Abdul Rahim and Others vs State of Orissa and Others

N.K. Das, J.—The facts of the case may be stated as follows: There is a muslim Dargha known as Panja Pir in mouza Kotinada. The Petitioners are the Mazawars of the Dargha. The estate was abolished on 15-7-1955. On 18-1-1958 the Petitioners filed 16 application under Sections 6 and 7 of the Orissa Estates Abolition Act for settlement of 1600 bharanams of land on fair and equitable rent. Notice was issued by the Tahasildar on 26-1-1959 inviting objections. Opposite Parties 3 to 23 filed objections on 18-2-1959 claiming that they were occupancy rayats in respect of 400 bharanams of land. The Collector under the Act, by his order dated 25-5-1964, held that it is the Dargha which was the intermediary and the applicants were only mazawars. Their applications can not maintainable as they had individually and separately claimed the lands in their personal capacity and no petition on behalf of the Dargha had been filed. He also held that the Petitioners were not in khas possession of the lands on the date of vesting. As against this order all the Petitioners preferred one appeal before the A.D.M., Ganjam impleading only the State Government as Respondent but not the objectors to their petitions before the Tahasildar. Those objectors filed petition before the appellate authority for impleading them as the Respondents. The same was rejected on the ground that they had right of independent appeal and they were not entitled to be impleaded as Respondents. The correctness of this order was questioned by the objectors before the Board of Revenue which was dismissed. Thereafter the appeal before the A.D.M. was heard and it was held that the Dargha was the intermediary and the present Petitioners were only the sebaits (Mazawars) and they bad no right to get the lands settled in their favour. It was further observed that the Dargha being an intermediary the marfatdars or sebaits or mazawars as the case may be, are to apply on behalf of the intermediary and the settlement of rent is to be made in the name of the intermediary though the names of the sebaits or mazawars should also be indicated. With these observations the records were sent back to the Tahasildar. Before the Tahasildar, Petitioners contended that notices should not be issued to the objectors to attend enquiry because they had no locus standi to - participate in the proceeding. But the Tahasildar passed order to issue notice. As against this order the Petitioners filed M.P. No. 6 of 1966 before the A.D.M. which was disposed of on 30-4-1966 and the case was remanded to the Tahasildar with a specific direction that the Dargha should be the rayat in respect of all the lands possessed in khas and the mazawars be recorded as mazawars of the Dargha and the objectors should not be given any opportunity to contest the application. The objectors filed O.J.C. No. 242./66 challenging this order. On 28-1-1970 this Court held that principles of natural justice have been violated in refusing the objectors an opportunity to be impleaded and the order passed by the A.D.M. was quashed. The present Petitioners filed S.C.A. No. 19/70 praying for leave which was rejected on 24-1-1972. They also filed Civil Revision No. 6/70 which was withdrawn on 16-8-1973.

After that the A.D.M. added the objectors as Respondents along with the State and proceeded with hearing of the appeal. The opposite parties filed objection stating that the High Court has not given any direction to reopen the appeal and as such the appellate Court has no jurisdiction to hear the appeal. The learned A.D.M. by his order dated 7-3-1973 directed that all the issues in the case including the preliminary objection as well as the appeal would be heard together. By judgment, dated 19-4-1973 he did not deal with the preliminary objection, but dismissed the appeal of the Petitioners holding that the single appeal in respect of 16 applications was not maintainable, the Appellants were not in khas possession and as such were pot entitled to settlement, the properties belonged to Dargha and no application having been made on behalf of the intermediary, settlement could not be made. As against this order, the Petitioners have come up with the present writ application.

A counter affidavit has been filed on behalf of O.P. No. 3 in which it has been inter alia stated that there is no material on record that the Petitioners are the joint trustees of the Dargha. No application was filed by the intermediary, namely, the Dargha for settlement of the lands. An the 16 separate applications were Bled for settlement of the lands in favour of the Petitioners in their individual capacity. By a common order all the applications were rejected, as those were heard analogous. As such one appeal was not maintainable. It was further stated that the Opposite Parties 3 to 23 being occupancy rayats in respect of 400 bharanams of land, there was no question of settlement of those lands in favour of the Petitioners.

The following points arise for consideration:

(i) Whether 16 applications made by the Petitioners were on behalf of the Dargha which is the intermediary or in their individual capacity. If the applications were in their individual capacity, whether they can be allowed to represent the Dargh in the writ application.

(ii) Whether one appeal is maintainable before the appellate authority when 16 separate applications were filed by the Petitioners before the Tahasildar.

(iii) Whether the Collector had jurisdiction to reopen the appeal after decision of the High Court in O.J.C. No. 242/66.

(iv) Whether the decision of the A.D.M. is vitiated with errors apparent the face of the record.

Point No. (i): There were 16 applications. Some of the applicants applied for settlement of A24.70 cents each, some applied for settlement of A5.30 cents or A5.29 each and some applied for settlement of A18.52 cent each. All these applications were in Form H under the Orissa Estates Abolition Rules. There was no description of identity of property. It is mentioned therein that the survey numbers and the details of the land could not be given as there has not been final survey of the lands. Though 5 witnesses were examined by the Petitioners yet no evidence was adduced as regards the identity of the land possessed by each of the Petitioners. The objectors (0. Ps. 3 to 23) had filed objections claiming 400 bharanams to be in their possession as occupancy royats. Their application contained details of boundary of the lands possessed by them.

