Dr. B.R. Sarangi, J
1. The petitioner, who was the opposite party before the revisional authority, has preferred this writ petition with a prayer to quash the order dated 24.11.2015 passed in Settlement Revision Petition No.77 of 2014 under Annexure-6, whereby the revisional authority, i.e., Commissioner, Consolidation, Odisha, Bhubaneswar-opposite party no.2 has issued direction that the Consolidation ROR shall be recorded in the name of the original khewat, i.e., Sri Chaitanya Dev and Radhakanta Dev in the Tenants Column under the Khewatdari of “Odisha Sarkar” ignoring the stitiban right of the family of the petitioner reflected in 1927 Settlement as well as 1977 Settlement, and that the Endowment Commissioner, Odisha shall decide the Trustee.
2. The factual matrix of the case, in brief, is that the property situated in Mouza-Penthapada @ Gopalpur Patna @ Satyabadi under Satyabadi Tahasil of District-Puri bearing Khata No.194, Plot Nos.493, 342, 347 of area Ac.0.12 dec. as per 1927 ROR corresponding to Khata No.357, 358, Plot Nos.398, 407/795, 497 of area Ac.0.12 dec. as per 1977 ROR 730, 740, 736/796 is the subject-matter of the case. The said property was recorded in the name of Satyabadi Gopinath Dev in the year 1927 under Deregistration No.12966 which was given to Chaitanya Dev and Radhakant Dev of village-Phula Alasa for Seva Puja of the deity and one relative, namely, Basudev Hota was the trustee of Satyabadi Gopinath Dev. The caretaker of the deity Radhakant Dev handed over the property to the petitioner in Rent Case No.22789. After framing of new Trust Board in the year 2010, opposite party no.1 came to know from the Revenue Department about the transaction of the property and filed SRP No.77 of 2014 under Section 15 of the Odisha Survey and Settlement Act, 1958. It was alleged by opposite party no.1 that transfer of the property from the name of the deity to a private person, i.e., the petitioner was illegal and the same was done without obtaining permission from the Endowment Commissioner under Section 19 of the Odisha Hindu Religious Endowments Act, 1951 (hereinafter to be referred in short as “OHRE, Act”).
2.1 On perusal of the record and considering the contentions raised by the petitioner that the aforesaid revision was filed after four decades of publication of ROR in 1977 and Khata No.194 of 1927 was recorded in favour of Hari Ram, son of Tilak Ram in Stitiban status and Deity Radhakanta Dev was the Ex-proprietor, whose tenancy was vested in 1974, the Commissioner, Consolidation, Odisha, found that the property belonged to the Endowment and the Commissioner, Endowment has not been made as a party to the revision case. The transfer of property belonging to the deity without express permission of the Endowment Commissioner is illegal for all practical purposes. The right of a marfatdari property, which, while inheritable, is non-transferrable. Therefore, the Commissioner, Consolidation, Odisha, Bhubaneswar, vide order dated 24.11.2015, directed to record the Consolidation ROR in the name of the original Khewat, i.e. Sri Chaitanya Dev and Radhakanta Dev in the Tenants Column under the Khewatdari of “Odisha Sarkar” and the Endowment Commissioner, Odisha shall decide the Trustee. Hence, this writ petition.
