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 Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 9085 of 2012 ( Arising out of SLP (Civil) Nos.14618 of 2009)

Chandradhoja Sahoo … Appellant(s)

Versus

State of Orissa and  others. … Respondent(s)

With

CIVIL APPEAL No.  9086  of 2012 ( Arising out of SLP (Civil) No. 14751 of 2009)

J  U  D  G  M  E  N T

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  

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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

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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.    

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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.  

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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  

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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  

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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  

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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  

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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

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(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]1  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  

1 Subs, by the Adaptation of Laws Order, 1950, for “Provincial”.

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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  

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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  

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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  

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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  

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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  

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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 Reddy2 made by one  

of us (Sathasivam,J.) may be remembered at this stage with  

abundant  profit.  Besides,  the  additional  facts  now  made  2 (2010) 8 SCC 383

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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  

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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  

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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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