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PETITIONER: HAJURI P.C.KHUNTIA & ORS.

       Vs.

RESPONDENT: BRUNDABAN R.  DAS & OTHERS

DATE OF JUDGMENT:       20/07/2000

BENCH: Mr.  M.J.Rao, Mr.  Doraiswami Raju

JUDGMENT:

M.JAGANNADHA RAO,J.

Leave granted.

     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 Collector(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.  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

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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.  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 case filed  by the tenant - and held that the property vested  in the  tenant automatically under section 8 and section 8  was merely  declaratory and no inquiry was necessary.  The  writ petition  of the tenant was allowed.  Having said all  this, in  para 22, the High Court passed an order of remand to the Tahasildar  for a "fresh" decision.  The relevant portion in para  22  reads thus:  "From the above discussion,  we  find that  the  above legal aspect, namely, Section 8(1)  of  the Act,  and  the  question whether the  disputed  property  is dwelling  house  or not has not been properly considered  by the   Tahasildar  as  well  as  the   appellate   authority. Therefore,  it  is a fit case to exercise our  jurisdiction. In  the  result,  the petition is allowed and  the  impugned judgment  and  orders are quashed.  The matter  is  remanded back  to  the Tahasildar, Puri to consider the above  aspect afresh." Thus, it will be seen that even the question of law whether  the  property  was  a dwelling  house  or  not  was directed  to  be decided afresh by the authorities but  this was done after holding that the property was being used as a Cinema  Hall and not as a dwelling house and that section  6 did  not apply.  Again, though the issue regarding section 8 rights  claimed  by  the tenant was not one arising  out  of these  proceedings under section 6 and 7, the same was  also directed  to be decided after making observations in  favour of  the  respondents-writ  petitioners.    In  this  appeal, learned  senior  counsel for the appellants  Sri  P.N.Mishra submitted that the High Court, if it wanted the questions of law  and  fact under sections 6 and 7 to be decided  by  the authorities  under the Act "afresh", it should not have made any  observations  or  given  any findings on  law  or  fact against the appellants.  Further, the High Court had wrongly gone  into  the  issues concerning section 8 rights  of  the tenant  which  did  not  arise at this stage.   In  fact,  a tenant, if he was using the property as a Cinema Hall, could not  benefit  from  section 8 which was meant only  for  the tillers  of  the  soil  or the  tenants  who  were  actually cultivating the land.  Learned senior counsel also submitted that  section 6 referred not only to "homestead" but also to

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"such  buildings  or structures together with the  lands  on which  they  stand"--other than those used for primarily  as offices  or kutcheries or rest houses for estate servants on duty,  for  factories  or mills for the  purpose  of  trade, manufacture  or  commerce  or  used for  storing  grains  or keeping cattle or implements for purposes of agriculture and constructed  or  established  and  used  for  the  aforesaid purpose  before 1.1.1946 - and that the High Court ought  to have gone into the question whether the building in question did   not   fall   within     the   excluded   category   of buildings/structures  -  and  if  it did  not  fall  in  the excluded category, it would still come under section 6, even if  it  was not a dwelling house.  If the property  was  not used for office or kutcheries of the staff of the estate nor was it used as a factory or mill, nor for purposes of trade, manufacture  or commerce nor used for grains or for  keeping cattle  or  implements for agriculture, then it  would  come under  section 6 even if it was not a dwelling house.   What was  let out to the tenant was a dwelling house.  The use to which  the  tenant  had put the property did not  alter  its character  as  a dwelling house.  In any event,  the  tenant using  it as a Cinema Hall would not bring the case into the specified  excluded categories of buildings.  These are  the contentions on behalf of the appellants.  On the other hand, learned  counsel  for  the  respondents,  Sri  Vinoo  Bhagat submitted  that the case of the appellants under sections  6 and  7  must  fail as the property was not being used  as  a dwelling  house/homestead.   It  did   not  come  under  the remaining  part of section 6.  Counsel argued that the  High Court’s observations in favour of the tenant under section 8 need  not  be disturbed.  We may state, at the outset,  that 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.   We shall  next  come to the main point of the appellants  claim under  section 6 and 7.  We shall refer to section 2(i)  and 6.   They read as follows:  "Section 2(i)--’homestead’ means a  dwelling house used by the intermediary for the  purposes of  his  own residence or for the purpose of letting out  on rent  together with any courtyard, compound, garden, orchard and  out-buildings  attached thereto and includes any  tank, library  and place of worship appertaining to such  dwelling house  but  does not include any building comprised in  such estate  and  used  primarily as office or kutchery  for  the administration  of  the  estate on and from the 1st  day  of January,  1946.  Section 6--Homesteads of Intermediaries and

