THE HIGH COURT OF ORISSA: CUTTACK RVWPET No.160 of 2010 In the matter of review of Judgment dated 02.07.2010 passed by this Court in W.P.(C) No.2990 of 2008. -------------- Surendra Nath Ghosh Trust Estate, Kolkata & others … Petitioners - versus- State of Orissa & others … Opp. Parties For the petitioners - M/s. R.K.Mohanty For the opp. parties - Mr. M. Sahu Addl. Standing Counsel ------------- P R E S E N T : THE HONOURABLE MR. JUSTICE B.P.DAS A N D THE HONOURABLE MR. JUSTICE B.N.MAHAPATRA ---------------------------------------------------------------------------------------- Date of hearing: 12.08.2010 : Date of judgment 6.10.2010 ---------------------------------------------------------------------------------------- B.N.MAHAPATRA,J. This Review Petition has been filed with a prayer to review the judgment dated 02.07.2010 passed by this Court in W.P.(C) No.2990 of 2008. 2. Though in the review petition several grounds have been taken at the time of argument Mr. R.K. Mohanty, learned counsel for the review-petitioners restricted them to the following grounds. The first ground raised by Mr. Mohanty, is that the writ petition was filed with a prayer for quashing certain conditions imposed in the order dated 25.09.2007 (Annexure-2) passed by O.P. No.2-Collector, Puri while approving the lease of permanent Pattadar status as settled by O.P. No.3-Tahasildar, Puri in favour of the petitioner-Trust. But while disposing of the writ petition this Court has exceeded its jurisdiction and decided certain issues beyond the prayer made by the petitioner and even not challenged by either party. Such a course adopted by this Court is not permissible under law. In support of his contention, he relied upon two decisions of the apex Court in V.K.Majotra Vs. Union of India & Ors., AIR 2003 SC 3909 and in New Delhi Municipal Council vs. State of Punjab and others, AIR 1997 SC 2847. The second ground for review is that this Court relied upon certain materials available in the Lower Court Records which were produced before the Court after closure of arguments. The petitioner did not get any opportunity to have his say on those materials, which amounts to violation of the principles of natural justice. The third ground of challenge is that various conclusions including commission of fraud, mala fide intention of the members of the Trust to alienate the trust properties etc. arrived at by this Court are irrelevant and incorrect. 3. To deal with the grounds of challenge taken by Mr.Mohanty, it is necessary to know the issues decided by this Court while disposing of the writ petition, which are as follows: 2 (i) Whether the Collector, Puri is justified in imposing the terms and conditions while approving the leasehold land in question in favour of the petitioner-Trust on permanent Pattadar status in his order dated 25.09.2007 (Annexure-2) passed in BPL Case No.20 of 2005? (ii) Whether the lease could have been granted in favour of the petitioner-Trust at the first instance vide order dated 10.09.2004 in Balu Lease Renewal Case No.4 of 2004 pursuant to which lease renewal agreement (Annexure-1) was executed on 3rd October, 2005 ? (iii) Whether the lease in question could have been renewed in the year 2004 with retrospective effect from 08.11.1970 for 60 years in the name of the petitioner-Trust on the basis of an application stated to have been filed by the petitioner-trust on 26.11.1971 before the Collector, Puri ? (iv) Whether an unregistered Trust in relation to immovable property is valid and is a legal entity so as to be entitled for the grant of lease under the OGLS Act and the Rules framed thereunder? (v) Whether the members of the Trust are entitled /authorized to alienate trust property in terms of the Trust deed? All other conclusions including commission of fraud, mala fide intention of the members of the Trust to alienate the trust property by executing Power of Attorney dated 26.02.2005 and the direction to resume the property issued in the writ petition are 3 consequential and ancillary. Even if the conclusions, i.e., fraud and mala fide intention of the parties to alienate the trust property etc. are kept out of consideration or would have been kept out of consideration, the ultimate result would have been the same. In any event, the conclusions with regard to fraud, mala fide intention of the parties to alienate the trust property etc. have not been taken into consideration while dealing with the question of petitioner’s entitlement for grant of lease of government property in question under the O.G.L.S. Act and the Rules. 4. To deal with the first ground of challenge, it is relevant to know whether all the above five issues have been decided by this Court on the basis of pleadings and contentions raised by the parties. The issue no.