Orissa High Court
Executive Officer Lord Lingaraj Temple ... vs Government Of Orissa Represented ... on 14 November, 2017
Author: B.K. Nayak
Bench: B.K. Nayak
IN THE HIGH COURT OF ORISSA, CUTTACK
W.P.(C) No.13390 OF 2008
An application under Articles 226 and 227 of the Constitution of
India.
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Executive Officer, Lord Lingaraj Temple,
Bhubaneswar ..... Petitioner
-Versus-
Government of Orissa, represented through its Secretary,
General Administration Department
& others ...... Opposite Parties
For Petitioner : M/s. A.R. Dash, R.N. Behera,
S.K. Nanda-I, B. Mohapatra, N. Swain &
S.N. Sahoo
For Opposite Parties: Additional Government Advocate
Mr. A.K. Nath, Advocate
(For Endowment Commissioner)
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PRESENT:
THE HONOURABLE MR. JUSTICE B.K. NAYAK
AND
THE HONOURABLE DR. JUSTICE D.P. CHOUDHURY
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Date of hearing: 25.07.2017: Date of Judgment: 14.11.2017
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DR. D.P. CHOUDHURY, J. Challenge has been made to the order of
Member, Board of Revenue under Annexure-3 directing for
recording of land and building in favour of opposite party No.1-
2
State by setting aside the settlement made in favour of the
petitioner.
FACTS
2. The factual matrix leading to the case of the petitioner
is that the petitioner is a public religious institution represented
through its Executive Officer. It is averred inter alia that the
O.E.A. Collector settled the case land pertaining to Plot No.2336
under Khata No.1810 of village Bhubaneswar measuring area of
Ac.0.405 decimals on 31.7.1980 in O.E.A. Case No.167 of 1977
vide Annexure-1. The opposite party No.5 showing him as lessee
in respect of the case land filed appeal under Section 9 of the
Orissa Estates Abolition Act (hereinafter called "the O.E.A. Act)
but he lost that appeal. Against that order the opposite party No.5
filed O.E.A. Revision Case No.13 of 1994 which went against him.
So, he approached this Court in O.J.C. No.7572 of 1994 wherein
the Court passed order on 11.11.1995 directing to file O.E.A.
appeal and Opposite Party No.5 again filed O.E.A. Appeal No.25 of
1995 before the Collector, Khurda stating therein that he being a
tenant continued in possession and as such became a tenant
under Section 8 (1) of the O.E.A. Act and the O.E.A. Collector
without following the statutory provision has settled the entire
case land in favour of the petitioner. In that appeal the petitioner
had contested by stating that a piece of case land was let out to
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Narasingha Rao and Ram Chandra Das on monthly rent and the
appellant is none other than the son-in-law of Narasingha Rao
and he trespassed into the case land of Lord Lingaraj-petitioner
having no legal right thereon.
3. The Appellate Authority after considering all the
submissions and after examination of record found that the
opposite party No.5 was not a tenant as no permission under
Section 19 of the O.H.R.E. Act had been obtained in favour of the
appellant and finally held him as trespasser and unauthorized
occupant. So, the appeal preferred by the opposite party No.5
was dismissed by the Appellate Authority. The opposite party No.5
being aggrieved by the order of the Appellate Authority preferred
O.E.A. Revision No.88 of 2000 before the Member, Board of
Revenue under Section 38-B of the O.E.A. Act. The revisional
court after disbelieving the case of the revision petitioner, who is
opposite party No.5 here, about his tenancy held that the
petitioner (opposite party No.5) has absolutely no right in the
case land with building thereon. At the same time the revisional
Authority made out a third case by observing that the case land
along with the building thereon having vested with the State free
from all encumbrances be recorded with the General
Administration Department of the Government of Orissa without
any note of possession or any kind of encumbrance and,
4
accordingly, set aside the orders of both the appellate authority
and the O.E.A. Collector. He directed for correction of R.O.R. in
favour of the General Administration Department.
4. Be it stated that the revisional authority illegally
exercised the jurisdiction vested under Section 38-B of the O.E.A.
