Orissa High Court
Sri Sri Lingaraj Mahaprabhu vs Sudam Charan Kanungo And Others on 19 January, 2001
Equivalent citations: 2001 A I H C 1509, (2001) 91 CUT LT 445
Author: P. K. Misra
Bench: P.K. Misra
JUDGMENT P. K. Misra, J.
1. Plaintiff has filed this appeal against a confirming decision. The suit was filed for declaration of title of the plaintiff and for confirmation of possession, or in the alternative, recovery of possession of the disputed land measuring Ac. 0890 decimals in plot No. 3901 of Khata No. 1878. There is no dispute that the disputed land originally belonged to the plaintiff The said land vested in the State Government by virtue of Notification No. 13699/R, dated 18-3-1974 under section 3-A of the Orissa Estates Abolition Act. The plaintiff had filed O. J. C. No. 1075 of 1974 challenging the validity of the said Notification, which was dismissed on 8-2-1977. Subsequently, by order dated 7-9-1983 in O.E.A. Case No. 27 of 1983. the Member, Board of Revenue, settled Ac. 8.649 decimals of land including the disputed land in favour of the plaintiff in exercise of poweis under section 7-A of the Orissa Estates Abolition Act. Defendant No. 1 was not a tenant. However, he was a rank trespasser. The plaintiff bad earlier filed O. A.. Case No. 139 of 1971 under section 68 of the Orissa Hindu Religious Endowments Act for restoration of possession. However, the said application was dismissed on 18-4-1975 on account of vesting of trust estates under the Notification dated 18-31974 with the observation that it would be open to tbe plaintiff to file a fresh case Prior to the aforesaid case, the plaintiff had also filed O. S No. 58 of 1971 for recovery of possession, but the said suit was dismissed for default. During the pendency of O J. C No. 1075 of 1974, Encroachment Case No. 156 of 1976 had been initiated against defendant No. 1 under the Orissa Prevention of Land Encroachment Act. During the pendency of the said proceeding under the Orissa Prevention of Land Encroachment Act, on the basis of an application of defendant No. 1 tor settlement of the land, the Tahsildar had initiated Vesting Misc. Case No. 54 of 1977 and ultimately Encroachment Case No. 156 of 1976 was dropped and tbedisputed land was purported to be settled with defendant No. 1 by order dated 4-3-1976. The said order was set aside by the Board of Revenue in Suo Motu Revision Case No. 32 of 1978 in exercise of power under section 38-B of the Orissa Estates Abolition Act. However, in OJ.C. No. 140 of 1982, the High Court of Orissa set aside the order of the Board of Revenue The plaintiff claims that by virtue of order of the Board of Revenue in O.E.A. Case No. 27 of 1983, settling the land with the plaintiff under section 7-A of the Orissa Estates Abolition Act, a new title is created and the order of settlement by the Tahsildar in Vesting Misc. Case No. 54 of 1977 was illegal and did not confer any right on defendant No. 1. It was contended that the disputed land being within the limits of Bhubaneswar, did not come within the purview of the Orissa Government Land Settlement Act, 1962, and as such, the Tahsildar had no jurisdiction to settle the land under the Orissa Government Land Settlement Act.
2. Defendant No. 1 in his written statement contended that he was in possession of the disputed land from 1950 and had acquired right by adverse possession. It was further contended that the dismissal of earlier suit numbered as O. S. No. 58 of 1971 operated as res judicata. It was further contended that since the land had been validly settled with defendant No. 1, the subsequent order passed by the Member, Board of Revenue, settling the disputed land in favour of the plaintiff in purported exercise of power under section 7-A was illegal and without jurisdiction.
3. The trial court dismissed the suit on the finding that the order of the Tahsildar settling the land with defendant No. 1 having been upheld by the High Court in O.J.C.No. 140 of 1982, it had no jurisdictionto re-examine the validity of the order passed in Vesting Misc. Case No. 54 of 1977 as the order of the High Court is binding on the lower courts. It was further held that since the disputed land had already been settled with defendant No. 1, the suit land was not available to be settled with the plaintiff under section 7-A, Proviso of the Orissa Estates Abolition Act. The trial court again observed that the dismissal of the earlier suit operated as res judicata.
4. The lower appellate court observed that since the earlier suit was dismissed for default, it cannot be said that the said order of dismissal operated as res judicata. However, the lower appellate court confirmed the decree of the trial court by holding that the plaintiff had failed to prove that the disputed land was an orchard and was needed for the purpose of Trust and, moreover, the land having already been settled with defendant No. 1, the Board of Revenue could not have settled the same with the plaintiff in view of the Proviso to section 7-A. The contention of the present appellant that the order of settlement dated 4-3-1978 was illegal and without jurisdiction as the same had not been done following due procedure was negatived on the ground that no such specific plea had been taken and the High Court had already upheld such order of settlement.