(i) arises out of the prayer of the petitioner in the writ petition itself. Issue Nos. (ii) & (iii) arise out of the pleadings of the petitioner as well as opposite parties. According to the petitioner, the lease of the land in question was granted in favour of late Surendra Nath Ghosh on 07.11.1924 for 16 years and on 08.11.1940 the same was renewed for another 30 years. Surendra Nath Ghosh died on 19.01.1973. Before his death one unregistered private trust was created on 30.06.1971 by late Surendra Nath Ghosh consisting of his family members. On 26.11.1971, the said trust applied for renewal of lease before the Collector, Puri. Accordingly, Khasmal lease was renewed in favour of the petitioner-Trust in Balu Lease Renewal Case 4 No. 4 of 2004 for two consecutive terms of 30 years each with retrospective effect from 08.11.1970 pursuant to which the lease agreement Annexure-1 was executed on 03.10.2005. The O.G.L.S. Act, 1962 prescribes the modalities for settlement of the government land. The manner of settlement of such Khasmahal land has been prescribed under Schedule-V appended to paragraph-3 thereof. In the written note of submissions, it is stated that the trust is a juristic person and it was entitled to be conferred with all the permanent rights that law has prescribed in respect of the leasehold properties. Therefore, the opposite party No.2-Collector, Puri is not justified to impose certain conditions in the impugned order dated 25.09.2007 (Annexure-2) while approving the lease of permanent status in BPL Case No.20 of 2005. Per contra, learned counsel appearing on behalf of the State inter alia submitted that the petitioner had filed the writ petition by suppressing material facts for which the same was not maintainable. The petitioner had no locus standi to challenge the impugned order. The suit land was leased out temporarily for a period of 30 years with effect from 08.11.1940 for residential purpose of the lessee-Surendra Nath Ghosh. After expiry of the term on 07.11.1970, no family members of the lessee were using the said land for residential purpose. Due to non-renewal of lease after expiry of the period from 07.11.1970 the leasehold land was recorded in Sarkari Khata No.67 in Hal ROR and finally published in the year 1988. The petitioner-Trust through its trustees applied for lease of 5 the land in question in Balu Lease Renewal Case No.4 of 2004. Considering the charitable activities of the trust, the Collector, Puri renewed the lease for 60 years with retrospective effect from 08.11.1970 with certain conditions. Otherwise, it would have been resumed due to gross violation of lease conditions and non-use of the leasehold land for the purpose for which the same was sanctioned. No rent was being colleted from anybody since 1975 as the lease was not in force. Since the period of lease had expired on 08.11.1970, the provisions of the O.G.L.S. (Amendment) Act are not applicable to the instant case. The lessee was not using the leasehold land for homestead purpose for a period not less than five years as on the appointed date, i.e., 09.01.1991. The lease was not in force on the appointed date. The petitioner-Trust with an intention to transfer the leasehold land applied for permanent lease vide BPL Case No.20/2005. Issue No.(iv) arises out of the petitioner’s own pleadings that an unregistered Trust was created on 30.06.1971 by late Surendranath Ghosh prior to his death consisting of his family members. On 26.11.1971, the said un-registered Trust applied for renewal of lease before the Collector, Puri. Accordingly, Khasmahal lease was renewed in favour of the petitioner-Trust in Balu Renewal Lease Case No.4/2004 for two consecutive terms of 30 years each with retrospective effect from 08.11.1970. The Trust being a juristic person it was entitled to be conferred with all the permanent rights that law has prescribed in respect of leasehold properties. Therefore, 6 the Collector is not justified to impose certain conditions in the impugned order dated 25.09.2007 (Annexure-2). Issue no.(v) arises on the basis of the pleading of the petitioner that the petitioner is an unregistered trust and after conferring valid permanent title on the petitioner, the Collector has no power to limit such permanent right by imposing certain conditions. Repudiating such stand of the petitioner, learned counsel for the State contended that in view of Clause 5 (cha) of the trust deed, members of the Trust are not competent to transfer or change the nature of the properties described in the schedule of the trust deed by effecting gift, sale, mortgage etc. and, if that is done, the same shall be void and inadmissible everywhere in all courts of law as per the terms of the trust deed. The lease sanctioning authority has every right to impose any condition to safeguard the leasehold property from any alienation or misuse. 