Orissa High Court
Lord Lingaraj Mahaprabhu Bije, ... vs Bipra Charan Senapati Since Dead After ... on 29 September, 2014
Author: B.K.Nayak
Bench: B.K.Nayak
HIGH COURT OF ORISSA : CUTTACK
O.J.C. No.17767 of 1997
An application under Articles, 226 and 227 of the Constitution of India.
-------------
Lord Lingaraj Mahaprabhu Bije,
Bhubaneswar ... ... Petitioner.
Versus.
Bipra Charan Senapati (since dead)
after him Prasanna Kumar Senapati
and others. ... ... opp.parties.
For Petitioner : M/s. A.R. Dash, N. Lenka & N. Das.
For opp.parties : M/s. B.H. Mohanty, S.C.Mohanty,
B.Das, R.K.Nayak and
D.P. Mohanty.
(for opposite party no.1)
Additional Govt. Advocate
(for opposite party nos.2 to 4)
PRESENT
THE HON'BLE SHRI JUSTICE B.K.NAYAK
------------------------------------------------------------------------------------------
Date of hearing : 04.08.2014 : Date of judgment: 29.09.2014
B.K.NAYAK, J.The petitioner, Lord Lingaraj Mahaprabhu Bije, Bhubaneswar through its Executive Officer, has filed this writ application for declaring the order dated 29.06.1984 (Annexure-5) passed by the Member, Board of Revenue, Orissa in O.E.A. Revision Case No.97 of 1982 as without jurisdiction and not binding on the petitioner and further to quash the order dated 30.04.1990 (Annexure-6) passed by the 2 Commissioner, Land Records & Settlement, Orissa, Cuttack in R.P. Case No.3106 of 1988 under Section 32 of the Orissa Survey & Settlement Act.
2. The disputed land measuring Ac.0.100 out of Ac.0.220 appertains to Sabik Plot No.2115 under Sabik Khata No.6 of Mouza- Badagarh, Bhubaneswar. It is the case of the petitioner that the land in question is the Nijdakhali land of the petitioner known as Mandirahata with Kisam Rasta (Ratha Danda), which is meant for moving and parking of the holy chariot of Lord Lingaraj. After abolition of the Estates under the Orissa Estates Abolition Act (in short the 'O.E.A.' Act), the petitioner- deity filed application under Sections 6 and 7 of the said Act for settlement of the Nijdakhali land including the present disputed land in its favour, which was registered as O.E.A. Case No.378(T) of 1974 before the O.E.A. Collector-cum-Tahasildar, Bhubaneswar. By order dated 04.11.1980 (Annexure-1) after due publication of notice, the land was settled in favour of the deity by the Tahasildar. In the year 1984, a suo motu revision was registered as O.E.A. Revision Case No.77 of 1984 before the Member, Board of Revenue, Orissa, Cuttack challenging the order of settlement under Annexure-1 on the application filed by one Chandrika Patnaik and others. The said revision was dismissed by the Member, Board of Revenue by order dated 12.05.1987 (Annexure-2).
