JUDGMENT
G.B. Patnaik, J.
1. The petitioners claim to be the tenants in respect of 80.00 acres of land belonging to the ex-intermediary Panjasha Peer in Mauza Kotinda in the district of Ganjam and in this writ application they assail the order dated 4-7-1981 passed by the Tahsildar directing settlement of 272.718 acres of land including the disputed 80.00 acres in favour of opposite party No. 3, Hazarat Panjasha Dargha, represented by the Muzawars (opposite parties 4 to 25). The said order of the Tahsildar has been annexed as Annexure-3 to the writ application.
2. The petitioners’ case in a nut-shell is that Hazarat Panjasha Dargha is represented by Muzawars who are opposite parties 4 to 25. The Inain village vested in the State of Orissa by notification made under the Orissa Estates Abolition Act on 15-7-1955. The Muzawars then filed applications under Sec-tions 6 and 7 of the Orissa Estates Abolition Act for settlement of different parcels of land in their favour which were registered as O.E.A. Case Nos. 254 to 269 of 1988. In those cases, the present petitioners filed objection stating therein that they are in possession of the land as tenants in respect of 80.00 acres (400 Bharans) and, therefore, in respect of the same, no settlement can be made in favour of those Muzawars. The Estate Abolition Collector dismissed those cases on 22-5-1964 on a finding that Mazawars are not the intermediaries and it is the Dargha who is the intermediary. The said order of rejection was assailed in appeal and the appellate authority allowed the appeal by order dated 21-1-1966. The petitioners challenged the appellate order by filing a second appeal before the Member, Board of Revenue and the Board of Revenue upheld the order passed by the Additional District Magistrate. The petitioners then filed a writ petition, this Court in O.J.C. No. 242 of 1966. This Court quashed the order passed by the Additional District Magistrate on the ground that the appeal could not have been disposed of without impleading the present petitioners as party-respondents who were the objectors in the C.E.A. case. Thereafter the Additional District Magistrate impleaded the petitioners as parties and on merits dismissed the appeal by order dated 19-4-1973. This order dated 19-4-1973 was assailed in this Court by the Muzawars in O.J.C. No. 447 of 1973 and the said writ application was disposed of by judgment dated 17-4-1975 since reported in (1975) 41 Cut LT 714 (Abdul Rahim v. State of Orissa). This Court came to the finding that Muzawars were not interme-‘diaries nor were they in possession of the four hundred Bharans of land and the present petitioners should be deemed to be the tenants under the State Government in respect of the said 80.00 acres of land and shall hold the land in the same right as they were entitled to immediately before the date of vesting, as provided under Section 8(1) of the Orissa Estates Abolition Act. The Muzawars challenged the aforesaid decision of this Court in the Hon’ble Supreme Court in S.L.P. (Civil) No. 1121 of 1975. Their Lordships of the Supreme Court though had initially passed an interim order of stay, but later on by order
dated 7-1-1976 vacated the stay order on a
finding that so far as 400 Bharans of land is
concerned where possession was found to be
with the tenants, stay is vacated. Ultimately,
the Muzawars withdrew the said Special
Leave Petition which was dismissed as with
drawn.
The said Muzawars having failed in their attempt to get the land in the estates abolition proceeding filed a suit on behalf of the intermediary Dargha being Title Suit No. 14 of 1977 and prayed for injunction against the present petitioners. They also filed an application for appointment of receiver. The Subordinate Judge dismissed the application for interim relief by order dated 27-6-1977. The Dargha then filed Misc. Appeal Nos. 188 and 189 of 1977 in this Court and this Court dismissed those appeals. While dismissing those appeals, the learned Judge came to hold :–
“…..In view of these facts which are borne out on record and whose correctness is not disputed, it must be held that the respondents are in actual possession of the disputed land…..”
