Back
HIGH COURT OF ORISSA
B.P. DAS AND B.K. NAYAK, JJ.
Bharat Bihari Mishra and others : Petitioners
Versus
State of Orissa and others : Opp. Parties
O.J.C. No. 815 of 1998
Decided On : 28.6.2012
2. ORISSA ESTATES ABOLITION ACT, 1951 - Sec. 8-A(1) Proceeding under the section is quasi judicial in nature - No provision in the Act or the Rules making the provisions of the C.P.C. applicable for conduct of proceeding under the section except the one which mandates applicability of C.P.C. only with regard to verification of the claim application like a plaint - Neither the Act nor the Rules makes any provision as to the remedy available to a claimant of the proceeding where the claim application is dismissed for default. (Paras - 8 and 9)
3. APPEAL - Right to appeal is a creature of statute - Unless a statute permits an appeal to be filed against an order, no appeal there against can be entertained. (Para - 15)
4. ORISSA ESTATES ABOLITION ACT, 1951 - Sec. 9(1), 8-A(1) - Sub-section (1) of Section 9 provides for appeal against an order passed under Sec. 8-A of the Act - A final order on a claim raised under Sec. 8-A(1) against which an appeal can be preferred - Appellate power does not contemplate entertaining an appeal against any interim order or any other order, not being a final order in the proceeding, such as one either allowing or rejecting an application for restoration of a proceeding dismissed for default. (Para - 15)
JUDGMENT
B.K. NAYAK, J.
The petitioners in this writ application challenge the legality and propriety of the order dated 25.04.1998 (Annexure-8) passed by the learned Additional District Magistrate, Khurda in O.E.A. Appeal No.3 of 1993.
2. The facts of the case, as averred in the writ application are that the petitioners late father Brajabehari Mishra and late mother Arnapurna Mishra jointly applied to opposite party No.4-deity, Lord Lingaraj Mahaprabhu through its Trust Board for permanent lease of the disputed land and paid the salami on 10.08.1954. Since the property in question was the Trust Estate of the deity, the Commissioner of Endowments accorded permission for permanent lease of the land under Section 19 of the Orissa Hindu Religious Endowments Act, 1951 (in short 'OHRE Act'), as per order No.403/986 P (J) dated 16.08.1955 in O.A. No. 106 of 195253. Since then the petitioners' parents were in possession of the land and paying rent to the temple authorities till vesting of the Trust estate of the deity in 1974 in the State Government under Section-3-A (1) of the Orissa Estates Abolition Act, 1951 (in short 'O.E.A. Act'). On vesting of the estate the parents of the petitioners, who were permanent tenants under the deity, became permanent tenants under the State Government under the provision of Section 8(1) of the O.E.A. Act. It is further asserted that after the vesting opposite party No.4-deity filed a claim case under Sections 6 and 7 of the O.E.A. Act on 04.08.1975 for settlement of the disputed land in its favour alleging that the deity is in khas possession of the disputed land. The said claim application was registered as Nij Dhakhal Case No.378 (T) of 1974. It is stated that in the said proceeding, without proclamation of public notice inviting objection as required under first proviso to Sub-section (2) of Section 8-A of the O.E.A. Act from persons interested, the Tahasildar-O.E.A. Collector allowed the claim of opposite party No.4 by order dated 04.11.1980. Before passing of such order no notice had been given to the parents of the petitioners, who had absolutely no knowledge about such proceedings or the order of settlement passed therein till 20.12.1983. On coming to know about the passing of such order of settlement in favour of opposite party No.4, the parents of the petitioners filed O.E.A. Appeal No.1 of 1984 before the Additional District Magistrate, Bhubaneswar (opposite party No.2) challenging such settlement order. By order dated 23.2.1989 (Annexure-1), the Additional District Magistrate, allowed the appeal, set aside the settlement order passed by the Tahasildar and remitted the case back to the Tahasildar (opposite party No.3) directing that the original lessees shall file their objection within one month from the date of the order and the Tahasildar shall dispose of the claim case within six months. The A.D.M., did not go into the question whether the original lessees have become occupancy rayats under the State Government by operation of Section 8(1) of the O.E.A. Act, which was raised by the appellants and left the same open to be considered by the O.E.A. Collector-Tahasildar. The lessee (parents of the petitioners) filed objection before the O.E.A. Collector on 26.06.1989. The case suffered some adjournments at the stage of hearing and was ultimately posted to 04.12.1989 on which date the Executive Officer of Trust Board, who was representing opposite party No.4, remained absent for which the claim was dismissed for default vide order under Annexure-2. Thereafter on 02.01.1990, the Additional Executive Officer of opposite party No.4 filed a petition before the O.E.A. Collector for restoration of the claim case taking the plea that on 04.12.1989 to which date the claim case was fixed for hearing, he had come to the High Court for which he could not remain present before the O.E.A. Collector. Ultimately, the restoration application was heard on 06.05.1990 and it was posted to 07.06.1994 for orders
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
