vested in the State. Respondent ~
claimed that in 1933, the ex-intermediaries in respect of
the said property had leased the same to her predecessor-
in-interest , who, immediately before vesting of the same

H 34
STATE OF ORISSA AND ORS. V. HARAPRIYA BISOI 35

1 in the State Government, was thus in possession of the A
property as a tenant under an intermediary i.e. was a
'raiyat' under the Act, and from date of the vesting, was a
deemed tenant under the State Government and
consequently Respondent (who bought the disputed
property from her predecessor-in-interest) too was a B
deemed tenant under the State Government and thus
entitled to protection of his possession. In regard to the
-• said claim, Respondent filed writ petition seeking direction
to the State to accept rent from her in respect of the
disputed property, for a declaration of tenancy in her c
favour and for an injunction against the State restraining
them from interfering with her possession. The High Court
allowed the writ petition.
In appeals to this Court, the judgment of the High
+ Court was inter alia challenged on grounds that the High D
Court lost sight of the relevant provisions of the Act and
did not consider the effect of the alleged gross acts of
fraud committed by the respondent .
Allowing the appeals, the Court
E
HELD: 1.1. A 'lease' and 'lessee' on the one hand are
defined separately from the 'Raiyat' under the. Orissa
Estate Abolition Act, 1951 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 F
protect the possession of such lessee under Section 8 of
the Act. In fact, a 'lease' would amount to a transfer of an
interest of the intermediary in the land to the lessee. In
such a situation, far from being a tenant protected under
Section 8, the lessee would in fact step into the shoes of
G
the intermediary with his interest being liable for
confiscation and his entitlement limited to compensation
from the State. On the other hand, for protection under
Section 8, one has to be a Raiyat cultivating the land
directly and having the rights of occupancy under the
H
36 SUPREME COURT REPORTS [2009]7 S.C.R.

A tenancy laws of the State. Thus, a 'lessee' who is not
actually cultivating the land i.e. who 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
B between the raiyat and the State. [Para 21) [48-H; 49-A-D)
1.2. On the facts of the present case, it is clear that
the land was not under cultivation by the predecessor-in-
interest of the respondent. As per the record of rights
published in 1930-31, the disputed land is classified as
C Anabadi Land i.e. uncultivable. The land is further
described in the records as Jhudi jungle, i.e. bush forest.
In addition, the OEA Collector had found that the lands
were lying fallow and were not in physical possession of
any person. The land thus not being cultivated,
D predecessor-in-interest of the respondent cannot prima
facie be considered as a 'Raiyat' under the Act. [Para 22)
[49-F-H; 50-A]
Kumar Bimal Chandra Sinha V State of Orissa (1963) 2
SCR 552 - referred to.
E
2.1. It is also necessary to consider the effect of fraud.
By "fraud" is meant an intention to deceive; whether it is
from any expectation of advantage to the party himself or
from the ill will towards the other is immaterial. The
expression "fraud" involves two elements, deceit and
F injury to the person deceived. Injury is something other
than economic loss, that is, deprivation of property,
whether movable or immovable or of money and it will
include any harm whatever caused to any person in body,
mind, reputation or such others. In short, it is a non-
G 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 corres-
ponding loss to the deceived, the second condition is
H satisfied. [Para 33) [53-E-H]
-
STATE OF ORISSA AND ORS. V. HARAPRIYA BISOI 37

2.2. "Fraud" vitiates every solemn act. Fraud and A
justice never dwell together. Misrepresentation itself
amounts to fraud. An act of fraud on court is always
viewed seriously. A collusion or conspiracy with a view
to deprive the rights of the others in relation to a property
would render the transaction void ab initio. Fraud and B
deception are synonymous. Although in a given case a
deception may not amount to fraud, fraud is anathema to
,., all equitable principles and any affair tainted with fraud
cannot be perpetuated or saved by the application of any
equitable doctrine including resjudicata. [Para 35] [54-B-F] c
2.3. 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 D
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.
[Para 36] [55-D-E]
Dr. Vim/av. Delhi Administration 1963 Supp. 2 SCR 585; E
Indian Bank v. Satyam Febres (India) Pvt. Ltd. 1996 (5) SCC
550; S.P. Changa/varaya Naidu v. Jagannath 1994 (1) SCC
1; Ram Chandra Singh v. Savitri Devi and Ors. 2003 (8) SCC
319; Shrisht Dhawan (Smt.) v. Mis. Shaw Brothers (1992 (1) ..
SCC 534; Roshan Deen v. Preeti Lal (2002 (1) SCC 100); F
Ram Preeti Yadav v. UP Board of High School and lnterme-
diate Education 2003 (8) SCC 311; Ashok Leyland Ltd. v. State
of T.N. and Another 2004 (3) SCC 1; Gowrishankar v. Joshi
Amba Shankar Family Trust 1996 (3) SCC 310 and Maganti
Subrahmanyam (dead) by his Legal Representative v. The G
State of Andhra Pradesh (AIR 1970 SC 403) - referred to.
-~

