The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK O.J.C. No. 2347 of 1997 Lal Chitaranjan Sekhar Deo (since dead), represented through his legal heirs …. Petitioners Mr. S.K. Padhi, Senior Advocate along with Mr. Subham Sharma, Advocate -versus- State of Odisha and others …. Opposite Parties Mr. L. Samantray, Additional Government Advocate Mr. U.K. Samal, Advocate for OP No.4 CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MISS JUSTICE SAVITRI RATHO Order No. ORDER 29.08.2024 61. This matter is taken up through Hybrid mode. 2. The Opposite Party No.4 had approached this Court by filing a writ application giving rise to OJC No.1463 of 1985, seeking direction to the State authorities to release the Hatibari alias Kinzir Estate, said to be a ‘Kharpose’ grant in favour of his predecessor- in-interest by the Darbar. He had asserted that the grant in question concerning 64 villages had been made in favour of his common ancestor much prior to 1940. 3. Referring to the genealogical table as relied on in the said writ application, opposite party no.4 had asserted in the said writ proceeding that on account of mismanagement committed by the grantees, the Court of Wards took management in respect of 60 Page 1 of 14 villages sometime in the year 1940 and, thereafter, on attaining majority, applications having been filed to get release of the management of those villages in question, there was total inaction on the part of the State authorities.
Legal Reasoning
4. In the above background, opposite party no.4 had sought direction to release the management of 60 villages to which opposite party no.4 was entitled to. 5. The said writ application was disposed of by an order of this Court dated 25.06.1991 with the following observation and direction: “xxx xxx xxx xxx In this view of the matter, we dispose of the writ application with the direction that the appropriate authority is to consider the petitioner’s claim as well as that of opposite party No.11 by giving them opportunity to produce relevant materials in support of their respective stands and thereupon shall decide as to who or all of them are entitled to take over the management and possession of the lands which are now in possession of Court of Wards. (Underscored for emphasis) xxx xxx xxx xxx.” We have taken the above noted facts from this Court’s aforementioned order dated 25.06.1991. 6. This Court, while passing the aforesaid order dated 25.06.1991, did not enter into the rival submissions advanced on behalf of the contesting parties, including the present petitioner (opposite party Page 2 of 14 no.11 in OJC No.1463 of 1985) as to who would be entitled to the grant in question, i.e., whether opposite party no.4 alone or other co-sharers and whether there was at all any decree of a competent Civil Court in respect of the land in question, and whether the order of the Darbar mutating the name of the father of opposite party no.4 in respect of the land in question was at all legal or illegal. The Court left all these disputes to be considered by the State authorities. 7. It is noteworthy, as is evident from the said order of this Court dated 25.06.1991 that the State of Odisha had also conceded to the request of opposite party no.4 to get release of the grant in question by asking him to appear before the ‘appropriate authority’. It was in that background that this Court had disposed of the writ application with the observation and direction as has been quoted hereinabove. 8. It transpires that in the light of this Court’s observation and direction, Misc. Case No.1 of 1991 was registered in the Court of the Tahasildar, Birmitrapur. The petitioner and opposite party no.4 had appeared before the Tahasildar. The parties had also submitted
Legal Reasoning
their documentary evidence in support of their respective claims.
