Orissa High Court
Achutananda Swain vs Hadibandhu Swain And Ors. on 21 August, 1986
Equivalent citations: 1986(II)OLR427
JUDGMENT K.P. Mohapatra, J.
1. In this wit petition, Annexure-12, the order passed by the Additional district Magistrate, Puri, on 7-2-1973 in Estates Abolition Appeal No 17 of 1969 has been challenged.
After stating facts and orders passed by the Courts below and contentions of the counsel, Their Lordships held :
5. Section 5(i) of the O. E. A. Act is reproduced below for easy reference :
"5. Consequences of vesting of an estate in the State : Notwithstanding anything contained in any other law for the time being in force or in any contract, on the publication of the notification in the Gazette under Sub-section (1).of Section 3, or Sub-section (I) of Section 3-A or from the date of the execution of the agreement Under Section A, as the case may be the following consequences shall ensue, namely, xx xx xx
(i) Where the Collector is satisfied in respect of the settle- ment of lease of any land or mines or minerals comprised in such estate or the transfer of any kind of interests in any building used primarily as office or cutchery for the collection of rent of such estate or as rest houses for estate servants on duty or as golas for storing rent in kind or part thereof, made or created at any time after the 1st day of January, 1946, that such settle- ment, lease or transfer was made with the object of defeating any provisions of this Act or obtaining higher compensation thereunder, he shall have power to make enquiries in respect of such settlement, lease or transfer and may, after giving reasonable notice to the parties concerned to appear and be heard, set aside any such settlement, lease or transfer, dispossess the person claiming under it and take possession of such property in the manner provided in Clause (h) on such terms as may appear to him to be fair and equitable."
A bare look at the above provision will show that action can be taken thereunder in respect of the settlement of lease effected or created after the 1st day of January, 1946. Settlement of lease of the nature envisaged therein prior to 1st day of January, 1946, cannot come within its purview. Manifesily, according to both parties, lease was granted by the proprietor either in favour of the petitioner or in favour of Natha Kandi prior to 1-1-1946. Therefore, Section 5(i) of the O. E. A. Act is not applicable to this case nor were the orders as in Annexure-4 passed under its provisions. This fact is reflected by the order passed by the Board of Revenue in Estate Abolition Appeal No. 17 of 1969 (Annexure-10).
6. The next provision of the O. E. A. Act under which the orders as in Annexure-4 could have been passed in Section 8(1) which is quoted below :
"8. Continuity of tenure of tenants__(1) Any person who immediately before the date of vesting of an estate in the State Government was in possession of any holding as a tenant under an Intermediary shall, on and from the date of vesting, be deemed to be a tenant of the State Government and such person shall hold the land in the same rights and subject to the same restrictions and liabilities as he was entitled or subject to, immediately before the date of vesting."
7. With regard to applicability of Section 8(1), I will begin my discussion by making reference to AIR 1962 S. C. 1912 Bimal Chandra State of Orissa, in which interpreting some provisions of the O.E.A. Act, it was held as follows :
"The Act was intended to abolish all proprietors, sub- proprietors, tenure-holders and under-tenure- holder, with a variety of raiyat."
Section 8(1) came up for interpretation before a Division Bench of this Court in AIR 1971 Ori 271, Bansidhar Mallik v. State of Orissa and others, The significant observations quoted below have been made therein.
"It would be clear from the aforesaid provision that a person who immediately before the date of vesting of an estate was in possession of any holding as a tenant shall be deemed to be a tenant of the State Government from the date of vesting and would continue as such thereafter. There is no provision in the Act to determine the rival claims. Opp. party No. 2 exercised a jurisdiction which he had not. His order is therefore liable to be quashed.
XX XX XX We would, however, make it clear that under the garb of exercise of an administrative power opp. party No. 2 cannot be allowed to exercise a judicial power to determine the tenancy right. If opp. party No. 2 would not have recognised the real tenant and would have accepted rent from a person having no claim, it would have been open to the real tenant to establish his claim in the civil Court. In such a case no writ would lie."