5. The first and foremost question which arises for consideration is regarding the legality of the order passed by the Member, Board of Revenue, settling the land with the plaintiff in exercise of power under section 7-A(1) of the Orissa Estates Abolition Act. The provisions contained in section 7-A(1) are extracted hereunder :--
" 7-A, Settlement of land or building. --(1) If the State Government are of the opinion that any land, whether used for the purposes of hat, bazar, orchard, mine, quarry or otherwise, tank or building (being part of a trust estate) vested in the State Government is needed for carrying out the purposes of the trust efficiently, then, notwithstanding anything contained in any other law for the time being in force or in any other provision of this Act, the State Government may settle such land, tank or building with the person who immediately before such vesting was an Intermediary in respect of such land or tank or building, subject to the payment of such [air and equitable rent as may be determined by the Collector in the prescribed manner and subject to such other terms and conditions as may be prescribed Provided that no such land, tank or building shall be settled under this section--
(i) after the expiry of a period of thirteen-years from the date of commencement of the Orissa Estates Abolition(Amendment) Act, 1978; (ii) if such land, tank or building is held by a tenant; or
(iii) if such land, tank or building has already been settled by Government with any other person."
A perupal of the aforesaid provision makes it clear that any land, tank or building of the. Trust estate, after vesting, may be settled'by the State Government with the quondam intermediary if such; land, tank or building is, in the. opinion of the-State Government, required for carrying out the purposes of the Truts efficiently. For such settlement, the. ex-intermediary is required to pay fair and equitable rent to be, determined by the Collector in the prescribed manner. However, no such land, tank or building can be settled after expiry of thirteen years from the date of commencement of the Orissa Estate. Abolition (Amendment) Act, 1978. Similarly, no such land, tank or building can be settled if such property is hold by a tenant or has already been settled by Government with any other person.
6. The lower appellate court has observed that the plaintiff has failed to prove that the disputed land was an orchard and was required for the purpose of Trust. Strictly speaking, such a question is not a matter to be agitated in the Civil Court, There is no doubt that the State Government has notified the Mamber, Board of Revenue, as the authority to act as a delegate of the State Government in exetcise of the power under section 40 of the Orissa Estates Abolition Act and such jurisdiction under section 7-A(1) can be exercised by the Member, Board of Revenue, The question as to whether the land is required for carrying out the purposes of the Trust or not is to be determined by the competent authority, namely the Member, Board of Revenue, and the Civil Court cannot sit in appeal over such decision of the Member, Board of Revenue. Thus, there cannot be any doubt that the first limb of the reasonings given by the lower appellate court to the effect that the order of the Member, Board of Revenue, was illegal and without jurisdiction, is not supportable.
7. The second limb of the reasonings adopted by - the lower appellate court as well as by the trial courc appears to be more formidable. Proviso (in) of section 7-A(l) contemplates that the State Government cannot settle a land with the ex-intermediary if the land is already settled with any other person. This obviously is in recognition of the well-known prihciple that what does not belong to State cannot be settled by it. It is axiomatic to observe that if .any land which belongs to State, whether by vesting or otherwise; has already, been settled by the State in favour of any other person, so long as such settlement holds the field, the State can have no further right to settle the very same land with any other persons, This basic principle has received statutory recognition in the, form of Proviso (iii) of section 7-A(1). It is of course, true that by the time the order of settlemet under section 7-A was passed in the year 1983, the order of settlement in favour of defendant No. 1 had, already been quashed by the Member, Board of Revenue, in purported exercise of power under section 38-B of the Orissa; Estates Abolir tion Act. However, since the aforesaid order of the Member, Board of Revenue, under section 38-B of the Orissa Estates Abolition Act, was subsequently quashed by the High Court in O J C. No, 140 of 1982, it must be taken that the land had already been settled with another person and as such, the embargo envisaged under Proviso (iii) of section 7-A(1) was applicable.