The Title Suit filed by Dargha was also dismissed for default. An application for restoration was filed, but the said application was dismissed on contest. The plaintiff Dargha then filed Misc. Appeal No. 33 of 1989 before the Additional District Judge, but the learned Additional District Judge dismissed the appeal. Then the intermediary Dargha took recourse to proceeding under Section 144 of the Code of Criminal Procedure which was later on converted to a proceeding under Section 145, Cr.P.C. and the order passed in the said proceeding was challenged by the present petitioners in Criminal Revision No. 470 of 1978 on the ground that the Magistrate had no jurisdiction to initiate a proceeding under Section 145 of the Code of Criminal Procedure in view of the findings of the Civil Court in the ancillary proceedings. The said Criminal Revision was disposed of by this Court and it was allowed with the observation :–
“…..the Magistrate should, in the facts and circumstances of this case; proceed on the basis that the petitioners were in possession of the said lands at the relevant time, as presumption to that effect can be legitimately drawn under Section 114, Evidence Act and there is nothing to rebut that presumption….. It is the duty of a Magistrate to respect the decisions and directions of a competent Civil Court regarding possession or delivery of possession in favour of a particular party, and to act in agreement with such decisions and directions…..”
The aforesaid decision has since been reported in (1979) 48 Cut LT 70: (1979 Cri LJ 1200) (Bhima Nayak v. Panjashaw Durgah).
The intermediary Dargha then filed an application for settlement of the entire 272.718 acres of land including the disputed 400 Bharans (80.00 acres) in accordance with the Lease Principles issued by the Government of Orissa in Revenue Department, dated 2-3-1964. The said application having been allowed by the Tahsildar by the impugned order dated 4-7-1981, the petitioners have approached this Court.
3. Mr. Rath, the learned counsel for the petitioners contends that for obtaining a settement under the executive instructions of the Government dated 2-3-1964, commonly known as the Lease Principles, it must be found that the intermediary-applicant was in khas possession of the disputed land on the date of vesting. Though in the present case, the Tahsildar has recorded such a finding, but the said finding is without jurisdiction in view of the earlier finding of the Orissa High Court in Miscellaneous Appeal Nos. 188 and 189 of 1977, as well as the finding of the said High Cpurt in O. J’.C. No. 447 of 1973 since reported in (1975) 41 Cut LT 714 and that of the Supreme Court while vacating the interim order of stay in S.L.P. No. 1121 of 1975. Once it is held that the Dargha was not in possession of the disputed land on thedate of vesting the question of getting settlement of the same under the Lease Principles does not arise and any such settlement will be without jurisdiction. He further contends that while deciding the question of settlement of land in favour of Dargha under the Lease Principles the Tahsildar had no jurisdiction to enter into the question as to whether the present petitioners who were the objectors before him have acquired a right of occupancy over the land in question and consequently, the finding on that score is without jurisdiction. Mr. Rath also urges that the impugned order of the Tahsildar is vitiated since instead of trying to find out whether the applicant Dargha has been able to establish that the disputed land was in the khas possession of the intermediary on the date of vesting, the Tahsildar called upon the present petitioners to establish that they were the occupancy raiyats in respect of the disputed land and such misplacement of onus makes the ultimate conclusion vulnerable. Mr. Rath further urges that the reference to the order of the Settlement Officer dated 2-7-1963 for coming to a conclusion that the Dargha must be presumed to be in possession is also erroneous as the Settlement Officer merely had found the Muzawars to be in possession of the disputed land and not the Dargha. Lastly, he urges that the Muzawars having pleaded in the earlier proceedings that they were in possession of the land and having lost the same, it is not open for them now to plead that it is the Dargha through the Muzawars which is in possession and such a plea must be rejected on the principle that a person cannot be allowed to approbate and reprobate.
Mr. Basu appearing for the opposite parties, on the other hand, contends that in the earlier proceedings it was not necessarry for this Court in O.J.C. No. 1447 of 1973 (since reported in (1975) 41 Cut LT 714) to express any opinion as to the alleged tenancy right of the present petitioners and, therefore, the said finding, if any, is nothing but an obiter and cannot be binding on the Tahsildar while deciding an application for settlement under the Lease Principles. He further submits that in any view of the matter, Dargha not having been made a party in the previous proceedings and it is only the Muzawars who are parties, any finding will not bind the Dargha. He further contends that under the Lease Principles, the order of the Tahsildar is appealable and no appeal having been preferred and the petitioners having not exhausted the alternate remedy, the equitable jurisdiction of this Court cannot be invoked.