Khawaja v. Secretary of State for Home Deptt. (1983) 1
All ER 765; Derry and Ors. v. Peek (1886-90) All ER 1 and
Lazarus Estate Ltd. v. Beasley (1956) 1 QB 702 - referred to.
H
38 SUPREME COURT REPORTS [2009] 7 S.C.R.

A Webster's Third New International Dictionary; Black's
Legal Dictionary; Concise Oxford Dictionary and Halsbury's
Laws of England - referred to.
3. In view of the peculiar facts and circumstances of
the case, the matter needs to be re-considered by the High
B Court. In the background of the massiveness of apparent
fraud involved, effective and participative role of officials
of the State cannot be lost sight of. Without their active
and effective participation manipulation of records,
tampering with documents could not have been possible.
c The State would do well to pursue the matter with
seriousness to unravel the truth and punish the erring
officials and take all permissible actions (including
criminal action) against every one involved. [Paras 44, 46]
[62-A-C]
D Case Law Reference
1963 2 SCR 552 referred to Para 21
1963 Supp. 2 SCR 585 referred to Para 33
1996 (5) sec 550 referred to Para 33
E
1994 (1) sec 1 referred to Para 34
2003 (8) sec 319 referred to Para 35
1886-90 All ER 1 referred to Para 36

F 1983 1 All ER 765 referred to Para 36
1992 (1) sec 534 referred to Para 36
2002 (1) sec 1oo referred to Para 38
2003 (8) sec 311 referred to Para 38
G 2004 (3) sec 1 referred to Para 38
1996 (3) sec 310 referred to Para 39
1956 1 QB 702 referred to Page 41
AIR 1970 SC 403 referred to Page 43
H
STATE OF ORISSA AND ORS. V. HARAPRIYA BISOI 39

- 4 CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2656
of 2009
A

From the Judgement and Order dated 10.01.2007 of the
Hon'ble High Court of Orissa at Cuttack in Review Petition No.
13 of 2006.
B
WITH
Civil Appeal No. 2657 of 2009
~
Gopal Subramanium, ASG, Arunav Patnaik, Subir Palit,
Mukul Kumar, Miuno Kumar, Milind Kumar, with him for the c
Appellant( s).
Altaf Ahmad, U.U. Lalit, Jana Kalyan Das, Banshidhar
Baug, Avijett Bhujabal, Sabyasachi Burma, with them for the
Respondent(s).
D
The Judgement of the Court was delivered by
DR. ARIJIT PASAYAT
1. Leave granted.
2. Challenge in these appeals is to the order passed by a E
Division Bench of the Orissa High Court allowing the writ petition
filed by the respondent .in Writ Petition (C) No.8282/2004 dated
27 .10.2005 and the order dated 10.1.2007 passed in the
Review Petition No.13/2006 arising out of said writ petition.
3. The background facts as highlighted by the appellants F
are as follows:
The dispute relates to an alleged lease of 53.95 acres of
land executed by Hatapatta dated 25.1.1933 by erstwhile
intermediaries i.e. Chakradhar Mohapatra and Ramakrushna G
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
H
40 SUPREME COURT REPORTS [2009) 7 S.C.R.

