Orissa High Court
Chittaranjan Sahoo vs Collector on 9 January, 2014
Author: I. Mahanty
Bench: I. Mahanty
HIGH COURT OF ORISSA: CUTTACK
W.P.(C) Nos.13689 of 2009 and 1770 of 2012
In the matter of applications under Articles 226 and 227 of the Constitution
of India.
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In W.P.(C) No.13689 of 2009
Chittaranjan Sahoo, aged about 35 years,
S/o. Kulamani Sahoo,
At: Mahavirnagar, Mohabhoisasan,
P.S. Old Town, P.O. Samantarapur,
Bhubaneswar, Dist: Khurda ... Petitioner
In W.P.(C) No.1770 of 2012
Smt. Bimala Kabi Satapathy,
aged about 62 years,
W/o. Ramesh Satapathy
Vill: Uttara Madhuban,
Ward No.2, P.O./P.S./Dist: Dhenkanal ... Petitioner
-Versus-
Collector, Khurda and others ... Opp. Parties
[In both the cases]
For Petitioners : Mr. N.C. Panigrahi, Sr.Advocate,
S.R. Panigrahi, N.K. Tripathy,
N.C. Nayak & D. Dhall
[in both the cases]
For Opp. Parties : Mr. B. Bhuyan,
Addl. Govt. Advocate
Mr. M.S. Sahoo
Addl. Standing Counsel
[for O.P. Nos.1, 2 and 12]
Mr. Manas Ranjan Panda
[For O.P.No.3]
2
M/s. Ajodhya Ranjan Dash,
S.K. Nanda, B. Mohapatra &
S.N. Sahoo
Mr. B.N. Rath
[For O.P. No.11]
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE I. MAHANTY
AND
THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA
Date of Judgment: 09.01.2014
B.N. Mahapatra, J.In both the writ petitions, the petitioners have challenged the order dated 03.08.2009 (Annexure-8) passed by the Member, Board of Revenue, Odisha, Cuttack in O.E.A. Revision Case No.226 of 2001 setting aside the order dated 31.03.1997 (Annexure-2) passed by the Additional Tahasildar, Bhubaneswar in Bebandobasta Case No.1 of 1997.
2. Petitioners' case in a nut-shell is that the entire suit land appertaining to Khata No.68, Chaka No.35, bearing Plot Nos.58 and 93, area Ac 4.481 and Ac 0.312 totaling to area Ac 4.793 (for short, "suit land") involved in O.E.A. Revision Case No.226 of 2001 was recorded in the R.O.R. published in the year 1979 as "Bebandobasta Status" with lord Lingaraj Mahaprabhu Bije- Bhubaneswar jointly with the present opposite party Nos.3 to 9. Bebandobasta Case No.1 of 1997 was instituted by the Additional Tahasildar, Bhubaneswar on the basis of G.O. No.11782 dated 14.03.1991 on the report of the Court Amin for settlement of the suit land. The Additional Tahasidlar after issuing general proclamation, inviting objection and after hearing opposite party Nos.3 to 9 and others held that 3 opposite party nos.3 to 9 were in possession of the suit lands through their forefathers as tenants, "in lieu of service" rendered by them to Lord Lingaraj which were granted to them as "Service Jagir" Lands. Accordingly, the Additional Tahasildar, Bhubaneswar settled the land with Lord Lingaraj Mahaprabhu Bije-Bhubaneswar and opposite party Nos.3 to 9 as Marfatdars.
The said order of the Additional Tahasildar, Bhubaneswar was also confirmed by the Sub-Collector, Bhubaneswar. Therefore, claim of opposite party Nos.3 to 9 is that they were the "Stitiban Rayati Holders" of the suit lands and their rights which are heritable and transferable were not affected in any manner and they continued to be the owners in possession of the suit lands after vesting of the estate of Lord Lingaraj in the year 1974. Opposite party Nos.3, 4, 5 and 7 transferred Ac 0.0861/2 decimals out of the suit land of Ac 4.713 in favour of one Hemanta Chandra Mohapatra by a Registered Sale Deed executed on 18.02.1998. The said Hemanta Chandra Mohapatra by virtue of a Registered Sale Deed executed on 10.11.2000 transferred Ac 0.080 decimals of the land in favour of the petitioner Chittaranjan Sahoo. Opp. party Nos.3,4,5, 7 and 9 by virtue of a Registered Sale Deed executed on 27.12.1996 transferred Ac.0461 &1/2 decimals of land in favour of the petitioner-Smt. Bimala Kabi Satapathy. After purchase, the petitioners have constructed their residential houses on the suit land and are staying with their families without any interruption 4 from any quarter until the impugned order of the Member, Board of Revenue, Odisha, Cuttack under Annexure-8 was passed.
The Consolidation Authorities in course of the consolidation proceeding in the year 1977-78, recorded the suit land in the name of Lord Lingaraj Marfat the Sevayat-vendors with stitiban status and rents were also collected by the Office of the Tahasildar, Bhubaneswar from them. When the matter stood thus, the Member, Board of Revenue, Odisha, Cuttack registered O.E.A. Revision Case No.226 of 2001 on a move by the Collector, Puri and by exercise of purported power under para 3(26) of the Revenue Department Circular No.57677/R dated 06.12.2000, set aside the order dated 31.03.1997 (Annexure-2) passed by the Additional Tahasildar, Bhubaneswar in Bebandobasta Case No.1 of 1997, on a finding that, the suit land had vested in the State of Odisha free from all encumbrances on abolition of the Ex-Estate of Lord Lingaraj and directed for recording of the suit land in favour of the State of Odisha with no note of possession and further held that none of the purchasers including the petitioners has acquired any right and title on any piece of the suit land on the strength of purchase from opposite party Nos.3 to 9. Hence, the present writ petitions.