5. A close look to the pleadings and contentions raised by the parties in the writ petition, written note of submissions, counter affidavit and rejoinder makes it clear that all the above issues emerged from the pleadings and arguments advanced by both the parties. 6. The matter can be looked at from other angles. It is not in dispute that the petitioner claimed his right in the prayer under the provisions of the O.G.L.S. Act and the Rules framed thereunder. In paragraph-9 of the counter affidavit, it is stated that the previsions of the O.G.L.S. (Amendment) Act are not applicable to the 7 instant case due to the fact that the period of lease was expired on 08.11.1970. The lessee was not using the leasehold land for homestead purpose for not less than five years on the appointed date i.e. 09.01.1991. The land in question was recorded under Sarakari Khata since 1998 and no rent was being collected from the lessee since 1975. In the rejoinder, there is no specific denial to the above facts stated in paragraph-9. This necessitated the Court to adjudicate the second issue i.e. whether the lease could have been granted in favour of the petitioner-Trust for 60 years with retrospective effect from 08.11.1970, vide order dated 10.09.2004 in Balu Lease Renewal Case No.4 of 2004. 7. While adjudicating issue no. (i), which is the prayer of the petitioner in the writ petition, this Court came to a conclusion that the petitioner is not a ‘person’ as defined under Section 2(b-2) of the O.G.L.S. Act and also is an unregistered trust. It was not entitled to be granted with lease under the O.G.L.S. Act. Consequently it was held that no relief could be granted on the prayer of the petitioner. While so holding, this Court could not have shut its eyes to the illegality committed by the Revenue Authority in granting lease to the petitioner-Trust de hors the statutory provisions. Law is well settled that writ jurisdiction is discretionary in nature and must be exercised in furtherance of justice. The Court has to keep in mind that its order should not defeat the interest of justice nor it should permit an order to secure dishonest advantage or perpetuate an unjust gain nor approve an order which has been passed in contravention of the 8 statutory provisions. (See Champalal Binani Vs. CIT, West Bengal & others, AIR 1970 SC 645; K.D.Sharma Vs. Steel Authority of India Ltd. & Ors., (2008) 12 SCC 481, 2008 AIR SCW 6654). The apex Court in Karnataka State Road Transport Corporation v. Ashrafulla Khan & others, AIR 2002 SC 629, held that the High Court under Article 226 of the Constitution is required to enforce rule of law and not pass an order or direction which is contrary to what has been injuncted by law. 8. Further, in deciding the controversy involved in issue No.(i), which is the prayer in the writ petition, it was necessary to decide issue Nos.(ii) & (iii) relating to petitioner’s entitlement to be granted with lease under the O.G.L.S. Act with retrospective effect, as same is the foundation for claiming relief as prayed for by the petitioner in the writ petition. If the petitioner was not entitled for grant of lease of Government land under the O.G.L.S. Act and the Rules, its prayer for grant of lease on Permanent Pattadar Status with heritable and transferable right would not at all arise. Therefore, the petitioner’s entitlement for grant of lease of government land in its favour is a common issue as far as issue Nos. (i), (ii) & (iii) are concerned and they are inextricably connected. 9. In view of the above, the first ground taken by the review-petitioner that this Court has exceeded its jurisdiction by deciding certain issues beyond the prayer fails. The decisions of the apex Court in V.K.Majotra (supra) is of no help to the petitioner as in that case while exercising 9 jurisdiction under Article 226 of the Constitution the High Court issued certain directions beyond the pleadings as well as the points raised by the parties in course of argument. In that context the apex Court held that the learned Judges overstepped their jurisdiction in giving a direction beyond the pleadings or points raised by the parties during the course of argument. In the present case, issues have been decided on the basis of pleadings and points raised by the parties and the arguments advanced in course of hearing and thereafter the consequential directions have been issued by this Court. The decision of the apex Court in New Delhi Municipal Council (supra) is also of no help to the