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Kalicharan Paikaray and anr. Vs. Benga Bewa and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberOriginal Jurn. Case Nos. 467 and 493 of 1978 and 122 of 1980
Judge
Reported inAIR1985Ori58; 1985(I)OLR62
ActsOrissa Land Reforms Act, 1960 - Sections 36A and 59(2); Orissa Land Reforms Rules, 1965 - Rules 4(4), 27B and 27C
AppellantKalicharan Paikaray and anr.
RespondentBenga Bewa and ors.
Appellant AdvocateK.C.J. Ray, ;G.C. Mohapatra and ;P. Kar, Advs. (in OJCS Nos. 467 and 494 of 1978) and ;J. Rath, ;Geneswar Rath and ;R.S. Mohapatra, Advs. in OJC No. 122 of 1980
Respondent AdvocateG. Rath and ;J. Rath, Advs. and ;Standing Counsel in OJCs Nos. 467 and 494 of 1978 and ;K.C.J. Ray and ;P.C. Kar, Advs. and ;Addl. Standing Counsel (in O.J.C. No. 122 of 1980)
Excerpt:
.....8. under section 59(2), the collectors of the districts and the land reforms commissioner have been vested with jurisdiction when they are satisfied that there has been miscarriage of justice or an order/decision is illegal, to make a reference to the board of revenue. the prescribed authority may be satisfied suo motu having himself coming across proceeding decision or by being apprised of it by an aggrieved party or other person. , in the like manner as in a suit instituted under order 1, rule 8 or alternatively by proclamation and beat of drum and also by posting it in the presence of not less than two persons to some conspicuous place in the village in which the land is located but simultaneously there must be a proclamation by beat of drum......the landlord a proclamation inviting objections was also issued by order dated april 19, 1977, the revenue officer called for a report from the revenue inspector and directed consultation with the local committee. by may 17, 1977 neither report from the revenue inspector nor from the local committee had been received. so, the case was directed to be called on may 20, 1977. on that day, the following order was passed :'both parties are present this is a case under section 36-a, o.l.r act, filed by jayadeb biswal s/o. indramani of biswal sahi against kali charan paikra s/o. late udayanath routray. the o.p. admits the petitioner as tenant due proclamation has been issued and no objection has been received local committee has been consulted verified the r.o.r and other documents and found.....
Judgment:

R.C. Patnaik, J.

1. Jayadeb Biswal (petitioner in O.J.C. No. 493 of 1978) filed an application on. 15-1-77 before the Revenue Officer, Nimapara, under Section 36-A, Orissa Land Reforms Act (for short, 'the Act') for a declaration that the land, 1.10 acres in extent, appertaining to plot No. 1665 under Khata No. 308 and plots Nos. 1638 and 1640 under Khata No. 386 in Mouza Biswalsahi in the district of Puri which was under his cultivation as a tenant was non-resumable and for determination of fair and equitable rent and the compensation payable by him. The application was registered as O.LR. Case No. 2704 of 1976. Notice was issued to Kalicharan Paikray (petitioner in O.J.C. No. 467 of 1978) arrayed as the landlord A proclamation inviting objections was also issued By order dated April 19, 1977, the Revenue Officer called for a report from the Revenue Inspector and directed consultation with the local committee. By May 17, 1977 neither report from the Revenue Inspector nor from the Local Committee had been received. So, the case was directed to be called on May 20, 1977. On that day, the following order was passed :

'Both parties are present This is a case under Section 36-A, O.L.R Act, filed by Jayadeb Biswal s/o. Indramani of Biswal Sahi against Kali Charan Paikra s/o. late Udayanath Routray. The O.P. admits the petitioner as tenant Due proclamation has been issued and no objection has been received Local Committee has been consulted Verified the R.O.R and other documents and found that O.P. has got right, title over the suit land.

In the circumstances the suit land as scheduled below is declared to be non-resumable subject to payment of compensation of Rs. 708/- to be paid in five equal instalments with interest of 4% per annum of the unpaid balance. The first instalment falling due on 20-5-77. The land declared as 'B' class land

Schedule

Village: Biswal Sahi

Khata - 386

Plot 1638 - A0.59 Khata 308

1640 - A0. 17 Plot 1665 - area A0. 42Area -- total area A1. 18 decimals

F& E386 Khata;

plot 1638 - A0. 59 F& E Rs. 2.201640 - A0. 17 rent Rs. 0.90308 Khataplot 1665 - A0. 42Pronounced in the open Court today, the 20-5-77. Sd/-20-5-77'

2. On July 23, 1977, Benga Bewa (petitioner in O. J.C. No. 122 of 1980) filed an application for recall of the order dated May 20, 1977, aforesaid and for rehearing of the case on merits. She alleged that she had purchased the property by sale deed dated February, 9, 1954 and was in possession and enjoyment since then. The proceeding was collusive in nature and a decision had been obtained on distorted facts by suppressing the true facts and notice.