3. Mr. N.C. Panigrahi, learned Senior Advocate appearing for the petitioners in both the writ petitions submitted that on 27.10.2009 this Court in Misc. Case No.11607 of 2009 arising out of the present writ petition bearing W.P.(C) No.13689 of 2009 passed an order to the effect that in the meantime operation of the order dated 03.08.2009 (Annexure-8) 5 passed by the Member, Board of Revenue, Odisha, Cuttack in O.E.A. Revision Case No.226 of 2001 shall remain stayed. In view of the said interim order, no further order was passed in Misc. Case No.1554 of 2012 on 16.01.2013. It is further submitted that no counter affidavit has been filed by opposite parties including the Lord Lingaraj Bije- Bhubaneswar in respect of the aforesaid order of this Court.
It was further submitted that the order under Annexure-8 passed by the Member, Board of Revenue, Odisha, Cuttack is non-est, without jurisdiction and void because the learned Member could not revise the order under Section 38-B of the Orissa Estates Abolition Act, 1951 (for short, "OEA Act") as the Tahasildar, Bhubaneswar did not pass any order under that Act. In support of such contention, Mr. Panigrahi, learned Senior Advocate relied upon decisions of this Court in the cases of Motwali Sk. Kausar vs. State of Orissa, Vol 63 (1987) CLT 526; Smt. Basanta Kumari Dei vs. Krushnapriya Devi, (2007) 1 OLR 89; and Radhamani Dibya vs. Braja Mohan Biswal, Vol. 57 (1984) CLT 1 (FB).
It was also submitted that the Govt. Order dated 14.03.1991 of the State Government does not provide for filing of any appeal, review or revision and hence, the Member, Board of Revenue did not have any power to revise the order of the Additional Tahasildar, Bhubaneswar passed under the said Government Order dated 14.03.1991. Further contention of the petitioners is that the Member, Board of Revenue has exercised its power with unreasonable delay and 6 hence, the order under Annexure-8 is liable to be quashed. In support of said contention, Mr. Panigrahi relied upon the decisions of the Hon'ble Supreme Court in the cases of State of Gujarat vs. P. Raghav Natha, AIR 1969 SC 1297; S.B. Gurubaksh Singh vs. Union of India, AIR 1976 SC 1115; Mansaram vs. S.P. Pathak, AIR 1983 SC 1239 and decisions of this Court in the cases of Laxman Kanda vs. State of Orissa and others, Vol.72(1991) CLT 49 and Laxminarayan Sahu vs. State of Orissa, Vol.71 (1991) CLT 322 (FB).
According to Mr. Panigrahi, the decision of the Hon'ble Supreme Court in the case of State of Orissa vs. Brundaban Sharma, 1995 (Supp.3) SCC 249 has no application to the case of the petitioners as the finding of the Hon'ble Supreme Court in paragraph-18 of the judgment is confined to the facts of the said case and order of the Additional Tahasildar, Bhubaneswar being passed in pursuance of the Circular of the State Government under Annexure-1 is neither non-est nor void.
It was further contended that the suit land did not vest in the State. In support of such contention, reliance was placed upon the judgments of this Court in the cases of Bhagaban Gouda vs. Ukia Dei, AIR 1975 (Orissa) 139; Jemma vs. Raghu, AIR 1977 Orissa 12 and Biddika Haddi vs. Sidika Batnalu, AIR 1996 Orissa 80 .
Mr. Panigrahi further submitted that under Article 112 of the Limitation Act, 1963, the petitioners have acquired title over the land by adverse possession against the whole world. In support of his contention, he relied upon the judgment of this Court in the cases of Sricharan Swain 7 vs. State of Orissa and others, (2008) II OLR 834 and Special Secretary to Govt. vs. Shri Bansidhar Naik, (2007) II OLR 557.
Concluding his argument, Mr. Panigrahi prayed to set aside the order dated 03.08.2009 (Annexure-8) passed by the Member, Board of Revenue, Odisha, Cuttack in OEA Revision Case No.226 of 2001 and restore the order dated 31.03.1997 (Annexure-2) passed by the Additional Tahasildar, Bhubaneswar in Bebandobasta Case No.1 of 1997.
4. Per contra, Mr. M.S. Sahoo, learned Additional Standing Counsel for State-opposite party Nos.1, 2 and 12 vehemently argued that the order of the Additional Tahasildar, Bhubaneswar dated 31.03.1997 (Annexure-2) is not valid in law because, before passing the said order, the Tahasildar, Bhubaneswar had not obtained "prior approval" of the Sub- Collector, Bhubaneswar as required under paragraph-11 of the G.O. dated 14.03.1991. Proviso to sub-section (3) of Section 8 of the OEA Act states that nothing in sub-section (3) shall apply to the Trust Estate which is vested in the State on or after the date of coming into force of the Orissa Estates Abolition (Amendment) Act, 1970. Sub-section (3) of Section 8A provides that on the failure of filing the claims within the periods specified under this Section the provisions of Clause (b) of Section 5 shall, notwithstanding anything to the contrary in Sections 6, 7 and 8, apply as if the right to possession of the lands or buildings or structures, as the case may be, had vested in the State Government by the operation of this Act and thereupon the right to make any such claim as aforesaid shall stand 8 extinguished. The deity being a perpetual minor, sale of such land is expressly barred under the provisions of Orissa Hindu Religious Endowments Act, 1951 (for short, "OHRE Act") without prior sanction by the Commissioner and not being beneficial to the deity. Therefore, the Marfatdar could not have transferred any right, title and interest over the property belonging to the deity to any of their vendees and the said vendees could not have transferred to any subsequent purchaser.