Act because he has gone beyond the propriety of the revisional
authority by disposing of the case in a manner which is not the
case of either of the party. Since there is a settlement in favour of
Lord Lingaraj under Section 6, 7 and 8-A of the O.E.A. Act and the
revisional authority came to hold that Opposite Party No.5 was
not the tenant under law, he ought to have honoured the
settlement of the case land in favour of the present petitioner
instead of the General Administration Department of the State of
Odisha.
5. It is also stated that the power under Section 38-B of
the O.E.A. Act being one of a remedial provision is not available to
be exercised to unsettle the things settled. So, the present writ
application is filed challenging the order of the learned Member,
Board of Revenue in directing the case land along with the
building to be recorded in favour of the opposite party No.1 with
further prayer to uphold the settlement of the case land in favour
of the petitioner.
5
6. Per contra, the opposite party No.1 filed counter
affidavit stating that the case land was a part of intermediary
trust estate of the petitioner and it was recorded in favour of Lord
Balunkeswar Dev with kisam "Mandir and hata" under Khewat
No.1 of Lord Lingaraj Mohaprabhu-petitioner. The trust estate of
Lord Lingaraj Mohaprabhu vested in the State vide Government in
Revenue Department Notification dated 18.3.1974 under sub-
Section (1) of Section 3-A of the O.E.A. Act, 1951. After vesting
the Government in G.A. Department became the lawful owner and
title holder of the case land from the date of vesting and the OEA
Collector had no authority to settle it with petition under Section 6
and 7 of the O.E.A. Act. As the land was vested with the State, it
is for the State to settle any building or land in favour of any
intermediary trust under Section 7-A of the Act only on
satisfaction that it was necessary for carrying out the purpose of
the trust subject to condition that said building is not held by any
tenant.
7. It is stated in the counter of opposite party No.1 that
the building in question being known as "Tala Bangala" was let out
on rent basis from July 1972 to Narasingha Rao and Rama
Chandra Das for which their claim for settlement of the case land
under Section 7-A is also not admissible under law. On the other
hand, the opposite party supported the order passed in O.E.A.
6
Revision Case No.88 of 2000 stating that the order of settlement
in favour of the petitioner passed in O.E.A. Case No.167 of 1977
and the order of the Appellate Court dated 19.5.2000 in O.E.A.
Appeal No.25 of 1995 are illegal, improper and without
jurisdiction.
8. The opposite party No.1 challenges the settlement of
the case land in favour of the petitioner on the ground that the
public proclamation inviting objection appears to have not been
published properly by beat of drums and placards which is a
mandate of law. Moreover, no notice under Section 69 (1) of the
Odisha Hindu Religious Endowment Act, 1951 (hereinafter called
"the OHRE Act") was given although it was mandatory to issue
such notice. The opposite party No.1 also challenges the claim of
opposite party No.5 on the ground that the permission of the
Endowment Commissioner to execute lease deed dated
13.12.1969 is a fraudulent one because the Endowment
Commissioner invoking Section 25 of the OHRE Act had registered
a case bearing No.86 of 1991 for eviction of opposite party No.5
from the case land. Be it stated that the Ownership Certificate
issued by the petitioner in favour of opposite party No.5 is a
misnomer in the eye of law because opposite party No.5 being
lessee cannot claim ownership over the leasehold property except
right of enjoyment of property as per terms of lease as the case
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property being recorded in favour of Lord Balunkeswar Dev, i.e.,
another deity managed by a trust board, the petitioner has no
authority under Section 6 (h)(i) of the Transfer of Property Act,
1882 to transfer of any leasehold right thereon even if the
Endowment Commissioner is presumed to have issued such
permission on 10.10.1969 to lease out the case property. The
opposite party No.5 has also failed to produce any registered
lease deed in its favour except few receipts for which the opposite
party No.3 has rightly disallowed the claim of opposite party No.5.
9. Moreover, it is stated that opposite party No.2-
Member, Board of Revenue has inherent power under Section 38-
B of the O.E.A. Act to examine the legality and propriety of the
decision of the subordinate court even if the order of settlement
passed long back in the year 1980. Thus, the order of the
Member, Board of Revenue should not be interfered with by this
Court.
