Raghunathe
Jew at Bhapur Vs. State of Orissa & Ors [1998] INSC 592 (9 December 1998)
Sujata
V.Manohar, G.B.Pattanaik Pattanaik.J.
ACT:
HEAD NOTE:
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 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 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 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.
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