Mr. Sahu further submitted that the Member, Board of Revenue, Odisha, Cuttack in its order under Annexure-8 took note of the fact that the suit lands were not recorded as "Nizdakhal", "Nizchas" or "Nizjot" or that the lands were personal land of the ex-intermediary who is the deity in the present case. The said lands were also not under khas possession. Therefore, the Member, Board of Revenue, Odisha, Cuttack has come to the conclusion that the lands could not have been settled with the ex-intermediary after the same vested in the Government and the statutory period for lodging the claims which was extended till 1977 had expired.
Placing reliance upon the judgment of the Hon'ble Supreme Court in the case of Brundaban Sharma (supra), it was submitted that if a patta was obtained fraudulently in collusion with the officers and it comes to the notice of the authorities after a long lapse of time, the lapse of time cannot be an excuse to refrain from exercising the revisional power to unravel the fraud and to set it right.
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It is further submitted that the Additional Tahasildar, Bhubaneswar had passed the order under Annexure-2 in Bebandobasta Case No.1 of 1997 relying upon G.O. No.11782/R dated 14.03.1991 (Annexure-1). It was submitted that in view of the reference to the OEA Act and the Sections therein, the proceeding undertaken by the Tahasildar as prescribed in G.O. dated 14.03.1991 and the order passed therein is an order under/relating to OEA Act. Concluding his argument, Mr. Sahu submitted for dismissal of the present writ petitions.
5. Mr. B.N. Rath, learned counsel appearing for opposite party No.11-Executive Officer, Lord Lingaraj Temple, Bhubaneswar submitted that as per 1961 ROR, the lands were recorded as "Niskar Jagir" under Sri Lingaraj Mahaprabhu as the intermediary in Khewat No.1 B-Registry No.14807 with the incidence of service in favour of Govinda Samantaray and others towards the deity. The said properties of Lord Lingaraj along with other properties were declared as trust estates by the designated tribunal under the OEA Act and by virtue of notification dated 18.03.1974 the trust estates, including those of Lord Lingaraj, vested in the State. During consolidation proceeding, the lands were recorded in Bebandobasta Khata in the name of the deity Marfat Brundaban Mohapatra and others and the record of rights (ROR) was published in the year 1979 accordingly. Since the land does not come under the purview of Sections 6 and 7 of the OEA Act, there is no occasion for the deity to apply for settlement under Section 8-A of the OEA Act in the name of the deity. The land does not 10 come under the purview of Sections 8(2) and 8(3) of the OEA Act and therefore, cannot be settled in the name of Brundaban Mohapatra and others.
In view of proviso to Section 8(3) of the OEA Act, the trust estates having been saved and in view of the intention of legislature in introducing such proviso particularly the trust estates burdened with service, are deemed to be settled in the name of intermediary in view of the continuance of the service to the deity/trust estates. By virtue of the State Government Order dated 14.03.1991 (Annexure-1), the Additional Tahasildar, Bhubaneswar initiated suo motu Bebandobasta Case No.1 of 1997. Subsequently, in 1995, the State Government issued Circular/Clarification dated 11.01.1995 to the effect that the lands recorded in Bebandobasta status of the Lord Lingaraj Mohaprabhu be settled in the name of the deity and in the remarks column the names of sevayats holding the lands are to be mentioned for rendering service. In spite of Circular /Clarification of 1995, though the Tahasildar settled the land in the name of the Lord Lingaraj Mohaprabhu yet the names of sevayats have been recorded as Marfatdars. Therefore, the Collector, Khurda referred the matter under Section 38-B of the said Act in the matter of deletion of the names of the sevayats as Marfatdars and recording the land under the Marfatdarship of the trust board. In the meantime, the sevayats without any alienable right and in contravention of the provisions of the O.H.R.E. Act 11 and without knowledge of management of deity, having sold the properties, the present petitioners and opposite party Nos.13 to 61 have come to the picture. The Member, Board of Revenue, Odisha, Cuttack has completely misdirected himself while answering the reference by not substituting the Marfatdars by the Trust Board and passing order to record the land in the name of the State Government which is not permissible in law. Under definition of "Religious Endowment" or "Endowment" under Section 3 (xii) of the OHRE Act, the lands held by the Sevayats and Jagirdars are also included. The Member, Board of Revenue, Odisha, Cuttack in the matter of order passed in Bebandobasta case, which does not come under the OEA Act, could not have exercised the jurisdiction under Section 38-B of the OEA Act. Therefore, the order under Annexure-8 passed by the Member, Board of Revenue is wholly without jurisdiction. The Trust Board is the custodian of deity's property and the Sevayats have no right other than to possess the land as long as they discharge the seva. The Consolidation Authorities have no jurisdiction to decide about Marfatdarship of the property in question. Concluding his argument, Mr. Rath submitted that the order under Annexure-8 passed by the Member, Board of Revenue to record the land in question in favour of the State Government is non-est in the eye of law. Neither the Sevayats nor any of their vendees are entitled to be recorded in respect of the suit land as claimed in the writ petitions.
6. On the rival contentions of the parties, the following questions fall for consideration by this Court:
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(i) Whether the Additional Tahasildar is justified in settling the suit lands in rayati status in favour of Lord Lingaraj Mohaprabhu Bije, Bhubaneswar marfat Sri Bijendra Mohapatra, Brundaban Mohapatra, Gagan Behari Mohapatra, Kumkumi Mohapatra, Debendra Samantaray and Prafulli Samantaray in his order dated 31.03.1997 passed in Bebandobasta Case No.1 of 1997?