SUBMISSIONS:
10. Learned counsel for the petitioner submitted that the
order passed by the Member, Board of Revenue under Section 38-
B is illegal and improper. The opposite party No.2 has erred in law
by making out the third case which is neither the case of the
petitioner nor the case of opposite party No.5. The Revisional
Court should have honoured the settlement made by the O.E.A.
8
Collector in 1977.
11. Learned counsel for the petitioner further submitted
that the petitioner-deity being a perpetual minor is represented
by the Executive Officer and as such has filed petition for
settlement in 1977 and after following due process and
procedure, the Tahasildar settled the case land in favour of the
petitioner. Opposite party No.5 was not a tenant and he having
filed the appeal has failed to succeed. The provisions of Sections
6, 7 and 8-A of the O.E.A. Act conjointly mentioned that a tenant
of holding or house or homestead land cannot be deemed to be
tenant under Section 8 (1) of the Act and as such the claim of
opposite party No.5 cannot be countenanced.
12. Learned counsel for the petitioner further submitted
that opposite party No.5 has no document of lease because
Narasingha Rao and Rama Chandra Das were the only tenant
upon the building in question and petitioner has inducted them
after obtaining permission from the Endowment Commissioner in
1969. He submitted that there is no lease deed executed for
which question of permanent lease in favour of said tenant would
arise, and that issuance of the Ownership Certificate, if any, is of
no help. Thus, he submits that the opposite party No.5 has no
claim over the suit property and rightly the Member, Board of
Revenue has rejected his claim.
9
13. At the same time, learned counsel for the petitioner
submitted that there being no illegality or impropriety in settling
the land in favour of the petitioner-deity by the Tahasildar and the
same being also upheld in the appeal, the opposite party No.2
ought to have restrained it from cancelling such settlement of the
land. According to him, under Section 38-B of the O.E.A. Act, the
legality of the order or impropriety of the order of settlement can
be only verified by the revisional authority but cannot unsettle the
settled records. The order of the revisional authority does not
disclose about any illegality with settlement except stating that
the case land is already vested in 1974 with the State
Government free from all encumbrances. But it has forgotten the
limitation of power conferred under Section 38-B of the Act and
has exceeded its jurisdiction by rejecting the claim of the
petitioner and directing for the land in favour of the opposite
party No.1.
14. Learned Additional Government Advocate submitted
that the order passed by the Member, Board of Revenue is legal
and proper because under Section 38-B the jurisdiction of
Member, Board of Revenue is wide enough to find out the legality
of the order passed in settling the land under Sections 6, 7 and 8-
A of the O.E.A. Act. In the instant case, there is no evidence of
service of notice to the general public for which rightly the learned
10
Member, Board of Revenue has come to a conclusion that the
procedure for settling the land in favour of the petitioner has not
been followed by the O.E.A. Collector and same has not been also
properly scrutinized by the Appellate Authority.
15. Learned Additional Government Advocate further
submitted that since 18.3.1974 the land has vested with the State
Government and the O.E.A. Collector has no jurisdiction to settle
the land with the petitioner deity in the O.E.A. case filed in 1977.
Apart from this, the order of the learned revisional authority is
also correct to observe that the opposite party No.5 being a
stranger, is a trespasser upon the case property because the Rao
family was only inducted as tenant in respect of "Talabangala"
situated on the case land and the opposite party No.5 is the son-
in-law of Narasingha Rao but he is not the tenant under the deity
before vesting so as to avail the benefit under Section 8 (1) of the
O.E.A. Act.
16. Learned Additional Government Advocate contended
that since the Member, Board of Revenue has rightly observed
that neither the petitioner is entitled to settlement of the land in
its favour, nor the opposite party No.5 is a tenant upon the case
land, he rightly directed the case land to be recorded in favour of
General Administration Department of the State Government. In a
nutshell he supports the impugned order of the revisional
11
authority.