It is the further case of the petitioner that the present opposite party no.1 (since deceased and substituted by his LRs) claims that in Original Proceeding No.905 of 1970, the Commissioner of Endowments, Orissa, Bhubaneswar granted permission under Section 19 of the Orissa Hindu Religious Endowments Act,1951 (in short the 3 'O.H.R.E.' Act) for leasing out the disputed land in favour of opposite party no.1 and that in pursuance of such sanction order, opposite party no.1 deposited salami and purchased stamp papers for execution and registration of the lease deed and that the Executive Officer of the petitioner-deity granted ownership certificate and made over possession of the land in favour of opposite party no.1 and that since then the latter continued to possess the land and was paying rent to the temple administration. With such claim, opposite party no.1 filed application under Sections 6 and 7 of the O.E.A. Act for settlement of the land in his favour, which was registered as O.E.A. Case No.57 of 1980 before the Tahasildar, Bhubaneswar, but in view of the orders already passed by the Tahasildar in favour of the petitioner-deity in O.E.A. Case No.378 (T) of 1974 as per Annexure-1, the application for settlement filed by opposite party no.1 was rejected by order dated 02.07.1981 (Annexure-3). Challenging the said rejection order, opposite party no.1 preferred O.E.A Appeal No.11 of 1981 before the Additional District Magistrate, Bhubaneswar, which was dismissed by the appellate authority by order dated 15.04.1982 as at Annexure-4. Aggrieved by the said appellate order, opposite party no.1 initiated a revision, registered as O.E.A. Case No.97 of 1982 under Section 38-B of the O.E.A. Act before the Member, Board of Revenue, Orissa. By order dated 29.06.1984 (Annexure-5), the Member, Board of Revenue allowed the said revision and set aside the settlement of the land made in favour of the petitioner-deity in O.E.A. Case No.378 (T) of 1974 holding that the deity had committed to sell the land in favour of opposite party no.1 and accordingly the Endowments 4 Commissioner granted permission and that the deity has accepted the salami and rent and, therefore, it cannot be said that tenancy right has not been created and that obviously possession of the land was with opposite party no.1(revision petitioner) and not with the deity on the date of vesting, as reported by the Revenue Inspector.
3. It is stated by the petitioner that it was resolved by the Deity's Trust Board to challenge the order passed by the Member, Board of Revenue under Annexure-5 after obtaining the certified copy of the order, but it could not be challenged immediately because of management problems of the temple arising out of intra-Board dissension and further because settlement operation under the Orissa Survey and Settlement Act had already been started and it was bonafidely believed to seek remedy in the settlement forum.
4. During the course of settlement operation draft R.O.R. in respect of the disputed land was prepared in the name of the petitioner- deity. Opposite party no.1 filed objection under the Orissa Survey and Settlement Act (in short the 'O.S. & S.' Act) on the basis of the order passed by the Member, Board of Revenue under Annexure-5. The Assistant Settlement Officer after due field enquiry found possession with the petitioner and, therefore, rejected the objection filed by opposite party no.1. Thereafter, opposite party no.1 assailed the said rejection order in Settlement Appeal No.310 of 1986, which was also dismissed by order dated 28.04.1988. Being aggrieved by such appellate order, opposite party no.1 filed a revision under Section 32 of the O.S. & S. Act before the Commissioner, Land Records, Settlement, Orissa, which was registered as 5 R.P. Case No.3016 of 1988. By the impugned order dated 30.04.1990 (Annexure-6), the Commissioner allowed the revision and directed for preparation of R.O.R. in respect of the case land in the name of present opposite party no.1, mainly, on the basis of the order passed by the Member, Board of Revenue under Annexure-5.
5. It is submitted by the learned counsel for the petitioner that the land in question along with other lands of the very same Sabik holding having been settled in favour of the petitioner-deity under Sections 6 and 7 of the O.E. A. Act as per order under Annexure-1 and the revision filed there against before the Member, Board of Revenue having been rejected vide order dated 12.05.1987 under Annexure-2 in O.E.A. Revision No.77 of 1984 and the said order having become final being not challenged by any body, the Member, Board of Revenue had no jurisdiction to set aside the O.E.A. Settlement made in favour of the petitioner-deity and, therefore, the impugned order under Annexure-5 is void as being without jurisdiction and not binding on the petitioner. It is also his submission that during the course of the O.E.A. settlement proceedings and the settlement proceedings under the O.S. & S. Act the possession of the disputed land was found with the petitioner and that the order with regard to possession of opposite party no.1 by the Member, Board of Revenue in Annexures-5 and 6 is based on conjunctures and surmises. It is also his submission that assuming that the Endowment Commissioner granted permission for leasing out the disputed land in favour of opposite party no.1, admittedly no lease deed having been executed and registered no title passes in favour of opposite party no.1, 6 even though it is assumed for the sake of argument that he entered into possession over the land.