3. Mr. S.C. Satapathy, learned counsel appearing for the petitioner vehemently contended that the deity Chaitnya Dev is neither proprietor nor owner of the property. Therefore, the claim made by Prafulla Chandra Mishra as Trustee of Chaitanya Dev Badamath has no locus standi, rather, relying upon the documents under Annexures-2 and 7, he contended that the deity Radhakanta Dev was the proprietor of Deregistration No.12966 under which Khata Nos.194 and 195 were recorded in favour of Hari Ram as stitiban tenant. The draft Khatian under Annexure-A/1 shows the name of Radhakanta Dev, whose name was deleted, due to abolition of intermediary interest, and Muralidhar Modi and others recorded as stitiban tenants. Therefore, the deity Chaitanya Dev had no right over the case land at any point of time. It is further contended that opposite party no.1, who was the petitioner in SRP No.77 of 2014, filed the said case without annexing copy of the Settlement ROR, which was impugned therein, and it was mandatory for him to file the certified copy of Hal ROR as per Section 15(b) of the Odisha Survey and Settlement Act. Due to non-filing of the said ROR, wrong plot numbers and khata numbers are mentioned, which resulted in passing a defective order. More so, the deity has also not filed any limitation petition under Section 5 of the Limitation Act, 1963 for condoning delay of 37 years, whereas Section 15(b) of the Odisha Survey and Settlement Act provides that the revision application can be made one year from the date of final publication of ROR or thereafter. It is further contended that sl. no.8 of Schedule-I of the Orissa Survey Settlement Rules, 1962 under the heading nature of document, claim, etc. provides application for revision under Sections 6D, 15 or 25 lies to the Board of Revenue within two years from the date of final publication of record sought to be revised. Section 34 of the Orissa Survey and Settlement Act states that subject to the provision of next following section every appeal presented and application made after the period of limitation specified therefor shall be dismissed, although limitation has not been set up as a defence. Similarly, Section 35 of the said Act states that subject to the provisions of the Act, except Sections 6,7, 8, 9, 19 and 20, the provisions of the Limitation Act, 1963 shall apply to all appeals and applications mentioned in Section 34. Therefore, it is contended that the Commissioner, Consolidation, Odisha has passed the impugned order without taking into consideration the procedures and, as such, the direction given to change of Consolidation ROR cannot be sustained in the eye of law. In support of his contentions, he has relied upon Fakir Gahir v. Settlement Officer, Vol. 34(1992) OJD 39 (Civil); Krushna Chandra Mahakul v. State of Odisha, 2003(II) OLR 306; Vidya Sagar v. Swdesh Kumar, AIR 1975 SC 2295; Biswanath Padhi v. Tahasildar, Athagarh, 1986 (II) OLR 413 and Durga Charan Roul v. Bhagirathi Roul, 2017 (II) ILR CUT-1240.
4. It is of relevance to mention here, learned counsel M/s L.N. Rayatsingh, R.S. Jena and B. Mohant had entered appearance for opposite party no.1. But at the time of hearing, none was present on behalf of opposite party no.1. However, on perusal of the record, it appears that opposite party no.1 has filed a counter affidavit. It has been stated therein that originally the land belonged to Chaitanya Dev Badamatha and the Marfatdar was Late Mahanta Krushna Chandra Das. In the year 1927, the land in question was in the name of Chaitanya Dev Badamatha under Deregistration No.12966 in Mouza-Penthapada under Plot Nos.342, 347, 364 corresponding to Plot Nos.497, 370, 740, 736/796 area Ac.0.8 dec. At the time of Odisha Estates Abolition operation, the said land was declared as trust estates by the Sub-Judge, Puri under Section 13(D) of the Odisha Estates Abolition Act, 1951 and the entire Deregistered plots were declared not to vest, but at the time of 1977 settlement operation, the petitioner entered his name in tenant column and without paying any rent to the deity and without intimating to the Endowment Commissioner under Section 69 of the OHRE Act recorded his name as tenant and deleted the name of the deity by virtue of Rent Case No.22777 by the Assistant Settlement Officer, Puri. Thereafter, violating the provisions of OHRE Act, the Settlement Officer, Puri, without impleading the Endowment Commissioner as necessary party, settled the land in favour of the petitioner. Thereafter, being the trust board member, opposite party no.1 after a research came to know that there was no land in the name of the deity. Thus, opposite party no.1 filed SRP Case No.77 of 2014 before the Commissioner, Consolidation, Odisha. Therefore, the order passed by the Settlement Officer, Puri in settling the land in favour of the petitioner cannot be sustained in the eye of law and consequentially, the order dated 24.11.2015 passed by the Commissioner, Consolidation, Odisha in SRP No.77 of 2014 is well justified, which is not required interference of this Court at this stage.
5. Mr. A.K. Mishra, learned Addl. Government Advocate appearing for opposite parties no.2 and 4 supported the stand taken by opposite party no.1 in its counter affidavit. He, however, vehemently contended that law is very clear that as per the OHRE Act, before the settlement of the schedule land in favour of the petitioner, the Settlement Officer, Puri should have issued notice to the Commissioner of Endowments as the same is mandatory, but no notice was issued to the Endowment Commissioner before settling the land in favour of the petitioner. On that ground, the order passed by the Settlement Officer, Puri in settling the land in favour of the petitioner cannot be said to be legal in the eye of law. Under such circumstance, the order dated 24.11.2015 passed by the Commissioner, Consolidation, Odisha in SRP No.77 of 2014 does not call for interference by this Court.