17. Mr. Nath, learned counsel for the Endowment
Commissioner submitted that no permission was granted by the
Endowment Commissioner for lease in favour of opposite party
No.5. Instead, the Endowment Commissioner directed for eviction
of the petitioner from the case land by invoking Section 25 of the
OHRE Act. He also submitted that the Ownership Certificate
issued in favour of opposite party No.5 is a sham one and
assuming that it was issued, Opposite Party No.5 cannot become
owner of the property on that basis. Mr. Nath rather supports the
settlement of the case land in favour of the petitioner-deity and
confirmation of the same in Appeal.
18. POINT FOR CONSIDERATION:
(I) Whether the settlement of case property with the petitioner-
deity is legal and proper?
(II) Whether the impugned order passed by the Member, Board
of Revenue is liable to be quashed?
DISCUSSION:
POINT NO.(I)
19. It is not in dispute that the petitioner-deity was
intermediary in respect of the case property. It is admitted fact
that the case property is known as "Talabangala" where a building
stood. It is also not in dispute that Narasingha Rao and Ram
12
Chandra Das were inducted as tenants by the petitioner-deity
over the case property. On going through Annexure-1 it appears
that the O.E.A. Case No.167 of 1977 was initiated at the instance
of the Executive Officer, Lingaraj Temple on behalf of Sri Lingaraj
Mahaprabhu. The order sheet of the case record shows that
proclamation was issued inviting public objection by 7.1.1978. But
the record again was put up long after three years, i.e., on
16.3.1980 when fresh objection was invited. But on subsequent
dates Istahar was found to have been duly published in the
locality but no objection was received. In accordance with the
report of the R.I. that the case property is recorded as
Mandirahata/Nijdakhal as per G.O. No.21856 dated 24.3.1976,
the claim was allowed and the case property was settled with the
deity by the O.E.A. Collector. Annexure-2 shows that an appeal
under Section 9 of the O.E.A. Act was preferred by opposite party
No.5. After hearing both sides the Appellate Authority did not find
any merit in the appeal and dismissed the same upholding the
settlement of case property in favour of petitioner-deity passed by
the O.E.A. Collector.
20. From that order it is revealed that one Narasingha Rao
was residing in that bungalow over the case property on rental
basis up to July, 1972, but the present opposite party No.5 was
never in possession of the same for which his claim was declined.
13
Also from that order it appears that no valid permission was
obtained under Section 19 of the OHRE Act to lease out the
property to opposite party No.5, who was found to be in
unauthorized occupation thereon and as such the tenancy right of
opposite party No.5 over the case property was denied. These
facts are not controverted in the earlier order of Member, Board of
Revenue passed in O.E.A. Revision Case No.13 of 1994. Against
such order, it appears that the opposite party No.5 has
approached this Court in O.J.C. No.7572 of 1994 and in that order
the Court directed the opposite party No.5 to file fresh appeal for
which appeal was filed again vide O.E.A. Appeal No.25 of 1995.
21. The following order was passed in O.J.C. No.7572 of
1994 which is placed for better appreciation:
O.J.C. No.7572 of 1994
"11.1.95 Heard Shri D.S. Misra for petitioner
and learned Addl. Govt. Advocate for opp. parties 1,
3 and 4.
The order passed by the Addl. District
Magistrate, Khurda on 23.5.94 in O.E.A. Appeal
No.1/94 (Annexure-1) which has been confirmed by
the Member, Board of Revenue by the order dated
2.9.94 in O.E.A. Revision Case No.13 of 1994
(Annexure-2) is assailed by the petitioner in the writ
application.
On perusal of the order of the Addl. District
Magistrate, it appears that while granting leave to
the petitioner to file another petition before the
Collector, Khurda he has made certain observations
relating to merit of the case. In the facts and
circumstances of the case, the Addl. District
Magistrate, should have avoided in making any
observation relating to merit of the case. However,
14
since the petitioner has been permitted to file an
appeal before the Collector who is undisputedly the
competent authority to entertain the same, we are
not inclined to quash the order of the Addl. District
Magistrate. We make it clear that if the petitioner
files an appeal before the Collector, Khurda, the said
authority will consider the same on merit without
being influenced by the observations made in the
order of the Additional District Magistrate dated
23.5.94 in O.E.A. Appeal No.1 of 1994.
