RAGHABENDRA BOSE Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS writ petition is directed against an order passed by the Revenue Divisional Commissioner, Central Division, Cuttack, O.P. No. 2 in Misc. Case No. 7 of 2000 filed by O.P. Nos. 4 and 5 thereby allowing the prayer for their substitution in place of the deceased appellant Asit Kumar Ghosh in Khasmahal Lease Appeal No. 2/94 and condoning the delay in filing the application and setting aside the order of abatement, vide, annexure 8. According to the petitioners, the aforesaid order in Annexure 8. was passed by the R.D.C in a perfunctory manner and ex parte without affording the petitioners and opportunity of hearing.

(2.) THE brief facts, as the averments made in the present writ petition tend to reveal, are that on 2.5.1904 the disputed property, which is situated in Puri town, was leased out in favour of one Ray Hariballav Bose Bahadur by the Collector, Puri, for a period of thirty years. In a family settlement, the disputed property fell to the shareof Hariballav's brother, Sadhu Prasad Bose, who was succeeded by his only son Nityananda Bose. By a registered award deed dated 25.1.1922, Nityananda created a private trust in respect of the disputed property along with other properties in favour of his brother in law, Sidheswar Ghosh, and appointed him as the trustee. After becoming the trustee, the said Sidheswar sold away the property to himself without the knowledge of Nityananda Bose by virtue of a sale deed dated 25.7.1922, which was registered at Calcutta, in which Sidheswar was shown as vendor as well as vendee. After the death of Sidheswar, Nityananda created another trust in favour of one Akshya Kurnar Ghosh, the younger brother of late Sidheswar, as per the registered deed dated 8.5.1930 in respect of the disputed property and some other properties. On 15.10.1931 Akshya died leaving behind his last willand testament dated 3.8.1931 by appointing one Pravash Chandra Mallick and Dulal Chand Aich as trustees and executors. By virtue of the aforesaid last will and testament, Pravash Chandra and Dulal Chand managed the properties of Akshya as well as the properties of Nityananda. The lease in respect of the present disputed property expired on 1.5.1934 and Pravash and Dulal Chand applied for renewal of the [ease before the collector, Puri, in the capacity of trustees and executors of the estate of the late Akshya and , according to the petitioners they had suppressed the fact that they were the trustees to the estate of Nityananda. On 21.12.1940 the collector, Puri, granted renewal of the lease and executed the lease deed dated 21.12.1940 in favour of Pravash and Dulal as trustees to the estate of late Akshya with effect from 2.5.1934 for a period of thirty years expiring on 1.5.1964. In the year 1946, the widow of late Akshya adopted Asit Kumar Ghosh as her son, who, after attaining majority, filed a suit in the Calcutta High Court against Pravash and Dulal for relinquishrnent from trusteeship and executors hip. On 10.8.1 965 the Tahasildar, Puri, initiated a suo rnotu Balu Lease Renewal Case No. 45 of 1965 66 and directed the Revenue Inspector, Sadar, Puri, to ask the lessee for filing of renewal application by 18.10.1965. On 25.12.1965 Asit Ghosh filed an application for renewal of the aforesaid lease and the said lease was again renewed for a further period of thirty years with effect from 2.5.1 964 in the name of Asit Ghosh. After expiry of the lease in the year 1994, Asit Ghosh again applied for renewal of the lease and at this point of time the petitioners came to know about the aforesaid act done by Akshya behind their back and filed a cross objection before the Collector with a prayer to renew the lease of the disputed property in their favour and prayed for dismissal of the application of Asit Ghosh, on several grounds including the one that Akshya was trustee in respect of the disputed property of Nityananda and the property reverted back to Nityananda's family, i.e., the original creator of the trust. In the meantime, as stated by the petitioner, the Calcutta High Court declared the trust of Nityananda to have ceased in the year 1974 and Asit's right, if any, stood extinguished. The Collector, Puri, after hearing both the parties, rejected the prayer of Asit and renewed the lease of the disputed property in favour of the petitioners for a period of thirty years in Balu Misc. Case No. 2/94 by his order dated 27.8.1994. On being aggrieved, the said Asit filed an appeal before the R.D.C O.P. No. 2 in Khasmahal Lease Appeal No. 2/94 during the pendency of which Asit died leaving behind an unregistered will in favour of O.P. Nos. 4 and 5, namely, Sunil Krushna Ghosh and Pradeep Kumar Ghosh, and one Pallav Kumar Banerjee, who is stated to be dead. The executors of late Asit Kurnar Ghosh as per the alleged will claimed for substitution in place of the appellant Asit Kumar Ghosh before O.P. No. 2 in the aforesaid appeal. Their prayer was rejected by O.P. No. 2 by order dated 10.4.1996 and the appeal was dropped. At this point of time, one Manju Mohanty claiming herself to be the registered power of attorney of the executors of Late Asit Kumar Ghosh, i.e., O.P. Nos. 4 and 5 , filed a writ petition being 0. J.C. No . 