(ii) Whether the Sevayats had/have any alienable right in suit lands and sale of the suit land by them in favour of the Petitioners/Vendor of the petitioner is valid in law?
(iii) Whether the order of the Member, Board of Revenue, Odisha, Cuttack dated 03.08.2009 (Annexure-8) is non- est, without jurisdiction and void ?
(iv) Whether the suit land belonging to the Lord Lingaraj Mahaprabhu Bije, Bhubaneswar held by opposite party Nos.3 to 9 for rendering service to Lord Lingaraj Mahaprabhu did not vest in the State under the OEA Act?
(v) Whether the Member, Board of Revenue is justified in passing order to record the suit land in favour of the State Government ?
(vi) Whether the petitioners acquired title over the suit land by adverse possession?
(vii) What is the effect of non-filing of counter affidavit by opposite parties including Lord Lingaraj Mahaprabhu Bije Bhubaneswar pursuant to the interim order of this Court dated 27.10.2009 passed in Misc. Case No.11607 of 2009 ?
7. Question no.(i) is whether the Additional Tahasildar is justified in settling the suit lands in rayati status in favour of Lord Lingaraj 13 Mohaprabhu Bije Bhubaneswar marfat Sri Bijendra Mahapatra and others in his order dated 31.03.1997 passed in Bebandobasta Case No. 1 of 1997?
As per 1962 Record of Rights, the suit lands were recorded as Niskar Jagir under Sri Lingaraj Mahaprabhu as the intermediary in Khewat No.1, B-Register No.14807 with incidence of service in favour of Gobinda Samantray and others towards the deity. The said properties of Lingaraj Mohaprabhu along with other properties were declared as Trust Estate by the designated Tribunal under O.E.A. Act. By virtue of notification dated 18.3.1974 the Trust Estate including those of Lord Lingaraj vested in the State free from all encumbrances. However, the subsequent revision settlement record of rights of the suit land was published in 1979 in which the suit lands were recorded in Bebandobasta status with Lord Lingaraj Mohaprabhu Bije Bhubaneswar jointly with the present opposite parties 3 to 9.
8. The Tahasildar, Bhubaneswar initiated a suo motu Bebandobasta Case No.1 of 1997 in view of the State Government Order dated 14.3.1991 and passed the order under Annexure-2 settling the suit lands in the raiyati status in favour of Lord Lingaraj Bije Bhubaneswar marfat Sri Bijendra Mohapatra and others. Now the question arises whether the Tahasildar is justified in passing such order. Admittedly, the Tahasildar passed such order on the basis of G.O. No.11782 dated 14.03.1991. The said G.O. dated 14.03.1991 was issued by the Secretary to Government in Revenue & Excise Department to the Land Reforms 14 Commissioner, Orissa, Cuttack and Secretary, Board of Revenue, Orissa, Cuttack on the subject- 'Manner of dealing with lands recorded in Bebandobasta status in the Record of Rights'. The said G.O. inter alia reads as follows:
"It has been brought to the notice of Government that about one lakh holdings have been recorded in the R.O.Rs by the Settlement authorities in Bebandobasta status in several districts of the State specially Cuttack, Puri and Balasore. The last subsisting estates were vested in Government in 1974 i.e. 16 years ago and in spite of that, so many holdings still continue to be recorded in Bebandobasta status. This is due to the fact that there were no clear instructions by the Settlement authorities regarding the manner of recording lands in Bebandobasta status and therefore a large number of holdings have apparently been erroneously recorded as such."
Paragraph 3 of the said G.O. further provides that the lands which could be recorded as Bebandobasta status belong to various categories of lands including the lands held for rendering service to inter- mediary, who is a Trust Estate. Clause (vii) of paragraph 4 of the said G.O. speaks that if after conducting enquiry, the claim is established, then the land could be settled with the claimant in raiyati status (except the cases of personal service to deities or trust estates) from the date of vesting of the estate on fixation of fair and equitable rent.
Thus the G.O. dated 14.3.1991 on the basis of which the Tahasildar passed the order under Annexure-2 clearly shows that the land cannot be settled with the sevayats, who hold the lands to render personal 15 services to deities or trust estates in raiyati status from the date of vesting of the Estate on fixation of fair and equitable rent.
9. At this juncture, it would be relevant to extract sub-section (3) of Section 8 of the OEA Act, 1961 with proviso, which reads as follows:
"Sec.8 (3): Any person who immediately before the date of vesting held land under an Intermediary on favourable terms for personal service rendered by him to such Intermediary shall, from the date of vesting, be discharged from the conditions of such service and the land may be settled with him in such manner and under such terms and conditions as may be prescribed:
Provided that nothing in Sub-sec.(3) shall apply to a trust estate which is vested in the State on or after the date of coming into force of the Orissa Estates Abolition (Amendment) Act, 1970."
(underlined for emphasis) The legislative intent is very clear from the proviso to Section 8(3) of the OEA Act. The intention of the legislature in introducing such proviso is that Trust Estates burdened with service is to be settled in the name of Ex-intermediary deity and the sevayats are to continue the services to the deities/Trust Estates. In other words, so far Trust Estate is concerned, which is vested in the State on the date of coming into force the Orissa Estates Abolition (Amendment) Act, 1970, the sevayats are not discharged from the conditions of service and the lands in question cannot be settled with them.
