Decided on February 12,1973



- (1.) THE short question that arises for consideration in this case is whether the marfatdar of a deity can be said to own the marfatdary property. 3. 18 acres of land covered by Khata Nos. 108 and 109 of mouza Puruna Tiairia stand recorded in the name of the original petitioner Puja Ramakrishna Panda. The Orissa Estates abolition Act came into force on 19-2-1952. By that time, these lands were in possession of temporary lessees of the petitioner who was the intermediary. The petitioner then made an application to the Tahasildar. Tiairia under Section 7 of the Orissa Estates Abolition Act (hereinafter referred as the Act) for recording him as the tenants in respect of these lands, his contention being that the total extent of lands owned by him is only 31-41-1/2 acres. His application was opposed by the temporary lessees and after hearing the parties, the Tahasildar. Tiairia reiected this petition. He then filed an appeal before the Additional District Magistrate, cuttack who by his order dated 3-5-1969 dismissed the appeal on the ground that the lands held by the petitioner in his own right together with the lands held by him as Marfatdar in the ex-State of Hindol exceeds 33 acres and consequently the petitioner is not entitled to claim the benefit of Section 7 of the Act. Aggrieved by this order, the petitioner filed the present application under Articles 226 and 227 of the Constitution for quashing the orders passed by the Tahasildar, Tiairia and the Additional District Magistrate, Cuttack. The temporary lessees who are impleaded as opp. parties in this case have not put in appearance. During the pendency of this case, the original petitioner Puja Ramakrishna Panda died and his heirs have been substituted in his place.
(2.) SECTION 7 of the Act in so far as is relevant reads thus: "7. (1) On and from the date of vesting:- (a) x xx xx (b) lands used for agricultural or horticultural purposes and held by a temporary lessee or lessees of an intermediary who owns either as Intermediary or in any other capacity less than thirty-three acres of land in total extent situated within the state, (c) x xx xx be deemed to be settled by the State Government with such intermediary and with all the share-holders owning the estate and such intermediary with all the share holders shall be entitled to retain possession thereof and hold them as raiyats under the State government having occupancy rights in respect of such lands subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner. x xx xx"
(3.) THERE is no dispute that the original petitioner was the marfatdar in respect of certain lands belonging to a deity and that if these lands are taken into account in determining the total extent of lands situated within the State and owned by the petitioner, it would exceed thirty-three acres. It is also not disputed that if the marfatdary property is left out of account, the total extent of lands owned by the petitioner would be less than thirty-three acres. The question for determination therefore is whether a person who is the marfatdar of a deity can be said to own the properties belonging to the deity.;

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