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2000(5) Supreme 261
SUPREME COURT OF INDIA
(From Orissa High Court)
M. Jagannadha Rao & Doraiswamy Raju, JJ.
Hajuri P.C. Khuntia & Ors. -Appellants
versus
Brundaban R. Das & Ors. -Respondents
Civil Appeal No. 4215 of 2000
(Arising out of SLP (C) No. 16866 of 1998)
Decided on 25-7-2000
Counsel for the Parties :
For the Appellants : P.N. Mishra, Sr. Advocate, S. Mishra, D. Mishra, Debasis Misra, Advocates.
For the Respondents : Vinoo Bhagat, Advocate.
Held : The proceedings before the High Court were. one arising out of Sections 6 and 7 of the Act and the matter under Section 8 was pending elsewhere. It was therefore wholly unjustified for the High Court to decide this question and include it as one of the issues to be decided by the lower authorities, on remand. We may also state that the counsel argued that in any event Section 8 applied only to a person who cultivated the land. That question could be decided only if Government was made a party. We are of the view that the entire discussion on Section 8 and the findings given thereon, - both on law and fact - were uncalled for and there was no question of remitting Section 8 issue to the lower authorities. In fact, the State was not a party in the High Court and the question under Section 8 could not be decided without hearing the State Government and deciding whether Section 8 applied only to a tiller and not to a Cinema Hall owner. The application of the tenant under Section 8 was pending - even as noticed by the High Court - and that could be taken up only after the right to settlement of the intermediary was finally negatived. We, therefore, set aside these findings, observations and the remittal of Section 8 issues to the lower authorities. The question is whether the appellants can be said to be in possession of a "homestead". Question arises as to what are the terms of the registered lease deed and whether the use of the property for a Cinema Hall by the tenant could lead to the inference that the intermediary was not using the property as a homestead. Here there are two aspects of the matter. The learned senior counsel for the appellants contended that if the High Court decided to remit the questions of fact/law under Section 6 to the authorities under the Act to decide afresh , the High Court ought not to have made any observations either on law or fact. Secondly, the High Court did not notice that apart from the premises used as dwelling house, there could be other "buildings" in his possession through a tenant which, if they did not come under the excluded categories referred to Section 6 - namely being used as offices or kutcheries or rest houses for estate servants on duty, or for factories or mills, for purposes of trade, manufacture or commerce, or for storing grains or keeping cattles or implements for purposes of agriculture, then such buildings could still come under Section 6. (Paras 7 and 9)
The High Court should not have gone into the merits on fact/law if it was remitting the matter both on law and fact for a fresh decision by the authorities. The claim of the intermediary for settlement was to be considered under Section 6 not only from the point of the property being used as dwelling house but also from the point as to whether it comes within "such buildings or structures together with the lands on which they stand" - other than the specified excluded categories. This aspect was also not done into by the High Court. We, therefore, set aside the judgment of the High Court. We hold that the findings and observations in regard to Section 8 and the rights of the tenant were clearly outside the scope of the writ petition. The writ petition arose only out of Section 6 and 7 proceedings. Hence all these findings and observations under Section 8 are set aside including the remittal on Section 8 issue. We also set aside the judgment of the High Court in so far as it gave findings on merits in law/fact on Sections 6 and 7 rights of the intermediary when it was remitting the matter on law and fact to the lower authorities for a decision afresh . (Paras 10 & 11)
(ii) Constitution of India-Article 226-Writ petition-Exercise of jurisdiction-Issue not arising in writ proceedings but pending for adjudication before some other authority-Could not be decided by High Court. (Para 7)
JUDGMENT
M. Jagannadha Rao, J.-Leave granted.
2. The appellants are the successors-in-interest of Sri Balabhadra Khuntia. Mr. Khuntia was an ex- intermediary under Section 2(hh) of the Orissa Estates Abolition Act, 1951 (Act 1 of 1952). A claim was made by Mr. Khuntia s son for settlement from the Government in respect of an extent of Ac 0.168 & 5 Kadis in mouza Dandimalasahi, Puri, (in Khata 27, Plot 364), treating the said property as homestead of the ex-intermediary Mr. Khuntia under Section 2(i) of the Act. The respondent is the tenant who was inducted by the above said ex-intermediary as a tenant on 11.6.1957 for 20 years. The estate vested in the State on 29.3.63. The application was filed by the son of the Ex-intermediary on 30.10.63 under Sections 6 and 7 of the Act. The respondent filed objections and claimed that as a deemed tenant , the respondent was entitled to settlement under Section 8. The Orissa Estates Abolition Co11ector (Tahsildar) passed an order on 8.3.88 allowing the application made on behalf of the ex-intermediary and the appellate authority (Addl. District Magistrate) confirmed the said order on 7.7.90. The respondent s revision to the Member, Board of Revenue, Orissa was dismissed on 28.9.1991. The respondent filed writ petition in the High Court. The writ petition was allowed under the impugned judgment dated 6.5.98 by the Division Bench.
3. The High Court framed two points for consideration, one relating to the restoration of the case (a point on which no arguments were advanced before us) and the other one which is the more important one, namely, "whether the settlement of the suit land in favour of the landholder under Sections 6 and 7 of the Act was illegal inasmuch as the landlord was not in possession of the suit land on the date of vesting"? On the second issue, the High Court held that from the record of the case, it was clear that the ex-intermediary had executed a registered lease deed and delivered possession for construction of a Cinema Hall to the tenant and that the said Cinema Hall still existed. The lease period was 20 years with a clause that the tenant would be entitled to get extension for another period of 20 years. The Act came into force on 29.3.1963 when the estate, including the disputed land vested in the State under Section 3. Inasmuch as a Cinema was constructed much before the disputed land vested in the State, the High Court held that the tenant was in possession on the date of vesting and not by the intermediary. Under Section 6, if the intermediary was in "possession" of a homestead on the date of vesting, he would be entitled to settlement thereof and would become a tenant under the State on payment of rent while Section 7 refers to lands in "khas possession" of the intermediary, he can retain the same on payment of rent as a ryot having occupancy right. The High Court then observed that the present property though it was in the possession of the tenant, that person was holding the land for the landlord. Inasmuch as the writ petitioner (respondent before this Court) was holding the land as tenant, he was holding the land on behalf of the ex-intermediary and therefore, the tenant s possession amounted to possession by ex-intermediary. For purposes of Section 6, khas possession of the intermediary was not necessary. The High Court, however, felt that, taking into account the definition of homestead in Section 2(i), it must be a dwelling house used by the intermediary for the purposes of residence or for the purpose of letting out on rent. A Cinema Hall, (one which was constructed by the writ petitioner-tenant) was not a dwelling house and hence, it was held, the intermediary would not get the benefit of Section 6.
4. The above finding was sufficient for disposal of the case before the High Court. But the High Court then went further into the claim of the tenant under Section 8- a matter which was not before the High Court and which was pending in another
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