Bilasini Dei and Ors. Vs Sri Jagannath Jew B

1 . Instant writ petition is filed by the petitioners assailing the impugned order dated 2^nd July, 2012 passed in connection with OSS Case Nos.2346 and 2347 of 2009 by the Member, Board of Revenue, Odisha in exercise of revisional jurisdiction under Section 32 of Orissa Survey and Settlement Act, 1958 (hereinafter referred to as ‘the Act’), whereby, the orders dated 5^th April, 2006 and 26^th June, 2009 in Bebandobast Appeal Nos.08 and 09 of 2004; and 01 of 2008 and 02 of 2008 and the orders dated 15^th May, 2010 in Bebandobast Case Nos.420 of 1993 and 39 of 1994 by the

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learned Sub-Collector, Nayagarh were set aside upholding the orders dated 30^th September, 2002 and 30^th January, 1995 in Bebandobast Case No.39 of 1994 and 420 of 1993 on the grounds inter alia that such decision is without jurisdiction and hence, liable to be interfered with and set at naught.

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2 . The petitioners challenged the common judgment at Annexure-21 of the Member, Board of Revenue, Odisha as both the revisions were filed by the opposite party deity under Section 32 of the Act. The challenge to the findings and impugned judgments, as according to the petitioners being illegal and perverse, is liable to be quashed, inasmuch as, the settlement in favour of the petitioners could not have been unsettled in exercise of revisional powers by the Member, Board of Revenue, Odisha relying upon a Government Circular dated 28^th December, 1971 which is subsequent to the settlement of the land in their favour on 1^st February, 1971 with the publication of RoR on 5^th June, 1971. According to the petitioners, such settlement under the Orissa Estate Abolition Act, 1951 (hereinafter referred to as ‘the OEA Act) created an independent right, title and interest vis-à-vis the case land which cannot and could have been taken away except in the manner contemplated thereunder and therefore, the impugned judgment at Annexure-21 cannot be sustained in law. It is pleaded on record that the orders in Bebandobast proceedings are not revisable under Section 32 of the Act and hence, the Member, Board of Revenue, Odisha lacked jurisdiction to entertain the revisions and therefore, the impugned decision as per Annexure-21 stands vitiated and thus, deserves to be quashed.

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3 . Heard Mr. Pradhan, learned counsel for the petitioners, Mr. Alam, learned counsel for the opposite party No.1 and Mr. Nath, learned counsel for the Endowment Authority.

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4 . Briefly stated, the petitioners contend that the case land belongs to Jagannath Jew Bije and the deity was the intermediary with the status of Debottar Tanki and their forefathers were the tenants rendering Seba puja on remuneration. The Debottar status of the deity was vested in the Government in 1965 under the provisions of the OEA Act, whereafter, on 1^st February, 1971, the case land was settled with the petitioners under Section 8 thereof in Vesting Case Nos.884 and 885 of 1965-66 as per Annexures-1 & 2. It is pleaded that against the order of the OEA Collector, the opposite party deity filed appeals which were dismissed as evident from Annexure-5 and as a result, the occupancy right conferred on the petitioners stood confirmed and became final and as such, no revision or suit was filed and instituted challenging the same. Furthermore, the possession in respect of the case land was declared in favour of the petitioners on 28^th November, 1992 by the Executive Magistrate, Nayagarh vide Annexures-6 & 7 in the proceedings under Section 145 Cr.P.C. which were also challenged in revision before the court of learned Additional District and Sessions Judge, Nayagarh but was confirmed on 21^st January, 2003 vide Annexure-8 on the premise that they have the occupancy right in respect thereof. It has been pleaded that in the meantime, the settlement operation was finalized in 1984 and although, the petitioners approached the authorities concerned and produced the vesting order and rent schedule

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issued to them, it was not considered. According to the petitioners, the settlement authorities vide Annexures-11 and 12 declined to enter their names in the RoR, wherein, it was mentioned as Bebandobast in column-3 and as a result, the case land stood recorded in the name of the deity and was not assessed to rent.

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5 . The opposite party filed Bebandobast Case Nos.420 of 1993 and 39 of 1994 before the court of Tahasildar, Nayagarh and it was decided in favour of the deity without notice to the petitioners and challenging the same, appeals were carried, which were disposed of by the Sub-Collector, Nayagarh vide Annexures-15 & 16 and with the orders set aside, the matter was remanded for fresh consideration, consequent upon which, after such remand, the case land was settled with the petitioners as per Annexures-17 & 18, which were again challenged by the opposite party deity in appeals but the same stood dismissed vide Annexures-19 & 20. The said orders in appeals were challenged in revision by the opposite party before the Board of Revenue and it has resulted in passing of the impugned judgment i.e. Annexure-21.