The writ application is disposed of on the
aforesaid terms."
From the aforesaid order, it is clear that the writ was
filed against the O.E.A. Revision Case No.13 of 1994 confirming
the order passed by the A.D.M., Khurda in O.E.A. Appeal No.1 of
1994. On perusal of the order passed in O.E.A. Appeal No.1 of
1994 and O.E.A. Revision Case No.13 of 1994 it is clear that they
have confirmed the settlement of the case property in favour of
the deity passed in O.E.A. Case No.167 of 1977 passed by the
Tahasildar in favour of the petitioner-deity. This Court has not
quashed the order of the A.D.M. but gave a chance to the present
Opposite party No.5 to prefer appeal before the Collector, Khurda
and accordingly O.E.A. Appeal No.25 of 1995 was filed by the
opposite party No.5 against the petitioner-deity. On the other
hand, the order of settlement of case property in favour of the
deity has been tested in O.E.A. Appeal No.1 of 1994, O.E.A.
Revision Case No.13 of 1994 and O.E.A. Appeal No.25 of 1995
and in every place the vesting of case property with the
15
petitioner-deity has been upheld and the plea of the opposite
party No.5 about his tenancy was consistently disbelieved and
finally his claim under Section 8 (1) of the O.E.A. Act was denied.
22. Learned counsel for the petitioner submitted that in
view of the fact that the case property was settled with the
petitioner-deity, the same cannot be reopened by the Member,
Board of Revenue under Section 38-B of the Act. Learned
Additional Government Advocate refuting the contention of the
petitioner submitted that no proclamation as required under law
was issued by the O.E.A. Collector inviting objection for which the
entire settlement is vitiated. Apart from this, he took the plea that
there being no application for settlement by the petitioner-deity
intermediary by the time of vesting, the case property stood
vested with the State on 18.3.1974 under Section 3-A of the
O.E.A. Act, 1951 being free from all encumbrances. He further
submitted that the impugned order shows that the case property
was not in khas possession of the petitioner ex-intermediary and
it could have been settled only under Section 7-A of the O.E.A.
Act and the O.E.A. Collector has no authority to settle the building
thereon for which he has acted beyond his jurisdiction. At the
same time in the impugned order the Member has found the
present opposite party No.5 to be a trespasser but not a tenant as
defined under Section 23 of the Orissa Tenancy Act.
16
23. The impugned order of the Member, Board of Revenue
does not spell out on what basis he could gather that the deity
was not in possession of the case property on the date of vesting
when it is clear from the order of the settlement that the
petitioner was in khas possession of the Mandirahata case land.
Moreover, the order of the Appellate Authority passed in O.E.A.
Appeal No.25 of 1995 that the tenant on the case property
continued up to the year 1972 whereas the case land stood
vested on 18.3.1974. The order of the Member, Board of Revenue
is not based on established facts and acceptable reasons.
24. The order of settlement never shows that the land
was settled under Section 7 but it is only found that on 31.7.1980
the claim petition by the petitioner-deity for settlement of case
land was allowed. When there is no section of law mentioned, it is
obviously observed that the building having been stood on the
plot in question, settled under Section 7-A of the O.E.A. Act. So,
the impugned order passed by the Member, Board of Revenue has
no any correct reasoning and being passed with the facts not on
record cannot be allowed to be sustained in law.
25. The order of settlement was passed on 31.3.1980 and
the First Appeal was filed in 1994 against which revision was filed
in 1994. The order of this Court in O.J.C. No.7572 of 1994 was
passed on 11.1.1995. In pursuance of the order of this Court the
17
appeal was filed again before the Collector, Khurda and ultimately
it was transferred to A.D.M., Khurda who passed the order vide
Appeal No.25 of 1995 on 19.5.2000. Against that order revision
was filed vide O.E.A. Revision Case No.88 of 2000 and the
revisional authority passed the order on 17.11.2007 against which
the present writ application is filed. Now from the marathon run
of the case record disclosed that the settlement of the case
property in favour of the deity has been disturbed only in 2007. It
is the only claim of the opposite party No.5 who actually carried
the appeal and revision including the writ before this Court asking
for his tenancy under Section 8 (1) of the O.E.A. Act but never
the revenue Department has challenged the settlement of land
under the provisions of the O.E.A. Act with the petitioner-deity.
