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Parsuram Dobei and ors. Vs. Bichhanda Charan Jena and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 556 of 1982
Judge
Reported inAIR1986Ori93
ActsOrissa Land Reforms Act, 1960 - Sections 15(1), 36A and 36A(3)
AppellantParsuram Dobei and ors.
RespondentBichhanda Charan Jena and anr.
Appellant AdvocateP. Kar and ;D.K. Sahoo, Adv.
Respondent AdvocateA.K. Jena, Adv. and ;Addl. Standing Counsel
DispositionApplication dismissed
Excerpt:
.....act for determination of his possession as well as the benefits accrued to him as a tenant under the landlords parsuram dwibedi, present petitioner no. there may be ancillary determination in the proceeding under section 15(1)(b) as well as under section 36-a. the proceeding under section 36-a is clearly a distinct one and it effectuates or terminates in its own field,.similarly, the proceeding under section 15(1)(b) is a distinct proceeding. 1. we are clearly of the opinion that in the facts and circumstances of the case it cannot be said that the order passed in the proceeding under section 36-a would inhibit determination of the proceeding under section 15(1)(b) of the act. 6. the sole contention raised by the learned counsel for the petitioners having failed, we have ourselves..........under the landlords parsuram dwibedi, present petitioner no. 1, and late basudeb dwibedi. the learned revenue officer rejected the application of the opposite party no. 1. thereupon, the opposite party no. 1 preferred an appeal before the sub-divisional officer, bhadrak challenging the order passed by the revenue officer rejecting his application under section 15(1)(b) of the act. during the pendency of the appeal, the opposite party no. 1 also filed an application under section 36-a of the act for a declaration that the land was non-resumable and also for a declaration that he was a royat under the state. that application was registered as o. l. r. case no. 12 of 1976, the learned revenue officer rejected theapplication under section 36-a on the ground that there was a finding by.....
Judgment:

Pathak, C.J.

1. By this writ application the petitioner assails the judgment passed by the Additional District Magistrate (LR), Balasore, in O. L. R. Revision No. 23 of 1981 by which the order dated 19-7-1981 passed by the Sub-divisional Officer, Bhadrak in O. L. R. Appeal No. 59 of 1979 has been set aside.

2. The proceeding in this case is under the Orissa Land Reforms Act, 1960 (hereinafter called the 'Act') which is a piece of beneficial legislation to ensure the rights and privileges of tenants in relation to the landlord.

3. A brief narration of the facts leading to the present writ petition is that the opposite party No. 1 filed an application Under Section 15(1)(b) of the Act for determination of his possession as well as the benefits accrued to him as a tenant under the landlords Parsuram Dwibedi, present petitioner No. 1, and late Basudeb Dwibedi. The learned Revenue Officer rejected the application of the opposite party No. 1. Thereupon, the opposite party No. 1 preferred an appeal before the Sub-divisional Officer, Bhadrak challenging the order passed by the Revenue Officer rejecting his application Under Section 15(1)(b) of the Act. During the pendency of the appeal, the opposite party No. 1 also filed an application Under Section 36-A of the Act for a declaration that the land was non-resumable and also for a declaration that he was a royat under the State. That application was registered as O. L. R. Case No. 12 of 1976, The learned Revenue Officer rejected theapplication Under Section 36-A on the ground that there was a finding by the Revenue Officer in O. L. R. Case No. 1/73-74 in the application under Section 15(1)(b) that the opposite party No. 1 is not a tenant. Against that order, the opposite party No. 1 did not prefer any appeal or revision. O. L. R. Appeal No. 59 of 1975 arising out of the application Under Section 15(1)(b) filed by the opposite party No. 1 was dismissed on the ground that since the application Under Section 36-A filed by the opposite party No. 1 had been rejected and that decision had not been challenged in appeal or revision, it operated as res judicata. Opposite party No. 1 took the matter in revision before the Additional District Magistrate (LR), opposite party No. 2, in 0. L. R. Revision No. 23 of 1981. The revisional authority allowed the revision and that is how the present writ application has been filed by the landlords.

4. The main contention raised by Mr. Kar, the learned counsel for the petitioners, is that as the order passed in the application Under Section 36A still stands against the opposite party No. 1, that order has to be taken as res judicata and that the revisional authority therefore should not have allowed the application of the opposite party No. 1.