4. Before delving into the correctness of the rival submissions, it would be appropriate to notice that the disputed land is admittedly a part of the intermediary estate of the intermediary Punjasa Peer Dargha. The said estate vested with the State of Orissa free from all encumbrances by virtue of notification under the Orissa Estates Abolition Act on 15-7-1955 and for more than 28 years by now, the litigation is going on and it is after conclusion of two rounds of litigations at the instance of the Muzawars and the Muzawars having lost, the present round of litigations started at the instance of Dargha represented by the self-same Muzawars by filing application under the lease principles. It is also admitted that after the vesting of the estate, the intermediary Dargha did not make any application under Section 8-A of the Orissa Estates Abolition Act claiming khas possession over the disputed land and it is only the Muzawars who had filed applications which stood rejected, as earlier stated. So far as the petitioners are concerned, their claim being one of tenancy, no application is required to be filed and only under Section 8(1) of the Orissa Estates Abolition Act after holding an administrative enquiry, the Tahsildar can direct acceptance of rent from them as they would be deemed tenants under Section 8(1) of the Act. So far as the administrative instructions commonly called the Lease Principles are concerned the Government in the Revenue Department on being aware of the fact that many intermediaries could not file application under Section 8-A within the statutory period, even though they continue to remain in khas possession, issued a set of administrative instructions by Notification dated 2-2-1964 whereunder Government would grant a fresh lease of those lands to the concerned persons who would have been entitled to retain the lands had they applied for in time after realisation of arrear rent and a Salami equivalent to three years’ rent. It was a concession shown to those intermediaries who could not file application for settlement in time. Under the said instructions, only those can apply who had never made earlier applications and while granting such lease, the Tahsildar should satisfy himself that the applicant is not asking for an advantage that -would not have been available to him under
the provisions of the Orissa Estates Abolition
Act. Under the said instructions, the appli
cant has a right of appeal against the order of
the Tahsildar to the Sub-Divisional Officer if
his application stands rejected. But by sub
sequent instructions issued by the Board of
Revenue on 19-5-1964 and 11-9-19064, it has
been provided that any person aggrieved by
the order of Tahsildar can prefer an appeal to
the Sub-Divisional Officer within thirty days
from the date of the order and it is because of
this provision, Mr. Basu pleads the case of an
alternative remedy.
5. Let us now examine the contentions raised by the learned counsel for the parties. Coming to the first contention of Mr. Rath, the learned counsel for the petitioners, there cannot be any dispute with the proposition that unless and until the Tahsildar comes to a finding that the applicant applying for lease under the Lease Principles was the intermediary and was in khas possession of the land on the date of vesting, but could not make any application under Section 8-A, the said Tahsildar cannot settle the land on the basis of lease with the applicant. That Dargha is the ex-intermediary is not in dispute. But the dispute centres round the question as to whether the said Dargha can be said to be in possession of the disputed land on the date of vesting. From the narration of facts made earlier and different orders referred to in this judgment including the judgment of this Court in O. J.C. No. 447 of 1973 (since reported in (1975) 41 Cut LT 714) as well as the order of the Supreme Court in S.L.P. (Civil) No. 1121 of 1975 while rejecting the interim stay granted in favour of the Muzawars and also the order of Hon’ble Justice B.K. Ray in Miscellaneous Appeal Nos. 188 and 189 of 1977, it appears that the Tahsildar committed gross error in coming to a finding that the Dargha was in possession of the disputed land on the date of vesting. In the aforesaid orders referred to, this Court came to the categorical finding that the present petitioners were in actual possession of the disputed land. Even while vacating the stay order in S.L.P. (Civil)
No. 1121 of 1975, their Lordships of the Supreme Court vacated the same so far as it relates to the disputed 400 Bharans (80.00 acres) on the ground that the possession was found to be with the tenants i.e. the present petitioners. Consequently, the Tahsildar had no jurisdiction to delve into the question of possession again in the present proceeding. It is in their context, it is necessary to examine Mr. Basu’s ‘submission that Dargha not being a party in the previous proceedings whether the finding would be binding on the Dargha or not. But the Dargha has claimed its possession through the Muzawars themselves and thus physical possession of Dargha is being claimed through the Muzawars. In the proceedings filed by Muzawars, it has been hold that those Muzawars are not in possession and, on the other hand, the present petitioners were in possession of the disputed land. In the aforesaid premises, even if Dargha was not a party to the previous, proceeding, but it having claimed physical possession through Muzawars in the present proceeding and Muzawars having been found not to be in possession in the earlier proceedings, the said finding would be binding on the Tahsildar and, therefore, the Tahsildar could not have come to the conclusion that the Dargha was in possession on the date of vesting. The said conclusion of the Tahsildar accordingly is set aside. Once the conclusion on the question of possession is set aside and it is held that the present petitioners were in possession of the disputed land as tenants in view of the earlier orders as discussed in this judgment, even under the Lease Principles no settlement can be made in favour of the Dargha. It has been categorically stated in the Lease Principles that an applicant who could not have claimed any right under the Orissa Estates Abolition Act cannot be granted that right under the Lease Principles. Since for getting a right under the Orissa Estates Abolition Act, an intermediary must be found to be in possession of the disputed land on the date of vesting, such an intermediary who has been found not to be in possession of the land cannot be settled with the land under the Lease Principles and, therefore, the impugned order of the learned Tahsildar is invalid; illegal and without jurisdiction and must accordingly be set aside.