6. Mr. A.K. Nath, learned counsel appearing for opposite party-Endowments vehemently contended that since the property belongs to the deity, without any intimation to the Endowment Commissioner, if any change has been made, the same cannot be sustained in the eye of law. It is also admitted that the land in question belonged to Chaitanya Dev Bada Matha and the Marfatdar was Late Mahanta Krushna Chandra Das. In the year 1927, the land in question was in the name of Chaitanya Dev Bada Matha under Deregistration No.12966 in Mouza-Penthapada under Plot Nos.342, 347, 364 corresponding to Plot Nos.497, 370, 740 and 736/796 of area Ac.0.08 dec. But the petitioner, by playing fraud, could manage to get the land recorded in his name, which cannot be sustained in the eye of law. Accordingly, he contended that the revisional authority, i.e, Commissioner, Consolidation, Odisha is well justified in passing the order dated 24.11.2015 in SRP No.77 of 2014. As a consequence thereof, the writ petition filed at the instance of the petitioner should be dismissed.
7. This Court heard Mr. S.C. Satapathy, learned counsel appearing for the petitioner; Mr. A.K. Mishra, learned Addl. Government Advocate appearing for opposite parties no.2 and 4; and Mr. A.K. Nath, learned counsel appearing for opposite party no.3 in hybrid mode. Pleadings have been exchanged between the parties and with the consent of learned counsel for the parties, the writ petition is being disposed of finally at the stage of admission.
8. On the basis of the pleadings available on record as well as the arguments advanced by learned counsel for the parties, there is no dispute that the land belonged to Chaitanya Dev Bada Matha and the Marfatdar was Late Mahanta Krushna Chandra Das. In the year 1927, the schedule land in question was in the name of Chaitanya Dev Bada Matha under Deregistration No.12966 in Mouza-Penthapada under Plot No.342, 347, 364 corresponding to Plot Nos.497, 370, 740 and 736/796 of area Ac.0.12 dec. At the time of Odisha Estates Abolition operation, the said land was declared as trust estates by the Sub-Judge, Puri under Section 13(D) of the Odisha Estates Abolition Act and the entire Deregistration was declared not to vest, but at the time of 1977 settlement operation, the petitioner could enter his name in tenant column and without paying any rent to the deity and without intimating to the Endowment Commissioner under Section 69 of the OHRE Act recorded his name as tenant and deleted the name of the deity.
9. Section-69(1) of the Odisha Hindu Religious Endowments Act, 1951 reads as follows:
“69. Notice by Court and cost of proceedings:(1) Whenever the trustee of any religious institution is sued in any Civil or Revenue Court in respect of any property belonging to or given or, endowed for the purpose of any religious institution notice of such suit shall be given by the Court concerned to the Commissioner at least a month before commencement of the hearing.”
On perusal of the aforementioned provision, it is very clear that for settlement of the scheduled land in favour of the petitioner, the Settlement Officer should have given notice to the Endowment Commissioner which is mandatory in nature.
10. In The Deity Sri Jagannath Swami & Others v. Biswanath Panda, 61(1986) CLT 614, this Court has already held that a plain reading of Section 69(1) of the Orissa Hindu Religious Endowments Act, 1951 would show that whenever the trustee of any religious institution is sued in respect of any property belonging to or given or, endowed for the purpose of any religious institution, notice of a such suit shall be given by the Court concerned to the Commissioner of Endowments at least a month before commencement of the proceeding. The Commissioner of Endowments being the statutory authority to administer and regulate the administration of all religious institutions, it is necessary that he should be heard in every suit concerning the properties belonging to the religious institutions. The requirement of Section 69(1) of the Act is mandatory. It, therefore, follows that it admits no exception. The Court having found that notice under Section 69(1) of the Act had not been issued, it should have directed the plaintiffs to take notice to the Commissioner of Endowments in conformity with the requirements of Section 69(1) of the Act instead of proceeding with the suit any further.
The said view has also been taken by this Court in Sureswar Pujhari and Others v. Jadumani Pujhari and Others, ILR 1974 Cutt. 187 : 40(1974) CLT (Notes 36) 34.
Therefore, in absence of notice to the Endowment Commissioner, which is mandatory in nature, any action taken for recording the name of the present petitioner cannot be sustained in the eye of law.
11. A contention was raised by Mr. Satapathy, learned counsel appearing for the petitioner that the application filed by opposite party no.1 under Section 15(b) of the Odisha Survey & Settlement Act was barred by limitation. Such contention of the petitioner cannot be sustained, if the provision under Section 15(b) of the said Act is taken into consideration.
