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2016 DIGILAW 408 (ORI)

State of Orissa v. Nanda Kishore Poddar

2016-05-20

D.DASH

body2016
JUDGMENT : 1. The appellants in this appeal have called in question the judgment and decree passed by the learned District Judge, Sambalpur in Title Appeal No. 45/93 confirming the judgment and decree passed by the learned Munsif, Sambalpur in T.S. No.88/116 of 1986/1989. 2. It is pertinent to mention here that the appellants were the defendants in the trial court wherein the respondent as plaintiff had filed the suit. 3. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court. 4. The case of the plaintiff is that the disputed land was Nazul land and it was acquired by one Onkarmal Poddar, the father of the plaintiff in the year 1942. In a family partition, the land came to be allotted to the share of the respondent. So he applied for renewal of the lease and by order dated 22.10.1972 in Nazul Revision Case No. 2/72, the Revenue Divisional Commissioner renewed the lease. Accordingly, renewed lease deed came to be executed on 9.1.1973. It is stated that soon thereafter, the Collector Sambalpur initiated a resumption proceeding. However, all of a sudden on 13.1.73, the plaintiff was directed to vacate the land measuring Ac.1.63 decimals out of the total lease-hold on the ground that the same was very much required for public purpose. The plaintiff filed his counter. The then Collector, Sambalpur after hearing the parties by order dated 28.3.74 in Nazul Case No. 79/73 allowed the lease to stand and continue as before. Thereafter, on 23.4.82 again the Collector directed the plaintiff to show cause as to why the said lease hold land would not be resumed for violation of condition Nos. 4, 5 and 10 as contained in the deed of lease dated 9.1.73, Ext. 3. In support of violation of the condition no. 5, it is alleged that the land measuring Ac.1.55 decimals out of the lease-hold being kept vacant, the same is in violation of the said condition. The other ground stood on the footing that the plaintiff had let out the building to different persons without obtaining due permission from the competent authority. The allegations were denied by the plaintiff. 5, it is alleged that the land measuring Ac.1.55 decimals out of the lease-hold being kept vacant, the same is in violation of the said condition. The other ground stood on the footing that the plaintiff had let out the building to different persons without obtaining due permission from the competent authority. The allegations were denied by the plaintiff. His specific case as placed before the authority was that the building was rented out with due and prior permission and that one Seva Sadan has been carrying out charitable activity therein opening an outdoor dispensary and it had been so functioning there under a trust created by the plaintiff himself. The next ground of objection that such state of affairs were prevailing when the Revenue Divisional Commissioner was pleased to renew the lease in his favour and therefore those questions are not permissible to be reagitated further. The Collector heard the plaintiff in the matter of resumption on 22.11.82 but the matter stood thus with any and no final order being passed thereafter. On 23.3.83, the plaintiff to his utter surprise came across a notice that on 22.3.83 in the said Resumption Case No. 1/73, the Collector had passed an order authorizing the Tahasildar to re-enter into the land and take possession of the said site. On the same day direction was given to the plaintiff to remove all his materials from the suit site within 15 days and red flags around the land were fixed. So the plaintiff filed the suit. 5. The defendants admitted the factum of lease and its renewal by the Revenue Divisional Commissioner in favour of the plaintiff. In support of the allegations leveled as regards the breach of condition of the lease, it is asserted that no such permission was granted by the Collector to the plaintiff to let out the building standing on the land though one such permission was granted for letting out one part of the building to the Deputy Director Consolidation and that was in the month of February, 1979. It is alleged that the plaintiff let out the disputed site to others in clear violation of the terms and conditions of the lease and thus has used the area for commercial purpose in opposition to the purpose for which the lease was granted. It is alleged that the plaintiff let out the disputed site to others in clear violation of the terms and conditions of the lease and thus has used the area for commercial purpose in opposition to the purpose for which the lease was granted. It is said that the plaintiff has kept a portion of the lease-hold land without going for any construction and that runs contrary to the terms of the lease as the lease-hold has thus been kept being made unfit for house site. The authority of the Collector to initiate the resumption proceeding has been asserted and consequently the order of resumption as passed is said to be legal, valid, operative and binding on the plaintiff and others. 6. On the above rival pleadings, the trial court framed six issues. Addressing the issue nos. 2 and 3 regarding the violation of the terms and conditions of the deed of lease, it has come to the conclusion on going through the evidence on record and upon their examination in the backdrop of rival pleadings that the plaintiff has not violated any of the terms and conditions of the lease. Consequentially, the Collector’s order of resumption has been held to be have not been legally passed. 7. With these findings the suit has been decreed granting the reliefs as under:- “The right and title of the plaintiff as a lease over the suit plot in 1866 is declared. It is further declared that the order of defendant no. 1 in resumption case No.1/73 is illegal. The defendants should deliver possession of the said premises to the plaintiff within two months henceforth, failing which the plaintiff can recover the possession through the process of court.” 