3. Notice was issued to the parties on the application Though Jaydeb and Kalicharan entered appearance through counsel, Jaydeb alone filed objection controverting the allegations made by Benga. The Revenue Officer held that there was no due proclamation and by the time the decision was taken on May 20, 1977, there was no valid report of the local committee before the Court Having so held, he observed that the matter was a fit one for reference to the Board of Revenue for exercise of its revisional jurisdiction, through proper channel This decision of the Revenue Officer dated February 14, 1978 is under challenge in O. J. C Nos. 467 and 493 of 1978 filed by Kalicharan and Jaydeb respectively. Benga has also moved this Court in O.J.C. No. 122 of 1980 for the nullification of the order dated May 20, 1977.

4. As common questions are involved, the three cases have been heard analogously and are being disposed of by a common judgment

5. Mr. K. C. Jagadeb Ray, the learned counsel for the petitioners Kalicharan and Jayadeb, urged that the Revenue Officer exceeded his jurisdiction by recalling the order dated May 20, 1977 and making a reference to the Board of Revenue for exercise of its revisional jurisdiction under Section 59(2) of the Act He submitted that the provisions were scrupulously followed while disposing of the application filed by Jayadeb and no infraction of the provisions of the Act and/or the Rules was committed It was not open to Benga who did not choose to file objection in the proceeding to make an application for recall of the order passed under Section 36-A. Her motion did not come within the scope of clerical mistake or error contemplated by Section 60(1) of the Act Mr. Ganeswar Rath, the learned counsel for Benga, contended that the disposal of the proceeding in violation of the mandatory provisions relating to proclamation and notice and consultation with the local committee was void and it was open to the Revenue Officer to recall his decision which was a nullity and to rehear the matter. He submitted that the technical objection raised by Mr. Jagadeb Ray was of no avail as the proceeding under Section 36-A itself was before this Court in O.J.C No. 122 of 1980.

6. The threshold argument of Mr. Jagadeb Ray is a technical one. He contended that the Revenue Officer not being the prescribed authority under Section 59(2) had no jurisdiction to make a reference to Board of Revenue. Consequently his order dated February 14, 1978 was bad. Mr. Rath, on the other hand, submitted that as the phraseology of the order would indicate, it was not a reference straightway but a prelude to action under Section 59(2).

7. To appreciate the rival contentions, it is worthwhile to quote the relevant portion of the order.

'..........I would conclude that this case is fit one for reference to Board of Revenue through proper channel for consideration on the question of revising the orders of my predecessor dated 20-5-77.'

It is clear that the Revenue Officer did not make the reference but was of the view that steps would be taken through proper channel for a reference.

8. Under Section 59(2), the Collectors of the districts and the Land Reforms Commissioner have been vested with jurisdiction when they are satisfied that there has been miscarriage of justice or an order/decision is illegal, to make a reference to the Board of Revenue. The prescribed authority may be satisfied suo motu having himself coming across proceeding decision or by being apprised of it by an aggrieved party or other person. The authority has exclusive jurisdiction to decide if a reference to the Board of Revenue is warranted We, therefore, see nothing wrong in the observation of the Revenue Officer that it was a fit case where steps should be taken through proper channel for a reference. It is open to anybody including a Revenue Officer to lay the papers before the Collector of the district or the Land Reforms Commissioner for his consideration.

9. The next question is if the proceeding culminating in order dated May 20, 1977 was in such breach of the fundamental provisions relating to procedure that the proceeding was invalid in the eye of law so that Benga Bawa who had prima facie some interest in the property could seek nullification.

