B.N. Misra, J.
1. The petitioner is a widow and she owns 3.25 acres of paddy lands in village Diniari. Being unable to personally cultivate her lands on account of physical disability she had allowed opposite party No. 1 to cultivate her lands and to pay her 21 (pautis) of paddy and 15 pautis of mung as sanja per year. In default of payment of rent by opposite party No. 1, the petitioner filed an application under Section 15(1)(c) of the Orissa Land Reforms Act 1960 (hereafter referred to as the 'Act') praying for eviction of opposite party No. 1 on the ground of non-payment of rent for the years 1973, 1974 and 1975. The petitioner's application was considered by opposite party No. 2 in O. L. R. Case No. 26 of 1975. Upon hearing both sides opposite party No. 2 by his order dt. 31-1-1977 found that the petitioner had established her case and accordingly directed eviction of opposite party No. 1 with effect from 1-4-1977. The appeal filed by opposite party No. 1 was dismissed by opposite party No. 3 vide order dt. 5-10-1977 in O. L. R. Appeal No. 310 of 1977, Annexure-2. Opposite . party No. 1 next moved opposite party No. 4in revision and the learned Commissioner by his order dt. 27-3-1978 in O. L. R. Revision Case No. 338 of 1977 Annexure-3, remanded the case to opposite party No, 2 to first record a finding as to whether the rent agreed to be paid by opposite party No. 1 to the petitioner is in excess of the maximum fixed under the Act. It is this order of the learned Commissioner which is under challenge in this writ application.
2. On perusal of the impugned order as per Annexure-3 we agree with the learned counsel for the petitioner that the observation of the learned Commissioner in the last paragraph of his order that the petition under Section 36-A of the Act filed by opposite party No. 1 against the petitioner had not been disposed of, is not correct as the 36-A application of opposite party No. 1 had been disposed of on 8-9-1976, vide Annexure-4. The aforesaid observation of the learned Commissioner is incorrect and hence be ignored.
3. The provisions contained in Sub-section (1) of Section 13 of the Act contemplate that the landlord has a right to recover from his tenant not more than one-fourth of the gross produce of the land or the value thereof or the value of one-fourth of the estimated produce, as rent, so however, that such rent shall in no event exceed the fair rent in respect of such land. In the present case in allowing the petitioner's application for eviction of opposite party No. 1, opposite parties 2 and 3 appear to have assumed that the rent of 21 pautis of paddy and 15 pautis of mung per annum payable by opposite party No. 1 to the petitioner was duly recoverable under the provisions of the Act. This approach is not correct because eviction of a tenant under the provisions of the Act on account of non-payment of rent can be secured only if it is found that the tenant had failed to pay the rent recoverable from him, in other words the rent that is due under the law.
4. In these circumstances the learned Commissioner was right in remanding the case to opposite party No. 2 for consideration of the question whether the rent agreed to be paid by opposite party No. 1 to the petitioner was in excess of the maximum prescribed under the Act. In our considered view the impugned order of the learned Commissioner does not call for interference by this Court.
5. In the result this writ application is rejected.
P.C. Misra, J.
6. I agree.