Orissa High Court
Biswanath Padhi vs Tahasildar And Ors. on 12 August, 1986
Equivalent citations: 1986(II)OLR413
Author: D.P. Mohapatra
Bench: D.P. Mohapatra
JUDGMENT H.L. Agrawal, C.J.
1. This application arises out of a proceeding initiated under the Orissa Land Reforms Act, 1960.
2 Undisputedly, the petitioner is a Bhag tenant under Rajkishore Thumba, opposite party No. 4, within the meaning of Section 2(31) of the Orissa Land Reforms Act (for short 'the Act'). Opposite party No. 4 had instituted the proceeding against the petitioner before the Tahasildar own-Revenue Officer, Athagarh, (opposite party No 1) tor recovery of the arrears of rent from 1966-67 to 1968-69. The defence of the petitioner was that he had already paid the rent upto 1968 and the money order sent for the subsequent years had been refused by opposite party No. 4. However, in the proceeding the parties arrived at a compromise, and from the order dated 9-5-1972 it appears that the petitioner agreed to pay the arrear dues at the rate of six parties per acre and further agreed to clear up the dues in two instalments within a month from the date of the order, the first instalment was to be paid within fifteen days.
3. Opposite party No. 4 then made a complaint before opposite party No. 1 that the petitioner had defaulted in complying with the terms of the compromise mentioned above. On the basis of the complaint, a long drawn proceeding was started and by order dated 5-9-1972, opposite party No. 1 made the order of eviction of the petitioner absolute Under Section 15(2) of the Act. This order has also been confirmed by the Sub- Divisional Officer, Athagarh, (opposite party No. 2) on appeal and there- after by the Additional District Magistrate, Cuttack, (opposite party No. 3) in revision vide Annexures-2 and 3 respectively. Thereafter the petitioner filed the present application.
4. This Court while issuing notice of motion on 17-11-1980 directed maintenance of status quo as obtaining on that day and the case of the petitioner is that he is still continuing in possession of the disputed lands.
5. The orders of the Revenue Authorities have been impugned in this writ application on various grounds, but in our opinion, it is unnecessary to examine all of them save and except that in the meantime the lands in question have vested in the State under the provisions of Section 3-A(1) of the Orissa Estates Abolition Act, 1951 The facts brought on record by the petitioner have not been controverted by the opposite parties. Obviously, therefore, after the vesting, the interest of opposite party No. 4 and the intervenors disappeared and that the deity, i. e., the principal tenant, has now become the raiyat under the State. By this subsequent event and development, the impugned order of eviction has ceased to be executable as the right and interest in the lands of opposite party No 4 have disappeared by operation of law, (See AIR 1975 S. C. 2295 : Vidya Sagar v. Smt. Sudesh Kumari).
Although counter affidavits have been filed on behalf of opposite party No. 4 and others, nobody appeared before us when the case was being heard. However, from the order dated 25-10-1976 it appears that in complete ignorance of this legal position, the lands in question were purported to have been delivered to opposite party No. 4 on the spot by the Revenue Inspector, Nidhipur, by beat of drums and hoisting of red flags.
6. It is submitted before us by the learned counsel for the petitioner that the order dated 25-10-1976 on the facts mentioned above is wholly without jurisdiction, and, in any view of the matter, the purported delivery of possession was only a paper transaction and symbolic and that the petitioner continues to remain in possession so much so that in a subsequent proceeding Under Section 145, Cr. P. C, his possession was found by the criminal Court.
7. Be that as it may, since nobody appeared on behalf of the private opposite parties, we do not record any concluded opinion on this question of fact, but confine our observation to the effect that opposite party No. 4 having lost his right on account of abolition of his intermediary rights much before 25-10-1976, the action of the Revenue Authorities was in violation of law and no right can be claimed by the party under such an illegal act. The only right that may subsist in favour of opposite party No. 4 in the circumstances is to recover the arrears of rent in terms of the compromise order mentioned above or till the date of the Vesting and nothing more.
8. The petitioner has asserted that he has been paying rent to the deity and is in uninterupted possession of the lands in dispute. Accordingly, for the reasons discussed above and in view of the purported eviction of the petitioner, the order for eviction passed by opposite party No. 1 on 9-5-1972 (vide Annexure-1) confirmed in appeal and revision vide Annexures-2 and 3 respectively by the appellate and revisional authorities must be held to have become inoperative. Similarly, the order dated 25-10-1976 must be deemed to be non est in the eye of law. In that view of the matter, the order dated 9-5-1972 contained in Annexure-1 and those in Annexures-2 and 3 are hereby quashed in so far as they relate to the recovery of possession of the lands in question from the petitioner.
Since the main contesting opposite parties have not appeared, we make no order as to costs.
D.P. Mohapatra, J.
I agree.