Full Judgment Text
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PETITIONER:
RAGHUNATHE JEW AT BHAPUR
Vs.
RESPONDENT:
STATE OF ORISSA & ORS.
DATE OF JUDGMENT: 09/12/1998
BENCH:
SUJATA V.MANOHAR, G.B.PATTANAIK
ACT:
HEADNOTE:
JUDGMENT:
JUDGMENT
Pattanaik.J.
The appellant is a public deity and in this appeal
the Judgment dated 13.11.92 of the Orissa High Court in
Original Jurisdiction Case No. 2030 of 1987 is being
challenged. The deity and the properties attached to it
situate in the District of Dhenkanal, which was earlier a
princely state and it became a part of State of Orissa after
its merger in 1948. Under the provisions of Orissa Estates
Abolition Act, 1952 (hereinafter referred to as the Act) a
notification was issued by the Govt. of Orissa in Revenue
Department on 27.2.68, declaring that the intermediary
interests of Debottar Lakhraj’s land in the District of
Dhenkanal became vested in the State free from all
encumbrances. In accordance with the provisions contained
in the Act, it is the case of the appellant that on behalf
of the deity an application was made before the tribunal and
the tribunal declared the deity as a ’trust estate’. On
18th of March, 1974, in exercise of powers conferred under
sub-section (1) of Section 3-A of the Act, the State Govt.
issued another notification, declaring that (i) the
intermediary interests of all intermediaries whose estate
have been declared as trust estate under Chapter IIA of the
said Act and (ii) those in respect of which claims and
references made under the said Chapter were pending on the
date of commencement of the Orissa Estate Abolition
(Amendment) Act, 1970 (Orissa Act 33 of 1970 and (iii) the
intermediary interests of all intermediaries in respect of
all estates other than those which have already vested in
the State have passed to and become vested in the State free
from all encumbrances. The appellant thereafter through the
Executive Officer of the deity filed an application under
Section 6,7 and 8 of the Act for the settlement of land with
the deity. The private respondents filed their objections
pursuant to the notice issued in the aforesaid proceeding
inviting objections from the public and the respondents
claimed their tenancy right in respect of the lands
belonging to the deity. The said proceeding which was
registered as OEA Case No. 454/74 stood disposed of by the
Order of the Estate Abolition Collector dated 23.9.77. The
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said Collector rejected the objection filed on behalf of the
private respondents and rejected the claim of tenancy over
the land and further directed that the lands in question be
settled with the deity on fair and equitable rent. Pursuant
to the said order, equitable rent was assessed and ’gutta’
was issued to the appellant. Though appeal is provided
under the Act, the respondents did not prefer any appeal.
However, after expiry of seven years the said respondents
invoked the suo motto revisional jurisdiction of the Member
Board of Revenue, under Section 38B of the Act. The said
revision application which was registered as OEA. Revision
Case No. 86 OF 1984 stood disposed of by the Order passed
by the Member, Board of Revenue dated 5.5.1987. The
Revisional Authority came to hold that the claim of the
respondents about their occupancy rights cannot be sustained
and the institution being a public temple and in view of the
order of the Assistant Commissioner of Endowments dated
17.1.53, deciding the nature of the institution the Estate
Abolition Collector rightly directed the settlement of land
in favour of the deity. The said revision case having been
dismissed, the respondents approached the High Court
invoking the jurisdiction under Articles 226 and 227 of the
Constitution. The High Court by the impugned Judgment
allowed the said writ petition having held that the
respondents have acquired an occupancy right over the land
in question. The High Court by the impugned Order set aside
the order of the Collector dated 23.9.77 and held that the
respondents have occupancy right in the land and would be
entitled to remain in possession of the land in accordance
with law.
Mr. Misra, the learned Senior Counsel, appearing
for the appellant contends that the High Court exceeded its
supervisory jurisdiction under Article 226 of the
Constitution by making a roving inquiry and by recording a
finding that the lands attached to the deity could not be
vested under the notification dated 18.3.74. Mr. Misra
further contended that the private respondents having
appeared in the Estate Abolition Collector and having
claimed a eight of occupancy over the land which claim was
rejected and the order of the Estate Abolition Collector
became final is not entitled to approach the High Court in a
writ petition taking new stand which was not there before
the Estate Abolition collector. Consequently, the High
Court committed error in entertaining the said contention
and in answering the same by making a roving inquiry. Mr.
