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Judgment
Arindam Sinha, J
Mr. Sarangi, learned advocate appears on behalf of petitioners. He submits, his clients are purchasers of a part in a patch of land, in respect of which there was mention of the deity in the record. Other purchasers got mutation on deletion of the deity’s name. In his clients’ case, the mutation was allowed but prayer for deletion, rejected.
On earlier occasion, Mr. Sharma, learned advocate, Additional Government Advocate appearing on behalf of State had drawn attention to order dated 13th June, 2003 admitting the mutation petition, carrying direction upon the Tahsildar to add the Endowment Commissioner as party and proceed with the case. On query from Court Mr. Sharma submits, the order was made by the Commissioner (L.R.) and Settlement, Board of Revenue, Orissa, Cuttack. The Tahsildar on proceeding with the case made impugned order dated 3rd September, 2016, refusing to delete name of the deity in the RoR. In this connection, we reproduce paragraph-4 from order dated 29th August, 2023.
“4. State will be heard to demonstrate provision in law requiring mutation to carry name of vendor in the land record.”
Mr. Sharma submits, the writ petition is not maintainable since efficacious alternative statutory remedy of appeal is available to petitioners. Without prejudice, he relies on judgments of the Supreme Court.
(i) Chandigarh Administration v. Jagjit Singh reported in (1995) 1 SCC 745, paragraph-8. We reproduce below a passage from the paragraph.
“Generally speaking, the mere fact that the respondent authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent authority to repeat the illegality or to pass another unwarranted order.”
(ii) State of Bihar v. Upendra Narayan Singh reported in (2009) 5 SCC 65, paragraph 67. We reproduce below a passage from the paragraph.
“In our view, the approach adopted by the Division Bench was clearly erroneous. By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior Court for repeating or multiplying the same irregularity or illegality or for passing wrong order.”
Mr. Nath, learned advocate appears on behalf of the Commissioner and submits, the deity is a perpetual minor. The Tahsildar duly maintained name of the deity in the record as the land belongs to it.
We have perused impugned order. Nevertheless, to be certain we made query to appearing learned advocates for demonstrating that impugned order says something about the earlier mutation made in respect of other purchasers on deletion of the deity’s name, as was incorrectly done. There is no such demonstration. So much so, we find the Commissioner of Endowments was noticed per direction made on said order dated 13th June, 2003 but inspite thereof the authority noted that the Commissioner had not responded to avail due opportunity of hearing. On top of that, we have not been provided with an answer to our query made by paragraph-4 in our order dated 29th August, 2023, reproduced above.
In Chandigarh Administration (supra) the Supreme Court declared the proposition that one cannot claim negative equity. It was followed in Upendra Narayan Singh (supra). By the time said decision was rendered, there were several decisions of the Supreme Court made in the meantime, reiterating the proposition. However, we do not find those decisions have application in facts of this case. The Commissioner having had been noticed, did not appear before the Additional Tahsildar. As such there was none to urge claim of the deity, being a public one. In view of absence of finding regarding the claim, petitioners cannot said to be claiming negative equity.
It appears from impugned order, the Additional Tahsildar relied on a report made by the Amin in stating that the land stood recorded in name of the deity. Petitioners’ case is of purchase. Petitioners also say that other purchasers were successful having obtained mutation on deletion of the deity’s name. Mr. Sarangi relies on view taken by a Division Bench of this Court on judgment dated 11th July, 1960 in First Appeal no.16 of 1955 (Commissioner of Hindu Religious Endowments v. Babaji Govinda Charan Das), where, in paragraph-5 (Manupatra print) appears a passage, reproduced below.
“The deed of settlement shows that the right of worship was itself left to the plaintiff and his successive disciples and created no right in favour of the public for such worship. If the deity was a private deity, then the endowment in favour of the deity was a private debottar in respect of which the Endowments Act has no application.”
(emphasis supplied)
Keeping above view in mind and on once again perusal of impugned order we find that petitioners are purchasers of land recorded in name of the deity marfat Duryodhan Patra. Right of worship, as implied by such record, was with the individual instead of the public. Hence, the land stood recorded in name of the deity. This is what the Amin had reported to the Additional Tahsildar and the authority went on to say that in view thereof and observations of the learned Joint Commissioner, he was not inclined to delete name of the deity from the RoR.
The Joint Commissioner by aforesaid order dated 13th June, 2003 had simply admitted the mutation petition and given direction for adding the Endowment Commissioner. This was done but the Endowment Commissioner was not represented before the Additional Tahsildar. Report of the Amin, relied upon by the authority in impugned order, in light of view expressed in Babaji Govinda Charan Das (supra) indicates that the marfatdar sold away the land to petitioners. There is no dispute that other purchasers were successful in having name of the deity deleted in their mutation cases. Clear averment is there in paragraph-7 and supporting disclosure is at annexure-5. Mr. Sarangi hands up entries made on mutation in respect of purchaser Jagabandhu Sahu, made pursuant to order dated 3rd May, 1995 of the Additional Settlement Officer in Appeal Case no.1040 of 1994 (Jagabandhu Sahu v. State of Orissa). Copies had been circulated to Mr. Sharma and Mr. Nath. There is no reference to such deletion in impugned order, let alone as had been incorrectly made or having had been made without authority of law.
In aforesaid circumstances, we are unable to find petitioners are claiming negative equity and therefore are to be turned away by reliance on Chandigarh Administration (supra) and Upendra Narayan Singh (supra). A finding with reasons impeaching the sale/purchase based on relevant material could have been made. Instead, the Additional Tahsildar caused the mutation on accepting petitioners’ contention of purchase but refused to delete the deity’s name (vendor). The refusal appears to be based on the direction to add the Commissioner of Endowments in the mutation proceeding. Direction for addition of a party by a higher authority does not mean or imply that the added party is to succeed even though said party does not urge a contention in the adjudication. Clearly, the refusal to delete the deity’s name was not based on relevant material. As such the writ petition is maintainable.
Impugned order is set aside and quashed. The Tahsildar/Additional Tahsildar is directed to cause the correction in the record by deleting name of the deity in respect of mutation already obtained by petitioners. It is to be done within four weeks of communication. Petitioners will communicate this order to the Tahsildar and the Additional Tahsildar.
The writ petition is allowed and disposed of.
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