6. A counter affidavit has been filed on behalf of opposite party no.1 wherein it is stated that there was no practice of leasing out lands by Lord Lingaraj Mahaprabhu by registered instruments and that an order of the Endowment Commissioner under Section 19 of the O.H.R.E. Act coupled with acceptance of salami and rent and delivery of possession was sufficient to create a relationship of landlord and tenant between Lord Lingaraj and the lessee. Lord Lingaraj is adopting different standards at different places. There are innumerable instances of grant of lease by the petitioner without execution and registration of lease deed and the petitioner has not challenged all those leases. It is only recently that the trust board of the petitioner is insisting on registered instruments of lease granted by them. It is also stated that in the case of opposite party no.1, as per order of the Endowment Commissioner under Section 19 for grant of lease in favour of opposite party no.1, the petitioner Lord Lingaraj received salami, demarcation fee, rent etc. and granted ownership certificate and put him in possession of the lease hold property whereafter opposite party no.1 has undertaken considerable development on the land in question. Opposite party no.1 had already paid the lease money and supplied the stamp papers and it was the responsibility of the trust board of the petitioner to execute and register the lease deed for which no fault can be found with opposite party no.1. By payment of salami and rent, which was accepted by the petitioner, opposite party no.1 became a tenant under Lord Lingaraj and this 7 tenancy right is not affected by vesting of the Estate under the O.E.A. Act, which took place in 1974. The petitioner having granted the lease, it was not open for him to apply for fixation of fair and equitable rent under Section 6 and 7 of the O.E.A. Act in respect of the very same land in O.E.A. Case No.378(T) of 1974. It is also stated that the O.E.A. Collector while passing the O.E.A. settlement order in favour of the petitioner under Annexure-1 has not noticed the enquiry report of the Revenue Supervisor which indicated that the intermediary (petitioner) was not in possession of the land on the date of vesting and that it was opposite party no.1, who was in possession. The order under Annexure-2 passed in O.E.A. Revision Case No.77 of 1984 relates to one Chandrika Patnaik and her co-sharers and it has been clearly mentioned in the said order that it was confined only to Chandrika Patnaik, who claimed to have purchased the land from another lessee. Chandrika Patnaik's claim was negatived by the revisional court as there was no sanction of lease in favour of her vendor by Endowment Commissioner under Section 19 of the O.H.R.E. Act. The case of opposite party no.1 stands on different footing and is not covered by the revisional order under Annexure-2. It is also stated that on abolition of intermediary interest in 1974, the petitioner's Endowment submitted Rent Roll to the Anchal in respect of other lessees whether or not those were evidenced by registered instruments, but for unknown reasons it did not submit Rent Roll in favour of opposite party no.1. Therefore, opposite party no.1 filed application before the Tahasildar in 1980 for recognising his tenancy right and for accepting rent from him. The application was not really one under Section 6 and 7 of the O.E.A. 8 Act, but it was one under Section 8(1) of the said Act. Quoting a wrong section in the application does not affect the character thereof, which was not realized by the Tahasildar, who rejected the application of opposite party no.1 illegally on the ground that the land has already been settled in favour of Lord Lingarj. Therefore, rejection of application of opposite party no.1 in O.E.A. Case No.57 of 1980 by order under Annexure-3 does not affect the status of opposite party no.1 as a lessee. The order under Annexure-3 has therefore to be treated as one under Section 8(1) of the O.E.A. Act, which is administrative in nature. Therefore, O.E.A. Revision Case No.97 of 1982 initiated under Section 38-B of the O.E.A. Act on the motion of opposite party no.1 before the Member, Board of Revenue was perfectly justified since the Member has been conferred with extensive power to examine any record of any Subordinate Revenue Officer and to correct any error, illegality, or irregularity committed by such Officer. Accordingly, the learned Member, Board of Revenue after examining the records found that opposite party no.1 was a lessee under the petitioner- deity and was in possession over the land in question as per report of the Revenue Inspector and, therefore, passed the order under Annexure-5 setting aside the settlement of the land in favour of petitioner-deity as per order passed by the Tahasildar under Annexure-1.