8. The unsuccessful defendants carried an appeal under Section 96 of the Code of Civil Procedure which came to be heard by the learned District Judge, Sambalpur. The findings on issue nos. 2 and 3 as passed by the trial court were called in question. The lower appellate court then having sat over to examine the sustainability of said findings recorded by the trial court. Analyzing the details of the conditions of lease as well as the facts constituting the allegations with reference to such conditions it has finally recorded the same answer as rendered by the trial court. The lower appellate court then having sat over to examine the sustainability of said findings recorded by the trial court. Analyzing the details of the conditions of lease as well as the facts constituting the allegations with reference to such conditions it has finally recorded the same answer as rendered by the trial court. When it was urged there that the jurisdiction of the Civil Court in the matter is barred in view of the provision of Section 7-B of Orissa Government Land Settlement Act, 1962, the lower appellate court has also gone to address the same. Viewing the introduction of the said provision barring the institution of suit in the principal Act to have been made in the year 1983 when the cause of action for the suit had arisen much prior to it and that too the amendment having been brought during the pendency of the suit, said contention has been repelled. Thus, the appeal having been dismissed, the unsuccessful defendants are before this Court with the Second Appeal under Section 100 of the Code of Civil Procedure. 9. In this appeal, the following substantial questions of law have been formulated for being answered:- “i) Whether on the facts and circumstances of the case, the Civil Court had any jurisdiction to entertain the suit, in view of the bar created by Section 7(B) of the Orissa Government Land Settlement Act, 1962? ii) In case the suit is maintainable, whether the Civil Court has jurisdiction to set aside the order of the Collector, Sambalpur, in Resumption Case No.1 of 1973 on merits on the ground that it is erroneous?” 10. Learned Additional Govt. Advocate for the State (appellant) though submits that the point remains as to whether the courts below have erred in law by holding that the Civil Court has the jurisdiction to entertain the suit ignoring the clear bar as contained in Section 7 (B) of the Orissa Government Land Settlement Act and thus the assumption of the jurisdiction is illegal, yet in course of further submission as well as in the written note of submission has not been able to place any such provision of law or precedent that the said amended provision barring the entertainment of the suit is retrospective in operation and that would apply to the pending suit or appeal as the case may be. However, according to him, the suit having come to be decided in 1990, the provision containing the bar was very much there in the Act; being introduced by amendment; so the courts below ought not to have held that such provision cannot be held to have retrospective operation viewing the date of the resumption order passed by the Collector. He next contends that in any view of the matter, the Civil Court ought not to have gone to decide the legality of the order of resumption passed by the Collector in finding out any legal infirmity therein as if an appellate or revisional authority sitting over the order. According to him, the order having been passed in exercise of statutory jurisdiction and power vested in the Collector, in the eye of law there was no scope for the Civil Court to enter into the arena of judging its sustainability when such order has been passed duly observing the principles of natural justice. Therefore, he contends that the judgments and decrees impugned in this appeal are vulnerable. 11. Learned counsel for the respondents on the other hand submits that the amended provision in the form of Section 7 (B) of the Act was not there when the cause of action for the suit arose and also when the suit was instituted and the same having been introduced much later during pendency of the suit, the courts below have rightly refused to even take into consideration as regards the applicability of the said provision to the case in hand, standing as a bar for entertainment of the suit in the absence of any express provision in the Amending Act to that effect. She further submits that the courts below having found the resumption proceeding to have been initiated and order of resumption to have been passed by the Collector without at all arriving at a satisfaction as regards the violation of the fundamental terms and conditions of the deed of lease and rather wholly in the absence of any evidence to support such allegation of breach of terms and conditions, the concurrent findings rendered on issue nos. 2 and 3 are unassailable and the Civil Court had all the jurisdiction to so record. She further contends that the State having mutated the suit property vide Ext. 2 and 3 are unassailable and the Civil Court had all the jurisdiction to so record. She further contends that the State having mutated the suit property vide Ext. 2 and there being publication of the record of right in the year 1982 in favour of the original plaintiff followed by the acceptance of the rent since April, 1982 onwards, in fact there was no justification for initiation of the resumption proceeding. 12. It is the settled position of law that exclusion of the jurisdiction of civil court is not to be readily inferred. Such exclusion must either be explicitly expressed or clearly implied. As the position stands, the provision of Section 7(B) as it now finds place was introduced in Odisha Government Land Settlement Act, 1962 by way of amendment. The said provision creates an express bar for entertainment of suit in the matters covered under the Act and that is sought to be used for the Collector’s order of resumption to be not called in question in the present suit. The fact however remains that said provision came to be introduced in the Act by Amendment Act 11 of 1990. Thus not only that the cause of action for the suit by the time the provision containing bar for the civil court to entertain any suit or proceeding in respect of any matter which any officer or authority is empowered by or under the Act nor to determine nor to grant injunction in respect of any action taken in exercise of any power conferred by or under the Act had already arisen, the resumption order having been passed on 22.03.1983 but also that the suit had already been instituted by then i.e. on 01.10.1986. So, the question arises as to whether said provision containing the bar would come to apply