10. It may be relevant to note here that the Tahasaildar while passing the order under Annexure-2 on 31.03.1997, the Circular/ 16 clarification dated 11.01.1995 issued by the Joint Secretary to Government in Revenue and Excise Department to Collector, Khurda on the subject 'Problem of irregular settlement of land belonging to Lord Lingaraj' was in existence and in the said clarification reference has been made to Revenue Department G.O. No.11782 dated 14.3.1991. Relevant portions of Paragraphs 1 and 2 of the said clarification are extracted below :
"1. SEVAYAT LAND: The provision of sub-section (3) of Sec.8 of OEA Act is not applicable in respect of Sevayat Lands under the Trust Estate according to the proviso under the said sub-section. So the status of Sevayat land belonging to the Trust Estate of Lord Lingaraj remains unaffected even after vesting of Trust Estates. The land granted for rendering various categories of service to the deity will continue to be recorded under the same status under the management of the Trust board. When the Sevayat lands have been recorded under Stitiban status in favour of the Sevayats during survey and settlement operation such recordings are illegal.....
2. BEBANDOBASTEE CASES:
Notwithstanding instructions contained in Revenue Department G.O. No.11782 dated 14.3.1991 the lands of Lord Lingaraj with Bebandobasta status may be settled with the deity Lord Lingaraj Mahaprabhu Bije, Bhubaneswar and in the remarks column of the record-of-right it should be mentioned that when the said Sebayat/tenant will cease to render services to the Deity his tenancy will cease and the proprietor will be at liberty to settle it in the name of another tenant on similar condition."
(underlined for emphasis) 17 Thus the above clarification dated 11.1.1995 in which reference has been made to G.O. No.11782 dated 14.3.1991 it is clarified that the lands of Lord Lingaraj Mahaprabhu with Bebandobasta status may be settled with deity Lord Lingaraj Mohaprabhu Bije Bhubaneswar and in the remarks column of the record-of-rights it is to be mentioned that when the said Sevayat/tenant will cease to render services to the deity his services will cease and the proprietor will be at liberty to settle the land in the name of another tenant on similar condition. Therefore, the suit lands should have been settled strictly in accordance with the Circular/clarification dated 11.01.1995 with the remarks as described in the said clarification. In the instant case, the seva that was being rendered by the Sevayats was that they were proceeding in front of the Lord Lingaraj Mahaprabhu holding "BARCHHA" and "CHHURI" (knife).
11. Unfortunately, the Tahasildar, while passing the order dated 31.3.1997 under Annexure-2, as it appears, over looked or was unaware of the Government Circular/clarification dated 11.01.1995 on the subject. Further, the G.O. No.11782 dated 14.3.1991 and Clarification dated 11.1.1995 do not contemplate settling of the suit land in raiyati status in favour of Lord Lingaraj Bije, Bhubaneswar and declaring or recording the name of Sevayats as marfatdars in respect of the properties of the Lord Lingaraj which were declared as trust estates.
12. Further, the clarification dated 11.1.1995 categorically says that the status of Sevayats' lands belonging to the Trust Estates of Lord 18 Lingaraj remains unaffected even after vesting of the Trust Estates. The lands granted for rendering various categories of services to the deity will continue to be recorded under the same status under the management of the trust board. Since the Sevayats' lands have been recorded under Stitiban status in favour of the Sevayats during survey and settlement operation such recordings are illegal.
13. For the reasons stated above, we are of the view that the Tahasildar while passing the order dated 31.3.1997 under Annexure-2, had acted illegally without jurisdiction and erroneously passed order under Annexure-2 settling the suit land in raiyati status in favour Lord Lingaraj Bije, Bhubaneswar Marfat Sri Bijendra Mohapatra and others.
14. The order of the Tahasildar under Annexure-2 also suffers from another infirmity i.e. the Tahasildar never obtained prior approval of Sub- Collector as required under paragraph 11 of the G.O. dated 14.03.1991. As it appears, the Sub-Collector has only given post-facto confirmation by order dated 24.4.1997. Thus the order of the Tahasildar is not in accordance with the Government order, rather it is contrary to the G.O. dated 14.03.1991.
15. Law is well settled that when the statute requires to do certain thing in certain way, the thing must be done in that way or not at all. Other methods or modes of performance are impliedly and necessarily forbidden. The aforesaid settled legal proposition is based on a legal maxim "Expressio unius est exclusion alteris", meaning thereby that if a statute provides for a 19 thing to be done in a particular manner, then it has to be done in that manner and in no other manner and following other course is not permissible. (See Taylor v. Taylor, (1876) 1 Ch.D.426; Nazir Ahmed v. King Emperor, AIR 1936 PC 253; Ram Phal Kundu v. Kamal Sharma, (2004) 2 SCC 759; and Indian Bank's Association v. Devkala Consultancy Service, AIR 2004 SC 2615).
16. It may also be relevant to note here that the Trust Boards are appointed by Endowment Commissioner/Government, which manage the trust estates belonging to deities. In fact for Lord Lingaraj Bije Bhubaneswar already there is a Trust Board appointed by the Endowment Commissioner. The Tahasildar/Additional Tahasildar has no jurisdiction to appoint marfatdars of the suit lands which is part of the trust estate belonging to Lord Lingaraj. Therefore, Addl. Tahadildar, Bhubaneswar has acted beyond his jurisdiction and has usurped the jurisdiction of the Endowment Commissioner by mentioning the names of Sevayats as Marfatdars in his order dated 31.03.1997.
17. In view of the above, we are of the considered view that the Addl. Tahasildar is not justified in settling the suit land in the raiyati status in favour of Lord Lingaraj and recording the names of Sri Bijendra Mohapatra and others as marfatdars in his order dated 31.3.1997 passed in Bebandobasta Case No.1 of 1997.
