Orissa High Court
Braja Mohan Das .Dead. His ... vs Addl. District Magistrate Ganjam And ... on 18 January, 2017
Author: D.Dash
Bench: D.Dash
HIGH COURT OF ORISSA: CUTTACK.
OJC. N0. 7297 of 1994
and
W.P. (C) No. 77 of 2015
In the matter of applications under Article 226 and 227 of the
Constitution.
(A) OJC No. 7297 of 1994
Braja Mohan Das (dead)
his L.Rs.-Padmini Das & others ...... Petitioners
- Versus-
Addl. District Magistrate, Ganjam
and others ...... Opp. parties
For Petitioners : M/s. B.B.Ratho, J.Rath,
R.P.Mohapatra, B.Senapati,
S.N.Mohapatra, S.Ghosh,
S.K.Jethy, B.N.Mishra,
N.Rath, D.Chatterjee,
S.Satapathy, P.Panda,
advocates
For Opp. parties : M/s.B.K.Panda (1),S.Pattnaik,
P.Mohanty, A.K.Rath,
D.Mpohapatra, advocates.
(B) W.P.(C) No. 77 of 2015
Braja Mohan Das (dead)
his L.Rs.-Padmini Das & others ...... Petitioners
- Versus-
Addl. District Magistrate, Ganjam
and others ...... Opp. parties
2
For Petitioners : M/s. Patitapaban Panda,
S.Satpathy, D.Chattarjee,
advocates.
For Opp. parties : Mr. B.Senapati,
Addl. Govt. Advocate.
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PRESENT:
THE HONOURABLE SHRI JUSTICE D.DASH
Date of hearing- 08.11.2016 : Date of judgment- 18.01.2017
In both the writ applications, petitioners question the
common order passed by the Additional District Magistrate, Ganjam-
Chhatrapur in OLR Revision Case No. 21 of 1984 and 22 of 1984.
2. Facts necessary for the purpose are stated hereunder:-
Rama Chandra Bisoi son of Amana, Jogi Bisoi son of Braja
and Haribandhu Bisoi son of Kantaru made an application under
section 36-A of the O.L.R.Act to declare the land covered under Survey
Nos. 72, 73 and 50/2 measuring Ac.3.15, Ac.0.80 and Ac.1.71
respectively as non-resumable; they being the tenants in relation to
those lands and continued as such since the time of their fore-fathers
under the landlords Shyamsundar Diwan Patra and Brajamohan Das.
This application was filed on 03.07.1976.
On 16.08.1976 Jogi and Haribandhu filed an application to
delete the name of Ramachandra since he had already filed a separate
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application under section 36-A of the Act to declare the Survey Nos. 73
and 50/2 measuring Ac.0.80 and Ac.2.71 respectively as non-
resumable. So, finally two cases i.e. O.L.R.Case No. 336 of 1976 with
the petitioner Jogi Bisoi and Haribandhu Bisoi stood registered with
another OLR case i.e. O.L.R. Case No. 366 of 1976 pertaining to
Ramachandra as the petitioner.
3. The landlords filed their objections denying the tenancy. It
has been specifically stated by them that the land in question were the
Inam lands. So those too vested with the State Government with effect
from 30.09.1965 by virtue of the State notification in accordance with
the provision of O.E.A. Act. Pursuant to the said vesting when general
notice inviting objection was published; they having raised necessary
objection, finally those lands have been settled in their names by order
of the O.E.A. Collector dated 18.11.1971 in C.P. Case No. 693 of 1970.
It is further stated that during then, none claiming to be tenant in
respect of those land preferred any objection. So the rent roll was
prepared and accordingly same were issued in favour of the original
petitioner and father of opposite party no.4.
4. The Revenue Officer-cum-Tahasildar (opposite party no.3)
after conducting the local enquiry and consulting the local committee
as required under the provision of OLR Act and in the absence of any
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documentary evidence declared the case land under Survey No. 72
Ac.3.15 claimed by Jogi and Haribandhu and the land covered under
Survey No. 73 measuring Ac.0.80 decimals as non-resumable.
Accordingly, he determined the fair and equitable rent. The claim with
respect to the land under Survey No. 50/2 measuring Ac.2.71 was of
course rejected since the land was found as covered by the tope in
possession of the landlord. This order was challenged by the petitioner
in OLR Appeal Case No. 193 of 1983. Similarly, OLR Appeal Case No.
207 of 1983 was also filed by Jogi and the legal representatives of
Ramachandra in so far as the above rejection of their claim in respect
of the land under Survey No. 50/2 is concerned. The Appellate
Authority allowed the appeals. So, revisions were filed by the tenants.
The Revisional Authority set aside the order of the Appellate Authority
and restored the order of the Revenue officer. Therefore, OJC No. 2637
of 1984 and OJC No. 2755 of 1984 came to be filed before this Court.
5. Those two writ applications were disposed of by a common
order dated 17.07.1990. This Court upon hearing passed the following
order:-
"xxx xxx xxx.
2. Both landlord and tenant-applicants assail
the order of revisional authority alleging that material
facts have not been taken into consideration. After
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hearing learned counsel for both the parties, we are
satisfied that the revisional authority has not given
due weight to all facts either rejecting the claim of the
tenants or accepting the same. In such
circumstances, we are inclined to hold that interest of
justice would be best served, in case order is set aside
and revisional authority is directed to hear the
revisions afresh after giving opportunity to both the
parties of being heard in the matter. Additional
materials, if any, shall be permitted to be produced by
both parties and shall be entertained by the revisional
authority, if permission is sought for to that effect.