A 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
B 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
c 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.4of1970.
By order dated 6.1.1971 in the said OEA case the OEA
Collector set aside the disputed lease deed on the ground of
D 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 no mention of
Kamala Devi as a lessee. The lease was unregistered even
though vast tracts of land were transferred. It was thus held that
E the lease deed was back dated and was created with the object
of defeating the purpose of the Act. The said order dated
6.1.1971 was upheld by Additional District Magistrate, Puri by
order dated 28.5.1974.
Between the period 1962 to 1973 settlement proceedings
F were carried out under the Orissa Survey and Settlement Act,
1958 (in short the 'Settlement Act'). 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
G 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 passed to and became
H vested in the State free from all encumbrances.
STATE OF ORISSA AND ORS. V. HARAPRIYA BISOI 41
[DR. ARIJIT PASAYAT]

i The order dated 28.5.197 4 was challenged before the A·
Orissa High Court by filing OJC No.882of1974. The High Court
~·
by order dated 29.10.1976 directed the OEA Collector,
Bhubneshwar to examine the matter afresh by issuing notice to
the lessor and the lessee and also to ensure that the interest of
the State was protected. Pursuant to the order of the High Court B
dated 29.10.1976 remanding the matter to the OEA Collector,
' the Collector 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 c
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 Board of Revenue held that due
.\ D
enquiry had not been made as per the orders of the High Court
in the earlier writ petition and the matter was returned to the
Collector for fresh enquiry. Interestingly, the order of OEA
Collector dated24.4.1989 was challenged in OJC 2063of1992
in the High Court. There was, however, no challenge to the order
passed by the Board of Revenue dated 27.4.1991. By order E
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 defeaJ the
provisions of the Act. Therefore, the OEA Collector had no
jurisdiction to proceed further in the matter. Thus (a) the F
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 G
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
H
42 SUPREME COURT REPORTS [2009] 7 S.C.R.

A 25.1.1933. Additionally, the GA Department of the State which 1--
is the relevant Department under the Orissa Government Rules
of Business was not a party in the writ petition.
After the death of Kamala Devi, her purported successor
Kishore Chandra Pattnaik filed a writ petition bearing No.OJC
B 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 f'-
writ petition. The GA Department was later arrayed as a party
pursuant to the order dated 3.8.2000 passed in said OJC. One
c An up 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 behalf of the latter in
favour of the present respondent who is also the mother of
~
Dhirsamant. Thus, the respondent came into the picture as a
;.
D vendee of Kishore Chandra Pattnaik who in turn is the son of
Kamala Devi. Kishore Chandra Pattnaik claimed that the
original power of attorney did not empower the holder to sell the
land. His plea was that the aforesaid sale was in pursuance of
a forged and interpolated document. The sale deed dated
E 6.3.2000 was an impounded document for evasion of stamp
duty. 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
F 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 disposed of by order dated 7.10.2004 and the
record of rights in favour of GA Department was directed not to
G
be interfered with. The respondent also filed a Civil Suit bearing
No.2/12 of 2004 before learned Civil Judge, Senior Division, •
Bhubaneswar, for a declaration of right, title and interest in
respect of disputed land. The IAs were dismissed and the Civil
Court held that the right, title and interest of the present
H
STATE OF ORISSA AND ORS. V. HARAPRIYA BISOI · 43
[DR. ARIJIT PASAYAT]

~ respondent had not been determined finally by OJC 2063 of A
1992. It was held that 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· declaration of tenancy in her favour and for an B
injunctiol} 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 2,,7.10.2005 the High C
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 D
was to step into her shoes and has to be treated as a tenant
under the Act. The relevant findings of the High Court ln the
judgment are as follows:
"(i) In paras 10 and 11 of the judgement of the High Court E
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.
F
(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 actual possession
and make a recommendation to the Board of Revenue for
concurrence. "The orders pass.ed by the Board of Revenue G
in pursuance of the references of the case by the OEA
.,... ~ Collector shall be taken to be non-est. The proceedings
initiated under S. 5 (i) of the OEA Act shall be taken to
have been dropped."
(iii) This Court while -disposing of the earlier writ H
44 SUPREME COURT REPORTS [2009] 7 S.C.R.

A application taking note of S. 5 (i) has held that Late Kamla
Devi was a tenant under the ex-intermediaries before 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 S. 8 (1) of the OEA Act.
B (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.
c
(v) Kishore Chandra Pattaik being deemed to be a tenant
under the State Government, the, Petitioner, Harpriya
Bishoi, has stepped into his shoes after purchasing the
land from him and, consequently, the Petitioner is to be
treated as a tenant under the State and rent is to be
D
collected from her."
4. In support of the appeals, learned counsel for the State
submitted that the High Court has completely mis-construed the
decision' in OJC 2063 of 1992. In the said judgment the High
E Court had not returned any finding or expressed any observation
with regard 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
F the scope and jurisdiction of the Collector and the Board of
Reve~ue 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
vesting and was in possession of the entire disputed property.
G The High Court has erroneously recorded the said finding in the
impugned judgment. Therefore, the High Court was in error by
holding that Kamala Devi and thereafter her successor Kishore
Chandra Pattnaik were deemed to be tenants under Section
8(1) of the Act. It i~ pointed out that the proceedings in OEA
H Case No.4 of 1970 were under Section 5(i) of the Act and not
STATE OF ORISSA AND ORS. V. HARAPRIYA BISOI 45.
[DR. ARIJIT PASAYAT]