For the first time the Member, Board of Revenue vide Annexure-3
passed order in 2007 setting aside the order of settlement which
was passed in 1980 and directed to record case land in favour of
G.A. Department without giving proper opportunity to the
petitioner. Now the question arises whether the Member, Board of
Revenue made out a third case which was never raised before him
either by the petitioner or by the opposite party No.5.
26. On perusal of the impugned order, it appears that
opposite party No.5 preferred the revision against the order of the
Appellate Court passed in O.E.A. Appeal No.25 of 1995 under
18
which the settlement of the land was confirmed in favour of the
petitioner-deity and the claim of tenancy by Opposite Party No.5
was negatived.
The relevant findings in the impugned order vide
Annexure-3 is extracted below:-
" 16. Though the petitioner claims that the land
with building was leased to him with effect from
31.12.1969, no lease document has been
produced. Any such lease document also needs to
be registered under section 107 of the Transfer of
Property Act, 1882. There is no evidence on record
that the said lease document was registered. It
has been held by Hon'ble Supreme Court in the
State of Orissa and another -versus- Brundaban
Sharma and Another [reported in 1995 Supp (3)
Supreme Court cases 249] that if an OEA Collector
concludes that a "lease, transfer or settlement"
made prior to vesting of an ex-Estate (even if it is
prior to 01.01.1946) is not to be set aside, he
should obtain prior confirmation from the Board of
Revenue under section 5(i) of the OEA act. There
is nothing brought on record to show that such
confirmation was obtained in this case. In view of
this, the present petitioner has absolutely no right
over the suit land with house. He is merely an
unauthorized occupant.
17. In settling the suit land, with the building
standing on it, vide his orders dated 31.07.1980 in
OEA Case No.167/77(T), the OEA Collector-cum-
Tahasildar, Bhubaneswar had acted beyond his
jurisdiction. By upholding the orders in appeal, the
Collector, Khurda has erred in law. Therefore, the
orders of Collector, Khurda dated 19.05.2000 and
those of the OEA Collector-cum-Tahasildar,
Bhubaneswar dated 31.07.1980, both are set
aside. The land with building had already vested
on 18.03.1974 with the State free from all the
encumbrances. Therefore, it should be recorded in
the name of General Administration Department of
Government of Orissa with no note of possession
19
or any kind of encumbrance. The latest published
R-O-R should be corrected, accordingly."
27. From the aforesaid findings, it appears that the
opposite party No.2 did not accept the contention of the opposite
party No.5 who was the petitioner before the Member, Board of
Revenue. Before the Revisional Authority the petitioner-deity was
the sole opposite party. Having negatived the claim of present
Opposite Party No.5, it was not open to the Member to consider
the propriety of the settlement made in favour of the petitioner
which was never impugned by the State. Directing for recording
of land with the G.A. Department on ground that the entire case
property has been vested with the State free from all
encumbrances on 8.3.1974, the revisional authority has made out
a third case without giving opportunity to the opposite party of
being heard on such question, which is legally unsustainable in
view of the provision of Section 38-B of the Act, which is
reproduced below for better appreciation:
"38-B. Revision - (1) The (Board of Revenue)
may, on its own motion or on a report from the
Collector, call for and examine the record of any
proceeding in which any authority subordinate to
the (Board of Revenue) has made any decision or
passed an order under this Act (not being a decision
against which an appeal has been preferred to the
High Court or the District Judge under (Sec.22) for
the purpose of satisfying itself as to the regularity of
such proceeding or the correctness legality or
propriety of such decision or order and if in any case
it appears to the (Board of Revenue) that any such
decision or order ought to be modified, annulled,
20
reversed or remitted, it may pass order accordingly.
