The central legal point established in the judgment is the application of the proviso to Section 8(3) of the O.E.A. Act in determining the settlement of land burdened with service.

JUDGMENT :

B.R. Sarangi, J. - The petitioner in this writ application seeks to quash the order dated 31.1.1994 passed by the Revenue Officer-cum-Additional Tahasildar, Bhubaneswar in Suo-motu Bebondabasta Case No. 65 of 1991 under Annexure-5, where he was inclined to settle the land in favour of Lord Lingaraj Mahaprabhu Bije, Bhubaneswar Marfat Trust Board, as occupancy rights with effect from the date of vesting, i.e. 18.3.1974 with rent, cess etc. in respect of the land mentioned in the land schedule and the tenant will continue as such till the rendering of service to the deity and further directed the Executive Officer, Lord Lingaraj Mahaprabhu Bije, Bhubaneswar to deposit the arrear amount, back rent, cess and salami after appeal period is over. The fact of the case is that Sabik Khata Nos. 1614, 1615 and 1616 of mouza-Bhubaneswar were recorded in the name of Jagatmohan Praharaj and others with specific shares on Chirathayee Tanki Madhyasatwadhikari status under the Zamindar Lord Lingaraj Mahaprabhu under Khewat No. 1. Accordingly, the Praharaj family were paying rent to the Zamindar. In an amicable partition by metes and bounds among the co-sharers of the family, the share of Brajamohan and his widow Padmabati was gifted to the petitioner vide registered deed dated 29.9.1973 and thereafter, she is in possession of the land mentioned in the Schedule and she became the rightful owner. The petitioner being a lady was ignorant of the consequences of vesting and settlement of the land u/s 7 of the O.E.A. Act and for that reason, the record of rights published in the year 1989, her lands were recorded in Khata No. 632 of mouza Bhubaneswar Sahar Unit-34, under Bebandobasta status. The additional Tahasildar, Bhubaneswar initiated a suo-motu bebandobasta case as per the executive instruction of the Government against the petitioner over Khata No. 632 and with least reference to the Sabik R.O.R. under misconception of law and facts, he treated the land belonging to the Lord Lingaraj Mahaprabhu Bije, Bhubaneswar with Madhyasatwadhikari interest, though Lord Lingaraj was the proprietor having no interest in the land excepting collecting rent. He could not have also treated the case land as the Niz Dakhal land of the proprietor, passed orders on dated 31.1.1995 to change the name of the petitioner recorded as tenants and substituting Lord Lingaraj in her place, thereby he inducted a third story with a wind fall gain to Lord Lingaraj, specially when it nobody's case nor there is any document to support in respect of the case land.

2. The petitioner assailed the order of the Revenue Officer-cum-Additional Tahasildar, Bhubaneswar in appeal bearing O.E.A. Appeal No. 1 of 1999 before the Sub-Collector on the ground that he has erroneously treated Lord Lingaraj as in possession of the property through Praharaj family, as tenant and went on doing wrong for the family in holding the land for rendering service to the deity. The reduced rent does not mean that the land was given for personal service to the deity and it was for supply of certain articles towards rent in kind and reduced amount of rent in cash. Her further ground was that the Addl. Tahasildar reached at an unreasonable conclusion by holding the land as Jagir under the deity, which is not on record. Therefore, the petitioner prayed to modify the impugned order passed by the Revenue Officer-cum-Additional Tahasildar, Bhubaneswar suitably in settling the land of Bebandobasta Khata No. 632 in favour of the petitioner with fare and equitable rent as directed u/s 7 of the O.E.A. Act.

3. Lord Lingaraj Mahaprabhu Bije, Bhubaneswar contested the appeal and submitted that the case land originally belongs to him. As per 1962 R.O.R. it was Lakhraj Bahal Debottar land, which was exclusively used for the benefit of the deity having note of the "Seva" condition and as such, the vendors of the petitioner was enjoying the case land in lieu of their personal services with Lord Lingaraj. Such persona