petitioner as in that case the apex Court held as follows: “We have only the rule of caution in mind which warns that ordinarily, Courts should, particularly in Constitutional matters, refrain from expressing opinion on points not raised or not fully and effectively argued by counsel on either side.” As stated above, the issues decided by this Court emerged from the pleadings and arguments advanced by both or either side. 10. The second ground for review is that this Court utilized certain materials available on record, which were produced before the Court after closure of the argument, and the petitioner did not get opportunity to rebut the same which amounts to violation of the principles of natural justice. 10 While dealing with issue Nos. (i) and (ii), this Court referred to some of the documents available on the case records pertaining to Balu Lease Renewal Case No.4 of 2004 in which lease was granted for 60 years with retrospective effect from 08.11.1970 and BPL Case No.20 of 2005 in which lease of permanent Pattadar Status was granted in favour of the petitioner-Trust with certain terms and conditions. But the judgment of this Court is founded on the settled principles of law with reference to statutory definitions. Admitted factual backgrounds have been tested in the light of statutory definitions. Therefore, the question whether any document should have been kept out of consideration is of no relevance and consequence. Even on the admitted factual position the conclusion regarding position of law would have been the same. Moreover, the factual position highlighted in the counter affidavit was not refuted during the course of argument and in the rejoinder as well. Therefore, the plea that certain documents from the record which have been taken note of in the judgment were not brought to petitioner’s notice is an after-thought and irrelevant. The counter affidavit referred to the records produced, which were taken note of. When there was no argument advanced in respect of the statements made in the counter affidavit regarding factual position, the plea now taken cannot be a ground for review. The apex Court in Haridas Das Vs. Usha Rani Banik (Smt.) & Ors., AIR 2006 SC 1634, held that the parameters of review are prescribed in Order XLVII of the CPC. The former part of the rule 11 deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the Court and thereby enjoyed a favourable verdict. This is amply evident from the explanation to Rule 1 of Order XLVII which states that the fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for review of such judgment. Where the order in question is appealable, the aggrieved party has adequate and efficacious remedy and the Court should exercise the power to review its order with the greatest circumspection. 11. Otherwise also, it cannot be said that the petitioner is in any way prejudiced because of the Court’s reference to certain documents available on the case record without confronting the same to the petitioner while adjudicating issue nos. (i) and (ii) with regard to petitioner’s entitlement to be granted with lease of Khasmahal land under the OGLS Act and the Rules. While adjudicating issue No.(v) reference has been made to Power of Attorney dated 26.02.2005 available on record which has been executed by the members of the petitioner-Trust and thus no prejudice has been caused for not confronting the same to the 12 petitioner. So far as issue Nos.(iii) &(iv) are concerned, no material/document from the LCR has been utilized. 12. While dealing with issue no.(i), this Court referred to the letter of the Deputy Collector, Puri bearing No.294 dated 28.9.2007 which shows that the land in question has been settled by the Tahasildar, Puri and approved by the Collector, Puri in terms of sub- rule (3)(a) of Rule 5-B of the O.G.L.S. (Amendment) Rules, 1993. The petitioner itself has relied upon those provisions of the OGLS Act and the Rules in the writ petition and written note of submissions. Hence, no prejudice is caused to the petitioner by referring to such letter of the Deputy Collector without making any confrontation to the petitioner. Reference was also made to the application dated 3.11.2005 in Form No.1 filed by the petitioner for permanent settlement of the leasehold land under the above provisions of the O.G.L.S. Rules. This being the petitioner’s own application, the petitioner is in no way prejudiced by referring to such application without making confrontation to the petitioner. The order of the Collector dated 10.9.2004 was referred to. This is the order by which lease was granted in favour of the petitioner-Trust in Lease Renewal Case No.4/2004 for 60 years with retrospective effect from 8.11.1970 and