(2) The Board or Revenue shall not-
[(i) ***]
(i) revise any decision or order under this Section
without giving the parties concerned an opportunity
of being heard in the matter."
28. The aforesaid provision make it clear that Board
Revenue either on its own motion or on a report from the
Collector should call for the record of any proceeding to satisfy
himself as to the regularity of such proceeding or to the
correctness, legality or propriety of such decision or proceeding or
order, and if it is found that such decision or order sought to be
modified, annulled, reversed or remitted he should pass the order
accordingly. Here the revision was initiated at the instance of
opposite party No.5 but not on suo motu by the Board of Revenue
or at the instance of the Collector or the State. So, the legality or
the propriety of the order to be examined by the Board of
Revenue was within a narrow compass, i.e., with regard to only
the refusal of the authority under the Act to record the name of
the petitioner (opposite party No.5) as a tenant. The said claim
having been rejected, the Member should not have disturbed the
order of the settlement made in favour of the petitioner by
making out a third case in favour of the G. A. Department.
29. It is true that the Member, Board of Revenue has got
dual function in one hand as highest authority of revenue to take
21
custody of the Government land and on the other hand he has
also a quasi-judicial authority to decide the legality of the order
passed by any authority subordinate to it. In the instant case,
while the Member, Board of Revenue chose to record the case
land in favour of the State Government should have given
opportunity to the present petitioner to adduce evidence and hear
argument. Thus, we are of the view that the learned Member,
Board of Revenue has no authority to decide the third case while
passing the impugned order. Even assuming that by making out a
third case, the opposite party No.2 took cognizance of fact suo
motu, he should have given reasonable opportunity to opposite
party before it to support his claim as sub-Section (2) of Section
38-B of the Act mandates the Board of Revenue to give
reasonable opportunity to the parties before setting aside or
nullifying the settlement of land in favour of the petitioner-deity.
Having said so, we are constraint to observe that the learned
Member, Board of Revenue has not only made out a third case but
also has failed to exercise the jurisdiction mandated under
Section 38-B (2) by not affording reasonable opportunity of being
heard to the petitioner-deity before setting aside the settlement
of the land in favour of the petitioner-deity.
30. In terms of the above discussion particularly when the
petitioner-deity being the ex-intermediary was in possession of
22
the case land on the date of vesting as has been observed earlier
and in view of the extension of time to apply for settlement of
land in favour of the deity and same having been made and
particularly the Member, Board of Revenue having no adherence
to the mandate of provision of law made out a third case without
complying the mandatory provision of law, we are of the view that
the settlement of land in favour of the deity still stands and it is
not at all annulled by the order of the Member, Board of Revenue.
The point No.(i) is answered accordingly.
POINT NO.(II)
31. The impugned order of the Member, Board of Revenue
thus not only suffers from infirmities regarding the scope of
revisional jurisdiction as mandated under sub-Section (2) of
Section 38-B of the Act but also suffers from the vice of taking
suo motu cognizance of the order of settlement and setting aside
the same after long unreasonable delay.