In 1976 CWR 347, Gajendra Mishra and Ors. v. Choudhury Bansidhar Mishra and another, it was held that Section 8(1) of the O. E. A. Act is a declaratory provision. As the tenancy interest does not vest, there is no scope for the intermediary to apply for settlement of the land in possession of a tenant and it the Estate Abolition Collector chooses to entertain a proceeding for settlement of land with an ex-intermediary though an occupancy tenant is in khas possession thereof, the Collector's order would be void as an act without jurisdiction. The civil Court has jurisdiction to examine whether the tribunals with limited jurisdiction have acted within their jurisdiction and so Section 39 of the O. E. A. Act would not operate as a bar. A Full Bench of this Court in 57(1984) CLT 1, Radhamani Dibya and Ors. v. Braja Mohan Biswal & others, held as follows:
"Section 8(1) of the Orissa Estates Abolition Act makes no provision for an application. No enquiry is contemplated under this' section. The section is merely declaratory of the continuity of the tenure of tenants as it was immediately before the date of vesting. As no application was entertainable for determining rival claims Under Section 8(1), the Tahasildar had rightly dismissed the same. But although there is no provision for an appeal against any order passed Under Section 8(1), the learned Additional District Magistrate entertained the appeal and recognised defendants 7 and 8 as tenants in respect of the suit lands. Apparently the learned Additional District Magistrate exercised a jurisdiction not vested in him. His order as per Ext. F is, therefore, without jurisdiction and void "
It is also necessary to notice two other decisions of this Court interpreting Section 8(2). In 1971(I) CWR 68, Bishnu Charan Barik and anothers v. Gokhei Nayak and others, it was held that in Chapter II of the O E.A. Act it is clear that in respect of a case covered under Sub-section (2) of Section 8, no application is maintainable for settlement of the land. That is why Section 8-A refers only to cases under Sub-section (3) and not Sub-section (2) of Section 8. If Sub-section (2) of Section 8 applies any settlement made by the Estate Abolition Collector would be without jurisdiction because the settlement would run counter to the mandatory terms thereof. In XLI(1975) CLT 101, Bhagaban Gouda v. Ukia Dei, a Division Bench of this Court held that Sub-section (2) of Section 8 is merely declaratory of the status of the village servant holding land in a village for service immediately before the date of vesting. There is no vesting of such Jagir lands in the State. There is no provision for settlement of service tenure lands on the holder or any other person Under Section 8(2) of the O. E. A. Act. Interpreting Section 39 relating to bar of jurisdic- tion of civil Courts, it was held that if any entry in or omission from a compensation assessment roll is not challenged and any order passed under Chapter II to VI or concerning any matter which is or has already been the subject of any application made or proceeding taken under the said Chapters is not disputed, then Section 39 of the O. E. A. Act does not create a bar for adjudication in the civil Court. The above principles relating to Section 8(2) are mutatis mutandis applicable to Section 8(1,). The sum and substance of the principles laid down by the aforesaid decisions is that a claim for confirmation, conferment or acquisition of tenancy rights under the former proprietors of the estate cannot be enquired into by the Estate Abolition Collector under the provisions of Section 8(i) of the O. E. A. Act. A tenancy right cannot be confirmed or conferred by applying the provisions of the aforesaid section. An independent proceeding cannot be initiated nor disposed of by the Estate Abolition Collector as it is not contemplated under it. Its nature is purely declaratory and there is no provisorn of an appeal to the Additional District Magistrate. If an order is passed Under Section 8(1) in an independent proceeding confirming or conferring right of tenancy it shall be without jurisdiction and void. So also an order passed in appeal arising therefrom