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Buildings  together with lands on which such buildings stand in  the  possession  of Intermediaries and  used  as  golas, factories  or  mills  to be retained by them on  payment  of rent--(i)  with  effect  from  the   date  of  vesting,  all homesteads  comprised  in  an  estate   and  being  in   the possession  of an intermediary on the date of such  vesting, and  such buildings or structures together with the lands on which  they stand, other than any buildings, used  primarily as  offices or Kutcheries or rest houses for estate servants on  duty as were in the possession of an intermediary at the commencement of this Act and used as golas (other than golas used  primarily for storing rent in kind), for factories  or mills  for the purpose of trade, manufacture or commerce, or used  for storing grains or keeping cattle or implements for the  purpose  of agriculture and constructed or  established had  used  for the aforesaid purpose before the 1st  day  of January, 1946, shall, notwithstanding contained in this Act, be  deemed  to  be  settled  by  the  Government  with  such Intermediary  and  with  all the  share-holders  owning  the estate,  who shall be entitled to retain possession of  such homesteads of such buildings or structures together with the lands  on  which  they  stand, as tenants  under  the  State Government subject to the payment of such fair and equitable ground  rent  as may be determined by the Collector  in  the prescribed  manner:  Provided that where the  Intermediaries have  come to any settlement among themselves regarding  the occupation  of buildings and file a statement to that effect before  the Collector, the buildings shall be deemed to have been  settled  with  the Intermediaries  according  to  that settlement:   Provided  further  that homesteads  in  actual possession  of  the Intermediary shall be settled  with  him free  of ground- rent in those areas where no ground-rent is charged  under the existing law on homestead lands.  (2) x x x  (3) x x x" 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.  We are of the view that  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 gone 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

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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 section 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’.  This being an old matter, we are of the view that the remand need not    be   to   the     primary   authority   (i.e.     the O.E.A.Collector(Tahasildar)).   Instead, we direct that  the matter be remitted to the Member, Board of Revenue to decide the  issues  arising  under  sections 6 and  7  of  the  Act ’afresh’  without being influenced by any observations  made or  findings given by the High Court, as stated above.   The Member,  Board of Revenue will decide the matter within four months  from today by giving a reasoned order, after hearing the  appellants  and  the  respondents.   Issues  concerning section  8 will be kept out of this inquiry.  The appeal  is allowed  and the judgment of the High Court is set aside and the  matter is remitted to the Member, Board of Revenue,  as stated  above.   There  will  be  no  order  as  to   costs. ..................J.    [M.JAGANNADHA   RAO]    NEW   DELHI; ..................J.   JULY 25, 2000.  [DORAISWAMY RAJU]  IN THE  SUPREME  COURT  OF INDIA CIVIL  APPELLATE  JURISDICTION CIVIL  APPEAL  NO.   OF  2000  (Arising  out  of  SLP(Civil) No.16866  of 1998) Hajuri P.C.Khuntia & Others  ..Appellants Versus  Brundaban R.  Das & Others ..Respondents ------ Dear Brother,  Draft  Judgment in the above-mentioned  matter  is sent herewith for your kind consideration.