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PETITIONER: RAGHUNATHE JEW AT BHAPUR

       Vs.

RESPONDENT: STATE OF ORISSA & ORS.

DATE OF JUDGMENT:       09/12/1998

BENCH: SUJATA V.MANOHAR, G.B.PATTANAIK

ACT:

HEADNOTE:

JUDGMENT: JUDGMENT Pattanaik.J. 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

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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

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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

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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.