Orissa High Court
S.L. Narasing Rao And Ors. vs Gopaljee Mahaprabhu And Ors. on 19 January, 1990
Equivalent citations: AIR1990ORI177, AIR 1990 ORISSA 177
Author: D.P. Mohapatra
Bench: D.P. Mohapatra, A. Pasayat
JUDGMENT D.P. Mohapatra, J.
1. The common challenge raised in both these writ applications is to the order passed by the appellate authority, the Addl. District Magistrate, Ganjam Chatrapur on 21-4-80 (Annexure 6) in O.E.A. Appeal Nos. 33/78, 35/78, 36/78 and 37; 78. The cases are interlinked with each other both on facts as well as on questions of law. With consent of the learned counsel for the parties, they were heard together and are being disposed of by this judgment.
Though a large mass of facts have been stated in the pleadings and were reiterated by the learned counsel for the parties at the hearing of the case, a substantial part of it, in our view, is unnecessary for disposal of the cases. The facts relevant for the present purpose may be stated thus: The controversy raised in the writ applications relates to A.8.40 decimals of land under survey No. 369 of Bhapur covered by T.D. No. 2904 which stood recorded in the Revenue records in the name of the deity Sri Sri Gopalji Mahaprabhu Bije at Babajitola, Bhapur. The said property was declared to be a part of trust estate. The intermediary interest of the deity in the said property vested in the State Govt. on 18-3-74 under the provisions of the Orissa Estates Abolition Act (for short 'the Act'). The application filed by Balaram Panda, managing trustee of the deity on 17-4-74 for settlement of the land under Sections 6 and 7 of the Act was registered as O.E.A. C.P. No. 103 of 1974 before the O.E.A. Act Collector, Ber-hampur. The writ petitioners S. V. Kameswar Rao (since dead and substituted by Smt. S. Kasulamma) and S. L. Narasingha Rao (since dead and substituted by S. Kameswar Rao, S. Narasingha Murty and S, Rajeswari) filed objections to the petition of the deity each claiming to be, the tenant of the land in question. After certain initial misconception about the proceeding as clarified by this Court in O.J.C. No. 1053 of 1976 which was disposed of by the order dated 29-8-77 the matter was considered by the O.E.A. Act Collector, Berhampur treating the proceeding to be one under Section 7-A of the Act as appears from the order, and was disposed of by the order dated 24-8-78 filed as Annexure 7 to O.J.C. No. 1066 of 1980. The Collector in the said order rejected the claim petition of the deity as well as the stand taken by the objectors and declared that the land has vested absolutely in the State, Government free from all encumbrances under Section 3(a) of the Act and the deity represented by the managing trustee has ceased to have any interest in it. All the parties interested, that is, the two objectors, S. L. Narasmgha Rao and S. V. Kameswar Rao, the applicant, the deity through its managing trustee Balaram Panda and Smt. Vaijayanti Patnaik, a purchaser of a portion of the land from the managing trustee challenged the order of the Collector by filing appeals, O. E. A. Appeal Nos. 33 of 1978, 35 of 1978, 36 of 1978 and 37 of 1978 which were disposed of by the Addl, District Magistrate. Ganjam by the impugned order passed on 21-4-80 annexed to the writ petition in O. J. C. No. 1066 of 1980 as Annexure 8. The appellate authority reversed the order of the Collector and remanded the case to him for fresh enquiry and disposal according to law. It is apparent from the order that the appellate authority has also considered the proceeding to be one under Section 7-A of the Act. Prior to the date of vesting, that is, 18-3-74 there had been a series of litigations between the deity through its managing trustee and father of the objectors; after his death the objectors, is civil courts and Revenue Courts wherein it was being claimed that father of the objectors was usufructuary mortgagee of the disputed land from the Arehak of the deity; the stipulated period of the mortgage had expired; the deity had initiated legal proceeding for recovery of possession of the property; in the said proceeding a compromise had been entered into authorising the father of the objectors to remain in possession on payment of certain sum per annum. Subsequent there to a proceeding was initiated for recovery of certain outstanding amounts from the father of the objectors. The objector S. V, Kameswar Rao was claiming to be an occupancy tenant of the land having been inducted as such by his father and the other objector S. L. Narasingha Rao was also claiming to be a tenant of the land. In one of the proceedings in the Revenue Court a receiver was appointed in the year 1958 who took over possession of the property. Many of these proceedings after passing through several courts/ authorities including this Court are still pending for disposal. These statements of the facts were made by the parties in support of their respective claims of tenancy over the disputed land. They have been considered by the statutory tribunals that is, the O. E. A. Act Collector and the Addl. District Magistrate. As noticed earlier most of these factual statements are not very relevant for the present purpose inasmuch as there is no conclusive decision/decree in any of these proceedings as yet categorically declaring any one of the objectors to be the tenant of the disputed land or holding that the deity was in actual cultivating possession of it during the relevant period. For the present purpose analysis of the findings in the impugned order passed by the appellate authority in the light of the relevant statutory provisions will be sufficient for dispossal of the cases.