3. Accordingly, common order dated 17.10.84
in O.L.R.R.C. No. 21 of 1984 and O.L.R.R.C. No. 22 of
1984 before Additional District Magistrate (L.R.)
Ganjam, Chhatrapur is quashed. He is directed to
hear the two revisions afresh.
4. In the result, both the writ applications are
allowed. No costs.
Requisites for issue of writ to Additional
District Magistrate (L.R.) Ganjam Chhatrapur only
shall be filed by each party by tomorrow and they
shall appear before the revisional authority on
20.08.90on which day the revisional authority shall fix a date of hearing. Send back LCR at once".
6. I have heard the learned counsel for the parties at length and have gone through the averments made in the writ applications as 6 well as the orders in question and earlier order passed by the revisional authority under the OLR Act as also OEA Act.
7. The following points are found to be arising in the matter as culled out from the rival submission.
(i). As to whether the Revisional Authority's view that the O.E.A.Collector-cum-Tahasildar's order in C.P. Case No. 693 of 1966 has absolutely no impact in the matter in hand for the reasons as stated at para 5 of the order is sustainable or not?;
(ii). As to whether the Revenue Officer then was competent to decide the dispute relating to relationship of landlord and tenant and whether the settlement under the OEA Act has created a new title in favour of the petitioner having the effect of putting an end to the prior relationship of landlord and tenants, if any?; and
(iii). As to whether the joint application is entertainable with reference to Form No.19 and whether by doing that the entire proceedings beginning from the Original Authority up to the Revisional Authority if stand vitiated.
8. Coming to point no.1, it is seen that Revisional Authority has categorically found that C.P. Case No. 693 of 1966 which was registered on the basis of the objection filed by the petitioner pursuant to the notice inviting objection under section 6 and 7 of the OEA Act is 7 in relation to the property of mouza Digapahandi under Survey No. 171 and 398/2. This factual aspect stands undisputed. So the settlement of the land as claimed by the petitioner in C.P. Case No. 693 of 1966 has nothing to do in the matter of proceeding under section 36-A of the OLR Act.
Even accepting for a moment that there had been the order of the settlement in respect of the land in question, let us address the question as to if the tenancy right thereby stood extinguished by virtue of order of the settlement passed by the O.E.A. Collector. It may be stated here that the tenants are now claiming their rights under section 36-A of the OLR Act and they want to exercise the same. This provision came to be introduced by way of amendment in the year 1976. On amendment of the OLR Act, 1973 by bringing the provision as contained under section 36-A of the Act, which came to be introduced, the right has been conferred upon the tenant as stated in the said provision. This provision deals with the relationship with landlord and the tenant in so far as the land in question is concerned. So, the settlement of the land under OEA Act operates in different field and does not stand to extinguish the relationship of the landlord and the tenant even if the land is settled in favour of the landlord. The landlord suppressing the factum of tenancy and projecting his case of 8 possession without specifically stating the same to be through tenant when becomes successful in getting the land settled in their names, the right conferred under section 36-A of the Act upon the tenant does not stand abrogated thereby. This settlement proceeding as per the provision of the OEA Act and the purpose of proceeding under section 36-A of the OLR Act operate completely in two different fields when the former is to protect the tenant under the State, the latter protects the tenant continuing as such under the landlord.
Be that as it may, it has been established that in the OEA proceeding that there was non-compliance of mandatory provision relating to issuance of proclamation in respect of the property situated at mouza Chanchedapalli and in the absence of such notice or proclamation any finding given in the said OEA case and the final order of settlement is also not binding upon the tenants.
Furthermore these tenants in the fact and circumstances of the case, even if, would have applied for settlement of the land under the provision of OEA Act by filing the objection pursuant to the notice, they would not have been able to so succeed in view of the admitted position that the landlord having less than Ac.33.00 acres of land, they would have been protected as per the provision under section 7(1)(b) of the OEA Act.
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The aforesaid discussion and reasons therefore provide answer to the first point which run against the writ petitioners and the answer to the second point being dependant upon it, the same also stands accordingly answered.
9. Next coming to point no.3 as regards maintainability of a joint application standing as the foundation of the proceeding, which according to the contention of the learned counsel for the petitioner does not have the sanction of law, it may simply be stated that this ground has not been agitated in the writ application and is only placed during the hearing. Basically looking at the purpose and going through rule 27-A of OLR Rules as also viewing the Form No.19 appended to the rule although it appears that there is no express prohibition for a joint application being filed by more than one tenant, yet the form refer to a single tenant. The very purpose is for proper enquiry by the Officer concerned since the facts and circumstances of case as laid by one tenant may not be the same as in case of another tenant, be it be against the same landlord. However, in the present case, the enquiry has been made looking to the claim of each of the tenant and therefore no such illegality is found therein to conclude that by such entertainment of joint application, prejudice is writ large in so far as the landlord is concerned so as to pursuade this Court to say that the 10 proceedings are vitiated. Accordingly, this point stands answered against the petitioners.
10. In view of aforesaid, both the writ applications stand dismissed. In the peculiar fact and circumstances of the case, there is no order as to cost.
......................
D.Dash, J.
Orissa High Court, Cuttack, Dated the 18th day of January, 2017/Routray