8. Now the case in hand. By Annexure-4 the Tahasildar purporting to act Under Section 8(1) recommended confirmation of the lease in respect of the disputed land in favour of the petitioner. The Sub- Divisional Officer, Puri. confirmed the lease. No other provision of any other law was cited under which the Tahasildar and the Sub Divisional Officer, Puri, could have passed the orders as in Annexure-4. By applying the provisions of Section 8(1) of the O. E. A. Act they could not confirm the lease and create a tenancy in favour of the petitioner. According to the deeming provision, if a person has acquired the rights of a tenant under the intermediary prior to the date of vesting of the estate, he shall hold the land as such. Such a right can neither be created nor extinguished subsequently on the basis of a rival claim on making an application purported to be Under Section 8(1) of the O. E. A. Act. Therefore, in my considered opinion, the orders passed as in Annexure-4 were without jurisdiction and could not be passed Under Section 8(1) of the O. E. A. Act. For the self-same reasons and as there is no provision of an appeal to the Additional District Magistrate, the order passed by the Additional District Magistrate, Puri, as in Annexure-12 was also without jurisdiction. Never- theless, it is gratifying to note that in Annexure-12 the Additional District Magistrate, Puri, took note of the decision reported in A.I.R. 1971 Ori. 271, Bansidhar Malik v. State of Orissa and others, so as to opine that the orders passed as in Annexure-4 were without jurisdiction. It was there- fore, rightly contended by Mr .N. C. Panigrahi, learned Additional Government Advocate, that in this case both the orders as in Annexures-4 and 12 were without jurisdiction and non-existent in the eye of law.
9. The next point for consideration is whether for adjudication of rival claims of tenancy the petitioner and opposite party No. 1 have any alternative remedy by way of a civil suit. In this connection, it is necessary to examine the provisions of Section 39 of the O. E. A. Act which I quote :
"39 Bar to jurisdiction of civil Courts in certain matters : No suit shall be brought in any civil Court in respect of any entry in or omission from a compensation assessment roll or in respect of any order passed under Chapters II to VI or concerning any matter which is or has already been the subject of any application made or proceeding taken under the said Chapters."
According to the section, the following classes of suits cannot be instituted in the civil Court:
(1) A suit in respect of any entry in or omission from a compensation assessment roll.
(2) A suit in respect of any order passed under Chapters II to VI.
(3) A suit concerning any matter which is or has already been the subject of any application made or proceeding taken under Chapters II to VI.
10. From the facts of the case narrated in the earlier part of this judgment, it will appear that the dispute between the petitioner and opposite party No. 1 is essentially one of rival claim of tenancy right in respect of the disputed land of 94 decimals so far as the petitioner is concerned and in respect of 58 decimals therefrom so far as opposite party No. 1 is concerned. Whereas, the petitioner claims that he had himself acquired the disputed land from the former proprietor, the claim of opposite party No. 1 is that he acquired 58 decimals therefrom by way of purchase from one Natha Kandi who had earlier acquired the same by way of lease from the former proprietor. There. is no dispute as to entry in or omission from a compensation assessment roll. No orders were passed under Chapters II to VI of the O. E. A. Act. It has been held above that Section 5(i) of the O.E.A. Act did not apply to this case and orders as in Annexures-4 and 12 purported to have been passed Under Section 8(1) of the O.E.A. Act were without jurisdiction and non-existent in the eye of law. The case, therefore, does not come within the ambit of any of the restrictions contaned in Section 39 of Act. Therefore, Section 39 does not create a bar for institution civil suit-in order to establish rival claims of acquisition of tenancy lights.
11. In the ultimate analysis, the orders passed in Annexures-4 and 12 are without jurisdiction and non-existent in the eye of law. Section 39 of the O.E A. Act does not create a bar for establishment of the rival claims of tenancy rights in the civil Court.
12 In the result, the petition succeeds. Orders as in Annexures 4 and 12 are quashed. There shall be no order as to costs. A writ may accordingly be issued.
H.L. Agrawal, C.J.
I agree.