3. The appellate authority was considering four appeals filed by the claimant, the deity, the two objectors and the purchaser. Leaving out the case of the purchaser which needs no separate consideration since the fate of her case will depend on the result of the proceeding initiated on the application filed by the managing trustee of the deity, the rival claims which came up for consideration before the authority were the claims of the deity for settlement of the land and the objection thereto by the two objectors each claiming to be the tenant of the land.
At this stage it will be convenient to quote the provision in Section 7-A of the Act since the statutory tribunals have treated the proceeding to be one under the said section :
"7-A. Settlement of land and building. If the State Government are of the opinion that any land, whether used for the purposes of that, 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 fair 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 three years, from the date of commencement of the Orissa Estate 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.
(2) The intermediary with whom any property is settled under Sub-section (1) shall hold the property as a raiyat if the property is settled for agricultural purposes and as a tenant in other cases."
On perusal of Section 7-A it is clear that it applies to land which were used for the purposes of hat, bazar, orchard, mine, quarry or otherwise, tank building and which being a part of a trust estate vested in the State Government. If such land 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 the Act, the State Govt. 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 payment of such fair and equitable rent as fixed by the Collector and subject to such other terms and conditions as may be prescribed. The proviso excludes from the purview of the section any such land, tank or building which is held by a tenant or has been settled by Government with any other person for a period of three years has elapsed from the date of commencement of the Orissa Estate Abolition (Amendment) Act, 1978. On settlement of the land, building or tank with the ex-intermediar the latter shall hold the property as a raiyat if it is settled for agricultural purposes and as a tenant in other cases. It is therefore menifest that before any property can be settled under Section 7-A, the competent authority must be satisfied about the existence of the conditions precedent prescribed in the section for such settlement. The authority vested with the power of settlement under Section 7-A is the State Government. If the power has been validly delegated by the State Govt. to any other subordinate officer he may exercise such power. No material has been brought to our notice to show that the Addl. District Magistrate has been vested with power to settle the property under Section 7-A. As such neither the Addl. District Magistrate nor the O. E. A. Act Collector is competent to finally dispose of the proceeding under Section 7-A of the Act. Further no finding has been recorded by the appellate authority that settlement of the land in question with the exintermediary is required for the benefit of the trust.