under Section 8( 1) of the Act. Neither the order of OEA Collector A
in OEA Case No.4of1970 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 B
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 S(i) of the Act. Further, the High Court was in error
in its interpretation of Section 5(i) of the Act. The settlement of c
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 (1995 Supp (3) SCC D
249) has been completely lost sight of. The conceptual different
between Section 5(i) of the Act and Section 8 has been lost
sight 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 E
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 and the High . F
Court should not have unsettled them in the manner done.
Therefore, it is submitted that the impugned judgment of the
High Court cannot be maintained.
6. On the other hand, learned counsel for the respondent
submitted that consequences of vesting and the finding of the G
Collector that the lease was prior to 1.1.1946 and is a genuine
on·e has been confirmed in the earlier judgment. The same has
attained finality. The State of Orissa was represented by the
Secretary to Government, Revenue Department, Bhubneshwar
and the Member, Board of Revenue was also a party. It is H
46 SUPREME COURT REPORTS [2009] 7 S.C.R

t-
A 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.

B 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 conferment of such power on the Board of Revenue
appears to be to prevent collusive or fraudulent acts or actions
on the part of the intermediaries and lower level officers to defeat
c the object of the Act." This Court further held that even if the
OEA Collector decides that a lease was purported to have been
granted before 1.1.1946 and is not liable to be set aside, without
reference or confirmation by the Board of Revenue, such lease
would not attain finality The judgment finally concludes that, "the'
D 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."
E
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 t
in OEA Case No. 4 of 1970, had observed that a detailed
enquiry had not been made by the OEA Collector "to ascertain
F 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
G had right to alienate the land and if they have got compensation ,._
u/ s 28 of the OEA Act". Further, "the 0. 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
H OEA Collector", who have not been examined.
STATE OF ORISSA AND ORS. V. HARAPRIYA BISOI 47
[DR. ARUIT PASAYAT]

10. The Member, Board of Revenue in its order had A
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''. B ·
11. Without such confirmation by Member, Board of
Revenue, the order of the OEA Collector had not attained finality,
and hence, the lease deed in favour of Kamala Devi did not
attain finality.
c
12. Certain provisions of the Act need to be noted.
13. Section 2(h) defines an 'intermediary' as follows:
"Intermediary' with reference to any estate means a
proprietor, sub-proprietor, landlord, land holder, malguzar,
0
thikadar, gaontia, tenure-holder, under-tenure holder and
includes an inamdar, a jagirdar, Zamindar, lllaquedar,
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 E
and the State."
14. Section 2(hh) defines as 'intermediary interest' as an
estate or any rights or interest therein held or owned by or vested
in an Intermediary.
15. Significantly, as the above definitions would show, an F
'intermediary' and an 'intermediary interest' cover all the holders
or owners of interest in land between the State and the 'Raiyat'
i.e. the actual cultivator or tiller of the soil. This is in line with the
object and purpose of the 1951 Act i.e. to establish a direct
relationship between the tiller and the State, and to abolish all G
intermediary interests, by whatever name called.
16. 'Raiyat' 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 H ·
48 SUPREME COURT REPORTS [2009] 7 S.C.R.

A 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,,
B by notification, that the estate specified in the notification has
passed to and become vested in the State free from all
encumbrances. In similar vein, Section 3A empowers the State
to declare by notification that the intermediary interests of all
intermediaries or a class of intermediaries in the whole or part
C of the estate have passed to and become vested in the State
free from all encumbrances.
18. Upon a notification being issued under the provisions
of Sections 3, 3A or 4 of the Act, the entire estate vests in the
State free from encumbrances and the intermediary ceases to
0
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
E 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,
F 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 J'arcel or parcels
G 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 actL1al tiller of the soil.
21. Significantly, a 'lease' and 'lessee' on the one hand
H
STATE OF ORISSA AND ORS. V HARAPRIYA BISOI . 49
[DR. ARIJIT PASAYAT]