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6 . The decision of the Board of Revenue has been questioned by the petitioners with the contention that the case land is not a trust estate. The further contention is that it was not necessary for the OEA Collector to obtain the views of the Commissioner of Endowments before settling the case land in favour of the petitioners. Furthermore, the decision is challenged on the ground that the Member, Board of Revenue, Odisha has gone wrong in considering it to be a

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grant of lease. That apart, according to the petitioners, the opposite party deity is not a privileged raiyat and hence, the finding as such is wrong because no such declaration has been made under the Orissa Land Reforms Act and that apart, the decision that they are not the tenants on the date of vesting is again grossly erroneous, inasmuch as, the materials on record with an audit report disproved such claim. As far as the Government Circular dated 28^th December, 1971 is concerned, as per the petitioners, the same is neither relevant nor applicable but it has been heavily relied on by the Member, Board of Revenue, Odisha, which was issued after the case land was settled with them resulting thereby issuance of RoR on 5^th June, 1971. According to Mr. Pradhan, learned counsel for the petitioners, any such Circular is of no effect and cannot override the statute. Furthermore, according to Mr. Pradhan, learned counsel settlement by the OEA Collector conferred new and independent right on the petitioners, a right which cannot be taken away unless annulled with the procedure established under law. In support of the contention that the Member, Board of Revenue, Odisha could not have interfered with the settlement under the OEA Act, Mr. Pradhan, learned counsel cited the following decisions, such as, Trilochan Singh and another Vrs. Commissioner of Land Records and Settlement, Orissa and others 1995 (I) OLR 537 and Narayan Chandra Pradhan and others Vrs. The Tahasildar, Bhubaneswar and another 2013(II) OLR 490 to contend that the orders by the OEA Collector under the OEA Act cannot be ignored and tampered with invoking jurisdiction under the Act.

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7 . On the other hand, Mr. Alam, learned counsel for the opposite party deity justifies the impugned decision vide Annexure-21 of the Member, Board of Revenue, Odisha with the contention that the petitioners admitted that the case land belongs to the deity but their predecessor-in-interest had no rights to lay over the same even under the OEA Act and the Board of Revenue being the authority to supervise, control and interfere with the orders passed by any sub-ordinate courts, rightly, set aside the impugned judgment as at Annexure-21. According to Mr. Alam, learned counsel, it is to be determined, whether, the property of the deity can be vested with the State under the OEA Act and if in absence of any cogent evidence and/or documents, it could be settled with the petitioners or for that matter, their predecessor and what would be the effect of the orders in a proceeding under Section 145 Cr.P.C. Referring to the decision in A.A Gopalakrishnan Vrs. Cochin Devaswom Board and others (2007) 7 SCC 482 , it is contended that the properties of the deity are required to be protected and safeguarded by their Trustees, Sebayats, employees etc. and also the duty of the Courts to protect the same against any kind of mischief and in such view of the matter, the Authority concerned did not commit any error instead rightly interfered with the settlement of the case land in favour of the petitioners, who set up a false claim of ownership or tenancy in respect thereof. A decision of the Apex Court in Champalal Binani Vrs. The Commissioner of Income Tax, West Bengal and others 1971 (3) SCC 20 is cited in support of the argument advanced. Referring to Section 8(3) of the OEA Act, it is

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further contended that nothing therein shall apply to a trustee estate vested in the Government on or after the date of coming into force of the OEA (Amendment) Act, 1970 and therefore, the petitioners and/or their predecessors are not entitled to any rights over the case land. According to Mr. Alam, learned counsel for the deity, the case at hand may be looked at from a different angle and the submission is that the expression ‘Religious Endowment’ or ‘Endowment’ has been defined in Section 3(xii) of the Odisha Hindu Religious Endowments Act 1951 (in short, ‘the OEA Act’) and Section 2(h) thereof for the term ‘Intermediary’ but ‘Religious Endowment’ has not been included therein because of the existence of the endowment to be dealt with under the said Act and it is not out of place to mention that the land held by the Sebayats are also included within the definition of Section 3 thereof and hence, the Trust Board is the only custodian of the property. Lastly, it is submitted that a quasi-judicial function cannot be delegated on an inclusive reading of the definition of Collector under Section 2(d) of the OEA Act to include Tahasildar, who performs an administrative function and hence, was not competent to pass the order of settlement either under Sections 6 or 7 or 8 of the OEA Act as has been held in Sri Jagannath Temple Managing Committee Vrs. Siddha Math & others 2016(I) OLR (SC) 209 .

