GIRIDHARI MOHAPATRA Vs. RAGHUNATH JEW

JUDGEMENT

(1.) Being aggrieved by exactly similar orders passed in O. E. A. Appeals Nos. 68 and 69 of 1967 (Annexure-4 in both the writ petitions) the petitioners have filed these two writ applications under Articles 226 and 227 of the Constitution of India praying for issue of writs in the nature of certiorari quashing the said order as per Annexure-4. The questions involved in both the writ petitions being the same they were taken up together for hearing and one set of argument was advanced by counsel appearing for all the parties. Accordingly this judgment will govern both the writ petitions.

(2.) The petitioners' case in both the writ petitions in short is that the lands in respect of which the impugned order (Annexure-4) has been passed were a part of an estate, and the ancestors of the petitioners purchased the same by a registered sale deed dated 11-7-1868 from the then intermediary, and ever since that time the petitioners' ancestors continued in possession of the said lands generation after generation and the petitioners now are in peaceful possession of the same. The petitioners' ancestors having purchased the intermediary interest in the said lands became intermediaries in respect of these lands and thereafter the petitioners as intermediaries in possession of the lands made applications under Section 8-A (1) of the Orissa Estates Abolition Act (Act 1 of 1962) (hereinafter referred to as the Act) before the Estates Abolition Collector (hereinafter referred to as the Collector) and their applications were registered as Case No. 2929 of 1963-64 and Case No. 2930 of 1963-64. The Collector under Section 8-A (2) duly invited objections under Section 8-A (4) of the Act, and as no objection was received by him he passed the order dated 18-8-1964 (Annexure-1) settling the said lands with the petitioners under Sections 6 and 7 of the Act on fair and equitable rent, thereby treating the petitioners as occupancy royats in respect of the said lands. The petitioners continued in possession of the said lands, and in Course of time they sold the same to the pro forma opposite parties. It is also averred that the compensation payable under the Act for the abolition of the intermediary interest in respect of the lands in question was paid to the petitioners. 3 years 4 months after the passing of the aforesaid order of the Collector (Annexure-1), the petitioners received appeal notices concerning Orissa Estates Abolition Appeals Nos. 68 and 69 of 1967 filed by opposite party No. 1. The said appeals were filed before opposite party No. 2 on 26-12-1967. It is stated that opposite party No. 1. not having filed any objection under Section 8-A (4) within the time prescribed thereunder, was not entitled to file the said appeals as it was not a party to the original proceeding before the Collector in which the order as per Annexure-1 was passed in favour of the petitioners. Apart from urging that opposite party No. 1 had no locus standi to file the aforesaid appeals it is also contended that the appeals having been filed by opposite party No. 1 after 3 years and 4 months of the passing of the Collector's order are barred by limitation as they were not filed within the time prescribed under Sec. 9 of the Act. The petitioners after receipt of the appeal notices raised questions against the maintainability of the appeals on several grounds and canvassed the question of limitation as a preliminary point before opp. party No. 2, but opposite party No. 2 disposed of the appeals on merits. Thereafter the petitioners filed a writ petition being O. J. C. No. 1762 of 1968, in this Court to quash the said appellate order of opposite party No. 2 in which the aforesaid order of opposite party No. 2 was quashed as the question of limitation had not been taken into consideration, and opposite party No. 2 was directed to dispose of the appeals in accordance with law. According to the said direction of this Court, opposite party No. 2 heard the parties, and without discussing the scope and ambit of Section 5 of the Limitation Act and without proper assessment of the evidence on record and by misdirecting itself on the proper questions at issue, passed the impugned order which is erroneous both in fact and in law.

(3.) In the, counter affidavit filed on behalf of opposite party No. 1 in both the aforesaid writ petitions it is inter alia stated that the lands in question were never a part of any other estate as alleged by the petitioners, and their ancestors never purchased the intermediary right in the said lands in the year 1868 or at any other time and they and/or the petitioners never acquired the intermediary right in the said lands; that the petitioners having admitted to have sold away the lands in dispute have no personal interest to maintain these applications against the opposite parties; that the Collector has illegally settled the said lands with the petitioners; that in fact the deity opposite party No. 1, through its Marfatdars and Sebayats is in possession of the said lands; that the petitioners not being the intermediaries in respect of the lands in question and not being in possession of the same, illegally filed an application under Sec. 8A (1) of the Act with the mala fide purpose of defeating the lawful right and interest of opposite party No. 1 in the lands in question; that the Collector did not invite any objection in accordance with law on the aforesaid petitions filed before him and so the Collector had no jurisdiction to pass the order annexure-1 settling the lands in favour of the persons who in fact are not intermediaries in respect of the lands in question, and accordingly the persons on whom the lands were settled by Annexure-1 cannot be said to have acquired occupancy right in respect of the said lands and mutation, if any, in their names in respect of the said lands on the basis of that order cannot confer any right in respect of the said lands. In paragraph 10 of the counter it has been specifically asserted that the persons in whose favour the said lands were settled by the Collector as per Annexure-1 falsely and with a mala fide intention and motive suppressed the material facts and by manipulation obtained the said ex parte order in their favour. Opposite party No. 1 came to know about the said illegal order and the surreptitious and fraudulent move of the petitioners in that direction only when the petitioners started disposing of the said lands in favour of outsiders. Thereafter on obtaining the certified copy of the said order opposite party No. 1 preferred the said appeals. It is specifically asserted that opposite party No. 1. the deity, who is actually the intermediary in respect of the said lands, is only entitled to the settlement of the said lands under Section 7 of the Act, and the deity being the sole intermediary in respect of the said lands was vitally affected by the said illegal and surreptitious order (Annex. 1) passed by the Collector; and so, opposite party No. 1 was entitled to carry an appeal against the Collector's order after coming to know about that illegal order, and accordingly its appeal was maintainable before the appellate court and the said court had jurisdiction to pass the impugned order. It is also contended that as the appellate court has now passed the impugned order after condoning the delay in filing the appeal, the petitioners in this writ petition cannot question the correctness and propriety of the order condoning the delay, as that court had the jurisdiction to decide that question one way or the other: nor can they question the correctness of the decision on the other aspects of the matter as the same have been arrived at on taking a correct view of those matters on the documentary evidence on record; and the decisions on all the above mentioned questions are not vitiated by any illegality patent on the face of the record.