Orissa High Court
Bhabagrahi Panda vs Trilochan Kar And Ors. on 16 September, 1987
Equivalent citations: AIR1988ORI1, AIR 1988 ORISSA 1, (1987) 64 CUTLT 686, (1988) 1 LANDLR 467, (1987) 2 ORISSA LR 451
Author: R.C. Patnaik
Bench: R.C. Patnaik
JUDGMENT H.L. Agrawal, C.J.
1. The moot question that arises for consideration in this writ application referred to be Full Bench is as to whether an order passed under Section 9(1) read with Section 9(1-A) of the Orissa Land Reforms Act, 1960 (for short 'the Act') falls within the ambit of Section 12(2) of the Act and, therefore, appealable under Section 58 thereof.
2. Opposite parties 1 and 2 had filed an application under Section 9 before the Revenue Off icer, Bhadrak, for declaration of their raiyati rights in respect of a piece of homestead land measuring 3 decimals in plot No. 82/100 and 11 decimals in plot No. 81/99 under Khata No. 8/123 of village Narajpur. The basis of the claim laid by the opposite parties was that their father had been inducted as a tenant by the owner in respect of the land in question with a house standing thereon and that after the death of their father they also were inducted as tenants. They further claimed that they were in continuous possession of the said land and the house is being used by them for their residential purpose all through.
3. The case of the petitioner, on the other hand, was that he had intermediary interest in the land in question. The same, therefore, stood automatically settled in his favour under the provisions of the Orissa Estates Abolition Act after the vesting and it was the petitioner who had inducted the opposite parties into the house in question as they were involved in some litigation with respect to their ancestral house situated in the same village, thus ousting the applicability of the provisions of Section 9 of the Act.
4. The Revenue Officer by his order dated 23-6-1972 (Annexure-1) decided the proceeding in favour of the opposite parties and the petitioner filed an appeal before the Sub-divisional Officer, Bhadrak, who dismissed the same in limine by his order dated 11-6-1976 (Annexure-2) on the ground that it was not maintainable.
5. The petitioner then took the matter in revision before the Revenue Divisional Commissioner, Central Division, Cuttack, who by his order dated 17-9-1977 (annexure-3) confirmed the order of dismissal of the appeal and remanded the matter to the Revenue Officer only for the purpose of granting a certificate in accordance with Section 9(1-A) of the Act. The petitioner has thereupon filed the present writ application challenging the orders of the appellate (sic) and the ground that the order passed under Section 9(1) was appealable.
6. When the case was listed before a Division Bench, Mr. Kar, the learned counsel for the petitioner, placed reliance upon the order dated 21-2-1977 passed by a Division Bench of this Court in O.J.C. No. 1830 of 1975 where some observation was made regarding the maintainability of an appeal against an order passed under Section 9(1) of the Act at the admission stage in these words : --
"Heard the learned counsel for both sides.
In the instant case there was a dispute between the landlord and the raiyat. The impugned order falls within the ambit of subsection (2) of Section 12 of the Orissa Land Reforms Act, 1960. This order is appealable under Section 58 of the said Act. This writ petition accordingly abates. Certified copies filed by the petitioner be returned to him as prayed for."
Since the Division Bench which heard the present writ application entertained some doubt regarding the correctness of the above observation, it has referred the matter to a larger Bench and that is how the matter has come before us.
Mr. Kar, appearing in support of the writ application took the same stand that the order under Section9(1) of the Act was appealable and that the Sub-divisional Officer has committed an apparent error of law.
7. In order to appreciate his submission, let me examine the relevant provisions of the Act.
"Section 9. Dwelling house of raiyats and tenants.-
(1) Every person who is a raiyat or a tenant in respect of any land but has no permanent and heritable rights in respect of any site on which his dwelling house or farm house stands, shall with effect from the commencement of this Act be deemed to be a raiyat in respect of the whole of such site or a portion thereof not exceeding one-fifth of an acre whichever is less if he or his predecessor-in-interest has-
(a) obtained permission, express of implied, from the person having permanent and heritable rights in the site and having right to accord permission for the construction of such house; and
(b) built such house at his own expense. (Explanation -- (i) ..... omitted)
(ii) to (iv) xxxxx (1-A). The Revenue Officer, on an application made in this behalf by the person referred to in Sub-section (1), in the proscribed form and manner within the prescribed period, may, after such inquiry as may be necessary, issue a certificate in the prescribed form to such person to the effect that he has become a raiyat in respect of the whole, or, as the case may be, a portion of the site as aforesaid and if such person is evicted from the site at any time after the commencement of the Orissa Land Reforms (Amendment) Act, 1973 (President's Act 17 of 1973) the Revenue Officer shall by order, direct that possession of the site be delivered to the said person and may take such further steps as he may consider necessary to give effect to the order so passed."
Sub-section (4) of Section 9 runs thus : --
"(4). In case of a dispute about the amount of rent so payable or about the apportionment of compensation, the Revenue Officer shall on an application by any person interested filed in the manner and within the time prescribed to hold such enquiry as may be necessary and decide such dispute."