32. It is reported in Ibrahimpatnam Taluk Vyavasaya
Coolie Sangham v. K. Suresh Reddy and others; (2003) 7
SCC 667: (AIR 2003 SC 3592) where the Hon'ble Apex Court
have observed in the following manner:
"9. ...............In the absence of necessary and sufficient
particulars pleaded as regards fraud and the date or
period of discovery of fraud and more so when the
contention that the suo motu power could be exercised
23
within a reasonable period from the date of discovery of
fraud was not urged, the learned Single Judge as well as
the Division Bench of the High Court were right in not
examining the question of fraud alleged to have been
committed by the non-official respondents. Use of the
words "at any time" in sub-section (4) of Section 50-B of
the Act only indicates that no specific period of limitation
is prescribed within which the suo motu power could be
exercised reckoning or starting from a particular date
advisedly and contextually. Exercise of suo motu power
depended on facts and circumstances of each case. In
cases of fraud, this power could be exercised within a
reasonable time from the date of detection or discovery
of fraud. While exercising such power, several factors
need to be kept in mind such as effect on the rights of
the third parties over the immovable property due to
passage of considerable time, change of hands by
subsequent bona fide transfers, the orders attaining
finality under the provisions of other Acts (such as
the Land Ceiling Act). Hence, it appears that without
stating from what date the period of limitation starts and
within what period the suo motu power is to be
exercised, in sub-section (4) of Section 50-B of the Act,
the words "at any time" are used so that the suo motu
power could be exercised within reasonable period from
the date of discovery of fraud depending on facts and
circumstances of each case in the context of the statute
and nature of rights of the parties. Use of the words "at
any time" in sub-section (4) of Section 50-B of the Act
cannot be rigidly read letter by letter. It must be read
and construed contextually and reasonably. If one has to
simply proceed on the basis of the dictionary meaning of
the words "at any time", the suo motu power under sub-
section (4) of Section 50-B of the Act could be exercised
even after decades and then it would lead to anomalous
position leading to uncertainty and complications
seriously affecting the rights of the parties, that too, over
immovable properties. Orders attaining finality and
certainty of the rights of the parties accrued in the light
of the orders passed must have sanctity. Exercise of suo
motu power "at any time" only means that no specific
period such as days, months or years are not prescribed
reckoning from a particular date. But that does not mean
that "at any time" should be unguided and arbitrary. In
this view, "at any time" must be understood as within a
reasonable time depending on the facts and
circumstances of each case in the absence of prescribed
period of limitation."
24
33. With regard to the above decision, the Hon'ble
Supreme Court have made it clear that suo motu power can be
exercised at any time does not mean that beyond reasonable time
and reasonable time has to be made out by considering the facts
and circumstances of each case. Similar provision appears in
Section 38-B of the Act because the time stipulated earlier in old
provision has been taken away. Now Board of Revenue has been
given to exercise the revisional power at any time. So, applying
the same analogy, Board of Revenue should exercise the power
within reasonable time. The aforesaid view has also been followed
by the Hon'ble Apex Court in another judgment reported in AIR
2015 SC 1021 (Jt. Collector, Ranga Reddy Dist. V. D.
Narsing Rao).
34. This Court in the case of Smt. Parbati Mohapatra
and another; 2014(I) OLR 825, held that the revisional power
under Section 38-B of the Act has to be exercised in a reasonable
manner which necessarily stipulated that it should be exercised
within a reasonable time and what is reasonable time would differ
depending upon the facts of each case.
35. Similarly this Court in the case of Nityananda
Satpathy and others v. Member, Board of Revenue, Orissa,
Cuttack and others;1996(II) OLR 262, held at para-6 in the
25
following manner:
"6. xxx The power of the Board of Revenue
under Sec. 38-B to revise a decision or order of any
authority subordinate to it is not disputed, but that
power has to be exercised in a reasonable manner
within a reasonable time. No hard and fast rule can
be laid down as to what should be the reasonable
time. Each case has to be decided on facts and
circumstances peculiar to it. xxx"
36. Now applying the principle laid down above, it is very
clear that the Member, Board of Revenue cannot exercise the
power arbitrarily at any time but must exercise the power within
reasonable time after verifying the facts and circumstances of
each case. In the instant case, when none of the parties has
raised issue with regard to the settlement of the land in favour of
the petitioner-deity, setting aside such settlement and passing
suo motu order in favour of the G.A. Department, who is not a
party to the revision, is not sustainable in law being exercised
after reasonable time. Point No.(ii) is answered accordingly.
CONCLUSION:
37. In terms of the above discussion, we are of the view
that the impugned order passed by the Member, Board of
Revenue is not only de hors the provision of law but also smacks
of travesty of justice by reopening the case long after 27 years.
Hence, the impugned order in so far as it sets aside the
26
settlement of the case land in favour of the deity is quashed, and
in so far as it rejects the claim of Opposite party No.5, is
confirmed.
The Writ Petition is disposed of accordingly.
..................................
Dr. D.P. Choudhury, J
B.K. Nayak, J.I agree.
.................................. B.K. Nayak, J Orissa High Court, Cuttack Dated the 14th November, 2017/Kar 27