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18. Question No.(ii) is whether Sevayats had/have any alienable right in the suit land and sale of the suit land by them in favour of the petitioner/Vendor of the petitioner is valid in law.
While dealing with question No.(i), we have already noticed that clarification/circular dated 11.01.1995 was issued by the Government to the effect that the lands recorded in Bebandabasta status of Lord Lingaraj are to be settled in the name of deity and in the remarks column the name of Sevayat holding the land is to be mentioned for rendering services. It is to be further mentioned in the remarks column that when the said Sevayat will cease to render service to the deity his tenancy will cease and the proprietor will be at liberty to settle the land in the name of another tenant in the similar condition. Thus, the Sevayats have no right in the land other than to possess the land as long as they render specific services. The sevayats, therefore had/have no alienable right in the suit lands.
19. It may be noted that in the definition of "Religious Endowment"
or "Endowment" under Section 3 (xii) of the OHRE Act, the lands held by Sevayats and Jagirdars are also included. The Trust Board is the only custodian of deity's property.
Further Section 19 of the OHRE Act, 1951 reads as follows:-
"19. Alienation of immovable trust property - (1) Notwithstanding anything contained in any law for the time being in force no transfer by exchange, sale or mortgage and no lease for a term exceeding five years of any immovable property belonging to, or given or endowed for the purpose of, any religious institution, shall be made unless it is 21 sanctioned by the Commissioner as being necessary or beneficial to the institution and no such transfer shall be valid or operative unless it is so sanctioned."
Thus, without prior sanction by the Commissioner of Endowment, sale of the land belonging to the deity is expressly barred under Section 19 of OHRE Act, 1951. Such sanction can be accorded when such sale is necessary and beneficial to the institution.
On a fair reading of the statutory provisions contained in Section 19 of the OHRE Act, it is manifest that the provisions are mandatory in nature and any alienation made in contravention of the provisions is void. (See Basanti Kumari Sahoo vs. State of Orissa, 81 (1996) CLT 571 (Full Bench).
20. The lands belonging to the deity cannot be subjected to alienation in violation of statutory requirement. (See Temple of Thakurji vs. State of Rajasthan, AIR 1998 Raj. 85).
In the instant case, the suit lands were sold by Sevayats even without complying with the statutory requirement of Section 19 of the OHRE Act, 1951 which starts with a non-obstante clause.
21. Needless to say that right, title and interest over the land/property belonging to Lord Lingaraj always vests with the deity.
Sevayats cannot be recorded as Marfatdars in respect of property of Lord Lingaraj Mahaprabhu which was declared as Trust Estates.
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Therefore, the Sevayats could not have transferred any right, title and interest over the property belonging to Lord Lingaraj to any of their Vendees and the said Vendees could not have made transfer to the subsequent purchaser(s).
22. There can also be no dispute to the settled legal proposition that the deity is a juristic perpetual minor/and disabled person, and the property belonging to a minor and/or a person incapable to cultivate the holding by reason of physical disability or infirmity requires protection. A deity is covered under both the classes. The manager/trustee/pujari and ultimately the State authorities are under obligation to protect the interest of such a minor or physically disabled person. The deity cannot be divested of any title or rights of immovable property in violation of the statutory provisions. The object is laudable and based on public policy. In order to protect its interest even a worshiper having no interest in the property may approach the authority or Court.
23. As a general proposition of law, if any person claims to have acquired any kind of right in the property belonging to the deity, the transaction is required to be ignored being illegal and the deity becomes entitled to recover the possession as well as the right, title and interest in the property.
24. In view of the above, we are of the considered view that the Sevayats had/have no alienable right in the suit land and sale of the suit land by them in favour of the petitioner/Vendor of the petitioners is not 23 valid in law. Needless to say that, the petitioners cannot acquire better title than their vendors. Consequentially, the petitioners have not acquired any right, title and interest in the suit lands which they purchased through registered sale deed from sevayats or their vendor(s) who purchased the suit lands from Sevayats.
25. Question No.(iii) is whether order of the learned Member, Board of Revenue, Odisha, Cuttack dated 03.08.2009 passed under Annexure-8 is non est and without jurisdiction and void as contended by the petitioners.
The petitioners challenge the order of the Member, Board of Revenue as non est, without jurisdiction and void on three grounds. The first ground of attack is that the Tahasildar, Bhubaneswar has passed the order pursuant to G.O. of the State Government dated 14.03.1991, and therefore, the learned Member could not have revised the order under Section 38-B of the OEA Act, 1951 since the learned Tahasildar did not pass any order under that Act. The second ground of challenge is that G.O. dated 14.03.1991 of the State Government does not provide for filing of appeal, review or revision and hence, the learned Member did not have any power to revise the order of the Tahasildar under para-3 (xxvi) of the Circular dated 06.10.2000.
