RAGHUNATHE JEW AT BHAPUR

BASANTHA KUMAR SAHU AND ORS.

DECEMBER 9, 1998

[MRS. SUJATA V. MANOHAR AND MR. G.B. PATTANAIK JJ.]

Constitution of India-Articles 226 & 227-Interference with findings of an inferior tribunal-Issue not raised earlier-Entertained by High Court- Held : High Cvurt exceeded its jurisdiction-Commitled gross error in interfering.

Orissa Estate Abolition Act I952/0rissa Estate Abolition (Amendment) Act 1970-Sections 3 A(/) and Sections 6, 7, 8-Notification issued- Declaring intermediatary interests of deity's land-Vested in State free from

all encumbrances-On application being filed, on behalf of deity, Tribunal declared the deity as 'trust estate '-Another notification issued-Declared D intermediary interests of intermediaries whose estate declared as trusts estate vested in State free from all encumbrances-Application filed for settlement of land with deity,-Objections invited-Collector rejected the objections and directed the land to be settled with the deity-No appeal filed by respondent-Revision filed after 7 years dismissed by Board of Revenue- E High Court on the basis of roving enquiry set aside the order of the Collector- Held-High Court exceeded its supervisory jurisdiction.

A Notification issued on 27.2.68 under Orissa Estate Abolition Act, 1952, directed that Debottar Land attached to the appellant Deity vested in the State free from all encumbrances. On behalf of the Deity, an application F was made before the tribunal and the tribunal which declared the deity as a "trust estate". On 18th March, 1974, under Section 3A(l) of the Act another notification was issued, declaring that the intermediary interest of all the intermediaries whose estate have been declared as trust estate vested in the state free from all encumbrances.

G Application was filed under Sections 6, 7, 8 of the Act on behalf of the deity for settlement of land with the Deity. Objections filed by the private respondents to the said application were rejected by the Collector. 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 pursuant to 443 H

A earlier notification of 1968 and it had not been declared as trust estate. No appeal was filed. After seven years the respondents invoked Revisional jurisdiction of the member, Board of Revenue, but without success. The High Court allowed the writ petition preferred by the respondents holding that the respondents have acquired an occupancy right over the land in question.

Before this court it was contended on behalf of the appellant that the High Court exceeded its supervisory jurisdiction by making a roving enquiry and that the respondents are not entitled to approach the High Court taking a new stand which was not taken before the Estate Abolition Collector.

Allowing the appeal, the Court

HELD: 1.1. The High Court committed an error in interfering with the conclusions arrived at by the Estate Abolition Collector and affirmed by the Member, Board of Revenue. [448-C-DJ

1.2. High Court was not justified in embarking upon an inquiry as to D the statP of things that happened on the basis of the notification of the year

1968. (448-AJ

1.3. The High Court recorded a finding because of non production of the relevant record that there was no declaration of "trust estate" on 26.9. 70.

When the respondents did not raise this question before the Estate Abolition E Collector, it was not open for the High Court to go into 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 a conclusion that the respondents had acquired occupancy right in the land and such a conclusion cannot be sustained in law. [448-A-CI

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5282 of 1996.

From the Judgment and Order dated 13.11.92 of the Orissa High Court in O.J.C. No. 2030 of 1987.

P.N. Misra and Mrs. Rekha Palli for the Appellant.

Janaranjan Das and Radha Shyam Jena for the Respondents.

The Judgment of the Court was delivered by

PATTANAIK, .I. 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 A No. 2030 of 1987 is being challenged. The deity and the properties attached to it situated 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 ofDebottar Lekhraj's land B in the District of Dhenkanai 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 (I) of C Section 3-A of the Ac~, 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 D 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 Sections 6, 7 and 8 of the Act for the settlement of land with the deity. The private respondents filed their E 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 F tenancy over the land and further directed that the lands in question be settled with the deity o:i fair and equitable rent. Pursuant to the said order, equitable. rent was assessed and 'patta' 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 G moto 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 H

A 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 B 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.

C 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 D respondents having appeared in the Estate Abolition proceedings pursuant to the notice issued by the Estate Abolition Collector and having claimed a right 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

E 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 F 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.

G 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 H fresh vesting under the notification of 18.3.74 does not arise.

We have carefully consiOered the rival submissions at the bar and A 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 eqitable 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 B Collector in exercise of his suo moto revisionaljurisdiction under Section 388 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 C 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 condusion 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. D 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, E Board of Revenue. It is apparent that after the vesting notification dated 18.3.74, the appellant filed an application under Sections 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 ocs; upancy over the land and the Estate Abolition Collector decided that proceeding in favour of F 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 moto revision G 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 H

A 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 Babel's land did not vest and there is definite distinction B between the two classes 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 C open for the High Court to go into 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 D 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 E appellant deity is affirmed. This appeal is allowed, but in the circumstances, there will be no order as to costs.

A.M.

Appeal allowed.