6. So far as the second contention raised by Mr. Rath is concerned, we also find sufficient force in the same. The Lease Principles nowhere authorises the Tahsildar to enter into the controversy as to whether any objector has established his right of occupancy over the disputed land. The Tahsildar is merely authorised to settle the land on an applicant if that applicant is the ex-intermediary and it is found that he had not made any application under the Orissa Estates Abolition Act within the statutory period and is found to be in possession on the date of vesting. The powers of the Tahsildar flow from the aforesaid executive instructions called the Lease Principles and since the said instructions do not authorise the Tahsildar to enter into and decide the question of a right of occupancy of any objector, the Tahsildar acted beyond his jurisdiction to entertain and decide the same. In this view of the matter, the finding of the Tahsildar that the petitioners have not been able to establish their case of acquisition of occupancy right over the disputed land is a finding in excess of the jurisdiction and, therefore, the said finding is set aside. The second contention of Mr. Rath is thus upheld.
7. Coming to the third contention of Mr. Rath, the learned counsel for the petitioners, in view of our conclusion on the first and second contentions raised by him, the same must be answered in favour of the petitioners. As has been stated earlier, what is required of the Tahsildar in entertaining and deciding an application under the lease principles is to find out whether the applicant was an ex-intermediary and could not make any application in time and was in khas possession of the land on the date, of vesting. In other words, rights which could have been conferred upon the applicant under sections 6 and 7 of the Orissa Estates Abolition Act if an application would have been made in time under Section 8-A, are sought to be conferred under the Lease Principles. In the aforesaid premises, any enquiry made by the Tahsildar beyond the parameters of the aforesaid Lease Principles is invalid. There cannot be any manner of doubt that the Tahsildar by calling upon the present petitioners to establish that they are the occupancy raiyats in respect of the disputed land acted beyond his jurisdiction under the Lease Principles. Consequently, the impugned order of the Tahsildar is vitiated and is liable to be set aside.
8. So far as the contention of Mr. Rath with regard to the order of the Settlement Officer is concerned, there is also ample force in the same. The order of the Settlement authority has a presumptive value of possession oh the date the order was passed. The said authority has found the Muzawars to be in possession and not the Dargha. So far as the Muzawars’ possession is concerned, in view of the earlier order of this Court as well as that of the Supreme Court referred to in this judgment, the question of again coming to the conclusion that Muzawars were in possession does not arise. At any rate, reference to the said order of the settlement authority for raising a presumption that Dargha was in possession is wholly inappropriate and the order of the Tahsildar on that score gets vitiated.
