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Kudura Podhan Vs. Gangadhar Behera - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 114 of 1951
Judge
Reported inAIR1953Ori238; 18(1952)CLT267
ActsConstitution of India - Articles 226 and 227; Madras Agency Tracts Interest and Land Transfer Act, 1917 - Sections 4(2)
AppellantKudura Podhan
RespondentGangadhar Behera
Appellant AdvocateP.V.B. Rao, Adv.
Respondent AdvocateM.S. Patnaik, Adv.
Cases ReferredJadumani Behera v. Jadumani Sahu
Excerpt:
.....by the deputy tahsildar. 7. for, the reasons already given i am satisfied that this court has jurisdiction to interfere and in view of the obvious error committed by the additional agent it is a fit case for interference......before the lower court) it appeared that the disputed plot had been recorded in the name of one kirtan behera, a brother of the opposite party, as early as 10-11-30. he thought that the settlement entry was sufficient to support the opposite party's case.3. the lower appellate court has obviously committed a serious error. had he gone through the evidence recorded by the deputy tehsildar he would have noticed that the opposite party's case was that a sale deed was executed in his favour in 1927. he did not state that the sale deed was executed in favour of his brother kirtan behera or that he succeeded him after his death. the petitioner also while giving evidence before the deputy tahsildar stated that the disputed plot had been mortgaged by him in favour of kirtan behera in 1927......
Judgment:

Narasimham, J.

1. This is a petition under Arts. 226 and 227 of the Constitution against an order passed by the Additional Agent of Phulbani in exercise of the powers conferred on him by the Agency Tracts Interest and Land Transfer Act, 1917, setting aside an order passed by the Special Assistant Agent, Balliguda.

2. The petitioner is a Khond who is a member of a hill tribe as defined in the said Act. The opposite party is admittedly not a member of a hill-tribe. The petitioner appliedfor restoration of a plot of land known as. 'Bradikheta' bearing settlement plot No. 57 in village Dokrongia saying that it had been mortgaged by him with the opposite party several years ago and that the said transfer was invalid in view of the provisions of the said Act. The opposite party, however, contested the application stating that the said plot had been sold to him in 1927. He also produced a sale deed (Ex. I) before the Deputy Tahsildar of Balliguda who made a local enquiry. The Deputy Tahsildar in his report to the Special Assistant Agent observed that the sale deed appeared to be a suspicious document and that it was incomplete and the names of the scribe and the attesting witnesses were not to be found in the same. He therefore recommended that the disputed plot should be restored to the petitioner after eviction of the opposite party. The Special Assistant Agent accepted his recommendation and decreed eviction. On appeal, however, the learned Additional Agent set aside the order of the Special Assistant Agent solely on the ground that on a perusal of the settlement record (which was not produced before the lower Court) it appeared that the disputed plot had been recorded in the name of one Kirtan Behera, a brother of the opposite party, as early as 10-11-30. He thought that the settlement entry was sufficient to support the opposite party's case.

3. The lower appellate Court has obviously committed a serious error. Had he gone through the evidence recorded by the Deputy Tehsildar he would have noticed that the opposite party's case was that a sale deed was executed in his favour in 1927. He did not state that the sale deed was executed in favour of his brother Kirtan Behera or that he succeeded him after his death. The petitioner also while giving evidence before the Deputy Tahsildar stated that the disputed plot had been mortgaged by him in favour of Kirtan Behera in 1927. If, as stated by him, the disputed plot had been mortgaged with Kirtan Behera there is nothing surprising that Kirtan Behera was shown in possession. The opposite party relied on a sale deed in his favour said to have been executed in 1927 and produced a document (Ex. 1) which was reported to be highly suspicious in view of its being incomplete. A new case that the sale was originally in favour of Kirtan Behera and that after his death the opposite party succeeded him appears to have been put forward for the first time before the Additional Agent, taking advantage of the settlement entry. Doubtless if the settlement entry had been conclusive in favour of the opposite party the order of the Additional Agent might have been justified. But when the settlement entry merely shows that Kirtan Behera was in possession in 1930 and when according to the petitioner's own case the disputed plot was mortgaged with Kirtan Behera in 1927 I cannot understand how the Additional Agent could say that the petitioner's case is disproved by the settlement entry. Therefore, if this document is ignored as being not helpful to either side the other evidence on record collected by the Deputy Tahsildar would support the case of the petitioner and justify the order of the Special Assistant Agent. The lower appellate Court's order is therefore improper in view of its failure to assess the settlement entry at its proper worth and to carefully read the other evidence collected by the Deputy Tahsildar.

4. Mr. Patnaik, however, urged that the extraordinary jurisdiction of this Court under the aforesaid Articles should not be used because--

(i) the petitioner had an alternative remedy by way of a regular suit; and

(ii) in any case, the order of the Additional Agent was a mere executive order and not of a Judicial nature.

5. As regards the first point, all that I need say is that even if the petitioner has a remedy by way of a regular suit (regarding which I am not expressing any definite opinion now) it cannot be said that that alternative remedy is equally convenient, beneficial or effective.

6. As regards the second point, I do not think that there can be any doubt that the Additional Agent or the Special Assistant Agent exercising powers under the Agency Tracts Interest and Land Transfer Act exercises judicial functions. Sub-section (2) of Section 4 of the Act expressly says that the order of the authority concerned is in the nature of a decree for ejectment of the person found in the unlawful possession of the property. An appeal has also been provided by the recent amendment made in Orissa Act 2 of 1948. The order is of a final nature, subject o course to a right of appeal and not in the nature of a mere report to a superior officer for action. The parties were heard, evidence was recorded and then a decision was given. All the trappings of a regular Court are to be found in this case and in view of the finality of the order of the Special Assistant Agent or the Additional Agent, as the case may be, it is clear that he was functioning as a tribunal. See --'Bharat Bank Ltd. v. Employees of Bharat Bank Ltd.', AIR 1950 SC 188 (A) and -- 'Jadumani Behera v. Jadumani Sahu', AIR 1952 Orissa 244 (B), regarding the construction of the expression 'tribunal'.

Mr. Patnaik however urged that the amendment made to the said Act by Orissa Act 2 of 1948 authorised the revenue officer concerned to decree ejectment either on an application by any one interested or 'on his own motion'. He submitted that inasmuch as the revenue officer has jurisdiction to take necessary action on his own motion there may not be any dispute between two parties on which any decision is required by him and that consequently his order may not amount to a judicial determination of any dispute. It is true that by virtue of the amendment of 1948 it is not necessary that there should be two parties before a revenue officer when he proceeds to take action under the said Act. But this is for the purpose of initiating a proceeding under the Act. In subsequent stages he has to take evidence, to pass a decree for ejectment and give reasons for his order in view of the right of appeal conferred on the aggrieved party. The mere fact that proceedings can be started by him on his own motion will not render the proceedings executive proceedings as distinct from judicial proceedings. For instance, the powers of the High Court in criminal revision under Sections 435 and 439, Criminal P. C., or in civil revision under Section 155, Civil P. C., may be exercised and proceedings initiated on its own motion even though there may be no application from any party. But on that account it cannot be seriously contended that the order is not of a judicial nature.

7. For, the reasons already given I am satisfied that this Court has Jurisdiction to interfere and in view of the obvious error committed by the Additional Agent it is a fit case for interference. His order is therefore set aside and the order dated 10-6-50 passed by the Special Assistant Agent, Balliguda, directing eviction of the opposite party is restored. There will be no orders for costs.

Panigrahi, J.

8. I agree.


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