1. This is an application under Articles 226 and 227 of the Constitution against the appellate order of the Additional District Collector of Ganjam in a case under the Orissa Tenants Protection Act.
2. The material facts are as follows: The opposite party claiming to be Bhag-chasis applied on 11-5-50 to the Second Officer of Berhampur for protection from eviction under Section 3, O. T. P. Act, alleging that they were cultivating some lands as Bhag-chasis on 1-9-1947 and that their immediate landlord, namely V.V. Raju, the predecessor-in-interest of the petitioners, was in possession of more than thirty-three acres of raiyati lands on 30-11-1947. They further admitted that they were forcibly dispossessed from the lands by the petitioners with the help of rowdies on 15-5-49 and that in a proceeding under section 145, Cr. P. C., in the Court of the Subdivisions Magistrate, Berhampur, the latter declared the petitioners to be in possession by his order dated 30-12-49. They, however, contended that notwithstanding the decision against them in the proceeding under Section 145, Cr. P. C. they were entitled to be restored to possession inasmuch as they were Bhag-chasis who were in possession of the disputed lands on the 1st day of September, 1947, and consequently the provisions of Sub-section (6) of Section 7 with Section 3 of the O. T. P. Act applied in their case.
3. The learned Second officer in a summary order rejected their petition observing that in view of the order under Section 145, Cr. P. C., their remedy was by way of a suit in a Civil Court. On appeal, however, the Additional Collector set aside the order of the Second Officer and directed him to rehear the case observing that the decision in a Section 145, Cr. P. C., proceeding cannot oust the jurisdiction of the O.T.P. Act officer to make enquiries under Sub-section (6) of Section 7 of the O. T. P. Act.
4. I have no doubt that the learned Additional District Collector has taken the correct view.; There is a fundamental difference between an enquiry under the provisions of the O. T. P. Act on the one hand and an enquiry under Section 145. Cr. P. C. on the other.
The latter is a summary enquiry in which the sole point for consideration is as to which party f was in actual possession of the disputed lands on the date of the commencement of the proceeding or within two months preceding that date. But Sub-section (6) of Section 145, Cr. P. C. says that the order of the Magistrate declaring one of the parties to be in possession is only an interim order in the sense that his possession should not be disturbed until he is evicted therefrom 'in due course of law'.
The learned Second Officer of Berhampur apparently construed the words 'in due course of law' as meaning in pursuance of ail order or decree of a Civil Court. There is, however, no authority for such a narrow view. An order of eviction by a Revenue Court is also 'in due course of law' and for the purpose of Sub-section (6) of Section 145, Cr. P. C., it makes no difference as to whether the Revenue Court or the Civil Court directs the eviction of the party who was declared to be in possession a summary proceeding under that section.
5. The O. T. P. Act was a special piece of legislation intended primarily to protect from eviction those Bhag-chasis who were in actual possession of their lands on the 1st day of September, 1947, and a special machinery through Revenue Courts was provided in Section 7 of that Act for the restoration to possession of those Bhag-chasis who were evicted against the provisions of that Act by their landlords after that date. Therefore in an application before the Revenue Officer for relief under Sub-section (6) of Section 7 of the O. T. P. Act all that he has to consider is (i) whether the applicant was in possession as a Bhag-chasi on the 1st day of September, 1947 and (ii) whether the applicant is a 'tenant' as defined in Clause (g) of Section 2 bearing in mind the three exceptions' (specially exception (iii) ) of that clause.
The fact that after the 1st day of September, 1947, the petitioners were dispossessed from the land and such dispossession was maintained by the Criminal Court in a summary proceeding under Section 145, Cr. P. C., would not disentitle the Bhag-chasi from being restored to possession and an order of the Revenue Court under Sub-section (6) of Section 7 directing the landlord to allow the Bhag-chasi to enter on the land forthwith and to cultivate the same would, in substance, be an order evicting the landlord in due course of law as required by Sub-section (6) of Section 145, Cr. P. C.
6. I would, therefore, affirm the order of remand of the lower appellate court and dismiss this petition with a direction to the trial court to expedite hearing of the application bearing in mind the observations given above.
7. The question about the validity of the provisions of the O. T. P. Act has been decided by this Court in O. J. C. No. 38 of 1951.
8. The petition is dismissed with costs. Hearing fee is assessed at one gold mohur.
Jagannadha Das, C.J.
9. I agree.