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Pratap Chandra Deb Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberOriginal Jur. Case No. 801 of 1976
Judge
Reported inAIR1981Ori47; 51(1981)CLT24
ActsConstitution of India - Article 226
AppellantPratap Chandra Deb
RespondentState of Orissa
Appellant AdvocateB.B. Sahoo, Adv.
Respondent AdvocateAddl. Govt. Adv.
DispositionPetition dismissed
Cases ReferredPromod Chandra Deb v. State of Orissa
Excerpt:
.....218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 9 in the 'pachis sawal'.4. though in the counter-affidavit and at the hearing an attempt has been made to underestimate the importance and the utility of 'pachis sawal' in the matter, we are inclined to accept the submission made before us that 'pachis sawal' has been accepted by the judicial committee and several high courts in india for over 100 years as a dependable authority a bench of this court in the case d prabir kumar bhanja deo v. state of orissa, air 1962 sc 1288; dealt with a claim like the present one, but there, there was pre-merger grant and since the state was not prepared to fulfil its obligation, dispute arose. petitioner has failed to establish before us that the ex-ruler had any..........charge on the revenue of the state, according to the petitioner such customs acknowledged in the 'pachis sawal' --an authority relating to practice and custom in the erstwhile eastern states -- has also been judicially accepted. petitioner claimed such kharposh grant from the state as the state being the successor became obliged and liable to make the grant in accordance with the customary law and the same having not been granted, the writ application has been filed for an appropriate direction to the state to grant the kharposh allowance at the rate of rs. 500 per month and to pass consequential orders and directions ensuring the grant of the same to the petitioner.2-3. a counter-affidavit has been filed by the under secretary to government in the home department in para 3 whereof it.....
Judgment:

Misra, Ag. C.J.

1. Petitioner in this application under Article 226 of the Constitution is one of the sons of late Raja Sri Hrudaya Chandra Birabar Harichandan of Talcher -- an ex-State --which merged with the Province of Orissa with effect from 1-1-1948 and became a part of this State in due course. Raja Hrudaya Chandra died on 11-9-1970. Petitioner claims that upon the death of his father, his elder brother Soubhagya has been accepted as the Raja of the erstwhile State. Under the customary law prevailing in the ex-State of Talcher, junior members and relations of the Raja family were not entitled to claim partition but were entitled to maintenance grants known as 'kharposh allowance' which after being granted became a charge on the revenue of the State, According to the petitioner such customs acknowledged in the 'Pachis Sawal' --an authority relating to practice and custom in the erstwhile eastern States -- has also been judicially accepted. Petitioner claimed such kharposh grant from the State as the State being the successor became obliged and liable to make the grant in accordance with the customary law and the same having not been granted, the writ application has been filed for an appropriate direction to the State to grant the kharposh allowance at the rate of Rs. 500 per month and to pass consequential orders and directions ensuring the grant of the same to the petitioner.

2-3. A counter-affidavit has been filed by the Under Secretary to Government in the Home Department in para 3 whereof it has been alleged:--

'That the estate of Talcher vested in the State of Orissa in the year 1948. The Ruler of Ex-State of Talcher did not make a grant in favour of the petitioner at any point of time prior to the merger. After the merger the State of Orissa has also not made the grant in question. As such the claim has become stale and a claim for maintenance after such long lapse of gaps cannot be entertained by this Honourable Court in exercise of its extraordinary jurisdiction under Article 326 of the Constitution.'

Talcher was not an 'estate' but was a princely State. It did not vest in the State of Orissa but merged under an agreement. According to the petitioner, the customary practice was that after the Raja's death, the Ranis used to become Satis and the brothers and nephews of the deceased Raja and the brothers of the new Raja received a maintenance and continued to be subordinate to the Raja. This is the answer to question No. 9 in the 'Pachis Sawal'.

4. Though in the counter-affidavit and at the hearing an attempt has been made to underestimate the importance and the utility of 'Pachis Sawal' in the matter, we are inclined to accept the submission made before us that 'Pachis Sawal' has been accepted by the Judicial Committee and several High Courts in India for over 100 years as a dependable authority A Bench of this Court in the case d Prabir Kumar Bhanja Deo v. State of Orissa, ILR (1970) Cut 794, after referring to a series of decisions concluded:

'............It would thus be seen that the Pachis Sawal is a document of high authority relating to customs prevailing in these States and the document stands in the field for over 150 years.'

5. We have not been cited any authority where on the basis of the answer to question No. 9 in the 'Pachis Sawal', a claimant has been given relief in court for maintenance. The decision of the Supreme Court in the case of Promod Chandra Deb v. State of Orissa, AIR 1962 SC 1288; dealt with a claim like the present one, but there, there was pre-merger grant and since the State was not prepared to fulfil its obligation, dispute arose. In Prabir Kumar Bhanja Deo's case, (ILR (1970) Cut 794) the father of the petitioner was the grantee from the ruler and when the father died the son was being denied the benefits of the grant which gave rise to the dispute. In the instant case, the petitioner happens to be the son of the ex-ruler and admittedly the ex-ruler was not the grantee of any kharposh grant nor was there any kharposh grant made in 'favour of the petitioner. The position would certainly be different where there has been a grant and the benefits of the grant are denied to the grantee and where there is no grant and a grant is asked to be made. As we have already indicated, the answer to question No. 9 of the 'Pachis Sawal' does not say that it was customary for dependent relation to claim a kharposh grant. The custom at the most was enabling the new ruler to make a grant at the time of accession obviously with a view to quietening the near relations who could have an eye on the succession and to keep them subordinate and loyal by continuing the grant. Since we have not come across a single instance where the dependent relation has been able to sue and obtain a grant and since the petitioner before us was not a grantee of a kharposh grant, we do not think it would be open to us in exercise of our extraordinary jurisdiction to call upon the State to make a grant for the first time in favour of the petitioner. Petitioner has failed to establish before us that the ex-ruler had any obligation to make a grant and if he failed to do so it was enforceable against him. Merely because it was expedient for an ex-ruler to make a grant, we do not think, we can hold that the State of Orissa has an obligation to make a grant and in the event of default, a situation arises where our extraordinary jurisdiction can be availed and a mandamus should issue.

6. We would accordingly decline to interfere and would proceed to dismiss this application without making any order for costs.

J.K. Mohanty, J.

I agree.


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