BHARAT BIHARI MISHRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioners in this writ application challenge the legality and propriety of the order dated 25.04.1998 (Annexure-8) passed by the learned Additional District Magistrate, Khurda in O.E.A. Appeal No.3 of 1993.

(2.) The facts of the case, as averred in the writ application are that the petitioners late father Brajabehari Mishra and late mother Arnapurna Mishra jointly applied to opposite party no. 4-deity, Lord Lingaraj Mahaprabhu through its Trust Board for permanent lease of the disputed land and paid the salami on 10.08.1954. Since the property in question was the Trust Estate of the deity, the Commissioner of Endowments accorded permission for permanent lease of the land under Section 19 of the Orissa Hindu Religious Endowments Act,1951 (in short OHRE Act ), as per order No.403/986 P (J) dated 16.08.1955 in O.A. Case No.106 of 1952-53. Since then the petitioners parents were in possession of the land and paying rent to the temple authorities till vesting of the Trust estate of the deity in 1974 in the State Government under Section 3-A (1) of the Orissa Estates Abolition Act,1951 (in short O.E.A. Act ).On vesting of the estate the parents of the petitioners, who were permanent tenants under the deity, became permanent tenants under the State Government under the provision of Section 8 (1) of the O.E.A. Act. It is further asserted that after the vesting opposite party no.4-deity filed a claim case under Sections 6 and 7 of the O.E.A. Act on 04.08.1975 for settlement of the disputed land in its favour alleging that the deity is in khas possession of the disputed land. The said claim application was registered as Nij Dhakhal Case No.378 (T) of 1974. It is stated that in the said proceeding, without proclamation of public notice inviting objection as required under first proviso to sub section (2) of Section 8-A of the O.E.A. Act from persons interested, the Tahasildar-O.E.A. Collector allowed the claim of opposite party no.4 by order dated 04.11.1980. Before passing of such order no notice had been given to the parents of the petitioners, who had absolutely no knowledge about such proceedings or the order of settlement passed therein till 20.12.1983. On coming to know about the passing of such order of settlement in favour of opposite party no.4, the parents of the petitioners filed O.E.A. Appeal No.1 of 1984 before the Additional District Magistrate, Bhubaneswar (opposite party no.2) challenging such settlement order. By order dated 23.2.1989 (Annexure-1), the Additional District Magistrate, allowed the appeal, set aside the settlement order passed by the Tahasildar and remitted the case back to the Tahasildar (opposite party no.3) directing that the original lessees shall file their objection within one month from the date of the order and the Tahasildar shall dispose of the claim case within six months. The A.D.M., did not go into the question whether the original lessees have become occupancy rayats under the State Government by operation of Section 8 (1) of the O.E.A. Act, which was raised by the appellants and left the same open to be considered by the O.E.A. Collector-Tahasildar. The lessees (parents of the petitioners) filed objection before the O.E.A. Collector on 26.06.1989. The case suffered some adjournments at the stage of hearing and was ultimately posted to 04.12.1989 on which date the Executive Officer of Trust Board, who was representing opposite party no.4, remained absent for which the claim was dismissed for default vide order under Annexure-2. Thereafter on 02.01.1990, the Additional Executive Officer of opposite party no.4 filed a petition before the O.E.A. Collector for restoration of the claim case taking the plea that on 04.12.1989 to which date the claim case was fixed for hearing, he had come to the High Court for which he could not remain present before the O.E.A Collector. Ultimately, the restoration application was heard on 06.05.1990 and it was posted to 07.06.1994 for orders. Instead of passing final orders on 07.06.1990, the O.E.A. Collector on that day directed the Executive Officer of opposite party no.4 to file an affidavit mentioning the case number in connection with which he had come to the High Court and the matter was adjourned again to 26.6.1990 for passing final orders on the restoration application. The order dated 07.06.1990 has been annexed as Annexure-3. The Executive Officer did not file any affidavit on 26.06.1990 