9. So far as the last contention of Mr. Rath is concerned, we also find force in the same. The question for consideration so far as the last contention is concerned, is, Muzawars having claimed to be in possession of the disputed land and thereby for settlement of the same, and the said claim having been negatived on a finding that they were not in possession but the present petitioners were in possession, would it be open for the very same Musawars to make out a case that it was the Dargha who was in possession through Musawars and, therefore, re-agitate the matter again? It is in this context Mr. Rath for the petitioners has contended that opposite parties cannot be permitted to approbate and reprobate. This principle that a person cannot be permitted to approbate and reprobate has been recognised as a species of estoppel in Halsbury’s Laws of England (4th Edn., Vol. 16, Paragraph 1507 at page 1012). It has been indicated therein :–
“….The principle that a person may not approbate and reprobate expresses two propositions, (1) that the person in question, having a choice between two courses of conduct, is to be treated as having made an election from which he cannot resile, and (2) that he will not be regarded, in general at any rate, as having so elected unless he has taken a benefit under or arising out of the course of conduct which he has first pursued and with which his subsequent conduct is inconsistent.”
Their Lordships of the Supreme Court reiterated the same principle in the case of Nagubai Ammal v. B. Shama Rao, AIR 1956 SC 593. This being the position of law, the Muzawars having litigated on the basis that they were in possession of the disputed land and having lost the said litigation wherein a finding has been arrived at that the present petitioners were in possession of the land as tenants, the subsequent application by the self-same Muzawars representing the Dargha is inconsistent with their earlier assertion and, therefore, the principle squarely applies and applying the said principle, the opposite parties cannot be permitted to raise a plea that Dargha was in khas possession of the land through the Muzawars on the date of vesting. This contention of Mr. Rath on this score, therefore, succeeds.
10. We will be failing in our, duty if we do not notice a contention raised on behalf of Mr. Rath appearing for the opposite parties that the petitioners having not exhausted the alternative remedy available to them under the Lease Principles, the writ application should not be entertained. It is to be noticed that the Lease Principles are a set of executive instructions and not a statutory one and under the so-called Lease Principles, namely the Government Order dated 2-3-1964 no appeal has been provided for to an aggrieved person against the order of the Tahsildar. An appeal is only provided for to the applicant if the application stands rejected. Subsequently, the Board of Revenue has issued certain instructions to supplement the aforesaid Government Order whereunder possibly an appeal could be made to the Sub-Divisional Officer by the petitioners against the impugned order. But since that appeal is neither under any statute, nor under the very Government order under which the application for lease is made and decided, it is difficult for us to accept the said remedy to be an equally efficacious alternate remedy. That apart, it has been consistently held that existence of an alternate remedy does not bar the jurisdiction of the High Court to entertain petition for issuance of a writ of certiorari in appropriate cases. It is true that alternative remedy, ordinarily inhibits a prerogative writ. But it is not an impassable hurdle and where act complained of is an imprudent disregard of an order of a Court, the fact certainly cries out that a prerogative writ should be issued. (See Capt. Dushyant Somal v. Smt. Sushma, AIR 1981 SC 1026). The limitation that the High Court will not ordinarily issue a writ in favour of a person who has an adequate, alternate remedy is a self-imposed limitation on the ground that the remedy by way of writ is an extraordinary remedy. But if on the undisputed facts and materials on record, it appears that the order impugned is without jurisdiction, then the High Court will be well within its power in entertaining a writ petition notwithstanding the availability of an alternative remedy. As has been stated earlier, the litigation has started since 1958 and after losing the first round of litigations at the instance of Muzawars, the self-same Muzawars representing the Dargha started the second round of litigations by invoking the powers of the Tahsildar under the Lease Principles in the year 1976. That application stood disposed of by the Tahsildar on 4-7-1981 against which the present writ application was filed and was admitted on 25-8-1981. The matter has been pending in this Court for about 18 years. At this length of time, it would not be a sound exercise of judicial discretion to decline to go into the merits of the claim made in the writ proceeding on the ground of availability of an alternative remedy, particularly when the so-called alternative remedy is not referable to any statute or the executive instructions on which the claim was based, but to an instruction issued by a subordinate authority indicating the procedure to be followed. In the aforesaid premises, and in view of our conclusions already recorded, we are of the considered opinion that the writ application will not fail on account of the existence of the so-called alternative remedy. Mr. Basu’s contention accordingly stands rejected.
11. In the aforesaid premises, the impugned order of the Tahsildar dated 4-7-1981 under Annexure -3 so far as it relates to the 400 Bharans (80.00 acres) of land over which the petitioners have been found to be the tenants in the earlier proceedings, stands quashed. The writ application is allowed. There will, however, be no order as to costs.
B.N. Dash, J.
12. I agree.