MOTWALI SK KAUSAR Vs. STATE OF ORISSA

JUDGEMENT

(1.) IN this writ petition, the petitioners question the legality of the order of opposite party No. 4 dated 20 -2 -1978, annexed as Annexure -5, by which order he reviewed his earlier order dated 5 -4 -1977 and also the legality of the order dated 12 -10 -1982 passed by the Member, Board of Revenue, in exercise of his power Under Section 38 -B of the Orissa Estates Abolition Act, annexed as Annexure 9. After stating the facts it is found : 4. It is necessary to state some admitted features of this case before entering into a discussion on the merits of the contentions raised by counsel on their side. The properties in question are the waqf properties of mosque, Juma Masjid and Sk. Wahabullah was the Motwali. Though the lands vested under the provisions of the Orissa Estates Abolition Act on 18 -3 -1974, no application had been filed to the Collector under the said Act for settlement within the stipulated period. The application which was filed in the year 1976 by Sk. Rasul Bux, the father of the present petitioners as well as the application filed by opposite parties 7 and 8 on 28 -11 -1977, are the applications not under the Orissa Estates Abolition Act, but under the Executive Instructions issued by the State Government commonly known as the 'Lease Principles' and consequently, the orders passed by opposite party No. 4 on such applications must also be taken to be orders passed under the provisions contained in the said Executive Instructions. The aforesaid Executive Instructions were issued by the State Government in the Revenue Department under G.O. No. EA -ll -110/63 14399, dated 2 -3 -1964. These Executive Instructions had been issued by the Government to grant fresh lease of the lands to the concerned persons who would have been entitled to retain the lands had they applied for in time, on realisation of arrear rent and salami, though under the provisions of the Orissa Estates Abolition Act, the lands in question would be treated as having been vested in the State Government. Under the Lease Principles, the competent authority must be satisfied that the applicant is not asking for advantages that would not have been available to him under the provisions of the Orissa Estates Abolition Act and the lands can be settled with eligible person with rights of occupancy on condition that salami equivalent to three times the annual rent levied by the Tahasildar shall be paid and rent becomes payable from the date of settlement. Against the order of the Tahasildar, rejecting an application, appeal lies to the Subdivisional Officer within thirty days from the date of the order and a revision lies against the order of the Subdivisional Officer to the Collector within thirty days from the date of the order of the Sub -divisional Officer. Subsequent to the aforesaid Executive Instructions, the Board of Revenue has also issued instructions supplementing the earlier one laying down a procedure to be followed by the Revenue Officers before granting lease. This being the procedure prescribed for dealing with the application for lease, the Tahasildar (opposite party No 4) had no jurisdiction to review his earlier order dated 5 -4 -1977 on 20 -2 -1978 as per Annexure -5. Review has always been held to be a creature of the Statute, The administrative instructions laying down the procedure do not authorise the Tahasildar to review his own order. Further, the order dated 5 -4 -1977 settling the land with the petitioners' ancestor, Sk. Rasul Bux, confers right on the petitioners and that right cannot be taken away by taking recourse to reviewing the same, where the set of administrative instructions under which opposite party No. 4 has acted do not authorise him to do so. Consequently, the order of opposite party No. 4 dated 20th of February, 1978 must be held to be without jurisdiction. 5. It then appears that opposite party No. 3 had set aside the order dated 20 -2 -1978 when an appeal was carried against that order and he was justified in passing such order since opposite party No 4 had no jurisdiction to review his eirlier order. The State Government being the owner of the property has laid down certain procedure to be followed by its subordinate officers in the matter of grant of lease The subordinate officers cannot, therefore, exercise a power which they do not possess under the Executive instructions of the State Government. In that view of the matter, opposite party No. 3 being the appellate authority against the order of the Tahasildar (opposite party No. 4) was wholly justified in annulling the order, of opposite party No. 4 since he had over -stepped his jurisdiction and had passed an order which he was not empowered under the Administrative Instructions in question. 6. Coming to the order of the Board of Revenue dated 12 -10 -1982, it appears that the Member, Board of Revenue, had exercised his jurisdiction Under Section 38 -13 of the Orissa Estates Abolition Act. But as we have stated earlier, the order of the Tahasildar was under the lease principles and not under the provisions of the Orissa Estates Abolition Act, Therefore, Section 38 -B of the Orissa Estates Abolition Act cannot have any application since the settlement in question was not under the provisions of the said Act. In this view of the matter, we are of the opinion that the Board of Revenue had no jurisdiction to exercise bis power Under Section 38 -B of the Act and consequently, the order under Annexure -9 dated 12 -10 -1982 must also be held to be without jurisdiction. 7. Notwithstanding our conclusion as to the legality of the orders passed by the Subdivisional Officer as per Annexure -5 and the Member, Board of Revenue, as per Annexure -9, the fact remains that the land in question belongs to the mosque, Juma Masjid and it is the mosque which is the intermediary and with it the land has to be settled, though Motwalis are in charge of management of the mosque. The real controversy between the parties, therefore, is as to who are the Motwalis of the mosque -whether it is the petitioners alone, as contended by them or petitioners and opposite parties 7 and 8, as contended by the opposite parties. Mr. Panigrahi appearing for the opposite parties as well as Miss Chose appearing for the Waqf Board brought to our notice that Under Section 15 of the Waqf Act, the power of superintendence of all waqfs in a State vests in a Board established for the State and it shall be the duty of the Board to exercise its powers under the Act so as to ensure that the waqfs under its superintendence are properly maintained, controlled and administered and the income thereof is duly applied to the objects and the purposes for which such waqfs were created and intended. Under Section '25 of the Waqf Act, on application filed by Motwalis there has been due registration and the Board has recognised the petitioners as well as opposite parties 7 and 8 as Motwalis in the case.. It is further stated by them that in fact, on the application of opposite parties 7 and 8 as Motwalis, the Board has granted permission for transfer of certain immovable properties portion of which has been so transferred. It is not for us to examine this aspect of the case, though we notice, in fact, that there has been some transfer by opposite parties 7 and 8 on the basis of a permission granted, to them by the Waqf Board Under Section 36 -A of the Waqf Act. Needless to mention here that under the Waqf Act, the Waqf Board has been conferred with power of administration and supervision of the waqfs. If opposite parties 7 and 8 have been duly recognised to be Motwalis by the Board and if petitioners are aggrieved by that decision, they may approach the competent Civil Court for the same. So far as the intermediary estate is concerned, the land is settled with the mosque and Motwalis are merely the managers and, therefore, all the Motwaiis are entitled to reap the benefit of a settlement of the intermediary estate with the mosque. In that view of the matter, even if we have set aside the order of opposite party No. 4 contained in Annexure -5 and the order of the Member, Board of Revenue, contained in Annexure -9, yet we are of the opinion that if opposite parties 7 and 8 are the Motwalis of the mosque, then their rights over the intermediary estate which have been settled by the Tahasildar cannot be taken away. We are, however, not expressing any opinion as to whether the Waqf Board was justified in recognising opposite parties 7 and 8 as Motwalis since that question had not come up for consideration before US', but we have clarified the legal position to avoid any confusion in this regard. 8. With the aforesaid observations, the writ application is disposed of, but in the circumstances, there would be no order as to costs. L. Rath, J. 9. I agree.