PHULMANI DIBYA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE disputed lands situate hi the district of Mavur-bhanl were recorded as Brahmottar Maufi in the name of Prana Krushna Panda who died in 1942 leaving behind two daughters -- Haramani (Opposite Party No. 5) and deceased ashamani, wife of opposite party No. 6. As Prana Krushna died without leaving any male heirs, the Maharala of Mavurbhsni passed an order (Annexure 5) on 7-41944 that a good candidate should be found out to take the property subject to maintenance and marriage of the minor girl Ashamani. On the basis of this order, disputed lands were settled with Rama Chandra Pati. husband oi the petitioner, on 13-9-1944 whose name was recorded in the record of rights (Annex. 4 ). Rama chandra died in 1959 leaving behind the petitioner as the only heir and she claims that she was in possession of the disputed property, The disputed property which is an estate vested in State of Orissa on 1-10-1964 ODD. parties 4 and 6 filed an application in O. E. A. Case No. 4 of 1965-66 on 1-2-1965 under Sections 6 and 7 of the Orissa Estates Abolition Act, 1951 claiming as intermediaries in Khas possession. The petitioner filed an application in O. E. A. Case No. 17 of 1965-66 on 3-2-1965 under those sections asserting that she was the intermediary in Khas possession. Both these cases were heard analogously and the disputed lands were settled with the petitioner as the intermediarv in Khas possession, on 26-5-1966. Opposite partv No. 4 preferred an appeal. Bv the appellate order both the cases were remanded. On 5-9-1969 the Estates Abolition Collector held after remand that the petitioner cannot inherit the property being a female by virtue of the restrictions imposed under the Mavurbhani Laknrai Control Order, 1937 (hereinafter to be referred to as the Control Order. He also held that she was not in Khas pos-session on the date of vesting. The claim of opposite parties 4 and 6 was also negatived, petitioner filed O. E. A. Appeal No. 43 of 1969. Opposite parties 4 and 6 preferred O. E. A. Appeal No. 45 of 1969. Both the appeals were dismissed by the A. D. M. (Executive), Mavurbhani by his order (Annexure 1) on 1-5-1970. The writ application has been filed under Articles 226 and 227 to quash this order. Opposite parties 8 to 14 were added as interveners by an order of this Court passed on 10-4-1972. Their case was that their father was in possession as Bhag tenant under Rama Chandra Pati at the time of his death in 1959 and that the petitioner was never in possession. The interveners had no knowledge about the proceedings under the Estates Abolition Act. The father of the interveners filed O. L. R. Case No. 66 of 1970 in the Court of the Additional Tahasildar. Baripada, for settlement of the land. In the O. L. R. Case the land was settled with the father of the interveners on permanent lease basis on 22-4-1971. The interveners claim rights under Section 8 (1) of the Orissa Estates Abolition Act. The petitioner filed counter to the interveners' affidavit by stating that the O. L. R. case was filed on false averments and by suppression of notice and the petitioner was not aware of the filing of such a case, or settlement and that the alleged settlement during the pendency of the Estates Abolition Act case without notice to the petitioner is bad in law. It is to be noticed that opposite party No. 4 filed O. J. C. No. 149 of 1971 against the order of the A. D. M. (Executive) oass-ed on 1-5-1970 (Annexure 1 ). Though that writ application was dismissed at the admission stage, opposite parties 4 and 6 contest this writ application saving that the lands should not be settled with the petitioner.

(2.) THIS writ application came up for hearing before a Bench consisting of R. N. Misra and B. K. Ray. JJ. They were of opinion that O. J. C. No. 21 of 1967 (Orissa), shvama Sundar Sarangi v. Anamoni Dei, disposed on 27-8-1970, by a Bench consisting of B. K. Patra. J. , and myself, and (1971) 1 Cut WR 605, Sm. Gita mohanty v. Gelhimani Bewa, decided by a Bench consisting of A. Misrg. J. , and myself, require reconsideration. In their referring order dated 28-9-1972 the main grounds for re-examination of the previous decisions were given as follows :-- (i) The Control Order is not meant for Hindus only, but governs grants in favour of non-Hindus and as such the Control Order is not repugnant to sec-tion 4 (1) (b) of the Hindu Succession Act, 1956. (ii) The Lakhrai Grant is resumable on the death of the grantee and is not heritable and as such the petitioner cannot lav any claim to the disputed property by inheritance. It is to be noted that the Control Order was not produced before this Court while the two previous cases were heard and the judgments had been given on the basis of certain extracts taken from the orders of the appellate Court which were accepted by the counsel for both the par ties then to be sufficient for the disposal of those cases. This was so stated in the judgment in O. J. C. No. 21 of 1967 (Orissa) as follows :--"the learned Advocate for the petitioner did not produce a copy of the lakharai Control Order, 1937 which was amended on 7th June. 1943. But the relevant order has been quoted in paragraph 8 of the iudgment of the Revenue Divisional Commissioner and we quote the same hereunder. "

(3.) MR. Sinha for the petitioner advanced the following contentions :- (