In order to support his submission, Mr. Kar referred to Section 12 which reads as follows : --
"12. Decision of disputes among landlords and raiyats -
(1) any dispute between a raiyat and his landlord relating to -
(i) the landlord's right to evict the raiyat under Section 8; or
(ii) the rights conferred under Sections 4, 9 and 10; or
(iii) the raiyat's right to possession of the land and his rights to the benefits under this Act, xxxx xxxx xxxx"
The provision for appeal is contained in Section 58 under which "any person aggrieved by an order passed under the following sections may prefer an appeal to the prescribed authority, namely, Sections 4, 9(4), 10, 12(2), 15, 16, 17, 18, 19(1)(c), 20, 21, 22(i), 22-A(5), 23(2), 23-A, 27, 28, 34-A, 35, 36 A, 36-C, 42, 45-B(1), 52, 56-A, 56-B and 57-(B)(4)".
As provided in rule 13 of the Orissa Land Reforms Rules, the application under Section 9(1-A) is to be made in form No. XVII, as prescribed. Time for making the application, which was prescribed by amended Rule 13( 1) in 1973, was extended from time to time and by the Orissa Land Reforms (General) (Amendment) Rules, 1985, an application under Section 9(1-A) can be filed within three years from the date of commencement of the 1985 Rules.
8. From the above provisions, it is manifest that Section 58 ex facie does not provide any right of appeal against an order passed under Section 9(1) as such and, therefore, Mr. Kar had strenuously submitted that the order passed under Section 9(1-A) must be deemed to be a decision rendered under Section 12(2) of the Act which was expressly appealable under Section 58.
9. Having given my anxious consideration to the submission made by Mr. Kar and examined the scheme of Sections 9 and 12, I find myself unable to accept hissubmission.
10. I have already referred to rule 13 and Form No. XVII. The manner of filing an application under Section 12(1) is laid down in Rule 15 read with Rule 10. A bare perusal of the heading to Sections 9 and 12 indicates the'different spheres to which the provisions would apply. Whereas the scheme of Section 9 is to provide only living accommodation to the raiyats and tenants having no permanent heritable rights in respect of any site, Section 12 postulates disputes only among landlords and raiyats which may be of various nature also including those under Clause (ii) of Subsection (1), i.e., "the rights conferred under Section 9", which was the sheet anchor of Mr. Kar's argument. But, in my opinion, in the context of the heading to Section 12, the dispute contemplated under this section between a landlord and a raiyat need not necessarily be a dispute regarding con-ferment of heritable right on a raiyat with respect to a dwelling house. If it is held that a dispute between a raiyat and a landlord with respect to a matter falling under Section 9(1) would be analogous to a dispute contem-plated under Section 12(1)(ii) then it will give rise to an apparent inconsistency, namely, that no such dispute with respect to a landlord and tenant would fall within this provision. Thus, a dispute between a landlord and a raiyat will be, appealable and a dispute between a landlord and a tenant though have been put on equal footing under the scheme of Section 9 in respect of the claim to a dwelling house will not be appealable. It is, therefore, not possible to accept the main thrust of the submission of Mr. Kar that there is correlationship between Sections 9 and 12 as this view is bound to create anomalies as indicated above.
The scope of dispute mentioned under Section 12 in the circumstances is referable to a dispute arising subsequent to the "adjudication of the relationship between a raiyat and his landlord" and it does not overlap the dispute mentioned in Section 9(1) as the expression 'person' and not 'raiyat' has been deliberately used therein by the legislature. A scrutiny of the scheme of Section 12 shows that it is designed to cover the disputes which may arise subsequent to the rights conferred upon the raiyats under the various preceding sections, such as, Sections 4, 9 and 10 of the Act. It would, therefore, be not proper to read them together as submitted by Mr. Kar in the sense that Section 12 was a supplemental provision of Section 9. Perhaps, the Legislature did not contemplate to make orders under Section 9(1) appealable deliberately as the nature of the right claimed here is so small and plain that it intended to allow the decision of the Revenue Officer to set at rest at this stage only. Coming to the earlier order of a Bench of this Court, in O.J.C. No. 1830 of 1975, I do not find much discussion therein. The order, therefore, cannot be said to be an adjudication of the question.
11. The point in controversy before us, therefore, was neither "raised nor decided" in that case and it appears that the legal position as to whether an order under Section 9 of the Act was appellable under Section 58 of the Act was accepted as foregone conclusion. The same, therefore, apart from being not of the nature of "a binding authority", the observations do not help Mr. Kar. It, therefore, follows that the order passed under Section 9(1) of the Act is not appealable.
12. The writ application, therefore, has got no merit and it must fail. It is accordingly dismissed, but I shall not burden the petitioner with costs of the application.
R.C. Patnaik, J.
13. I agree.
P.C. Misra, J.
14. I agree.