7. It is also stated that the order under Annexure-6 passed by the Settlement Commissioner in R.P. Case No.3016 of 1988 on the basis of order passed by the Board of Revenue under Annexure-5 is perfectly valid. It is also stated that it is not open to the petitioner-deity to challenge the order under Annexure-5 after lapse of long thirteen years. It 9 is also stated that the earlier writ petition for the same cause of action filed by the petitioner was dismissed by this Court for non-filing of certified copy of annexures in time and the court was not further inclined to recall the order of dismissal even if the petitioner had later filed certified copies of annexures along with an application for recalling the dismissal order. By doing so, the Hon'ble Court clearly intended to put an end to the litigation.
Lastly, it is stated in the counter affidavit that since the petitioner takes exception to the rights of opposite party no.1 for want of registered document of lease, it may be directed to execute and register a formal lease deed in view of the permission already granted by the Endowment Commissioner, and that opposite party no.1 is ready and willing to bear all the expenses incidental to the execution and registration of the lease deed.
8. In accordance with the stands taken in the counter affidavit, the learned counsel for opposite party no.1 submitted that the application of opposite party no.1 in O.E.A. Case No.57 of 1980 was one under Section 8(1) of the O.E.A. Act for recognizing his tenancy right and for accepting rent from him since opposite party no.1 had already been granted lease of the land by way of issuance of ownership certificate by the Lingaraj Temple Administration on receipt of the lease money as per sanction order of the Commissioner of Endowments and that the Tahasildar having rejected the said application, the Member, Board of Revenue was well within his revisional jurisdiction under Section 38-B of the O.E.A. Act to find out the correctness of the Tahasildar's rejection 10 order. It is also submitted by him that since the Member, Board of Revenue in his order under Annexure-5 found that opposite party no.1 was in possession of the disputed land on the date of vesting, it rightly set aside the order of settlement (Annexure-1) made in favour of the petitioner-deity and directed that present opposite party no.1 would be recorded as rayat in respect of the land. It is also his submission that the order under Annexure-5 passed by the Member, Board of Revenue cannot be challenged after long thirteen years, particularly when the petitioner's earlier writ petition was dismissed for non-filing of certified copies of some annexures.
9. Undisputedly the disputed land along with other properties was settled in favour of the petitioner, Lord Lingaraj Mahaprabhu under Sections 6 and 7 of the O.E.A. Act by order under Annexure-1 dated 04.01.1980 passed by the Tahasildar-cum-O.E.A. Collector, Bhubaneswar in O.E.A. Case No.378(T) of 1974. The said settlement order was challenged in a suo motu revision by one Chandrika Patnaik and others before the Member, Board of Revenue, Orissa in O.E.A. Revision Case No.77 of 1984 and by order dated 12.05.1987 under Annexure-2, the said revision was dismissed. On perusal of the order under Annexure-2, this Court finds that Chandrika Patnaik and others were claiming properties appertaining to a different plot on the basis of purchase from another person, who had purportedly taken lease of the same from the petitioner- deity and that the Member, Board of Revenue was satisfied that in respect of the so called lease there was no prior permission from the Endowment Commissioner, nor was there any registered lease deed executed in 11 respect thereof and, therefore, the lease in favour of Chandrika's vendor was not valid and, therefore, the order of settlement passed in favour of the deity by the O.E.A. Collector was not interfered with. However, the said O.E.A. Revision Case No.77 of 1984 must be held to be confined to the plot in respect of which the petitioners in the said revision were raising the claim. The settlement in favour of petitioner-deity in so far as the disputed sabik plot no.2115 is concerned was not being examined, since it was not within the scope of the said revision.
But the fact remains that the order of settlement passed by the O.E.A. Collector in favour of the deity is appealable under Section 9 of the O.E.A. Act and opposite party no.1 having not filed any appeal, the settlement order in favour of the petitioner became final. It is also an admitted position that no objection to the petitioner's claim for settlement of the disputed land was filed by opposite party no.1 or anybody else in spite of due publication of public notice by general proclamation. Therefore, on consideration of the report of the Revenue Inspector that the disputed land was the Nijdakhali land of the deity, order was passed for settlement of the same vide Annexure-1.