are defined separately from the 'Raiyat' under the Act. Thus, the A
rriere 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 the lessee. In such a situation, far B
from being a tenant protected under Section 8, the lessee would
,\ in fact step into the shoes of the intermediary with his interest
being liable for confiscation and his entitlement limited to
compensation from the State. On the other hand, for protection
under Section 8, one has to be a Raiyat cultivating the land c
directly and having the rights of occupancy under the tenancy
laws of the State. Thus, a 'lessee' who is not actually cultivating
the land i.e. who 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
D
of interest in land between the raiyat and the State. In Kumar
Bimal Chandra Sinha V State of Orissa, (1963) 2 SCR 552,
this Court while considering the scope of the Act has held as
follows:
"the position in law is that 'estate" includes the interest, by E
whatever' name called, of all persons, who hold some
right in land between the State at the apex and the raiyat
-~
at the base. That is to say, the Act is intended to abolish
all intermediaries and rent receivers and to establish direct
relationship between the State, in which all such interests F
vest, after abolition under the Act, and the tillers of the
soil."
22. On the facts of the present case, it is clear that the land
w~s hot under cultivation by Kamala Devi. As per the record of
rights published in 1930-31, the disputed land is classified as G
Anabadi Land i.e. uncultivable. The land is farther 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 H
50 SUPREME COURT REPORTS [2009] 7 S.C.R.

A 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'
on the basis of which Kamala Devi has claimed her title is an
unregistered document. Section 107 of the Transfer of Property
B 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 Rs.100 for a period of one
year or more must be registered. If such an instrument is not
c 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 (AIR 1955 SC 328). There is a further
D 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
E '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 tenure holder would stand extinguished under
the Act.
F
25. According to the proviso to Section 5(5) of Tenancy
Act where the area held by the tenant exceeds 33 acres the
tenant shall be presumed 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
G
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,
H as various claims on prime government land in the city of
STATE OF ORISSA AND ORS. V. HARAPRIYA BISOI 51
[DR. ARIJIT PASAYATJ

Bhubaneswar have been surfacing on the basis of fraudulent A
title papers (called 'Hatapattas') allegedly to have been issued
by ex-intermediaries, the State Government in the General
Administration Department, has handed over the issue of
fraudulent 'Hatapattas' to the Crime Branch, CID, Cuttack for
inquiry and necessary legal action vide Capital Police Station B
Case No.178/2005 dated 20.5.2005. An interim report of the
) Inspector/CID-Crime Branch dated 31.8.2007 with respect to
the suit 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 c
alienated in favour of the Respondent herein has been tampered
and mar.ipulated 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 D
Anup Kumar Dhirsamant. The respondent Harapriya Bisoi is
&- the mother of the Power of Attorney holder. The Crime Branch
[b. also states that Anup Kumar Dhirsamant had interpolated the
deed of Power of Attorney giving himself powers to enter into a
0\J sale deed so as to be able to alienate the property in favour of E
€YJ his mother, Harapriya Bisoi, the respondent herein. The report
c') concludes that prima facie offences u/s 420/468/4 71/477A/167/
·~
rl 120B of the Indian Penal Code, 1860 (in short 'IPC'), inter-alia,
have been made out against respondent Harapriya Bisoi and
Anup Kumar Dhirsamant. F
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 Rs.1.03 crores. G

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.
H
52 SUPREME COURT REPORTS [2009] 7 S.C.R.

A 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
B 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.
c
(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
D 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.

E (4) The alleged possession of suit land by the appellant
is found to be disputed with others like Dijabar Behera
S/o Bhima Behera and Golakh Behera S/o Kesab
-
Behera.
(5) Besides, an area of Ac 2.300 dee. out of the suit
F land i.e. Sabik Plot No. 4706 along with its adjoining
land to the extent of Ac. 39.399 dee. have been
leased to the Government of India, Ministry of
Railways, for the purpose of construction of office
and residential complex of East Coast Railway,
G Bhubaneswar. It is also observed by the Asst.
Settlement. Officer that no jamabandi in respect of
the suit land has been opened in the Tahsil records.
(6) · The Appellant adduced no evidence as regards to
H acquiring of right, title, interest and possession over
STATE OF ORISSA AND ORS. V. HARAPRIYA BISOI 53
[DR. ARIJIT PASAYAT]