8. To overcome the aforesaid hurdle, the learned counsel for the appellant has raised an ingenuous contention to the effect that the expression "settlement" as envisaged in Proviso (iii) meant, settlement under the Orissa Estates Abolition Act and not under any other Act. Such a contention is merely to be noticed and rejected. By no stretch of imagination, it can be laid down that the expression "settlement" as used in Proviso (iii) of section 7-A(l) contemplates only settlement of land underline Orissa Estates Abolition Act and not under other Acts, Settlement of Government land with a person is contemplated under several Acts, such as Orissa Government Land Settlement Act, Orissa Prevention of Land Encroachment Act and Orissa Estates Abolition Act, etc. The settlement of any land with any person under any of these Acts creates a proprietary right in favour of such person which can be taken away only by following the procedure prescribed in any "statute. If it is held that the embargo contemplated in Proviso (iii) of section 7-A(1) is applicable only when the land is settled with a person under the Orissa Estates Abolition Act, any earlier settlement of such land under any other Act. such as Orissa Prevention of Land Encroachment Act or Orissa Government Land Settlement Act. would be rendered infructuous and would give rise to host of litigations.
9. The learned counsel appearing for the appellant then contended that even assuming that the embargo contemplated in Proviso (iii) of section 7-A(1) is applicable as the settlement in favour of defendant No. 1 was illegal and without jurisdiction, the same cannot stand as a bar. There cannot beany doubt that if the expression "settlement" must mean "a valid settlement of land" and if such settlement of land is void, the same cannot stand as a bar for settling the land under section 7-A(1). The question is whether the order of settlement in favour of defendant No. 1 by the Tahsildat can be treated to be void. In the aforesaid context, the learned counsel for the appellant has contended that the disputed land being a part of Bhubaneswar, was not available to be settled by the Tahsildar under the Orissa Government Land Settlement Act. The learned counsel for the appellant has relied upon the decision of this Court reported in 85 (1998) C. L T. 319 (Smt. Ahalya Sahu & others v. State of Orissa and others). A close perusal of the aforesaid decision makes it clear that the ratio in the said decision has got no application to the facts of the present case. In , the aforesaid decision, by virtue of the order passed by the State Government after obtaining the sanction of the Chief Minister, a piece of land within the Bhubaneswar Municipal area had been settled with a Hotelier. A public interest litigation was filed challenging such settlement on the ground that the provisions contained in the Orissa Government Land Settlement Act had not been followed. While repelling such contention it was observed that in Schedule-II of the Rules, no reference had been made to lands in Bhubaneswar and the Act had no application to settle a land within Bhubaneswar. Schedule-II is a part of the Orissa Government Land Settlement Rules, 1983. Rule-11 contemplates that land is to be settled by the authorities contemplated in the Schedule; otherwise the matter has to be referred to the Government. So for as the land in Bhubaneswar is concerned, no authority has been contemplated in the Schedule and it is thus obvious that lands coming within Bhubaneswar can be settled only by obtaining the orders of the Government. In the aforesaid context, it was observed that the Act has got no applicability to lands in Bhubaneswar. It has to be kept in mind that the decision related to a transaction after 1983. Prior to passing of the Orissa Government Land Settlement Rules, 1983, the Government Land Settlement Rules, 1974. was in force. In the 1974 Rules, no distinction was contemplated regarding the authority of any person authorised to settle land under the Act and by virtue of provisions contained in the Act as well the Rules of 1974, all the Tahsildars had been authorised to deal with applications for settlement of land under the Orissa Government Land Settlement Act. In the present case, the settlement had taken place in the year 1978. much prior to the coming into force of the Orissa Government Land Settlement Rules, 1983. As a matter of fact, in O, J. C. No. 140 of 1982, it was clearly held that the settlement of land was underthe Orissa Government Land Settlement Act, 1962. Such a decision which having not been challenged in higher forum is binding on the parties as well as on the Civil Courts. In such view of the matter, the contention of the counsel for the appellant that the Tahsildar had no jurisdiction to settle the land on defendant No. 1 under the Orissa Government Land Settlement Act cannot be accepted.
10. Learned counsel for the appellant also contended that there is no material on record to indicate that the order of settlement of the Tahsildar was done after complying with the provisions contained in the Orissa Government Land Settlement Act and the Rules framed thereunder. As rightly observed by the lower appellate court, such a question dependent upon factual aspect, having not been raised in the plaint itself, could not have been raised before the lower appellate court. Moreover, such a question was available to, be raised in O, J. C. No. 140 of 1982, wherein it was contended on behalf of present defendant No. 1 that the land bad been settled under the Orissa Government Land Settlement Act. The validity of such order of settlement having been upheld in the earlier O. J. C., any challenge on the basis of the grounds which were raised or could have been raised cannot be countenanced subsequently. Right, wrong or indifferent, the earlier order of the High Court in O. J. C. No. 140 of 1982 having not been challenged in any higher forum must be taken to be binding on the patties.
11. For the aforesaid reasons, I do not find any merit in the appeal which is accordingly dismissed. However, the parties are to bear their own costs throughout.
12. Second appeal dismissed.