3672/1996 in this court challenging the appellate order dated 10.4.1996 passed by O.P. No. 2. The writ petition was disposed of on 27.10.1997 upholding the appellate order dated 10.4.1996 passed by O.P. No. 2 The executors of Asit Kumar Ghosh preferred an appeal being S.L.P (C/No.23595/ 96 in the apex Court and the same was also dismissed as withdrawn. It is worthwhile to mention here that in the meantime on 11.9.1996 the petitioner applied before the Tahasildar, Puri, for permanent settlement of suit property under the Orissa Government Land Settlement Act, hereinafter referred to as the O.G.L.S. Act, which was registered as.B.P.L case No. 43/96. Further, the said executors of late Asit Kumar Ghosh also filed an application under section 276 of the Indian Succession Act being P.L.A 257/1997 before the Calcutta High Court for grant of Probate in respect of the last will of late Asit Kumar Ghosh which, according to the petitioners, was allowed by the Calcutta High Court. While the matter stood thus, one Smrutirani Miter filed another substitution petition through her power of attorney Manju Mohanty in Khasmahal Lease Appeal No. 2./1994 for her substitution claiming herself to be sister of late Asit Kumar Ghosh, on which the R.D.C directed the Collector to make an enquiry regarding the claim of aforesaid Smrutirani Miter that she is the sister of Asit Kurnar Ghosh. The present petitioners challenged the aforesaid order of the R.D.C in O.J.C. No. 1422 of 1999 in which this court by order dated 30.3.1999 directed stay of further proceeding regarding the enquiry. Thereafter Manju Mohanty, who was claiming herself to be the power of attorney of Asit Kumar Ghosh as well as the executors of Asit Kumar Ghosh, forcibly evicted the present petitioner No.1 from ground floor of the disputed property for which the petitionersfiled a petition before the Collector to take khas possession of the disputed property in exercise of his power under Clause 20 of the Bihar and Orissa Estate Manual tilt a final decision is taken in Balukhand Lease Case No. 43 of 1996 in his favour. According to the petitioners, the action of the police in forcibly evicting Petitioner No.1 from the disputed property was challenged in O.J.C No.12662/1999 and during the pendency of the aforesaid writ petition, Collector, Puri, by his order dated 21.10.1999, after hearing the parties, directed the Tahasildar to take Khas possession of the disputed building and the said order was challenged by Manju Mohanty in O.J.C . No. 13175/1999 in this Court. This court while dismissing the writ petition by order dated 26.11.1999, which is annexed to the present petition as Annexure 3 , observed in para 5 as follow :

(3.) ADMITTEDLY , as it appears from the notes of submissions so filed by both the parties, the R.D.C has not heard both the parties and passed an ex parte order. But the fact remains that the impugned order of the R.D.C. only facilitates re opening of the Khasmahai Lease Appeal No. 2/94 which was dropped since 1996. At this stageone other side of the case should not be overlooked. That is the initiation of proceeding under the provisions of the O.G.L.S. Act registered as B.P.L Case No. 43/96, wherein the Collector has settled the land in question on permanent basis in favour of the petitioners as per the orders passed in O.J.C. No. 6630/2000, the relevant portion of which has been quoted in the foregoing paragraph. So, no fruitful purpose would be served if the K. L. appeal is re opened and allowed to continue except dragging the litigation for years to come. While passing the impugned order, the R.D.C has not taken all the above mentioned aspects into consideration and condoned the delay of four years without any rhyme and reason. Apart from that the R.D.C. went one step ahead by passing the order of status quo, which is clearly contrary to the order passed in O.J.C. No. 6630/2000. Therefore, the impugned order in Annexure 8 fails to withstand the judicial scrutiny and is liable to be set aside. Accordingly, the writ petition is allowed, the impugned order is quashed, and the Collector is directed to proceed with Balukhand Permanent Lease Case No. 43 of 1996 in accordance with law and in terms of the order of this Court passed in O.J.C No. 6630/2000, and dispose of the same within three months of receipt of this order. No cost