and the O.E.A. Collector having remained busy otherwise, the matter was adjourned to 20.07.1990 and again to 30.07.1990. Even by 30.07.1990 no affidavit was filed and even on that date the Executive Officer-opposite party no.4 did not choose to appear despite repeated calls and, therefore, the O.E.A. Collector passed order on that day vide Annexure-4 dismissing the restoration application for default and for non-compliance of earlier order dated 07.06.1990. Thereafter on 30.11.1991, the Executive Officer of opposite party no.4 filed another petition under Order 9 Rule 9 of read with Section 151, C.P.C. for restoration of the restoration petition filed earlier on 02.01.1990, which was dismissed for default by order under Annexure-4, along with a petition for condonation of delay on grounds inter alia that the Additional Executive Officer lost track of the case on 20.07.1990 as the O.E.A. Collector did not hold court on that day and that the further date of posting of the restoration application was not within the knowledge of the claimant. It is stated that on the date of filing of second restoration application, i.e., on 30.11.1991, the records being not available with the O.E.A. Collector, as the same had been transmitted to the Member, Board of Revenue in connection with another case, the O.E.A. Collector endorsed on the body of the restoration application that the matter would be taken up after receipt of the original records from the Board of Revenue. The restoration petition dated 30.11.1991 with the endorsement of the O.E.A. Collector has been filed as Annexure-5. Although nothing was decided by the O.E.A. Collector on the second restoration application, opposite party no.4 however on the very day filed an appeal before the Additional District Magistrate against the direction of the O.E.A. Collector endorsed on the body of the petition. The said appeal was registered as O.E.A. Appeal No.2 of 1991, which was ultimately disposed of by the A.D.M., on 06.07.1992 by order under Annexure-6 holding that since the matter was sub-judice before the O.E.A. Collector-cum-Tahasildar, the appeal was premature and it was inappropriate to interfere with the matter pending before the O.E.A. Collector. Ultimately, the second restoration application was taken up for hearing by the O.E.A. Collector on 12.4.1993 and on the same date vide order under Annexure-7 it was dismissed mainly on the ground of non-compliance of the earlier order dated 07.6.1990 directing opposite party no.4 to file an affidavit. It was further held that the claimant (opposite party no.4) was deliberately negligent and delaying disposal of the case on flimsy grounds. It was held that there was no sufficient cause to allow the second restoration application. Challenging the order dated 12.4.1993 (Annexure-7), the claimant filed O.E.A. Appeal No.3 of 1993 before the Additional District Magistrate, Bhubaneswar purportedly under Section 9 (1) of the O.E.A.Act. Initially the petitioners filed this writ application challenging the maintainability of the second restoration application as well as the maintainability of O.E.A. Appeal No.3 of 1993. However, during the pendency of the writ application the said appeal was disposed of by the A.D.M. by his order dated 25.4.1998 (Annexure-8) by allowing the appeal and remanding the matter to O.E.A. Collector, Bhubaneswar for fresh adjudication with the following observations :

(3.) By virtue of amendment of the writ application, the appellate order under Anenxure-8 has been assailed by the petitioners. The main plank of argument of the petitioners is that since the petitioners predecessors-ininterest were lessees in respect of the disputed land under opposite party no.4, the deity was not in khas possession on the date of vesting of the Trust estate including the disputed land and, therefore, the O.E.A. claim case filed by the deity was not at all maintainable and, further that Order 9, Rule 9, C.P.C. does not apply to a proceeding under the O.E.A. Act., and therefore, the second restoration application filed by the Executive Officer of the deity was not maintainable and further that the order passed by the O.E.A. Collector dismissing the second restoration application was not an appellable order under the provision of Section 9 (1) of the O.E.A Act., which was taken recourse to for filing the appeal and, therefore, the A.D.M. had no jurisdiction and power to entertain O.E.A. Appeal No.3 of 1993 and to pass the impugned order.