Orissa High Court
Bibudhendra Misra vs Board Of Revenue & Others ...... Opp. ... on 24 January, 2012
Author: M.M. Das
Bench: M.M. Das
ORISSA HIGH COURT: CUTTACK.
W.P.(C). No. 30007 OF 2011
In the matter of an application under Articles 226 and 227 of the
Constitution of India
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Bibudhendra Misra. ...... Petitioner
-Versus-
Board of Revenue & Others ...... Opp. Parties
For Petitioner : M/s. Durga Ch. Mohanty, S. Mohanty,
G.P. Mohanty & P.R. Sutar.
For opp. Parties : Addl. Standing Counsel.
(For O.Ps 1 to 3 )
M/s. Dr. A.K. Rath
(For O.P.No.4),
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Date of Order: 24 .01.2012
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PRESENT :
THE HONOURABLE SHRI JUSTICE M.M. DAS
O R D E R.
M. M. DAS, J.The petitioner in this writ application has sought for quashing/deleting the observation made by the opposite party no.2, Joint Commissioner of Land Records and Settlement, Cuttack in his common order dated 31.08.2004 under Anneuxre-1 passed in R.P. Case Nos.2358,2359,2360,2361,2362,2363,2364,2365 and 2366 of 2003. The petitioner and others, who filed the above R.P. cases, are the successors-in-interest of late Damayanti Devi. C.S. Plot No.3050 under Khata No.703 was recorded in the name of Gopaljew Takur Bije Gopaljew Lane, Marfat-Mahanta Jagannath Das in Bajyapti Sthitiban 2 status. The said Mahant Jagannath Das leased out land measuring Ac.0.300 decimals in favour of Damayanti Devi by a Registered Lease Deed No.4392 dated 08.10.1945. One Darala Devi, who was a tenant under the deity sold Ac.0.200 decimals of land from the eastern side of the said C.S. plot No. 3050, by a registered sale deed No. 3144 dated 09.07.1946 to late Damayanti Devi, common ancestor of all the petitioners in the aforesaid R.P. Cases. The above lease land and purchased land of Damayanti Devi, during the Hal Settlement, was subdivided into various plots, as mentioned in the impugned order. The property was partitioned between the petitioners in the R.P. Cases after they succeeded to the same from Damayanti Devi. On the basis of such partition, they filed Settlement Appeal Case No.1720 of 1995 for recording their names separately, in which an order was passed to record the said land separately in Sikkimi Khata under the deity Gopal Jew in the name of the respective parties against the respective plots. After final publication of the record of rights, the petitioners filed the R.P. Cases under section 15 of the Orissa Survey and Settlement Act, 1962 with a prayer to record their names with regard to their respective lands in Bajyapti Sthitiban status pursuant to the Revenue Department G.O. No.86/79-69683/R. dated 24.09.1979 relying on the decision of this Court in the case of Bibhuti Bhusan Mohanty v. Kulamani Das and others, 1973 (I) CWR 351. The G.O. and the aforesaid decision of this Court are with regard to interpretation of section 236 (I) of the Orissa Tenancy Act as 3 amended in 1946, which provides that incidents of any tenancy of any tenant including the holder of a service, tenure in respect of the homestead in which such tenant ordinarily resides shall be regulated by the provisions of the said Act applicable to land held by an occupancy raiyat. Section 236(I) begins with a non-obstante clause that the said provision will operate notwithstanding anything contained in the said Act.
In the case of Bibhuti Bhusan Mohanty (supra), this Court laid down that language of section 236 expressly mentions that the incidents of tenancy of a tenant in respect of the homestead in which he ordinarily resides shall be the same as the incidents of tenancy of an occupancy raiyat. There can be no doubt that the aforesaid section has been incorporated into the Act for the benefit of a tenant who ordinarily resides in a homestead irrespective of the nature of his tenancy. Therefore, any interpretation of the language used in the section which would go against the spirit and intendment of the section is not permissible. Further, a plain reading of the section clearly indicates that a tenant acquires the status of an occupancy raiyat in respect of the holding where he ordinarily resides. Under section 236 of the Orissa Tenancy Act as amended in 1946, a tenant ordinarily residing in a homestead as such and not having occupancy right therein previously acquires occupancy right in respect of the homestead for all purposes.