A determination under Section 36(1) has far reaching consequences. As the section itself says upon a determination under Section 36-A the provisions of Sections 29 to 33 both inclusive), 35A and 36 shall apply mutatis mutandis unless it is matter coming under the proviso to the section. The tenant is entitled to a certificate and acquires raiyati right in respect of the land under Section 30. Under Section 31(2) the erstwhile tenant holds the land free from all encumbrances and the rights of all persons not being Government or land-holder, mediately or immediately under whom the land was being held shall stand extinguished and the encumbrances, if any, created by such persons in respect of the land shall thereafter attach to the other lands of the landlord The certificate is conclusive proof of the correctness of the contents thereof in respect of all the disputes between the tenants and the persons whose rights stand extinguished under Section 31(2). Because of the far reaching consequences that ensue from a determination under Section 36 A, safeguards have been built into the rules regulating proceedings under Section 36A. The relevant rules are Rules 27A, 27B and 27C and are as follows : --

'27A. The application under Section 36A shall be made in Form No. 19 and in the manner laid down in Rule 24.

27B(1). Before declaring the non-resumable land of the tenant under Section 36A, the Revenue Officer shall give a notice to the parties and hear them

(2) A general notice shall also be served on the villagers of the village or villages in which the land is situated inviting objections within a period of fifteen days from the date of issue of the notice to the settlement; asked for by the tenant.

(3) The notice shall be served in the manner provided in Rule 4.

27C (1) For the purpose of consulting local committee under Section 36A, the Revenue Officer shall inform the members of the Committee of the date, time and place of its meeting by a notice specifying the matters for such consultation and the said notice shall be served seven clear days before the meeting. A copy of the notice signifying due service on the persons concerned shall be retained by the Revenue Officer and shall form part of the case record

(2) The Revenue Officer shall consult the Committee in the meeting on the appointed day.

(3) The proceedings of the meeting of the Committee shall form part of the proceedings under Section 36A.

(4) If consultation with the committee on the appointed day is not possible due to absence of the members or due to their disinclination or inability to express their opinion, the fact shall be recorded by the Revenue Officer and it shall thereupon constitute sufficient compliance with the requirement of consultation with the Committee.'

10. 'Not only must notice be issued to the parties as arrayed and impleaded in the application, but a general notice is mandatorily required by Rule 27B(2) to be served on the villagers of the village or villages in which the land is situate inviting objections within a period of 15 days from the date of notice to the settlement asked for by the tenant The general notice is by way of a safeguard against collusive or mala fide applications. The notice is required to be served in the manner provided in Rule 4. Rule 4 reads as follows: --

'4. (1) All notices required under the Act or these Rules shall be in writing

(2) Where a notice is required to be served or issued under the Act or under these Rules on or by the Govt as the landlord, it shall be served on or issued by the Tahasildar.

(3) Where no other mode of service of notice is prescribed by the Act or by these rules, service shall be effected in the manner prescribed for the service of summons on a defendant under the Code of Civil Procedure, 1908, if the notice is addressed to only one person.

(4) If the notice is addressed to a number of persons or to persons in general, it shall be served in the manner prescribed for the service of summons on a defendant under the Code of Civil Procedure, 1908, or by proclamation and beat of drum and by posting it, in the presence of not less than two persons to some conspicuous place in the village.

(5) In the case of an uninhabited village the service of any general notice shall be effected in the nearest inhabited village.'

11. We are concerned here with Sub-rule (4) of Rule 4, namely, where notice is addressed to a number of persons or to persons in general it shall be served in the manner prescribed for the service of summons on a defendant under Civil P. C or by proclamation and beat of drum and by posting it in the presence of not less than two persons, to some conspicuous place in the village. The general notice shall be served either following the procedure in the C.P.C e.g., in the like manner as in a suit instituted under Order 1, Rule 8 or alternatively by proclamation and beat of drum and also by posting it in the presence of not less than two persons to some conspicuous place in the village in which the land is located but simultaneously there must be a proclamation by beat of drum. The manner in which the provision relating to general notice has been framed in Sub-rule (4) of Rule 4 leaves no manner of doubt that institution of a proceeding under Section 36A should receive vide publicity. The provision exhibits the rule makers; concera The institution must be proclaimed in the village and in presence of at least two villagers. The proclamation must be accompanied by beat of drum Unless this mandatory provision has beer followed, the proceeding suffers from an incurable infection However, there must needs be a proviso, namely, the defect is of no avail to a person who has otherwise knowledge of the proceeding,

12. The petitioner, Benga has alleged thus in para 13 of the writ application :

'In the present case no general notice was published nor any order by the Revenue Officer to that extent f effect?) was passed to publish the general notice as per rule.......'