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8 . The sole question involved is whether the settlement of the case land with the interest of the petitioners thereon could have been questioned by the Member, Board of Revenue, Odisha with a decision while exercising revisional jurisdiction under Section 32 of the Act? Mr. Pradhan,

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learned counsel for the petitioners would submit that any such settlement under the OEA Act unless set aside, varied or annulled stands good and therefore, the Member, Board of Revenue, Odisha committed serious wrong in unsettling the same. A settlement which has been allowed by the OEA Collector has attained finality and the same could not have been overruled under the Act exercising revisional power. Contrary to the above claim and the contention advanced, Mr. Alam, learned counsel for the opposite party deity would submit that any such wrong or illegality perpetuated with the settlement of the case land in favour of the predecessors-ininterest of the petitioners could be corrected and hence, the case land has been restored to the deity. As against the rival contentions, the Court has to examine, whether, the impugned decision as per Annexure-21 can be sustained in law.

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9 . From the record, it is made to reveal that after the disposal of Bebandobasta appeals filed against the orders in Bebandobasta Case Nos.420 of 1993 and 39 of 1994, whereby, the Tahasildar, Nayagarh, settled the land in question in favour of the petitioners, revision was preferred by the opposite party. It is made to understand that the RoR in respect of the case land was in the name of the deity and one Pratap Prasad under raiyat status. The estate is said to have been vested on 25^th August, 1965. One Chintamani Kar, had claimed himself to be the Sebayat and after his death, one of his sons, namely, Agadhu Kar as the successor and Sebak of the deity. In the meantime, the Tahasildar, Nayagarh settled the case land in favour of the petitioners by order dated 7^th June, 2008 in Bebandobasta proceeding and against

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the aforesaid orders, Bebandobasta Appeal Nos.01 and 02 of 2008 were filed before the Sub-Collector, Nayagarh, who, however, dismissed the same by order dated 26^th June, 2009. It is further made to understand that the petitioners had filed the Bebandobasta Appeal Nos.08 and 09 of 2004 against Bebandobasta Case No.39 of 1994 and 420 of 1993, which were disposed of on 5^th April, 2006 with the cases remanded back for a fresh decision by the Tahasildar, Nayagarh and while remitting the matter back, it was observed therein that the case land had actually been settled with them in Vesting Case Nos.884 and 885 of 1965-66 by orders dated 5^th June, 1971 by the OEA Collector after obtaining clarification form Board of Revenue, Odisha vide Letter dated 21^st January, 1971, whereafter, the opposite party deity filed appeals against the orders passed in the vesting proceedings but were dismissed on 16^th July, 1979. After the remand order, the Tahasildar, Nayagarh settled the case land in favour of the petitioners, while disposing of Bebandobasta Case Nos.420 of 1993 and 39 of 1994. The Court further finds that the petitioners were given RoR issued with raiyat status in view of the orders in Vesting Case Nos.884 and 885 of 1965-66 and claimed to have deposited rent till 1984.

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10 . In the meanwhile, in respect of the case land a proceeding under Section 145 Cr.P.C. was initiated at the behest of the petitioners claiming possession, which was confirmed in Crl. Revn. No. 1/198 of 2002/92 by order dated 21^st January, 2003 of the learned Additional District & Sessions Judge (FTC), Nayagarh. According to the petitioners, the case land has been under their possession ever since the orders in the

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vesting proceedings but it have been set aside by the Member, Board of Revenue, Odisha. According to opposite party, the deity’s properties could not have been settled with the petitioners and since the OEA Collector usurped jurisdiction illegally, it has been set aside by the Member, Board of Revenue, Odisha in exercise of power under Section 32 of the Act. The claim is that any such vesting orders in 1971 by the OEA Collector, even though, upon receiving a clarification from the Board of Revenue, Odisha but for the clarification dated 28^th December, 1971, any such settlement to be void ab initio. Such a contention from the side of the opposite party deity was not entertained by the Sub-Collector, Nayagarh while disposing of Bebandobasta Appeal Nos.08 and 09 of 2004 on the ground that it was not reviewed and therefore, the vesting orders remain in force irrespective of any such decision of the Board of Revenue, which is an administrative order. But, at the same time directed remand for a fresh consideration by the Tahasildar, Nayagarh with the observations made therein.