It is also an admitted position that though opposite party no.1 initiated vesting Misc. Case No.57 of 1980 claiming settlement under Sections 6 and 7 of the O.E.A. Act, which was dismissed by the O.E.A. Collector by order under Section 3 of the Act on the ground that the land in question has already been settled in favour of the petitioner-deity, it is now claimed that the said application of opposite party no.1 was one for recognizing him as a deemed tenant under the State Government and 12 acceptance of rent from him by the State in accordance with the provision of Section 8 (1) of the O.E.A. Act. Section 8(1) of the O.E.A. Act does not contemplate making of an application and initiating a proceeding by the O.E.A. Collector within the meaning of the Act. It has been held by a Full Bench of this Court in the decision reported in 1992 (1) OLR-41 : Smt. Basanti Kumari Sahu v. State of Orissa and others as follows :
"8. Having regard to the provisions contained in Section 8(1) and interpretation given to the provision by this Court, it is clear that no proceeding is contemplated under Section 8(1). Therefore, no power of adjudication of tenancy right is vested in any revenue authority. It does not envisage settlement of land belonging to the Government with tenancy right.
9. But at the same time we must state that the State being the owner of the land, i.e., landlord, is entitled to receive rent from its tenants including persons deemed to be tenants under it under Sec.8(1). Its rights are akin to a landlord. The Tahasildar of a Tahasil has authority having been vested with powers to collect rent on behalf of the landlord-State from its tenants.
Where the revenue records indicate a person as a tenant and the Government has been receiving rent from such person, there is no difficulty for the Tahasildar to accept rent from such person. But where there is no Government record that a person is a tenant under the State but nevertheless a person comes forward and offers rent for acceptance, the Tahasildar is under obligation to satisfy himself that the claim put forward by the person for acceptance of rent as a tenant is justified and that person as a tenant is entitled to offer rent and the Government is 13 under obligation to accept the same from him. In order to satisfy himself, like an agent of any landlord, he has to make an enquiry. That per force has to be administrative in nature. Its mode and nature would be warranted by the facts and circumstances and should be in the discretion of the Tahasildar. For example if two persons come forward claiming to have been tenants under an ex-intermediary and ask acceptance of rent from the Tahasildar has to satisfy himself as to which of them is a tenant and shall be deemed to be tenant under the State so as to be entitled to offer rent. For that purpose he has to satisfy himself as to which of then was a tenant under the ex- intermediary and take a decision, which again would be an administrative decision. The aggrieved party has to seek redressal of his grievances before the appropriate forum. I, therefore, hold that though an enquiry is contemplated and the decision may partake the trapping of an adjudication, it is not one in exercise of powers under Sec.8(1) which does not authorize a proceeding or adjudication, but the enquiry is akin to an enquiry necessitated to be undertaken by any agent of any landlord.
10. Where, however, in exercise of powers under Sec.8(1), the officer settles the land with the applicant in course of a proceeding and confers tenancy right, the proceeding, the adjudication and the settlement are without jurisdiction. A proceeding in purported exercise of jurisdiction not vested, i.e., by usurpation of jurisdiction, is also a proceeding under the Act and Sec.38-B would be attracted and the Board of Revenue in exercise of powers conferred by Sec.38-B would be entitled to annul the same."14
10. Proceeding on the footing that the application in O.E.A. Case No. 57 of 1980 was one under Sections 6 and 7 of the O.E.A. Act, opposite party no.1 challenged the order passed therein in O.E.A. Appeal No.11 of 1981 as the said order was appealable and the said appeal having been dismissed by the Additional District Magistrate by order under Annexure- 4, opposite party no.1 challenged the said appellate order in O.E.A. Revision Case No.97 of 1982 before the Member, Board of Revenue. By his order dated 29.06.1984 (Annexure-5), the Member Board of Revenue set aside the settlement made in favour of the deity by the O.E.A. Collector as per the order under Annexure-1. It is abundantly clear from the order under Annexure-5 that O.E.A. Revision Case No.97 of 1982 was filed by opposite party no.1 challenging the appellate order (Annexure-4) rejecting opposite party no.1's claim for settlement