4. On perusal of the application filed by the managing trustee of the deity Shri Balaram Panda which was registered as O. E. A. C. P. No. 103 of 1974 it appears that the application was in Form-H as prescribed under Rule 6. In the application the Managing trustee declared the class of land to be vacant house site and reiterated the fact in the remarks column by stating that the area is fallow vacant and unfit for cultivation and declared as house site. It is thus clear that the application for settlement of the land was filed under Section 6 of the Act. Section 6 of the Act makes provision for settlement of homesteads of intermediaries and buildings together with lands on which such buildings stand which were in the possession of intermediaries on the date of vesting. Under Sub-section (1) of the said section it is laid down that with effect from the date of vesting, all homesteads comprised in an estate and being in the possession of an intermediary on the date of such vesting, such buildings or structures together with the land on which they stand, other than any buildings used primarily as offices or kutcheries or rest houses for estate servants on duty as were in the possession of an intermediary at the commencement of the Act and used as golas factories or mills for the purpose of trade, manufacture or commerce, or used for storing grains or keeping cattle or implements for the purpose of agriculture and constructed or established and used for the aforesaid purposes before the 1st day of January, 1946, shall notwithstanding anything contained in the Act, be deemed to be settled by the State Government with each intermediary and with all the share-holders owning the estate, who shall be entitled to retain possession of such homesteads and of such buildings or structures together with the lands on which they stand, as tenants under the State Government subject to the payment of such fair and equitable ground rent as may be determined by the Collector in the prescribed manner. The provisos to Sub-section (1) are not relevant for the present purpose. From the records of the proceeding it appears that the managing trustee made no attempt whatsoever to make out an acceptable case under Section 6 of the Act; the biggest stumbling block on his part perhaps was the fact that he was not in possession of the disputed land on the date of vesting. The O. E. A. Act Collector, Berhampur was therefore right in holding that the claim of the managing trustee for settlement of the land under Section 6 having failed the land must be held to have vested in the State Government free from all encum-brances under Section 5 of the Act with effect from 18-3-74.
5. Probably realising this difficulty a case was sought to be built up by the managing trustee under Section 7-A of the Act before the appellate authority. It is significant to note here that there is no discussion in the order of the appellate authority (Annexure 8) on the question whether the land in question shall be deemed to have been settled with the Managing trustee under Section 6 of the Act for which the application was filed. No application appears to have been filed by the Managing trustee for settlement of the land under Section 7-A of the Act. Section 7-A of the Act, on a bare perusal, appears to be enacted to give certain additional benefits to holders of trust estates which vested in the State Government on 18-3-74. As discussed earlier, under this section power is vested in the State Government to settle land, tank or building in the vested trust estate which were used for certain purposes and which are needed for carrying out the purposes of the trust efficiently, with the person who immediately before such vesting was an intermediary in respect of such land or tank or building. The power of the State Government, it is stated at the Bar, has been delegated to the Board of Revenue by Revenue Department Notification No. 72484 E. A. II-1175-Rdated 16-9-75. This power is not available to be exercised by the Addl. District Magistrate or the O. E. A. Act Collector. Therefore consideration of the case under Section 7-A of the Act by the appellate authority the Addl. District Magistrate and remand of the case to the Collector to consider and settle the land was a futile exercise unnecessary and uncalled for. If at all a case under Section 7-A was sought to be made out on behalf of the ex-intermediary then the only proper direction by the appellate authority would have been to ask the party to approach the State Government or the Board of Revenue with a proper application making out a case for settlement under the provision.
6. From the analysis and discussions in the preceding paragraphs the conclusion is inescapable that the appellate order of the Addl. District Magistrate Ganjam, Chatrapur passed on 21-4-80 (Annexure 8) being unsustainable has to be vacted. As a natural consequence of this, it follows that the order of the Estates Abolition Collector holding that the land in question has vested in the State under the provisions of section 5 of the-Act is correct. It is however open to any of the parties, the managing trustee of the objectors, to apply to the State Government for lease of the land which has vested in it on abolition of the intermediary estate of the deity under any statute or executive instructions as the case may be.
7. In the result, the writ applications are allowed to the extent aforesaid and the impugned order passed by the Addl. District Magistrate, Ganjam, Chatrapur in O. E. A. Appeal Nos. 33, 35, 36 and 37 of 1978 as per (Annexure 7) is quashed. There will be no order for costs of these proceedings.
A. Pasayat, J.
8. I agree.