Decision
The Tahasildar disposed of the said Misc. Case No.1 of 1991 by an order dated 30.07.1993, operative portion of which reads as under: “xxx xxx xxx xxx Keeping in view of the documentary evidences submitted by the parties and after hearing the arguments of the Advocates of both the parties, I am of the opinion that the petitioner is entitled to his share as per the order in T.S.2/64 only. The Page 3 of 14 respondents who was the family members of late Gangadhar Sekhar Deo are also entitled to their respective share in the entire property as per orders in T.S.2/64. The cash balance in P.L. Account of Court of Wards, Compensation against O.E. Act, drawn by O.P. and amount drawn by them from P.L. Account is to be divided amongst all the share holders as per their respective share in the family property. xxx xxx xxx xxx” 9. We need not refer to the findings recorded by the Tahasildar in view of the nature of the order which we intend to pass in the present case based on the rival submissions advanced on behalf of the parties in the present case. 10. Opposite Party No.4 preferred an appeal against the said order of the Tahasildar before the Additional District Magistrate (ADM), Sundargarh, which gave rise to Misc. Appeal No.11 of 1993. The ADM, Sundargarh allowed the appeal by order dated 04.11.1996 and set aside the order passed by the Tahasildar dated 30.07.1993 in Misc. Case No.1 of 1991 concluding as under: “xxx xxx xxx xxx The question now is whether this order of the civil court is binding in this case. The learned lower court has already held that this decree is binding and as such he ordered for division of the Estate. At the time of institution of the civil suit the appellant was a minor. He claimed that no notice was served on his widow mother. The Manager of the court of wards has failed to contest the case and protect the interest of the minor. Besides, the so called delivery of physical possession in the execution case is only on paper. All these lands still continue to be in the possession of the court of wards and the manager of Page 4 of 14 the court of wards each year settles the land with different individuals for annual cultivation by public auction. Hence it is evident that the decree of Title Suit has not been executed in the field and the persons who have said to have taken delivery of possession/ never possess or are in possession of the same. The decree of the Title Suit no doubt is now barred by limitation. is The Gangpur State took away possession of the Kharposhdari Estate in the year 1943 and kept it with the court of wards which is continuing till now. The said Estate should be delivered back to successor of the late Kharposhdar. This appellant who successor is entitled to the Kharposhdari Estate by virtue of being eldest son of the last Kharposhdar by way of lineal primogeniture. The respondents are the younger branch of the family of the Kharposhdar and are entitled to maintenance grant which they are enjoying in shape of Khamar village. The appellant is to succeed to the properties of the Kinjir Estate of Hatibari now under the court of wards and the same to be released in favour of the appellant. The order of the learned Tahasildar, Birmitrapur is therefore, liable to be set aside. Section 59 of the court of wards Act, 1947 prescribed that “the court may with the previous sanction of the in all cases where provisional Government, superintendence has been assumed in pursuance of order under Section 16 and 17 at any time release from its superintendence the person or property of a ward or both and shall save as provided in Section 62 release from superintendence. Hence, release of the Estate will require sanction of the provincial Government. The Tahasildar Biramitrapur who is now the manager of the court of wards shall move for sanction of the State Govt. for release of the Estate from the court of wards in favour of the appellant. Page 5 of 14 With this observation the order of the learned Tahasildar, Birmitrapur dated 30.7.93 is set aside and the appeal is allowed. xxx xxx xxx xxx.” 11. The order passed by the ADM, Sundargarh dated 04.11.1996 is under challenge in the present writ application. 12. Heard Mr. S.K. Padhi, learned Senior Counsel assisted by Mr. Subham Sharma, learned counsel appearing on behalf of the petitioners and Mr. U.K. Samal, learned counsel appearing on behalf of opposite party no.4. Counter affidavits have been filed on behalf of opposite party no.4. During the course of hearing of this case, it has emerged that the Tahasildar, Birmitrapur did not have the jurisdiction to entertain the dispute for release of the property from the superintendent under Section 59 of the Orissa Court of Wards Act, 1947 (in short ‘the Act’). Section 59 of the Act reads thus: “59. Release from superintendence.- The Court may with the previous sanction of the State Government, in all cases where superintendence has been assumed in pursuance of orders under Section 16 or 17 at any time release from its superintendence the person or property of a ward or both and shall save as provided in Section 62 release from, superintendence- (a) the person and property of a ward disqualified under Clause (a) of Section 10 as soon as he ceases to be a minor; (b) the person and property of a ward disqualified under Clause (c) of Section 10 as soon as it is found by a competent Civil Court that the disability has ceased; Page 6 of 14 (c) the person and property of a proprietor declared to be disqualified under Clause (b), (d), (e) or (f) of Section 10 as soon as the State Government revoke their declaration that such proprietor is disqualified; and (d) the property of an undivided Hindu family, and the person of every coparcener therein who is not possessed of separate estate, as soon as any coparcener ceases to be disqualified under Section 10.” 