5. We may now notice the provisions under Section 15(1)(b) and those Under Section 36-A of the Act.

Section 15(1)(b) reads as follows : --

'15.(1) Any claim for recovery of arrears of rent by a landlord and any dispute between a landlord and his raiyat or tenant, as the case may be, as regards-

(a) xxxxx

(b) tenant's possession of the land and his rights to the benefits under this Act; or

(c) to (e) xxxxx

The relevant portion of Section 36-A reads asfollows :--

'36-A. (1) Notwithstanding anything contained in the foregoing provisions of this Chapter, but subject to the provisions of Sub-section (2) of Section 24, the Revenue Officer may, on an application made in that behalf by the tenant within two years from the commencement of the Orissa Land Reforms (Amendment) Act, 1973 and after giving the parties interested an opportunity of being heard and after consulting the local committee, if any, declare the whole of the land in cultivation of the tenant to be non-resumable and determine the fair and equitable rent and the compensation payable by the tenant in respect of the land in accordance with the provisions of Section 28 and on such determination, the provisions of Sections 29 to 33 (both inclusive), 35-A and 36 shall, so far as may be, apply:

XXXXX

(3) For the removal of doubts, it is hereby declared that the Revenue Officer, while proceeding under this section, shall have power to decide any dispute as regards the existence of the relationship of landlord and tenant or as to the identity of the tenant.'

On a bare reading of the above provisions, it becomes crystal clear that these two provisions are in two different fields. The application Under Section 15(1)(b) is for determination of possession of the land by the tenant and his rights to the benefits under the Act. Section 36-A to put in a nutshell, is for a declaration that the land in the possession of the tenant is non-resumable and for a further declaration of his status as a royat. Sub-section (3) of Section 36-A provides that the Revenue Officer, while proceeding Under Section 36-A, shall have power to decide any dispute as regards the existence of the relationship of landlord and tenant or as to the identity of the tenant. The application Under Section 36-A was dismissed before entering into the question of relationship of landlord and tenant. These two provisions are quite distinct. There may be ancillary determination in the proceeding Under Section 15(1)(b) as well as Under Section 36-A. The proceeding Under Section 36-A is clearly a distinct one and it effectuates or terminates in its own field,. Similarly, the proceeding Under Section 15(1)(b) is a distinct proceeding. Therefore, in the circumstances of the case, any decision under Section 36-A which is for conferment of a higher right on the tenant cannot be said to be res judicata in the proceeding Under Section 15(1)(b) of the Act. We may point out here that the determination in the application Under Section 36-A filed by the opposite party No. 1 was not a decision at all. It was merely a casual and perfunctory exercise of jurisdiction by the Revenue Officer because he dismissed the application Under Section 36-A solely on the ground that in the proceeding under Section 15(1)(b) it was found that there was no relationship of landlord and tenant between the parties. The Revenue Officer did not go independently to discussany material or evidence in the proceeding, and more so, when the proceeding Under Section 15(1)(b) was pending in appeal filed by the opposite party No. 1. We are clearly of the opinion that in the facts and circumstances of the case it cannot be said that the order passed in the proceeding under Section 36-A would inhibit determination of the proceeding Under Section 15(1)(b) of the Act. We do not think that there is any substance in the contention of the learned counsel for the petitioners that the order passed in the application Under Section 36-A of the Act filed by the opposite party No. 1 would operate as constructive res judicata.

6. The sole contention raised by the learned counsel for the petitioners having failed, we have ourselves gone through the order passed by the learned Additional District Magistrate; opposite party No. 2, in O. L. R. Revision No. 23 of 1981. He has given a categorical finding in paragraphs 8 and 9 that the opposite party No. 1 produced sufficient material before the Revenue Officer in order to show that he was a Bhag tenant. The learned Revisional authority relied upon the oral evidence adduced on behalf of the opposite party No. 1 before the Revenue Officer in support of his application Under Section 15(1)(b) of the Act. The learned revisional authority has discussed particularly the evidence of the boundary tenants, namely, Kahnu Sanu and Shanti Das, who were examined by the opposite party No. 1. Two other witnesses, namely, Hadibandhu Jena and Lambodar Das, were also examined on behalf of the opposite party No. 1. The testimony of these witnesses for the opposite party No. 1 has been duly considered by the revisional authority and he has come to the conculsion that the opposite party No. 1 is a Bhag tenant. We do not find any infirmity in the order passed by him.

7. The learned counsel for the petitioners submits that the revisional authority did not properly consider the evidence on record and that we should ourselves scrutinise them. We do not think that we will be justified in writ jurisdiction to reappreciate the evidence adduced before the Revenue Officer unless any serious prejudice has been caused to the petitioners which has been brought to our notice.

8. In the result, we do not find any meritin this writ application and it is accordingly dismissed. We make no order for costs.

S.C. Mohapatra, J.

9. I agree.


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