Section 8-A of the Act provides that the intermediary shall file its claim in the prescribed manner for settlement of fair and equitable rent in respect of lands and buildings which are deemed to be settled with him under Sections 6 or 7 before the Collector. Applications are to be filed according to Form ''H'' as provided in the Orissa Estates Abolition Rules. Annexure-A to ''Form H gives the column according to which description of the property is to be given. The Petitioners neither gave any description such as boundary etc. in the applications nor adduced any evidence as to which applicant is in possession of which property. It is thus not possible to say which land is to be settled with which applicant.

It is not disputed that the 16 applications were made in their individual capacity. In an application filed by the Petitioners on 25-3-1964 they asserted that the lands do not belong to the Dargha but to the Petitioners personally from the time of their fore-fathers. It is also stated therein that the inam is not in any way connected with the Dargha. This shows that the Petitioners, from the very beginning, have denied that right of the Dargha in the property. Though the vesting notification of 1955 is clear that the Dargha is the intermediary and the objectors asserted from the very beginning that the properties belong to the Dargha, yet the Petitioners have all along been claimIng themselves as

intermediaries in respect of different parcels and did not at any time admit that the properties were of the Dargha They never claimed that the applications made by them should be treated to be by the trustees representing the Dargha. Thus, there were no valid applications by the intermediary under Sections 6 and 7 of the Act.

Mr. Pal contends that the institution cannot go unrepresented and they can now claim to be the trustees of the institution and the applications may be treated as applications by the institution through them as trustees: The 16 applications related to different portions of land claimed by each of the Petitioners. They never claimed as joint trustees of the Dargha. It is contended on behalf of the opposite parties that the Petitioners are no the joint trustees of the Dargha, There is no material on record to show that the Petitioners are joint trustees of the institution. A petition for amendment was filed during hearing of the writ application to amend the prayer in the writ petition for settlement of rent with the Petitioners not in personal capacity. It has been concurrently held by Collector and the A.D.M. that the Dargha was the intermediary and there has been no application on behalf of the intermediary. The Petitioners denied the right of the Dargha before the Orissa Estates Abolition authorities in the writ application they now take a complete different stand.

Mr. Rath for the opposite parties contends that there being no materials on record that the Petitioners are the trustees of the Dargha, there has been no proper application according to the Act and no application having been filed within the prescribed period under the Act the order of the authorities under the Act is final and the Petitioners cannot put forward the claim in different capacity in the writ petition. This contention is not without merit. Admittedly there has been no application on behalf the ex-intermediary within the statutory period which expired on 5-9-1968 and there is no material on record that the Petitioners are the trustees of the intermediary institution. We, therefore, hold that the properties have already vested in the State Government and the contentions raised by the Petitioners cannot be entertained at this stage.

Point No. (ii): The 16 applications relate to different portions of land claimed by each of the Petitioners which were rejected by one order as all the petitions were heard analogously. Only one appeal was filed against the order. The contention of the Petitioners is that as the property relates to one estate which vested, it should be deemed that all these 16 proceedings constitute one. According to Rule 8 of the Orissa Estates Abolition Rules the procedure to be followed in disposing of appeals u/s 6 or 7 of the Act shall be the same as provided in Order XLI of the Code of Civil Procedure. The said order is subject to Section 96 of the Code of Civil Procedure. Appeal u/s 9 of the Act should be the same as provided u/s 96 of the Code of Civil Procedure. Therefore, 16 appeals should have been filed. Applications have been filed by different persons in respect of separate portions of land in their individual capacity. It is not a case where as between the different persons claiming for a particular land the Collector was to decide as to who was the person with whom the properties should be settled. Mr. Pal relied on certain decisions which refer to entertaining one writ petition by different persons when a common question of law arises. Those authorities are not applicable to the present case. Different sets of facts as to whether each claimant was in khas possession in respect of the lands claimed by him on the date of vesting are to be enquired into in respect of each application. It cannot be said that common question of fact or law is to be gone into in all the applications. One appeal, therefore, was not maintainable.

Point No. (iii): After the disposal of O.J.O. No. 242 of 19661, when the appellate Court wanted to reopen the case. O. Ps. 3 to 23 objected that he had no jurisdiction to reopen. The learned A.D.M. passed order that he would hear all the matters together and gave a finding 01) this point. He did not give any finding on this point presumably because he dismissed the appeal of the Petitioners on the point of maintainability. We have already held that the will petition by the Petitioners claiming the properties as trustees of the institution is not maintainable and also the appeal before the A.D.M. was also not maintainable. In view of our finding made above decision on this point becomes academic and as such is not necessary.

Point No. (iv): In view of the finding made above, this question also does not arise for consideration.

When the properties had already vested in the State Government and the O. Ps. 3 to 23 have claimed occupancy royati right in respect of 400 bharanams, there IS no question of their filing a petition u/s 8A of the Act. They should be deemed to be tenants under the State Government for -these 400 bharanams and shall hold the land in the same right as they were entitled to immediately before the date of vesting. Their rights are now to be worked out by the State Government under the Act.

On the premises stated above the writ application is devoid of any merit and is accordingly dismissed without costs.

G.K. Misra, C.J.

I agree.