T the suit land which is Government land as per the A
finally published ROR of the year 1973-74.
(7) Creation of tenancy right in favour of the Appellant by
way of deeming provision u/ s 8 (1) of the Act has
also not been recognized by the Tahasildar, Cuttack/
Bhubaneswar; the claim of possession by the B
appellant over the suit land is not confirmed.
~ 31. In course of hearing of the appeals, a query was made
as to what is the effect of the order of the High Court in OJC
2063 of 1992 i.e. whether it covers the area of 7 acres or the c
whole area of 53.95 acres of land. Learned counsel for the
respondent submitted that in view of the finding that the order of
the Collector was indefensible, obviously the right, title and
interest of the respondent extended to the whole area. This stand
is clearly unsustainable. The Collector's order only referred to
D
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. E

32. It is necessary to consider the effect of fraud.
33. By "fraud" is meant an intention to deceive; whether it
is from any expectation of advantage to the party himself or from
the ill will towards the other is immaterial. The expression "fraud" F
involves two elements, deceit and injury to the person deceived.
Injury is something other than economic loss, that is, deprivation
of property, whether movable 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- G

". 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. Vim/a v. H
54 SUPREME' COURT REPORTS [2009] 7 S. C.R.

A Delhi Administration (1963 Supp. 2 SCR 585) and Indian Bank
v. Satyam Febres (India) Pvt. Ltd. (1996 (5) SCC 550).
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
B a cheating intended to get an advantage. (See S.P.
Changalvaraya Naidu v. Jagannath (1994 (1) SCC 1).
35. "Fraud" as is well known vitiates every solemn act. "
Fraud and justice never dwell together. Fraud is a conduct either
c 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 misrepresentation itself amounts to fraud. Indeed,
innocent misrepresentation may also give reason to claim relief
against fraud. A fraudulent misrepresentation is called deceit
0
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.
E An act of fraud on court is always viewed seriously. A collusion
or conspiracy with a view to deprive the rights of the others in
relation to a property would render the transaction void ab initio.
Fraud and deception are synonymous. Although in a given case
a deception may not amount to fraud, fraud is anathema to all
F equitable principles and any affair tainted with fraud cannot be
perpetuated or saved by the application of any equitable
doctrine including res judicata. (See Ram Chandra Singh v.
Savitri Devi and Ors. (2003 (8) SCC 319).
G 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, Com us, who exulted in his ability
to, 'wing me into the easy hearted man and trap him into snares'.
H It has been defined as an act of trickery or deceit. In Webster's
STATE OF ORISSA AND ORS. V. HARAPRIYA BISOI 55
[DR. ARIJIT PASAYAT]

Third New International Dictionary "fraud" in equity has been A
defined as an act or omission to act ot concealment by which
one person obtains an 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 B
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 c
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 D
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 E
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) F
"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 G
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) 1 All
ER 765, that it is dangerous to introduce maxims of common
law as to effect of fraud while determining fraud in relation of H
56 SUPREME COURT REPORTS [2009] 7 S.C.R.

A statutory law. "Fraud" in relation to statute must be a colourable
transaction to evade the provisions of a statute. "If a statute has
been passed for some one particular purpose, 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
B 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
c irrelevant considerations. The colour of fraud in public law or
administration law, as it is developing, is assuming different
shades. It arises from a deception committed by disclosure of
incorrect facts knowingly and deliberately to invoke exercise of
power and procure an order from an authority or tribunal. It must
D result in exercise of jurisdiction which otherwise would not have
been exercised. The misrepresentation must be in relation to
the conditions provided in a section on existence or non-
existence of which the power can be exercised. But non-
disclosure of a fact not required by a statute to be disclosed
may not amount to fraud. Even in commercial transactions non-
E 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.) 1
v. Mis. Shaw Brothers (1992 (1) SCC 534).
F
37. In that case it was observed as follows:
"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
G 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 or omission to
H act or concealment by which one person obtains an
STATE OF ORISSA AND ORS. V. HARAPRIYA BlSOI 57
[DR. ARIJIT PASAYAT]

advantage against conscience over another or which equity A
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 B
" a matter of fact whether by words or by conduct, by false
. or misleading allegations, or by concealment of that which
> should have been disc;losed, 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 c
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 D
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 meantng
or even otherwise fraud arises out of deliberate active
role of representator about a fact which he knows to be E .
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 [(1886-
90) ALL ER Rep 1: (1889) 14 AC 337 (HL)] what F
constitutes fraud was described thus : (All Er p. 22 8-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'." G

--¥ 38. This aspect of the matter has b13en considered by this
-. Court in Roshan Deen v. Preeti Lal (2002 (1) SCC 100) Ram
Preeti Yadav v. UP. Board of High School and Intermediate
Education (2003 (8) SCC 311), Ram Chandra Singb's case H
58 SUPREME COURT REPORTS [2009] 7 S.C.R.