lease agreement (Annexure- 1) was executed on 3rd October, 2005 pursuant to such order of the Collector. In the said order, the Collector observed that a building was constructed on Khasmahal land and is used for commercial 13 purpose without permission of the Khasmahal authority and no resumption proceeding has been initiated. It cannot be said that the petitioner was not aware of that order on the basis of which lease renewal agreement under Annexure-1 has been executed. It may be admitted here that renewal of lease deed agreement dated 03.10.2005 under Annexure-1 was executed pursuant to the order dated 10.09.2004 passed by the Collector. Even it has not been pleaded in the review petition that the review petitioner was not aware of the said order of the Collector dated 10.09.2004 in pursuance of which the lease renewal agreement was executed. It is accepted that the lease renewal agreement (Annexure-1) was executed pursuant to the order of the Collector dated 10.09.2004 which has been held to be illegal. The order of the Tahasildar dated 30.03.2007 passed in BPL Case No.20 of 2005 has been referred to indicate that the Tahasildar, Puri by the said order settled the land in favour of the petitioner-Trust on Permanent Pattadar Status with heritable and transferable rights and recommended the same for approval of the Collector. The Collector accepted such recommendation of the Tahasildar imposing certain terms and conditions which were under challenge by the petitioner itself in the writ petition. As reference to the above order of the Tahasildar dated 30.03.2007 causes no prejudice to the petitioner, there was no need to confront the same to the petitioner. 14 13. Similarly, while deciding issue No.(ii), besides the order of the Collector dated 10.09.2004, the letter No.7757 dated 09.09.2004 issued by the Tahasildar was referred to. This letter of the Tahasildar reveals that the land was recorded in Sarakari Khata as the lease was expired in 1970 during pendency of settlement operation. This particular fact has been stated in the counter affidavit filed by the opp. parties. Therefore, reference to such letter without confronting the same to the petitioner causes no prejudice to the petitioner. For the reasons stated in paragraph-12, reference to the order of the Collector dated 10.09.2004 without making confrontation causes no prejudice to the petitioner. 14. While deciding issue No.(iii) no material/document from the LCR has been referred to. However, in course of hearing and in the written note of submissions dated 11.05.2010, the petitioner- Trust claimed that it had applied for renewal of lease before the Collector, Puri on 26.11.1971 and the same was renewed for 60 years with effect from 08.11.1970. In that context, this Court held that there is no pleading in the writ petition to the effect that on 26.11.1971 an application was made to the Collector for renewal of lease granted in the name of the petitioner-Trust much less any evidence was either enclosed to the writ petition or the rejoinder supporting such contention. In course of hearing, no evidence was adduced before the Court in support of such contention. Neither the Collector’s order dated 10.09.2004 passed in Balu Lease Renewal Case No.4/2004 nor the renewal lease deed executed on 03.10.2005 15 (Annexure-1) revealed that any such application was filed on 26.11.1971. This Court further held that in the case record of Balu Lease Renewal Case No.4/2004 the application dated 26.11.1971 claimed to have been filed does not find place. In this circumstance, there is no question of violating the principles of natural justice as alleged by the review-petitioner. 15. Issue No.(iv) is that the Trust being an un-registered one is not entitled to be granted lease under the OGLS Act and the Rules. Only relying upon Section 5 of the Indian Trust Act, 1882 and Section 17(b) of Indian Registration Act, 1908 it was held that the Trust in relation to immovable property being not registered, the claim that the petitioner-Trust is a juristic person does not merit consideration. In this context, no material/document from the L.C.R. has been utilized. 16. Issue No.(v) is whether members of the Trust are entitled to alienate the Trust property in terms of the trust deed. This issue has been decided on the basis of the copy of the trust deed submitted by the petitioner in the Court and the Power of Attorney dated 26.02.2005 executed by the members of the Trust giving power to one Madhusudan Khuntia to sell away the land in question after receiving the consideration money of Rs.13 (thirteen) lakh which run contrary to the terms and conditions of the Trust deed itself. It cannot be said that the petitioner was unaware of