13. The definition of ‘The Court’ finds place in Section 4(a) of the Act which reads as under: 4(a) “The Court” means the Court of Wards.” 14. The Court of Wards has been defined under Section 5(1) of the Act which states that the Revenue Commissioner shall be the Court of Wards for the areas to which this Act extends. Sub-Section-2 of Section 5 provides that the Court, i.e., the Court of Wards, i.e., the Revenue Commissioner, shall deal with every person and every property of which it may take or retain charge under the Act, or which may be placed under its charge by order of a competent Court in accordance with the provisions of this Act. 15. Section 7 of the Act deals with the manner of exercise of power by the Court of Wards and states that the Court may exercise all or any of the powers conferred on it by this Act through the “Collector of the district” within the limits of which any part of the property of a ward is situated or through any other person whom it may, at any time appoint in that behalf. Page 7 of 14 16. Section 8 of the Act provides for an appeal against any order passed under this Act by a Collector to the Court. The expression “Collector” under Section 8 of the Act, in our opinion, essentially refers to the Collector of the district as occurring in Section 7 of the Act. 17. Section 6 of the Act is also a relevant provision for appreciating the issue as to whether the Tahasildar had the jurisdiction to initiate a suo motu proceeding pursuant to this Court’s order dated 25.06.1991. Section 6 of the Act confers upon the State Government power to revise or modify or reverse any order passed or proceedings taken under this Act, whether a petition is presented against such order or proceeding or not. 18. On conjoint reading of Sections 5, 6, 7 and 8, read with the definition of the Court under Section 4(a) of the Act, it can be easily deduced that it is the Court of Wards, i.e., the Revenue Commissioner who exercises powers conferred on it by the Act through the Collector of the district and the ADM cannot be termed to be the Collector of the district. Section 7 of the Act envisages that the Commissioner can exercise all the powers through the Collector. Apparently, if any order is passed by the Collector in relation to any dispute referred to it by the Court of Wards, an appeal shall lie to the Court, i.e., the Court of Wards under Section 8 of the Act. 19. Further, Section 25 of the Act contemplates that the Court, i.e., the Court of Wards, may make such orders and arrangements in Page 8 of 14 respect of the custody, residence, education and marriage of any ward whose person is for the time being under its superintendence, of any minor child, minor brother, or minor sister of such ward, who, in the opinion of the Court, is entitled to maintenance at the charge of the ward’s estate and the ward’s next male heir being a minor is also entitled to maintenance. 20. Section 26 of the Act confers upon the Court of Wards the jurisdiction to appoint managers for the property, and guardians for the person of any ward. 21. Section 34 of the Act confers upon the Court of Wards the jurisdiction to order guardian or manager to make over the property which reads as under: “34. Court may order guardian or manager to make over property.- The Court may order any past or present manager or guardian or past or present officer subordinate to a manager or guardian to deliver up his accounts or any property which may be in his possession within such time as may be fixed by the Court.” 22. Section 58 of the Act deals with the manner in which the adjudication of civil dispute between two or more wards is to be decided, and reads thus: “58. Adjudication of civil disputes between two or more wards.- (1) When any question arises as between two or more wards of such a nature that an adjudication upon it by a Civil Court is expedient, it shall be lawful for the Court of Wards, acting through the Collector of the district in which a case might have been stated for the opinion of the Civil Court Page 9 of 14 with regard to such matter under Order XXXVI, Rule 1 of the First Schedule to the Code of Civil Procedure, 1908 (V of 1908) to file in the Civil Court having jurisdiction a statement containing the point or points for determination. (2) When such statement has been filed, the Civil Court shall appoint a guardian ad litem for each ward having a separate interest, and such guardians shall thereupon conduct the case subject to the general control of the Court of Wards. (3) The Civil Court may, if it thinks fit, amend the case so stated, and shall then proceed to hear and dispose of the case in the manner provided in Order XXXVI of the First Schedule to the Code of Civil Procedure, 1908 (V of 1908) for hearing and disposal of cases stated for opinion under that Order.” 23. Section 58 of the Act clearly states that in case any question arises between two or more wards of such a nature that an adjudication upon it by a Civil Court is expedient, it shall be lawful for the Court of Wards, acting through the Collector of the district in which a case might have been stated for the opinion of the Civil Court with regard to such matter under Order XXXVI, Rule 1 of the First Schedule to the Code of Civil Procedure to file in the Civil Court having jurisdiction, a statement containing the point or points for determination. 