Orissa High Court
Sakuntala Sahoo And Ors. vs State Of Orissa And Ors. on 17 August, 2005
Equivalent citations: 2005(II)OLR449
Author: A.S. Naidu
Bench: A.S. Naidu
JUDGMENT A.S. Naidu, J.
1. This Writ Petition has been filed with a prayer to issue a writ of certiorari to quash the order dated 16.6.1999 passed by the Revenue Officer, Chandbali, in O.L.R. Case Nos. 12/98 and 13/98, in exercise of the powers conferred upon him under Section 9{1) of the Orissa Land Reforms Act. Opposite parties 4 and 5 filed an application under Section 9 of the Orissa Land Reforms Act (for short 'OLR Act') for declaration that they were tenants in respect of Ac.0.27 decs of land each appertaining to Plot No.299, Khata No. 134 (Chaka) of Mouza Balabhadrapur out of a total area of Ac. 0.53 decs. The Revenue Officer called upon the R.I., Motto to conduct a spot enquiry and submit his report. He also directed to issue general proclamation inviting objections. The petitioners being the owners of the aforesaid land filed their objection, inter alia, taking the stand that opposite parties 4 and 5 were neither tenants under them nor did they construct and/or reside in any dwelling house on the disputed lands. In order to establish their case, opposite parties 4 and 5 adduced evidence. Relying upon the said evidence and the report of the R.I., Motto and also after spot enquiry, the Revenue Officer by the impugned order arrived at a conclusion that opposite parties 4 and 5 satisfied all the ingredients of Section 9(1) of the Act and the said section being a beneficial one should be considered liberally. On the basis of such conclusions, the claim of opposite parties 4 and 5 was allowed and lands measuring Ac.0.20 decs in favour of opposite parties 4 and 5 each from out of Ac.0.53 decs were directed to be settled by the impugned order.
2. According to Mr. S.Mishra-2, learned counsel appearing for the petitioners-land owners, none of the ingredients of Section 9 of the OLR Act were fulfilled by opposite parties 4 and 5. It is submitted that the Revenue Officer committed an apparent error by taking into consideration the report submitted by the R.I., Motto, who was not examined as a witness in the proceeding. It is further submitted that the Revenue Officer acted illegally and with material irregularity in settling the lands with opposite parties 4 and 5, alleged tenants, on the ground that the Act has been enacted for the benefit of tenants. Mr. Mishra, further submitted that neither there was any pleading nor any material were produced before the Revenue Officer to arrive at a conclusion that all the basic ingredients of Section 9(1) of the OLR Act had been fulfilled. In short, according to Mr. Mishra, the order suffers from the vice of non-consideration of materials available on record and consideration of the materials which had no evidentiary value and it is a fit case where the impugned order settling Ac.0.20 decs of land each in favour of opposite parties 4 and 5 should be quashed.
3. Mr. Rath, learned counsel appearing for the opposite parties 4 and 5, at the other hand, forcefully submitted that the said opposite parties were tenants under the father of the petitioners from generations. They have constructed two dwelling houses over the disputed lands and they are staying therein. They are also continuing as tenants under the petitioners in respect of the said portions of lands. Mr. Rath, relying upon the spot inquiry report submitted by the R.I., Motto and the inquiry conducted by the Revenue Officer, submitted that the said inquiry was conducted in presence of the petitioners and it was found during spot visit that opposite parties 4 and 5 are occupying the dwelling houses constructed over the disputed lands. He further relied upon the evidence of the witnesses examined by him and submitted that the report was corroborated by the statement of witnesses made before the Court. It is submitted that the petitioner landlord is estopped from challenging the evidentiary value of the report submitted by R.I., Motto as he failed to file any objection before the authority.
He has relied upon two decisions being in the case of Haripriya Dibya and Ors. v. Pranabandhu Karan and Ors. and in the case of Ram Krushna Panda v. S.D.O., Dharamgarh reported in 1977 Vol. XLIV CLT 217. According to him the Revenue Officer has taken into consideration all the facts and circumstances and arrived at the conclusion on the basis of the materials available on record and this Court should not interfere with the impugned order.
4. I have heard learned counsel for the parties at length and perused the relevant materials available. For the sake of brevity, it would be prudent to quote Section 9(1} of the OLR Act which reads as follows:
"9(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 or 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."