26. Since both the above grounds of challenge are inter-linked, the same are dealt with together. In the present case, the Tahasildar passed the order in Bebandabasta Case No.1/97 relying upon Government Order dated 14.03.1991. The 3rd paragraph of the said Government Order states 24 that "the last subsisting estates were vested in Government in 1974, i.e., 16 years ago and in spite of that so many holdings still continue to be recorded in Bebandabasta status. This is due to the fact that there were no clear instructions by the Settlement Authorities regarding manner of recording lands in Bebandabasta status and therefore, a large number of holdings have erroneously apparently been recorded as such." Paragraph 3 of the said Government Order further specifies the categories of lands which can be recorded in Bebandabasta status which includes lands held for rendering service to intermediary who is a Trust Estate and other categories of lands referred to in Sections 6, 7, 8(2) and 8(3) of OEA Act. Sub-paragraph 3 of the said Government Order provides that in all the above cases lands are already legally held by the concerned persons and recorded "in the previous RORs/recognized as such" the status of such land undergo change due to operation of particular statute. This goes to show that unless the status of a land has undergone change due to operation of OEA Act and Bebandobasta Khata has been prepared in the name of the person, a Bebandobasta Case cannot be initiated to be proceeded with. At paragraph 4 of the said G.O., it has been further prescribed that onus is on the person to establish his case to the satisfaction of the Tahasildar on various grounds enumerated therein.
27. In view of reference to the OEA Act and various Sections thereof in the G.O. dated 14.3.1991 the proceeding undertaken by the Tahasildar as prescribed in G.O. dated 14.03.1991 and the order passed 25 therein under Annexure-2 is an order under/relating to the OEA Act. Therefore, the learned Member could revise the order of the Tahasildar under Section 38-B of the OEA Act, 1951.
28. Since we have held that the order passed by the Tahasildar is an order under the OEA Act, it makes no difference if the G.O. dated 14.03.1991 does not provide for filing of appeal/review/revision, more particularly so far exercise of revisional power by the learned Member under Section 38-B of the OEA Act is concerned.
29. It may be relevant to refer to Clause (xxvi) of Paragraph-3 of the Circular/letter dated 6th December, 2000 of the Principal Secretary to Government of Orissa wherein the Government letter dated 14.3.1991 has been referred to. The said clause (xxvi) of Para-3 speaks as follows:
"The Member, Board of Revenue, Orissa shall have the power to review any case instituted, rejected, dismissed, allowed or pending with any authority subordinate to him on his own motion or on an application made by the Collector of the district at any time, subject to the overall provisions of the O.E.A.Act, rules and the guidelines issued thereunder."
30. A Full Bench of this High Court after considering the relevant provisions and in particular Section 8(1) of the Act read with Section 38-B had come to the conclusion that the Board of Revenue has no jurisdiction to revise the order of the Tahasildar since it was mere administrative decision and was not a decision of quasi-judicial in nature. Therefore, the Hon'ble Court set aside the order of the Board to the extent the Board 26 exercised power under Section 38-B and directed that the Tahasildar shall reconsider the application on administrative side and reach a decision on his own.
The Hon'ble Supreme Court in Smt. Basanti Kumari Sahoo Vs. State of Orissa, (1995) 1 OLR (SC) 587, set aside the above order of the High Court and directed that the High Court should proceed to decide the matter on merit on the premises that the Board of Revenue had exercised the right of jurisdiction under Section 38-B of the Act.
31. For the reasons stated above, the decisions in the cases of Motwali Sk. Kausar (supra), Smt. Basanta Kumari Dei (supra) and Radhamani Dibya (supra) relied upon by the petitioners have no application to the present cases. Moreover, the facts of those cases are different from the facts of the present cases and it has not been explained/indicated how the cases relied upon by the petitioners are applicable to the facts of the present cases.
32. The third ground of challenge is that the learned Member has exercised his power with unreasonable delay and hence the order is liable to be quashed. Such contention of the petitioners is not tenable. We have already held that the Member, Board of Revenue has jurisdiction to proceed under Section 38-B of the Act to revise the order passed by the Tahasildar. We have further held that the Tahasildar has not passed the order under Annexure-2 in accordance with the G.O. dated 14.03.1991; he rather passed the order contrary to the clarification/Circular dated 11.01.1995. 27 Thus, the order of the Tahasildar is held to be void and without jurisdiction. Therefore, its validity can be questioned or invalidity can be set up in any proceeding at any stage.
33. In the case of Brundaban Sharma (supra), the Hon'ble Supreme Court has held as under:
"16. It is, therefore, settled law that when the revisional power was conferred to effectuate a purpose, it is to be exercised in a reasonable manner which inheres the concept of its exercise within a reasonable time. Absence of limitation is an assurance to exercise the power with caution or circumspection to effectuate the purpose of the Act, or to prevent miscarriage of justice or violation of the provisions of the Act or misuse or abuse of the power by the lower authorities or fraud or suppression. Length of time depends on the factual scenario in a given case. Take a case that patta was obtained fraudulently in collusion with the officers and it comes to the notice of the authorities after a long lapse of time. Does it lie in the mouth of the party to the fraud to plead limitation to get away with the order? Does lapse of time an excuse to refrain from exercising the revisional power to unravel fraud and to set it right? The answers would be no."
In Brundaban Sharma (supra), the Hon'ble Supreme Court has considered the decision of the Full Bench of this High Court in the case of Laxmi Narayan Sahu (supra) and the earlier decision of the Hon'ble Supreme Court in the case of P. Raghav Natha (supra). The case of Brundaban Sharma (supra) has been subsequently relied by the Hon'ble Supreme Court in the case of State of Orissa vs. Harapriya Bisoi, (2012) 9 SCC 378.
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34. In view of the above, the decision of the Hon'ble Supreme Court in the case of Brundaban Sharma (supra) is applicable to the present cases
-and the decisions relied upon by the petitioners in the case of Laxman Kanda (supra), Laxminarayan Sahu (supra), P.Raghav Natha (supra), Mansaram (supra) and S.B.Gurbaksh Singh (supra) are of no help to them. Moreover, though there is no quarrel over the legal proposition settled in the cases relied upon by the petitioners, but the facts of those cases are different from the facts of the present cases.