Opposite parties 1 and 2 in reply to the aforesaid assertion stated that the rules were duly complied with and the general notice was duly published Opposite party No. 3, the Revenue Authority, however, averred:

'........It was seen from the records of the O.L.R. Case No. 2704/76 that no administrative order was passed by the Revenue Officer for publication of the general notice under Rule 27B(2) though the Revenue Officer has signed the general notice on 4-4-77. Thereafter, however, it appears from the record that the process server reported on 19-4-77 to the effect that the said general notice was hung in a conspicuous place of the concerned Mouza. The then Revenue Officer in his order sheet dt. 19-4-77, however, recorded that the general notice has been issued earlier though no order was passed earlier for issuance of such notice in his order sheet In fact it was seen from the report of the process server that there is no mention of any beat of drum during such publication of general notice.......'

(underlining supplied)

An examination of the record of the proceeding bolsters the assertion of the petitioner and the statement of the Revenue authority extracted above. Petitioner Benga was not impleaded in the proceeding So no notice was sent to her personally. She could be deemed to have notice of the proceeding if the provisions relating to general notice had been complied with in all essential particulars. Having regard to the object behind Section 36-A and the consequence that would follow, we hold Rule 27-B(2) to be mandatory. Infraction thereof in any essential particulars may render the proceeding invalid at the instance of persons who are not parties thereto, if they did not have notice of the proceeding otherwise.

13. This itself should have been the end of our exercise but the parties argued at length on another question namely, the necessity and the procedure of consultation with the local committee in a proceeding under Section 36 A. As we have seen, Section 36-A(1) itself requires the Revenue Officer to consult the local committee, if any, before giving his decision If there is in existence a local committee in relation to the area, it is the bounden duty of the Revenue Officer to consult it. Rule 27-C, extracted above, prescribes in detail the mode of consultation. Analysed, the rule breakes into the following elements: (a) the consultation with the committee shall be in a meeting, (b) the members shall be intimated about the date, time and place of the meeting by a notice, (c) notice must specify the matters as regards which consultation is necessary and (d) the notice shall be served on the members seven clear days before the meeting

The rule also requires that a copy of the notice shall be retained and form part of the record, obviously to obviate any challenge to propriety of consultation in future. Sub-rule (2) provides that the committee shall be consulted by the Revenue Officer in the meeting on the appointed day and if consultation is not possible due to absence of the members or due to their disinclination or inability to express their opinion, the Revenue Officer would record the facts and thereupon it shall be sufficient compliance of the requirement of consultation of the committee as provided in Sub-rule (4). The two most essential features of the provisions are that the members must be apprised a week before the meeting of the members for consultation and that the consultation must be in a meeting of the member with the Revenue Officer. No other mode of consultation is permissible.

13A. Coming to the facts of the case, it is apparent that the Revenue Officer observed the provision by total breach. On April 19, 1977, he gave the following direction:

'Consult the local committee. To submit report by 17-5-77'.

Till May 18, 1977 report from the local committee was not received. In the final order the Revenue Officer observed that the local committee was consulted. It is undisputed that there was no consultation by the Revenue Officer with the members of the local committee in a meeting The rule specifically provides that the consultation shall be in a meeting. No other alternative mode is contemplated The object is that in presence of the Revenue Officer who is the presiding officer of the Court, the members of the local committee would give their opinion fairly and would less likely be affected by the local pulls and pressures. The alleged written report of the committee cannot be a substitute for the consultation with the members of the focal committee in a meeting. The proceeding therefore, is vitiated by the infraction of the mandatory requirement of Rule 27-C.

The illegalities are so gross and the infection is so deep that it is unnecessary that the matter should pass through Section 59 (2) of the Act, namely, reference and revision. The matter is before us on the motion of Benga for the quashing of the decision rendered in the proceeding under Section 36-A.

14. For the holdings aforesaid, we quash the order dated May 20, 1977 in O.L.R. Case No. 2704 of 1976 and remit the matter to the Revenue Officer with a direction to proceed afresh from the stage of issuance of notice and dispose of the proceeding according to law.

15. In the result, O. J. C No. 122 of 1980 is allowed and O. J. C. Nos. 467 and 493 of 1978 are dismissed. Consolidated hearing fee is assessed at Rs. 200/- payable by Jayadeb to Benga before the Revenue Officer proceeds to hear the matter afresh.

D. P. Mohapatra, J.

16. I agree.


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