12. For just and proper adjudication of the case, Section 15(b) of the Odisha Survey & Settlement Act, 1958 is quoted below:-
“15. Revision by Board of Revenue:
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(b) on application, made within one year from the date of final publication under section 12-B, the revision of record-of rights or any portion thereof whether within the said period of one year or thereafter but not so as to affect any order passed by a Civil Court under section 42:
Provided that no such direction shall be made until reasonable opportunity has been given to the parties concerned to appear and be heard in the matter.”
From the aforementioned provision, it is made clear that on an application, made within one year from the date of final publication under Section 12-B of the Act, revision of ROR or any portion thereof has to be made within the said period of one year or thereafter. The said provision provides that application is to be made within a period of one year after final publication under section-12-B seeking for revision for record of rights or any portion thereof. However, the meaning of the word ‘or thereafter’, as mentioned in the said section, can be construed to mean that even after one year from the date of final publication under 15(b) of the Odisha Survey and Settlement Act, 1958, the revision can be filed. Thereby, no restriction can be put to file a revision application after expiry of one year period as contemplated under section 15(b) of the Odisha Survey and Settlement Act, 1958 for correction of records. So far as maintainability of revisional application is concerned, there is no iota of doubt that such application is maintainable even after the period of one year of final publication under Section 12-B of the Odisha Survey and Settlement Act, 1958.
Thus, essentially, what is to be done in a revision is that it is the act of examining again in order to remove any defect or grant relief against the irregular or improper exercise or non-exercise of jurisdiction by a lower court. If that is taken into consideration, the question of limitation also does not arise in a case of revision.
13. In Sri Raja Lakshmi Dyeing Works v. Rangaswamy, (1980) 4 SCC 259, the apex Court held as follows:-
“Revisional jurisdiction is analogous to a power of superintendence and may sometimes be exercised even without it being invoked by a party. The conferment of revisional jurisdiction is generally for the purpose of keeping tribunals subordinate to revisional tribunal within the bounds of their authority to make them act according to well defined principles of justice.”
14. Therefore, on careful reading of the meaning of revision, as discussed above, and applying the provisions of Section 15(b) of the Odisha Survey and Settlement Act, 1958, as mentioned above, it is found that the judgment of this Court in Durga Charan Roul (supra), of which one of us (Dr. B.R. Sarangi, J.) is the author, on which reliance was placed by learned counsel for the petitioner, has no assistance to the petitioner, rather it supports the case of the opposite parties.
15. Much reliance was placed on the provisions of Sections 34 & 35 of the Odisha Survey and Settlement Act, 1958, which read as follows:
“34.Limitation for application-Subject to the provisions of the next following section every appeal presented and application made after the period of limitation specified therefor shall be dismissed although limitation has not been set up as a defence.
35. Application of the Indian Limitation Act, 1908-Subject to the provisions of this Act the provisions of the Indian Limitation Act, IX of 1908, except sections 6, 7, 8, 9, 19 and 20 shall apply to all appeals and applications mentioned in section 34.”
On perusal of the provisions contained in Section 34 of the Act, as mentioned above, it is made clear that subject to the provisions of the next following section every appeal presented and application made after the period of limitation specified therefor shall be dismissed on the ground of limitation. Looking at Section 35 of the said Act, it is made clear that the provisions of this Act and the provisions of the Indian Limitation Act will be applied to all the appeals and applications mentioned in Section 34 except sections 6, 7, 8, 9, 19 and 20. But admittedly any application filed under Section 15(b) cannot be construed as an appeal. Rather, it is a revision and the revision has been filed by a party. Under Section 15(b) it has been specifically mentioned that on an application made within one year from the date of final publication under Section 12(B) of the Act, the revision of ROR or any portion thereof whether within the said period of one year or thereafter but not so as to affect the order passed by a civil court under Section 42. Therefore, using expression “thereafter” the period of limitation, which has been prescribed for one year from the date of final publication under Section 12(B), has been extended, as has already been discussed above in Durga Charan Roul (supra), wherein it has been specifically held that no specific limitation will apply and that has also been fortified by the judgment of this Court in Krushna Chandra Mahakul v. State of Orissa and Others, 2003(II) OLR 306, which clearly states that under Section 15(b) this Court has already held even after expiry of the period of one year of the date of publication of ROR under Section 12(B), the Commissioner can revise the ROR and even if the petitioner has not been able to explain sufficiently the entire period of delay in filing the revision, his revision should not be thrown out only on the ground of delay in filing the revision beyond the period of one year. Furthermore, under Section 5 of the Limitation Act, sufficient cause has to be shown for not preferring the appeal or making an application, as the case may be, within the period prescribed, but under Section 15(b) of the Odisha Survey and Settlement Act there is no such requirement.