24. In the present case, pursuant to this Court’s order dated 25.06.1991 passed in OJC No.1463 of 1985, the Tahasildar instituted a suo motu proceeding, apparently to decide the dispute between the petitioner and the opposite parties. Page 10 of 14 25. Mr. Padhi, learned Senior Counsel appearing on behalf of the petitioners has submitted that under the scheme of the Court of Wards Act, 1947, neither the Tahasildar nor the ADM had any jurisdiction to exercise the power under Section 59 of the Act. He has submitted that such power lies exclusively with the Court of Wards within the meaning of Section 5(1) of the Act. He submits further that since the Tahasildar did not have the competence to exercise the power under Section 59 of the Act, the appellate power exercised by the ADM is meaningless. He accordingly contends that both the orders passed by the Tahasildar and the ADM deserve to be set aside and the dispute should be remanded to the Court of Wards, i.e., the Revenue Divisional Commissioner (RDC), Northern Division, Sambalpur, having the territorial jurisdiction over the property in question is situated. 26. Mr. Samal, learned counsel appearing on behalf of opposite party no.4, refuting the submissions advanced on behalf of the petitioners, has made two-fold submissions. He has relied upon the provisions under the Administration of Odisha States Orders, 1948 to submit that the Tahasildar had the jurisdiction as the Orissa Court of Wards Act, 1947 finds place in Schedule-II. He has further argued that in any view of the matter, an ADM is also a Collector within the meaning of Section 144 of the Cr. P.C. Mr. Samal has also submitted that the ADM has rightly mentioned in his order that in the light of the findings recorded by him, the Tahasildar, Birmitrapur, being the Manager of the Court of Wards, shall move Page 11 of 14 for sanction of the State Government for release of the estate from the Court of Wards in favour of opposite party no.4 27. We do not find any force in the submission advanced on behalf of opposite party no.4 that because of any provision under the Administration of Odisha States Orders, 1948, a Tahasildar or an ADM can acquire jurisdiction to exercise the power under Section 59 of the Act. The Court of Wards Act, 1947 finds place in Schedule-II to the Administration of Odisha States Orders, 1948. The said Schedule-II is referable to paragraph 4 of the said order which simply mentions that the laws as contained in Schedule-II shall apply to all Odisha estates. 28. The submission that the ADM can be treated to be a Collector for exercise of power under Section 59 of the Act because of the provision under Section 144 of the Cr. P.C. is not at all tenable. 29. After having considered the rival submissions advanced on behalf of the parties as noted above with reference to the statutory provisions under the Act, we are of the considered view that the language under various provisions of the Act is unambiguous. It is the Court of Wards, i.e., the Revenue Commissioner who has the jurisdiction to release from its superintendence, the person or property of a ward or both with the previous sanction of the State Government, in such cases where the superintendence has been assumed in pursuance of the orders passed under Section 16 or 17 of the Act. It is the Court of Wards which is required to have sanction of the State Government for release from its Page 12 of 14 superintendence. Indisputably, the Tahasildar was merely a Manager of the Court of Wards. In that capacity, he did not have the jurisdiction to decide on the point of release of the property assumed by the Court of Wards, i.e., the Revenue Commissioner, in pursuance of the orders passed under Section 16 or 17 of the Act. The power of the Court of Wards Act can be exercised through the Collector of the district under Section 7 of the Act. In the present case, the Tahasildar initiated a suo motu proceeding considering himself to be the competent authority, pursuant to this Court’s order dated 25.06.1991. 30. In our considered view, as the Tahasildar did not have any jurisdiction to initiate suo motu proceeding for release of the property exercising power under Section 59 of the Act, the order passed by the ADM on an appeal preferred against the order of the Tahasildar can also not be sustained. Accordingly, the order dated 30.07.1993 passed by the Tahasildar, Birmitrapur in Misc. Case No.1 of 1991 and the order dated 04.11.1996 passed by the Additional District Magistrate, Sundargarh in Misc. Appeal No.11 of 1993 are hereby set aside. 31. Let the Court of Wards, i.e., the Revenue Divisional Commissioner (RDC), Sambalpur proceed as the competent authority in terms of the observation made by this Court in its order dated 25.06.1991 in OJC No.1463 of 1985 and pass appropriate orders in accordance with law and the provisions of the Act, after giving the parties due opportunity of hearing. It will be open for the RDC to call for the records of Misc. Case No.1 of 1991 and Misc. Page 13 of 14 Appeal No.11 of 1993 from the ADM, Sundargarh for proper appreciation of the issues involved. 32. As the dispute has remained pending for several decades, we expect that the RDC, being the Court of Wards, shall expedite the disposal of the dispute. Mr. Padhi, learned Senior Counsel appearing on behalf of the petitioners and Mr. Samal, learned counsel representing opposite party no.4 have submitted that the parties shall appear before the RDC with a copy of the present order on 11.09.2024. Let it be done. We make it clear that no observation made in the present order shall be construed as an opinion as regards the claims of the contesting parties over the property in question. 33. This writ petition is accordingly allowed with the aforesaid observations and directions. Chief Justice (Chakradhari Sharan Singh) Judge S. Behera (Savitri Ratho) Signature Not Verified Digitally Signed Signed by: SUMANTA BEHERA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Sep-2024 10:52:24 Page 14 of 14