Misra also contended that the High Court committed serious
error in granting occupancy rights over the land in
question, without an iota of material in support of the said
claim of the respondents. Mr.J.R.Das, learned counsel
appearing for the private respondents on the other hand
contended that the question which was urged and answered by
the High Court in the impugned Judgment was a pure question
of law and, therefore, there was no bar for deciding the
said question and granting relief to the respondents even if
the respondents had not raised those questions either before
the Estate Abolition Collector or before the Member, Board
of Revenue. Mr. Das also further submitted that the
appellant having granted the opportunity of producing the
relevant order declaring the deity as a ’trust estate’, the
High Court was justified in drawing adverse inference and in
recording a finding that after the vesting notification
issued in the year 1968, there has been no declaration made
in favour of the deity and therefore the Estate stood vested
in the State and in that view of the matter, question of
fresh vesting under the notification of 18.3.74 does not
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arise.
We have carefully considered the rival submissions
at the bar and examined the provisions of the Orissa Estates
Abolition Act. We have also scrutinised the order of the
Estate Abolition Collector dated 23.3.77, rejecting the
claims of the private respondents that they have occupancy
tenancy over the land in question and settling the land with
the deity-intermediary on fair and equitable rent as well as
the order of the Member, Board of Revenue dated 5.5.87,
refusing to interfere with the order of the Estate Abolition
Collector in exercise of his suo motto revisional
jurisdiction under Section 38B of the Act. The short
question that arises for consideration is whether the High
Court was justified in interfering with such decision of the
Estate Abolition Collector and affirmed by the Member, Board
of Revenue in exercise of its supervisory jurisdiction under
Article 226 of the Constitution. It is well settled that in
exercise of such supervisory jurisdiction, High Court would
be entitled to interfere with the conclusions of an inferior
tribunal, if such tribunal considers any inadmissible pieces
of evidence in arriving at its conclusion or ignores
material piece of evidence from the purview of consideration
or the conclusion is based upon any error of law or the
tribunal itself has no jurisdiction at all or that the
conclusion is based on no evidence. This being the
parameters for exercise of power under Article 226 of the
Constitution and if we examine the impugned judgment of the
High Court from the aforesaid stand point, we have no
hesitation to come to the conclusion that the High Court
exceeded its jurisdiction in interfering with the
conclusions arrived at by the Estate Abolition Collector and
affirmed by the Member, Board of Revenue. It is apparent
that after the vesting notification dated 18.3.74, the
appellant filed an application under Section 6 & 7 of the
Orissa Estate Abolition Act claiming settlement of the land
with the deity. In that proceeding, public notice was given
inviting objections and the private respondents had filed
their objections, claiming a right of occupancy over the
land and the Estate Abolition Collector decided that
proceeding in favour of the appellant and negatived the
claim of the respondents. In that proceedings the
respondents never took the stand that the intermediary
estate in question did not vest under the notification of
1974 as it had already vested pursuance to earlier
notification of 1968 and it has not been declared as a
’trust estate’. No appeal has been preferred against that
decision but a suo motto revision had been moved before the
Member, Board of Revenue and the Member, Board of Revenue
also dismissed the said revision. None of the parties
raised the question about the vesting of the estate under
notification of 1968 and the estate was not declared as a
’trust estate’ pursuant to the aforesaid vesting of 1968.
On the other hand, parties approached the Estate Abolition
Collector, claiming rights on the basis that the
intermediary estate stood vested by the notification dated
18.3.74. The High Court, therefore, was not justified in
embarking upon an inquiry as to the state of things that
happened on the basis of the notification of the year 1968.
That apart, the High Court itself recorded a finding in the
impugned judgment that under 1968 notification the "Debottar
Lakhraji Bahel’s land did not vest and there is definite
distinction between the two class of Debottar property. All
the same the High Court went on examining the question of
vesting under earlier notification and recorded a finding
because of non production of the relevant records that there
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was no declaration of ’trust estate’ on 26.9.70. When the
respondents did not raise this question before the Estates
Abolition Collector in the present proceedings out of which
the impugned order emanates, it was not open for the High
Court to go in that question at all. Then again without any
material to substantiate a claim of occupancy tenancy over
the land in question the High Court came to the conclusion
that the respondents had acquired occupancy right in the
land and such a conclusion cannot be sustained in law. In
the aforesaid premises, we are of the considered opinion
that the High Court committed gross error in interfering
with the conclusions arrived at by the Estate Abolition
Collector and affirmed by the Member, Board of Revenue. We,
therefore set aside the impugned judgment of the High Court
in Original Jurisdiction Case No. 2030 of 1987 and hold
that the said case stands dismissed. Necessarily,
therefore, the order of the Estate Abolition Collector dated
23.9.77, directing the settlement of land with the appellant
deity is affirmed. This appeal is allowed, but in the
circumstances, there will be no order as to costs.