The provisions quoted above reveal that to invoke jurisdiction under Section 9(1) of the OLR Act, a tenant or a raiyat has to satisfy the following basic ingredients; (1) the applicant must be a raiyat or tenant in respect of any land other than the lands over which the dwelling houses have been constructed, (2) he must not be having any permanent and heritable right in respect of any site on which his dwelling house or farm house stands, (3) he or his predecessor in interest should have obtained permission, either express or implied, from the persons having permanent and heritable right in the site, (4) granter of such permission should not only have permanent and heritable right in the site but should have right to accord permission for the construction of the house and (5) in pursuance of such permission the grantee as well as the raiyat or tenant should have built the house at his own cost.
In order to succeed, an applicant must plead and prove all the aforesaid five requirements which are sine qua non for grant of relief under Section 9 of the OLR Act (See Mir Nibiruddin v. Mir Salimuddin and Ors. reported in 1984 (I) OLR 1045).
5. Section 9 of the OLR Act no doubt contains beneficial provision. It confers a right on the raiyat or the tenant, who has no permanent and heritable right in respect of any site on which his dwelling house or farm house stands, but then the dwelling house or farm house must have to be constructed at his own cost, and after obtaining due permission from the owner.
6. In the touch-stone of the aforesaid principles, let us now proceed to examine the materials available on record. Annexures-1 and 2 are the applications filed by opposite parties 4 and 5 respectively. The said applications are on printed forms. Co 1.2 of the form reads as follows:
"Whether the applicant is a raiyat or a tenant of any land, if so, detailed particulars of the said land."
Against the said column opposite parties 4 and 5 have only described themselves as tenants. They have not given any particulars of the lands in respect of which they claim to be tenants, as mandatorily required by the Act. That apart no evidence, either oral or documentary, has been adduced to establish that opposite parties 4 and 5 were either raiyats or tenants in respect of any land other than the site on which the dwelling house stands. As has been held by this Court in the case of Sri Santinidhi Lenka and Anr. v. Sri Jagannath Mahaprabhu through Biswanath Rajguru, Executive Officer, Jagannath Balav Endowment Trust Board reported in 1970 (1) C.W.R. 308 if an applicant failed to establish that he was a tenant or raiyat in respect of some other lands in the same mouza his petition is liable to be rejected. It has been also held by this Court in the case of Sanei Pradhan v. State of Orissa represented through the Collector, Cuttack reported in 1971 (2) C.W.R. 41 that onus is upon the person who claims permanent and heritable occupancy right on the holding of the landlord to prove such fact. The said aspect is not only required to be proved by adducing evidence but has to be also specifically pleaded. The oral evidence adduced by the claimants also does not establish this aspect, inasmuch as it appears that opposite parties 4 and 5 have their own dwelling house in a plot which was subsequently purchased by them. There is also no evidence to reveal that the farm house which is the subject matter of the proceeding under Section 9 of the OLR Act is fit for residential purpose. There is also no evidence to reveal that the house was constructed at the cost of opposite parties 4 and 5 and that too after obtaining permission from the real owner.
7. The petitioners have clearly denied the claims advanced by the opposite parties 4 and 5. According to them, opposite parties 4 and 5 have not constructed any house nor are they staying therein. That apart the Revenue Officer acted illegally in relying upon the report of the R.I., Motto, who was not examined in the proceeding nor had disclosed the source of his knowledge. The report prepared by the Revenue Officer after field inquiry also does not disclose that opposite parties 4 and 5 were tenants in respect of any other lands situated in the village. The plea that opposite parties 4 and 5 were cultivating rest of the lands out of the disputed plot also cannot be accepted, as the total area of the plot is only Ac.0.53 decs, whereas each of the opposite parties 4 and 5 claimed Ac.0.27 decimals as homestead, and thus there was no land available.
The facts in the decisions relied upon by Mr. Rath, being quite different the said decisions have no application to the present case.
9. After hearing learned counsel for the parties and in view of the discussions made above, this Court feels that the basic ingredients, which are mandatorily necessary for entertaining an application under Section 9 of the OLR Act, were lacking and were neither pleaded nor established. This Court has therefore no hesitation to quash the impugned order. In the result the Writ Petition is allowed and the order dated 16.6.1999, vide Annexure-4 is quashed.