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CASE NO.: Appeal (civil)  6760\0266761 of 2003

PETITIONER: Raghbendra Bose & Ors.                           

RESPONDENT: Sunil Krishna Ghose & Ors.                       

DATE OF JUDGMENT: 27/01/2005

BENCH: ASHOK BHAN & A.K. Mathur

JUDGMENT: JUDGMENT O R D E R

       Appellants in these appeals have challenged the  composite order passed by a Division Bench of the  High Court of Orissa at Cuttack in AHO No. 243 of  2001 arising from the order passed by the learned  Single Judge of the High Court  in OJC No. 691 of  2001  and OJC No. 2884 of 2002.

       In AHO No. 243 of 2001 the Division Bench has  set aside the order passed by the learned Single  Judge in OJC No. 691 of 2001 and restored that of  the Revenue Division Commissioner (Central), Cuttack  (hereinafter referred to as the "Commissioner")  passed in Khasmahal Lease Appeal No. 2 of 1994  reviving the same on an application moved by the  Respondent Nos. 1 and 2 after obtaining a probate  from the High Court of Calcutta in PLA No. 257 of  1997 decided on 17.5.2000.  Earlier Khasmahal Lease  Appeal No. 2 of 1994 had been dismissed by the  Commissioner as Respondent Nos 1 and 2 had failed to  obtain a probate of the Will executed by Asit Kumar  Ghose.

       In OJC No. 2884 of 2002 the High Court has  partly set aside the order passed by the Collector,  Puri dated 11.2.2002 after the remand of the case by  the High Court.  The order of the Collector holding  that the land in dispute can be kept by the  Government sine no one had a right to have the  settlement.  The order of the Collector in so far as  it rejected the claim of opposite party Nos. 4 to 6  (appellants herein) was upheld and it was observed  that they did not have the right to the land.   Respondent Nos. 1 and 2 herein have been permitted  to move an application before the Collector for  permanent settlement of the land in their favour  under the Orissa Government Land Settlement Act,  1962 and the said application shall be decided by  the Collector after noticing the appellants herein.   It has been specifically stated that the appellants  herein should be made a party before the Collector  in the application to be filed by respondent Nos. 1  and 2 herein for seeking permanent settlement of the  land in their favour.  

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       The High Court in the impugned order has  directed the Revenue Divisional Commissioner to  decide the Khasmahal Lease Appeal No. 2 of 1994 in  accordance with law keeping in view the observations  made in the impugned order.  Similarly, the  Collector has been directed to decide the  application to be filed by respondent Nos. 1 and 2  herein keeping in view the observations made in the  impugned order.  We find that the observations made  by the High Court in the impugned order touch on the  merits of the dispute.  Counsel for the appellants  apprehends that the observations made by the High  Court would influence the mind of the Commissioner  as well as the Collector while deciding the case and  the application filed by respondent Nos. 1 and 2  herein.  We find substance in this submission.

       Accordingly, we uphold the order of the  Division Bench of the High Court in setting aside  the order of the learned Single Judge as well as  partly set aside the order of the Collector but set  aside the order of the High Court in so far as it  directs the Commissioner and the Collector to decide  the appeal as well as the application to be filed by  respondent Nos. 1 and 2 in the light of the  observations made by the Division Bench as these  observations touch on the merits of the dispute.   We, therefore, direct that the Commissioner and the  Collector shall decide the appeal and the  application to be filed by respondent Nos. 1 and 2  in accordance with law without being influenced by  any of the observations made by the Division Bench  or the learned Single Judge in their orders on  merits of the dispute.  All contentions are left  open to be raised by the parties before the  Commissioner or the Collector.   

Appeals are disposed of in the above terms.   No costs.