with retrospective operation and even to the pending suits or appeal. So, the question arises as to whether said provision containing the bar would come to apply with retrospective operation and even to the pending suits or appeal. When there is no such express provision in the Amending Act and particularly when the barring provision was not there at the time of institution of the suit wherein the remedy has been availed by the plaintiff, for such suits pending as on the date of introduction of said provisions, the newly inserted provision creating bar of entertainment of suit as stated above has no affect at all and does not come to apply and those suits not withstanding said provision coming into force during the pendency would proceed for its decision in accordance with law. A particular forum of availing the remedy being barred by subsequent amendment in the original statute, cannot deprive the party who had already knocked at the door of the said forum in a duly constituted proceeding for availing the remedy in the forum. Therefore, the first substantial question of law receives its answer against the appellant and thus the lower appellate court having rightly repelled the said contention advanced in the appeal there arises no scope for interference. 13. Let me now proceed to address the next substantial question of law. The renewed deed of lease in the case being the basis of the claim of the plaintiff, the same has been admitted in evidence as Ext.3 which is dated 09.01.1973. The resumption proceeding is founded on the so called violation of conditions no. 4,5 and 10. Clause 4 reads as under : “ The lessee shall not use the land for any other purpose for which the lease is originally granted without the sanction of the Collector.” The lower appellate court having said that the burden of proof to establish the alleged breach lies on the defendant and that no such proof is available much less to say on any specific point. Before this Court learned Additional Government Advocate has not been able to place any such evidence in showing that the same have not been considered by the courts below or to have been sidelined while recording the finding. Before this Court learned Additional Government Advocate has not been able to place any such evidence in showing that the same have not been considered by the courts below or to have been sidelined while recording the finding. Next clause 5 comes as under :- “That the lessee shall not commit any act of waste on his holding so as to render it unfit for the purpose of being used as a house site.” With regard to above, the same being the state of affairs in evidence, the finding of the courts below on that aspect is not seen to be erroneous in any way. 14. Above being found in respect of so called violation of conditions imposed as per clause 4 and 5, now falls for consideration the alleged violation of condition imposed under clause no.10. Let it be first reproduced for proper appreciation:- “That the lessee shall not by any means of in any way whatsoever bequeath, mortgage, charge, transfer, assigns, sublet or part with possession of his holding or any portion thereof to any person without first obtaining the written permission of the Collector. Any bequest, transfer, assignment, sub letting or parting with possession of the holding or part thereof without the permission of the Collector previously obtained in writing shall be voidable at the option of the Collector and he may determine the lease and take khas possession of the holding or part thereof. In case of unauthorized bequeath taking effect from the death of the lessee the option to take Khas possession will accrue on the death of the lessee.” This condition prohibits the lessee from bequeathing, mortgaging, charging, transferring, assigning, subletting or parting with any portion of the lease hold to any person without prior permission of the Collector in writing and the Collector may at his option either to avoid or to determine the lease and resume possession in further saying that for the unauthorized bequeath taking effect from the death of the lessee, the option to take khas possession would accrue on the death of lessee. The courts below have held that the building over the suit site is under occupation for the Government offices and officers. The courts below have held that the building over the suit site is under occupation for the Government offices and officers. It has been further said referring to Ext.D and the evidence of the plaintiff that an outdoor charitable dispensary opened by the lessee is running through a charitable trust of his own and it is not a case of letting it to someone. The institution is ‘Bansidhar Seva Sadan.’ The letter of Tahasildar to the Collector, Ext.14 proved by plaintiff shows the recommendation of the Tahasildar to permit the plaintiff to let out the building situated over the lease hold to any institution either Government or being privately run indicating clearly therein that the central building let out to Food Corporation of India to be lying vacant. The defendants have not shown the order if at all to have been passed on that recommendation. The trial court on detail analysis of the evidence in the back drop of so called violations has held that the documents Ext. A, B, C and D do not make out a case of violation of conditions embodied in Ext.3 in any way. The lower appellate court has accepted the said finding to be having adequate foundation through evidence. Thus when the very foundational facts constituting so called violation of terms and conditions under the renewed deed of lease Ext.3 are found to have been non-existent being not established through evidence, the courts below are in no way to share the blame to have so held erroneously that too having left the statutory right and authority of Collector untouched to initiate the resumption proceeding noticing the commission of violation of terms and conditions of the lease in appropriate case if any such violation or breach of terms and conditions of the lease is projected in the affirmative. In view of aforesaid discussion and reasons, the second substantial question of law receives its answer against the defendant. This leads to conclude that the judgments and decrees passed by the courts below are not liable to be interfered with in this appeal. 15. Resultantly, the appeal fails. No order as to cost.