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1990 Supreme(Ori) 10
High Court Of Orissa
D. P. MOHAPATRA, ARIJIT PASAYAT
S.L.NARASING RAO - Appellant
Versus
GOPALJEE MAHAPRABHU - Respondent
O. J. C. 1066 Of 1980
Decided On : 01/19/1990
B.B.RATH, B.L.N.SWAMY
The power to settle land under Section 7-A of the Orissa Estates Abolition Act is vested in the State Government and cannot be exercised by subordinate officers unless specifically delegated. The managing trustee had not made out a case for settlement of the land under Section 6 of the Act, as he was not in possession of the land on the date of vesting.
Headnote:
ORISSA ESTATES ABOLITION ACT - SECTION 6, 7-A - SETTLEMENT OF HOMESTEADS AND BUILDINGS - LAND USED FOR HAT, BAZAR, ORCHARD, MINE, QUARRY OR OTHERWISE, TANK OR BUILDING - INTERPRETATION AND APPLICATION - POWER OF SETTLEMENT - CONDITIONS PRECEDENT - JURISDICTION OF AUTHORITIES.
Fact of the Case:
The case involves a dispute over the settlement of land under the Orissa Estates Abolition Act. The land in question was declared to be a part of trust estate and vested in the State Government on 18-3-74. The managing trustee of the deity filed an application for settlement of the land under Sections 6 and 7 of the Act. Two objectors, claiming to be tenants of the land, filed objections to the petition. The O.E.A. Act Collector rejected the claim petition of the deity and the stand taken by the objectors, declaring that the land has vested absolutely in the State Government free from all encumbrances. The appellate authority reversed the order of the Collector and remanded the case for fresh enquiry and disposal. The deity, the objectors, and a purchaser of a portion of the land challenged the appellate order by filing writ petitions.
Finding of the Court:
The Court held that the appellate authority erred in considering the proceeding to be one under Section 7-A of the Act and in remanding the case to the Collector for fresh enquiry and disposal. The Court found that the land in question was not used for any of the purposes specified in Section 7-A and that the appellate authority had no jurisdiction to settle the land under that provision. The Court also held that the managing trustee had failed to make out a case for settlement of the land under Section 6 of the Act, as he was not in possession of the land on the date of vesting.
Issues: 1. Whether the appellate authority had jurisdiction to settle the land under Section 7-A of the Act? 2. Whether the managing trustee had made out a case for settlement of the land under Section 6 of the Act?
Ratio Decidendi: 1. Section 7-A of the Act applies only to land which was used for certain specified purposes and which is needed for carrying out the purposes of the trust efficiently. The land in question was not used for any of the specified purposes and there was no finding that it was needed for carrying out the purposes of the trust. Therefore, the appellate authority had no jurisdiction to settle the land under Section 7-A. 2. Section 6 of the Act provides for settlement of homesteads and buildings with intermediaries who were in possession of the land on the date of vesting. The managing trustee was not in possession of the land on the date of vesting. Therefore, he had not made out a case for settlement of the land under Section 6.
Final Decision: The Court allowed the writ petitions and quashed the impugned order of the appellate authority. The Court held that the land in question had vested in the State Government under Section 5 of the Act and that it was open to any of the parties to apply to the State Government for lease of the land.
D. P. MOHAPATRA, J.
( 1 ) THE common challenge raised in both these writ applications is to the order passed by the appellate authority, the Addl. District Magistrate, Ganjam Chatrapur on 21-4-80 (Annexure-6) in O. E. A. Appeal Nos. 33/78, 35/78, 36/78 and 37/78. The cases are interlinked with each other both on facts as well as on questions of law. With consent of the learned counsel for the parties, they were heard together and are being disposed of by this judgment.
( 2 ) THOUGH a large mass of facts have been stated in the pleadings and were reiterated by the learned counsel for the parties at the hearing of the case, a substantial part of it, in our view, is unnecessary for disposal of the cases. The facts relevant for the present purpose may be stated thus: The controversy raised in the writ applications relates to A. 8. 40 decimals of land under survey No. 369 of Bhapur covered by T. D. No. 2904 which stood recorded in the Revenue records in the name of the deity Sri Gopalji Mahaprabhu Bije at Babajitola, Bhapur. The said property was declared to be a part of trust estate. The intermediary interest of the deity in the said property vested in the State Govt. on 18-3-74 under the provisions of the Orissa Estates Abolition Act (for short `the Act' ). The application filed by Balaram Panda, managing trustee of the deity on 17-4-74 for settlement of the land under Ss. 6 and 7 of the Act was registered as O. E. A. C. P. No. 103 of 1974 before the O. E. A. Act Collector, Berhampur. The writ petitioners S. V. Kameswar Rao (since dead and substituted by Smt. S. Kasulamma) and S. L. Narasingha Rao (since dead and substituted by S. Kameswar Rao, S. Narasingha Murty and S. Rajeswari) filed objections to the petition of the deity each claiming to be the tenant of the land in question. After certain initial misconception about the proceeding as clarified by this Court in O. J. C. No. 1053 of 1976 which was disposed of by the order dated 29-8-77 the matter was considered by the O. E. A. Act Collector, Berhampur treating the proceeding to be one under Sec. 7-A of the Act as appears from the order, and was disposed of by the order dated 24-8-78 filed as Annexure-7 to O. J. C. No. 1066 of 1980. The Collector in the said order rejected the claim petition of the deity as well as the stand taken by the objectors and declared that the land has vested absolutely in the State Government free from all encumbrances under S. 3 (a) of the Act and the deity represented by the managing trustee has ceased to have any interest in it. All the parties interested, that is, the two objectors, S. L. Narasingha Rao and S. V. Kameswar Rao, the applicant, the deity through its managing trustee Balaram Panda and Smt. Vaijayanti Patnaik, a purchaser of a portion of the land from the managing trustee challenged the order of the Collector by filing appeals, O. E. A. Appeal Nos. 33 of 1978, 35 of 1978, 36 of 1978 and 37 of 1978 which were disposed of by the Addl. District Magistrate. Ganjam by the impugned order passed on 21-4-80 annexed to the writ petition in O. J. C. No. 1066 of 1980 as Annexure-8. The appellate authority reversed the order of the Collector and remanded the case to him for fresh enquiry and disposal according to law. It is apparent from the order that the appellate authority has also considered the proceeding to be one under S. 7-A of the Act. Prior to the date of vesting, that is, 18-3-74 there had been a series of litigations between the deity through its managing trustee and father of the objectors; after his death the objectors, is civil courts and Revenue Courts wherein it was being claimed that father of the objectors was usufructuary mortgagee of the disputed land from the Arehak of the deity; the stipulated period of the mortgage had expired; the deity had initiated legal proceeding for recovery of possession of the property; in the said proceeding a compromise had been entered into authorising the father of the objectors to remain in