16. In view of such position, the contention raised by learned counsel appearing for the petitioner that the revision application filed by opposite party no.1 under Section 15(b) of the Odisha Survey and Settlement Act is barred by limitation cannot be sustained in the eye of law. Accordingly, this Court disallows such plea and answers the same in favour of opposite party no.1.
17. The further plea advanced by learned counsel appearing for the petitioner is that in view of judgment of the apex Court in Vidya Sagar (supra), which has been referred to in Biswanath Padhi (supra), the deity being an intermediary/Ex-proprietor and the said intermediary estate having vested in State of Odisha, the deity has no right to record its name in tenant column, as its proprietary right has disappeared by operation of law. Such an extreme argument advanced by learned counsel appearing for the petitioner has no basis, in view of the fact that by playing fraud, the petitioner has entered his name in the tenant column in 1977 settlement operation without paying any rent to the deity and without intimating to the Endowment Commissioner under Section 69 of the OHRE Act and deleted the name of the deity. Needless to say, in OEA operation, the said land was declared as trust estates by the learned Sub-Judge, Puri under Section 13(D) of the OEA Act and the entire land was Deregistered not to vest being a trust property. Therefore, the benefit has been accrued to the petitioner by playing fraud by entering his name in the settlement operation.
18. The apex Court has dealt with the meaning of ‘fraud’ in Shrisht Dhawan v. Shaw Bros, (1992) 1 SCC 534, which has also been referred to in Roshan Deen v. Preeti Lal, (2002) 1 SCC 100, Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education, (2003) 8 SCC 311 and Ashok Leyland Ltd. v. State of T.N., (2004) 3 SCC 1.
19. In Ram Chandra Singh v. Savitri Devi, (2003) 8 SCC 319, the apex Court held as follows:-
“Fraud as is well-known vitiates every solemn act. Fraud and justice never dwells together. Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by word or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentations may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application f any equitable doctrine including res-judicata.”
The said principle has also been referred to by this Court in the case of Umesh Chandra Chinera v. Chairman & Managing Director, Bharat Petroleum Corpn., 2022 (II) ILR CUT-504. The said view has also been taken by the apex Court in Bhaurao Dagdu Parlakar v. State of Maharashtra, (2005) 7 SCC 605.
20. In view of such position, it is made clear that ‘fraud’ as is well-known vitiates every solemn act. ‘Fraud’ and justice never dwells together and ‘fraud’ is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by word or letter. It is also well settled that misrepresentation also amounts to ‘fraud’. Therefore, the claim made by the petitioner that property has been vested with the Government and the name of the deity has been deleted cannot have any justification, rather the insertion of the name of the petitioner in 1977 settlement operation by playing fraud on the authority and without intimating Endowment Commissioner, as required under Section 69 of the ORHE Act, cannot be sustained in the eye of law.
21. It is of relevance to note that in O.A. No.17 of 2002, which was filed by the Executive Officer, Satyabadi, Gopinath Jew Bije Temple in respect of the property mentioned in Annexure-A/3 to the writ petition, a petition under Order-6 Rule-17 of CPC was filed for amendment in respect of Khata No.194, 22, 70, 216 and Plot No.408 and other 12 Plots No.336, 396, 730, 735/793, 409, 408 and 724 as the said property belongs to Chaitanya Dev. Nothing has been placed on record that whether the said O.A. has been disposed of in the meantime. Thereby, the revisional authority, i.e. Commissioner, Consolidation, Odisha, vide order dated 24.11.2015 passed in SRP No.77 of 2014, directed to record the Consolidation ROR in the name of original Khewat, i.e. Sri Chaitanya Dev and Radhakanta Dev in the Tenants Column under the Khewatdari of “Odisha Sarkar” and the Endowment Commissioner, Odisha shall decide the Trustee.
22. In the above view of the matter, this Court does not find any error in the order dated 24.11.2015 passed by the Commissioner, Consolidation, Odisha, Bhubaneswar in SRP No.77 of 2014 so as to cause interference.
23. In the result, therefore, the writ petition merits no consideration and the same is dismissed. But, however, under the circumstances of the case, there shall be no order as to costs.
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