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2. The learned Commissioner, Land Records and Settlement-opposite party no.2 interpreting the said provision and relying upon the ratio of the aforesaid decision in the case of Bibhuti Bhusan Mohanty (supra) and further taking note of the registered lease deed executed by the Mahanta in favour of Damayanti Devi, which was for consideration and where permission was also accorded to construct residential house on the lease land and finding that the petitioners have constructed their residential houses on it and residing therein, held that the common ancestor of the petitioner, i.e., late Damayanti Devi acquired occupancy right in her favour. He further held that C.S. Khata No.703 having been recorded with Bajyapti Sthitiban status, the respective petitioners in the R.P. Cases should also be recorded with regard to their respective plots in Bajyapti Sthitiban status. However, from the conclusion, it appears that the opposite party no.2 fell into an error in disposing of the R.P. Cases with the following direction.
"In view of the above, all the cases are remitted to the Tahasildar, Cuttack Sadar to take follow up action as per law, in recording the suit land in favour of the petitioners in Bajyapti Stitiban status, as Marfatdar of deity Sri Gopaljew, Bije Kusunpur, after verifying relevant documents and field possession etc."
(emphasis supplied)
3. It is averred in the writ application that the petitioner being aggrieved with the aforesaid direction of the opposite party no.2 to record the land in Bajyapti Sthitiban status as Marfatdar of the 5 deity Sri Gopaljew, Bije Kusunpur has preferred a review application in November, 2009 with an application for condonation of delay.
4. Grievance of the petitioner is that the review application has not been proceeded with at all and though he has applied for the certified copy of the order-sheet in the review application, the same has not been granted to him for which he has been compelled to approach this Court under Articles-226 and 227 of the Constitution.
5. Learned counsel for the State submitted that since a review application is pending, this Court should not exercise its writ jurisdiction under Article 226 of the Constitution.
6. Dr. A.K. Rath, learned counsel appearing for the Commissioner of Endowments submitted that the petitioner and other applicants in the connected R.P. Cases cannot be recorded as Marfatdar of Sri Gopaljew.
7. Ordinarily, due to pendency of the review application, this Court would not have exercised its plenary jurisdiction under Article 226 of the Constitution of India. However, considering the fact that the review application though has been filed since 2009, the same has not been proceeded with by the Reviewing Authority, more so, in view of the fact that at present, no one is functioning as the Joint Commissioner of Land Records and Settlement, Orissa, Cuttack and the averments made in the writ petition with regard to the prejudice being caused to the petitioner in dealing with the property in question, and further considering the limited nature of interference 6 required to be made in the order passed in R.P. Cases, for the ends of justice and equity and fair play, this Court is of the view that this is a fit case where the Court should exercise its power under Article 226 of the Constitution so as to ensure the right of a citizen to speedy justice.
8. The deity Sri Gopaljew, is installed in a Math in the city of Cuttack commonly known as Gopaljew Math, which is a public religious institution. The Math is managed by its Mahant belonging to the denomination of the founder of the Math and under the Orissa Hindu Religious Endowments Act, 1951, a Mahanta of a Math wherever available is to act as the Marfatdar of the Math as well as the deities installed in the said Math. The opposite party no.2 has directed to record the lands involved in the R.P. Cases in favour of the petitioner in Bajyapti Sthitiban status as Marfatdars of the deity Sri Gopaljew, as quoted above. If such direction is carried out in the case of each of the petitioners in the R.P. Cases disposed of by the impugned common order, the same will lead to anomalous situation where the deity Sri Gopaljew will be represented by the petitioners in the R.P. Cases as Marfatdars, which is not permissible under the O.H.R.E. Act since the deity Sri Gopaljew can only be represented by the Mahanta, being the deity installed in the Math. Further, the opposite party no.2 having directed to record the lands in favour of the petitioners in the R.P. Cases in Bajyapti Sthitiban status could 7 not have directed to record their names as Marfatdars of the deity Sri Gopaljew.
9. In view of such conclusion of this Court, the writ application is disposed of with a direction that the respective lands of the petitioner and the other petitioners in the connected R.P. Cases shall be recorded in their respective individual names in Bajyapti Sthitiban status and not as Marfatdars of the deity Sri Gopaljew. Accordingly, the Tahasildar, (Sadar), Cuttack shall correct the Record of Rights of the petitioner and the other petitioners in the connected R.P. Cases, as directed above, within a period of two weeks from the date of production of the certified copy of this order before the Tahasildar, (Sadar), Cuttack.
10. The above order is passed keeping in view the fact that no action has been taken on the review application filed by the petitioner. Such review application/applications is/are not required to be disposed of by the opposite party no.2, which stands/stand disposed of by the above order/direction.
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M.M. Das, J.
Orissa High Court, Cuttack.
January 24th, 2012/Himansu
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Orissa High Court,Cuttack
Dated the th March,2009/Bks.