HAJURI P C KHUNTIA Vs. BRUNDABAN R DAS

JUDGEMENT

(1.) Leave granted.

(2.) 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 and 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 (reported in AIR 1998 Orissa 219) by the Division Bench.

(3.) 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 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.