35. Question No.(iv) is whether the suit land did not vest in the State under OEA Act.
The property of Lord Lingaraj along with other properties were declared as Trust Estate by the designated Tribunal under the OEA Act. In view of the proviso to sub-section (3) of Section 8 of the OEA Act and by virtue of notification dated 18.03.1974, the Trust Estate of Lord Lingaraj vested in the State.
36. In view of the above, the decisions in the cases of Bhagaban Gouda (supra), Jemma (supra) and Biddika Haddi (supra) relied upon by the petitioners have no application to the facts of the present case. The facts of those cases relied upon by the petitioners are different from the facts of the present cases. In Bhagaban Gouda (supra), Section 8(2) of the OEA Act was under consideration. Similarly, in Jemma (supra) and Biddika Haddi (supra), Section 8(2) of the OEA Act was also under consideration of this 29 Court. In none of the three cases relied upon by the petitioners, proviso to Section 8(3) was under consideration of this Court.
37. Question No.(v) is whether the Member, Board of Revenue is justified in passing the order to record the suit land in favour of the State Government.
While answering question No.(i), the relevant portion of paragraphs 1 and 2 of the clarification dated 11.01.1995 have been extracted above. With regard to "BEBANDOBASTEE CASES", the clarification inter alia says that the lands of Lord Lingaraj with Bebandobasta status may be settled with the deity Lord Lingaraj Mahaprabhu Bije, Bhubaneswar. Further, Clause (XVIII) of the Government Order dated 06.12.2000 issued by the Revenue Department inter alia provides that the land belonging to public deity after settlement shall be recorded in Stitiban status in the name of the deity Marfat Endowment Commissioner. Therefore, the Member, Board of Revenue is not justified in passing the order to record the suit land in the name of the State Government.
38. Question No.(vi) is whether the petitioners acquired title over the suit land by adverse possession.
The specific contention of the petitioners is that disputed lands are recorded in both Sabik ROR of 1962 and Hal ROR as "Chirastayee Niskar Jagir" under ex-intermediary Lord Lingaraj Mohaprabhu with note of possession of opposite party Nos. 3 to 9 who are 30 vendors/ Vendors of the petitioners' vendor and the land is in possession of the petitioners through vendors for more than the statutory period of limitation. Hence under Article 112 of the Limitation Act, 1963, the petitioners have acquired title over the land by adverse possession against the whole world. Such contention of the petitioners is misconceived. Law is well-settled that ROR neither creates any title nor extinguishes the same. As held above, the properties of Lord Lingaraj were declared as Trust Estate by the designated Tribunal under the OEA Act and by virtue of Notification dated 18.03.1974 the Trust Estate of Lord Lingaraj vested in the State. The Sevayats who are the vendors/vendors of the petitioners' vendor were granted possession of the suit land for rendering services to the deity/Trust estate. The vendors being in possession of the suit land for services rendered to the deity/trust estate, the said possession is permissive possession according to petitioners' own showing. It cannot be treated as adverse possession and they cannot claim any title or right by such purported claim over the said property.
39. The Hon'ble Supreme Court in the case of Shri Sarbeswar Mohanty vs. Chintamani Sahoo (Dead) by Lrs., 88 (1999) CLT 433 (SC), held as under:
"4. ....When a person is delivered possession in pursuance of a lease deed by the lessor even if such deed is void is permissive possession as a fact on that date then how such possession would become adverse ? A possession is adverse only if in fact one holds possession by denying title of the lessor or by showing hotility by act or words or in cases of 31 trespassers as the case may be as against lessor or other owner of the property in question. This is not the case of the respondent in fact possession in this case was permissive on the date lessor delivered the possession. This permission cannot turn into hostile only because the document rendering possession is executed in violation of any provision of law. This has to be pleaded and proved as a fact."
40. For the reasons stated above, the decisions of this Court in the cases of Sricharan Swain (supra) and Shri Bansidhar Naik (supra) are of no help to the petitioners. Moreover, the facts of those cases are different from the facts of the present cases.
41. Question No.(vii) - what is the effect of non-filing of counter affidavit by opposite parties pursuant to interim order dated 27.10.2009 ?
The stand taken in the written notes of submission that no counter affidavit was filed pursuant to the interim order has no substance. A counter is not filed in respect of any order.
42. In these writ petitions, the prayer of the petitioners is to quash the order of the Member, Board of Revenue dated 03.08.2009 passed in OEA Revision Case No.226 of 2001 directing to record the suit land free from all encumbrances with no note of possession in favour of the State of Odisha; and to restore the order of the Tahasildar dated 31.03.1997, who settled the suit land in raiyati status in favour of Lord Lingaraj Mahaprabhu Bije, Bhubaneswar Marfat Bijendra Mohapatra and others. The said prayer cannot be granted in view of the position of law as detailed above. The order of the Member, Board of Revenue for recording the suit 32 land free from all encumbrances with no note of possession in favour of the State of Odisha does not appear to be correct position, as the land is to be recorded in the name of Lord Lingaraj Mahaprabhu and in the remarks column of the ROR the names of the Sevayats holding the land are to be mentioned for rendering service. In the remarks column it is to be further mentioned that when the said sevayats will cease to render service to the deity, their tenancy will cease and the Trust Board of Lord Lingaraj Mahaprabhu will be at liberty to settle it in the name of another sevayat on similar condition.
43. In the result, the writ petitions are dismissed. No costs.
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B.N. Mahapatra,J.
I.Mahanty, J. I agree.
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I.Mahanty,J.
Orissa High Court, Cuttack
The 9th January, 2014/ss/ssd/skj