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11 . Perused the counter affidavit of the opposite party. Gone through the rejoinder filed by the petitioners to the reply of the opposite party. Recorded the submission of Mr. Nath, learned counsel for the Commissioner of Endowments. The suit land is admittedly a trust estate of a Hindu deity and according to the opposite party, while dealing with the Bebandobasta proceedings, opinion of the Commissioner of Endowments was not obtained by the OEA Collector before directing settlement of the case land in favour of the petitioners after remand of the same. No doubt, as per the

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provisions under the Endowment law, the Trustee of a deity is entitled to grant lease of the deity’s land on temporary basis for a specified period and on expiry of the term, it shall be subject to renewal. It is also a settled law that a deity is considered to be a privileged Raiyat and its rights do not vest with the Government. Consequent upon vesting of the State, it means, any such land, shall have to be settled with the deity only. In the case at hand, the challenge to the settlement of the case land at the instance of the opposite party primarily on the ground that such settlement of deity’s property is impermissible and hence, Member, Board of Revenue, Odisha exercised the power under Section 32 of the Act more so when, a Sebayat cannot be vested with a raiyati right.

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12 . Section 32 of the Act deals with the power exercisable by the Board of Revenue, which may call for the record of any proceeding, if there appears that any officers sub-ordinate to it exercised jurisdiction not vested in him by law or to have failed to exercise jurisdiction so vested or while acting in exercise such jurisdiction to have contravened some of the express provisions of law affecting the decision on merit and where such contravention has led to serious miscarriage of justice and thereafter, to pass appropriate orders after providing an opportunity of hearing to the parties involved. In so far as the OEA Act is concerned, any such settlement thereunder and legality thereof may be questioned before the Board of Revenue with a revision filed under Section 38-B thereof which stipulated that the authority concerned either on its own motion or on a report from the Collector may call for and examine the record of any proceeding in which any

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sub-ordinate authority has passed an order under the Act for the purpose of satisfying itself as to the regularity of such proceeding or correctness of decision or order and to pass orders accordingly but it shall revise a decision or order only after providing the parties concerned, an opportunity of being heard in the matter.

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13 . In view of the clarification of the Board of Revenue dated 28^th December, 1971, the Sebayats cannot be settled with the lands of the deity and any such settlement in vesting proceedings to be invalid. But the Court finds that the settlement through Vesting Case Nos.884 and 885 of 1965-66 by order dated 5^th June, 1971 by the OEA Collector had received concurrence of the Board of Revenue, inasmuch as, the clarification was sought for and it was responded to by letter dated 21^st January, 1971. It is made to suggest that thereafter, the other clarification was issued on 28^th December, 1971 by the Board of Revenue stating therein that lands held by the Sebayats are not to be settled in vesting proceedings as it would be ab initio void. But the admitted fact is that even after the subsequent clarification in the month of December, 1971, the settlement was not revoked and it continued and not only that, the petitioners were allowed to pay rents till 1984. Irrespective of any such decision in a proceeding under Section 145 Cr.P.C., the Court is of the view that it has been referred to by the petitioners only to put forth their claim over possession of the case land. But the fact remains, settlement by way of the vesting orders was not reviewed at any time thereafter.

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14 . Against the decision of the OEA Collector, such settlement could be revoked by a revision filed under Section 38-B of the OEA Act. The orders in Bebandobasta Appeal Nos.01 and 02 of 2008 have been challenged before the Board of Revenue under Section 32 of the Act. The contention of Mr. Alam, learned counsel for the opposite party is that any such wrong or illegality committed in the settlement when subject matter under consideration relates to a deity, it is well within the powers of the Member, Board of Revenue, Odisha to nullify the same. Mr. Pradhan, learned counsel for the petitioner, however, counters and would contend that any such order by the OEA Collector can only be modified, varied or set aside under the OEA Act. When the settlement of a land with the Record of Right prepared as per the provision of the Act, any such decision, which has contravened the express provision of law can be corrected by the Board of Revenue, while exercising powers under Section 32 thereof. No doubt, the Record of Right in favour of the tenant does not create or extinguish the title, though, it carries a presumptive value. In other words, in view of Section 13 of the Act, presumption of correctness is attached to the settlement entry, till such time, it is rebutted or dispelled by convincing evidence. The Record of Right is prepared only for the purpose of revenue record and it has been reiterated time and again that a presumption of correctness to the entries made therein is attached to it. In other words, any such settlement entry in the RoR is admissible as a piece of evidence for the purpose of possession, which is not conclusive, however, the question is when the case land was