A (supra) and Ashok Leyland Ltd. v. State of TN. and Another -f
(2004 (3) sec 1).
39. Suppression of a material.document would also amount
to a fraud on the court. (see Gowrishankar v. Joshi Amba
B Shankar Family Trust (1996 (3) SCC 310) 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
c either by words or letter. Although negligence is not fraud but it
can be evidence on fraud; as observed in Ram Preeti Yadav's
case (supra).
41. In Lazarus Estate Ltd. v. Beasley (1956) 1 QB 702,
Lord Denning observed at pages 712 & 713, "No judgment of a
D Court, no order of a Minister can be allowed to stand if it has
been obtained by fraud. Fraud unravels everything." In the same
judgment Lord Parker LJ observed that fraud vitiates all
transactions known to the law of however high a degree of
solemnity.
E 42. There is another statute which has great relevance to
the present dispute, i.e. The Orissa Communal Forest and
Private Lands (Prohibitions of Alienation) Act, 1948 (in short
'Communal Forest Land').
F 43. In Maganti Subrahmanyam (dead) by his Legal
Representative v. The State of Andhra Pradesh (AIR 1970 SC
403) 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
G 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 in the
Province of Madras pending the enactment of legislation
for acquiring the interests of landholders in such estates
H and introducing ryotwari settlement therein. No fixed
60 SUPREME COURT REPORTS [2009] 7 S.C.R.

A in which the land is situated, for a decision as to the validity ..
of such claim."
Under sub-section (4) the District Judge to whom such
application is made was to decide w~ether the claim to
the land was valid or not after giving notice to all persons ..
B concerned and where the application was not made by
. the State Government, to the Government itself, and his
decision was to be final. Madras Act 26 of 1948, was
passed on April 19, 1949, being an Act to provide for the
repeal of the Permanent Settlement, the acquisition of the
c rights of landholders in permanently settled 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
D 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 of the later
E Act unless there were express words to that effect or unless
there was a necessary implication. It does not stand to
reason to hold that the alienation of large blocks of land
which were rendered void under the Act became good by -(
reason of the passing of the later Act. Our attention was
F drawn to Section 63 of the later Act which provided that:
"If any question arises whether any land in an estate is a
forest or is situated in a forest, or as to the limits of a
forest, it shall be determined by the Settlement Officer,
subject to an appeal to the Director within such time as )

G 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
H
STATE OF ORISSA AND ORS. V. HARAPRIYA BISOI 61
[DR. ARIJJT PASAYAT]

anterior to the Act. In our opinion Section 56(1) of the later A
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 8
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- c
(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
0
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 E
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 no force in the contention that unless there
was a notification under Section 2(b) of the Act declaring F
a particular land to be forest land, the applicability of the
Act would be excluded. The definition of 'forest land' in
that section is an inclusive one and shows that 'forest
land' would include not only waste land containing trees,
shrubs and pasture lands but also any other class of lands G
declared by Gove~nment to be forest land. This does not
mean that before a piece of land could be said to be
forest land there would have to be a notification by the
Government under the Act."
H
62 SUPREME COURT REPORTS [2009] 7 S.C.R.

A 44. In view of the aforesaid conclusions we are of the
considered view that the matter needs to be re-considered by
the High Court.
45. The High Court while re-hearing the matter shall also
consider the effect of the aforesaid observations of this Court,
B and various aspects highlighted above.
46.- In the background of the massiveness of apparent fraud
involved, effective and participative role of officials of the State
cannot be lost sight of. Without their active and effective
c participation manipulation of records, tampering with documents
could not have been possible. The State would do well to persue
the matter with seriousness to unravel the truth and punish the
erring officials and take all permissible actions (including
criminal action) against every one involved.
47. The appeals are allowed to the aforesaid extent.

B.B.B. Appeals allowed