under Sections 6 and 7 of the O.E.A. Act and not challenging the order of settlement made in favour of the petitioner-deity in O.E.A. Case No.378(T) of 1974. Therefore, order under Annexure-5 passed by the Member, Board of Revenue setting aside the settlement made in favour of deity by the O.E.A. Collector is wholly without jurisdiction. That apart, neither the O.E.A. Collector, nor the appellate authority respectively in O.E.A. Misc. Case No.57 of 1980 and O.E.A. Appeal No.11 of 1981 having considered the application of opposite party no.1 in terms of Section 8(1) of the O.E.A. Act to find out if opposite party no.1 was in possession of the land in question as a tenant under the petitioner-intermediary on the date of vesting, the Member, Board of Revenue in exercise of his revisional jurisdiction under Section 38-B of 15 the O.E.A. Act could not have found that opposite party no.1 was in possession as a tenant under the intermediary prior to vesting merely on the basis of the contention raised before him on behalf of opposite party no.1 that the Revenue Inspector found possession of opposite party no.1 over the land on the date of vesting. Moreover, the Member, Board of Revenue, without considering the nature and purpose of proposed lease that was sanctioned by the Endowment Commissioner in favour of opposite party no.1 has observed that tenancy right has been created in favour of opposite party no.1 as the petitioner accepted salami and rent from him, which is not justified in the absence of a registered deed of lease.
During the course of hearing learned counsel for opposite party no.1 submitted that the proposed lease in favour of opposite party no.1 was for construction of residential house and that after getting ownership certificate on payment of salami and rent opposite party no.1 entered into possession of the land and constructed a residential house thereon. This indicates that the proposed lease in favour of opposite party no.1 was for the purpose of construction of residential house and as such the proposed lease was of permanent character which can be created only by a registered deed as per provision of Section 107 of the Transfer of the Property Act,1882 which inter alia provides that a lease of immovable property from year to year or for any term exceeding one year, or reserving of yearly rent can be made only by a registered instrument. It is also evident from the lease sanction order (Annexure-A-1) that the Commissioner of Endowments directed for execution and registration of 16 lease deed at the cost of the applicant, i.e., present opposite party no.1. It is a debatable question whether a person getting a lease from the intermediary for the purpose of construction of a house would be a deemed tenant under the State after vesting of intermediary interest, within the purview of Section 8(1) of the O.E.A. Act. However, the fact remains that though opposite party no.1 paid the salami no instrument of lease has been executed and registered and, therefore, opposite party no.1 had not acquired leasehold right over the property.
11. The order of the Settlement Commissioner under Annexure-6 passed in R.P.Case No.316 of 1988 filed by opposite party no.1, which is based solely on the order of the Member, Board of Revenue passed in O.E.A. Revision No.97 of 1982 is, therefore, not legally sustainable.
12. Since the order under Anenxure-5 is palpably wrong, erroneous and illegal, the delay would not be a ground not to entertain the writ petition, particularly because the petitioner is a perpetual minor and that an earlier writ petition filed for the selfsame cause of action was dismissed, not on merits but on the ground of non-removal of some defects therein within the stipulated time.
13. On the aforesaid analysis, the orders under Annexures-5 and 6 are liable to be quashed, and accordingly I quash the same.
14. Before parting, it may be noted that undeniably in pursuance of lease sanction order of the Endowment Commissioner, opposite party no.1 paid the lease money, received ownership certificate from the Temple Administration in respect of the case land and furnished stamp papers, etc. and as such did everything he was required to do for execution and 17 registration of the lease deed, which could not be done for unknown reasons. Therefore, in case opposite party no.1 has taken possession of the case land and constructed residential house thereon, it is open to the Trust Board of the petitioner-deity to consider execution and registration of lease deed in favour of opposite party nos.1(a) to 1(e) on payment of some more salami as may be negotiated and settled between the parties.
The writ petition is accordingly disposed of. No costs.
........................
B.K.Nayak,J.
Orissa High Court, Cuttack The 29th. September, 2014/Gs