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vested in the year, 1965 and it was followed by orders in Vesting Case Nos. 884 and 885 of 1965-66 with the issuance of RoR in favour of the predecessor of the petitioners, according to the Court, such a decision should have been interfered with and revoked immediately thereafter when the earlier Circular dated 21^st January, 1971 was succeeded by the Circular dated 28^th December, 1971. On the strength of the vesting orders, the Bebandobasta proceedings were disposed of and it was finally confirmed by the SubCollector, Nayagarh. It is no doubt correct to claim that any such settlement without jurisdiction may be questioned and set aside exercising the revisional power. If there is any fraud perpetuated and settlement was managed, it can also be cancelled by the Board of Revenue. In case, there is irregularity in procedure and failure to hold proper inquiry, such as, non-verification of Tenancy Ledger or failure to check Ekpadia (rent roll), it would enable to the Revisional Authority to intervene and set it right. But, when there is a vesting irrespective of whether such settlement is erroneous or not in accordance with the Circular of Government that superseded the clarification issued by the Board of Revenue in respect of the case land received by letter dated 21^st January, 1971, the same having not been reviewed any time later and on the basis of such settlement, the Bebandobasta proceedings were disposed of, the Court is of the view that since such vesting allowed in favour of the predecessor-ininterest of the petitioners, it was not right and justified on the part of the Board of Revenue to set it aside. The Court finds that the vesting orders are of the year 1965-66 and the case

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land stood settled in favour of the petitioners and as earlier stated, it was never reviewed even after the Circular of the Board of Revenue dated 28^th December, 1971 and, on that basis, the subsequent proceedings followed and under such circumstances, the Member, Board of Revenue ought not to have exercised the revisional jurisdiction. This Court in Trilochan Singh (supra) held and concluded that the authority under the Act cannot ignore the order passed under the OEA Act and it remains enforceable until revoked in an appropriate proceeding. Similarly, in Narayan Chandra Pradhan (supra), it has been concluded that the Tahasildar cannot avoid any such order under the OEA Act with a view that such an order is without jurisdiction. In the above decision, it has also been concluded that any such order void or voidable is required to be set aside by the competent court and as such, the Tahasildar has no authority to ignore an order under the OEA Act while considering mutation. However, in the present case, the Court is not unmindful of the fact that the revisional jurisdiction has been exercised by the Board of Revenue dealing with the question that related to legality vis-à-vis settlement of the case land in favour of the petitioners. But instead of considering the fact that the settlement has taken place with the vesting orders way back in 1965-66, for the discussions as above, it has to be held by the Court that the impugned decision as per Annexure-21 is liable to be interfered with.

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15 . To sum up, when an application under Section 8(3) of the OEA Act was entertained and allowed and the case land was settled in favour of the petitioners in 1970-71 on raiyati

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status, assessed to rent and cess on the premise that the case land recorded in the name of Shri Jagannath Mahaprabhu Bije Nizigaon Marfat with status Debottar Tanki has not been declared as Trust Estate and in possession of the predecessors of the petitioners at the time of vesting, it ought not to have been revoked exercising revisional power. The case land since left out of assessment for rent, rightly, therefore, the Bebandobasta proceedings were initiated and disposed of on the basis of the vesting orders arrived upon receiving clarification issued by the Board of Revenue though it was superseded later. The revocation of raiyati status did not follow suit and the position continued unabated and finally, it culminated in the Bebandobasta proceedings with the assessment of rent in respect of the case land in possession of the petitioners.

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16 . In so far as the decision in Siddha Math (supra) is concerned, though, it has been held therein that the Tahasildar performs only an administrative function under the OEA Act and not a quasi-judicial one, hence, not competent to pass orders of settlement of claim either under Sections 6 or 7 or 8 of the OEA Act and any such vesting in favour of the Math to be bad in law while striking down first part of the proviso to Section 2(oo) and Section 3-A thereof and also the notification of the Govt. dated 18^th March, 1974 which pertains to the lands and estates of Lord Jagannath but made it clear that it shall have a prospective effect being not applicable to the settled claims under the provisions of the OEA Act, like the case in hand. From any angle, if the matter is examined, the conclusion would be that such settlement of

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the case land vis-a-vis the petitioners should not be tinkered with and therefore, could not have been set aside.

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17 . Accordingly, it is ordered.

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18 . In the result, the writ petition stands allowed. As a necessary corollary, the impugned order at Annexure-21 by the Member, Board of Revenue, Odisha is hereby quashed. In the circumstances, however, there is no order as to costs.

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(R.K. Pattanaik) Judge

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Alok/Balaram

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Signature Not Verified

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Digitally Signed Signed by: ALOK RANJAN SETHY Reason: Authentication Location: ORISSA HIGH COURT Date: 19-Feb-2026 17:57:40

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Bilasini Dei and Ors. v. Sri Jagannath Jew B

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Bilasini Dei and Ors. v. Sri Jagannath Jew B

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