TAHASILDAR Vs. MADHUSUDAN PARIDA

JUDGEMENT

(1.) HEARD learned Counsel for the parties.

(2.) THIS writ appeal has been filed by the Tahasildar, Bhubaneswar, as the appellant, impugning the order dated 13.7.2005 passed by the learned Judge of the writ Court in W.P.(C) No. 6486 of 2005. By the said order, the learned Judge of the writ Court virtually allowed the writ petition.

(3.) FROM a perusal of the order passed by the learned Judge of the writ Court, which is under appeal, it appears that the case of the writ petitioner, before the writ Court, was that the ex -intermediary granted a lease to the petitioner in the year 1943 in respect of the lands appertaining to Hal Plot No. 4290 measuring an area of Ac. 0.028 decimals, Hal Plot No. 4289 measuring an area of Ac. 0.017 decimals and Hal Plot No. 4288 measuring an area of Ac. 0.017 decimals situated in mouza Gadakana in the district of Puri. According to the writ petitioner, he was inducted as tenants by a Hatta Patta granted by the ex -intermediary. Further case of the writ petitioner is that though the estate vested with the Government under the provisions of the Orissa Estates Abolition Act, the rights of the writ petitioner were protected under Section 8(1) of the said Act. The petitioner's further case is that after vesting, the Tahasildar initiated Vesting Misc. Case No. 97/80 and on being satisfied that the petitioner was in possession on the date of vesting, he was recognised as tenant. To that extent the Tahasildar passed an order on 18.3.1981. The said order was allegedly challenged by the State before the Member, Board of Revenue, Orissa in OEA Revision Case No. 31 of 1992 and the Member, Board of Revenue, Orissa in exercise of power under Section 38 -B of the Orissa Estates Abolition Act set aside the order of the Tahasildar -cum -OEA Collector, Bhubaneswar. The said order dated 17.9.1993 passed by the Member, Board of Revenue was challenged by the writ petitioner before this Court in OJC No. 8186 of 1993. This Court by its order dated 3.4.1995 held that since the order of the Tahasildar was not passed under the OEA Act it could not have been set aside by the Member, Board of Revenue, in exercise of the revisional power under Section 38 -B of the said Act and the Division Bench of this Court held that the order of the Government is virtually illegal and unsustainable and the said order was quashed. But the Division Bench made it very clear that 'any dispute regarding claim of tenancy may be agitated by the parties before the competent forum in accordance with law'. Against said order of the Division Bench of this Court, the State moved the Hon'ble Supreme Court by filing SLP (Civil) No. 3698 of 1998. The Supreme Court also declined to interfere with the order of the Division Bench of this Court. While declining to interfere with the order of the Division Bench of this Court, the Hon'ble Supreme Court by order dated 7.4.2000 also observed as follows: After hearing the learned Counsel for the parties, we are not inclined to interfere with the impugned order in this petition. The special leave petition is dismissed. We, however, consider it appropriate to clarify that in case any dispute is raised regarding the claim of tenancy or title by the parties in an appropriate competent forum, that forum may decide that dispute on its own merits uninfluenced by any of the observations made by the Tahasildar. Therefore, both the Division Bench of this Court and the Hon'ble Supreme Court kept the dispute between the parties open and made it clear that it may be decided in an appropriate forum on merits and uninfluenced by any observations made by the Tahasildar. 6. After the aforesaid observation of the Hon'ble Supreme Court, the State filed its objection being Objection Case No. 3883 of 2002 to the effect that the suit plot should be recorded in the name of General Administration Department and the order of the Tahasildar which was passed in contravention of the provisions of Rule 33 of the Orissa Survey and Settlement Rules should be held to be non est in the eye of law. The objection filed by the State was heard by the Assistant Settlement Officer and the Assistant Settlement Officer by his order dated 21.6.2003 was pleased to uphold the objection raised by the General Administration Department. In the appeal memo, which has been filed by the State, the said order has been disclosed. The said order was passed in presence of the writ petitioner. The writ petitioners filed an appeal against the said order and the said appeal was registered as Appeal Case No. 522 of 2003 before the Settlement Officer, Puri. The Settlement Officer, after hearing the parties, by a detailed order, was pleased to dismiss the appeal and confirm the order of the Assistant Settlement Officer. The said order of the Settlement Officer which was passed in appeal has been disclosed in the appeal memo filed before this Court. 7. It is not in dispute that both the orders of the Settlement Officer and the Assistant Settlement Officer have been suppressed totally from the writ petition. This Court is told by the learned Counsel for the writ petitioners that against the order of the Settlement Officer a revision has been filed before the Member, Board of Revenue, Orissa and the said revision is pending. But since this fact is not on the record of this case, we are not going into the same. Be that as it may, it is clear that the two orders, one passed by the Settlement Officer and the other by Assistant Settlement Officer are very relevant and material in this case. Both Division Bench of this Court and the Hon'ble Supreme Court kept the matter open and gave liberty to the parties to agitate claim of tenancy and title before the appropriate forum. 8. Pursuant to the said order of the Hon'ble Supreme Court the State raised its objection as mentioned hereinabove and on the basis of the said objection the Assistant Settlement Officer and the Settlement Officer passed two orders which are against the interest of the writ petitioner. But those orders have been totally suppressed in the writ petition and the writ Court was kept in dark and the impugned order dated 13.7.2005 was obtained by which the order dated 17.3.2005 of the Tahasildar was set aside. It is submitted by the learned Counsel for the writ petitioner that those facts were suppressed in view of the mistake on the part of the lawyer and the writ petitioner should not be made to suffer for the mistake of the lawyer. We are not prepared to accept the said explanation. We are of the opinion that since the relevant and material facts have been suppressed in the writ petition, the writ petition should be dismissed on that ground alone. 9. It is well settled that a writ Court cannot be moved by suppressing material facts. The jurisdiction which is exercised by the writ Court is a jurisdiction of conscience and it is based on equitable principles. Any person who approaches the writ Court or for that matter any Court without bringing all the relevant material facts before it is not entitled to get any relief from that Court. These principles have been settled long ago in the case of R v. Kensington Income Tax Commissioner reported in (1917) 1 KB 486. This principle has been followed by the Hon'ble Supreme Court in a number of cases. Reference may be made to the decision of G. Narayana Swamy Reddy by Government of Karnataka and Anr. reported in : [1991]2SCR563 , and the decision in the case of Suraj Bhan and Ors. v. Bharat Singh and Ors. reported in (1989) Supp. (2) SCC 486. 10. While exercising our jurisdiction as a Court of appeal from the decision of a Writ Court, we cannot lose sight of the orders of the Assistant Settlement Officer and the Settlement Officer. Both the orders have been suppressed in the writ petition. 11. We, therefore, set aside the order 13.7.2005 passed by the learned Judge of the writ Court, which was obtained on the basis of writ petition which does not disclose the relevant and material facts. Therefore the said order cannot be sustained. We dismiss the writ petition and allow the appeal with costs of Rs. 10.000/ - (Rupees ten thousand) to be paid by the writ petitioner in favour of the appellant herein i.e., Tahasildar, Bhubaneswar within a period of six weeks from today in default of which the appellant will be at liberty to realize the same by initiating appropriate certificate proceeding.