1. This is an application under Articles 226 and 227 of the Constitution against the appellate judgment of the Additional District Collector of Cuttaek remanding a petition under the Orissa Tenants Protection Act for further hearing by the Orissa Tenants Protection Act Officer under the following circumstances.
2. Petitioner Hadibandhu Biswal claimed to be a Bhag-chasi in respect of 3.55 decimals of land under the opposite party and filed an application before the O. T. P. Act Officer, Cuttaek, seeking his protection against his apprehension that he may be evicted from a portion of his bhag lands. He further alleged that he had been forcibly dispossessed from fourteen gunths of the bhag land. Opposite party No. 1 Harekrushna Patra who was the only contesting party entered appearance before the O. T. P. Act Officer and urged that the petitioner was never in possession of the land and that as the opposite party was the owner of less than thirty three acres of raiyati land the petitioner was in any case liable to eviction and was not entitled to the benefits of Section 3 of the O. T. P. Act, in view of the special definition of the expression 'tenant' given in Clause (g) of Section 2 of that Act. The trial Court held that the peiitioner was in possession of the disputed land on 1-9-47. But it thought that the total extent of the land in the possession of opposite party No. 1 and his transferee opposite party No. 4 was less than thirty three acres and that consequently the application under the O. T. P. Act would not lie. It therefore dismissed his petition.
3. On appeal, the learned Additional Collector concurred with the finding of the trial Court as regards the petitioner's possession of the disputed land on 1-9-1947 and the fact that the opposite parties were in possession of less than thirty-three acres. He therefore held that tbe petitioner was not entitled to any protection from eviction under Section 3 of the O. T, P. Act. But he further observed that the petitioner was entitled to the benefits of Section 7 of the O. T. P. Act and therefore remanded the case to the lower Court for retrial and disposal according to law.
4. The remand order of the lower appellate Court is not clear. There are two substantive benefits conferred by the O. T. P. Act (i) immunity from eviction conferred by Section 3 to all Bhag-chasis except those who come within exception (iii) to Clause (g) of Section 2; and (ii) re-duction in the rate of produce rent payable by the Bhag-chasis to their landlords (S. 6). The other provisions of the Act are merely procedural, ancillary and consequential. Thus Section 7 of the O. T. P. Act does not confer any substantive right on the Bhag-chasis apart from the mere procedural right of getting all their disputes with their landlords specified in Sub-section (1) thereof speedily heard by a Revenue, Officer. The question as to whether the peti-tioner was immune from eviction would therefore depend not on the terms of Section 7 but on the terms of Section 3 read with the definition of the expression 'tenant' as given in Cl. (g) cf : Section 2. That is to say, if the Court is satisfied (i) that the petitioner was in possession of the disputed land on the 1st day of September, 1947 and (ii) that his immediate landlord, if a raiyat, was in possession of more than thirty-three acres of raiyati land on 30-11-1947, it is bound to give protection to the petitioner from eviction. If, on the other hand, the Court is satisfied on the evidence that even though the petitioner was in possession of the disputed land on the 1st day of September, 1947, his immediate landlord in respect of that land was himself a raiyat whose total extent of raiyati land on 30-11-1947 (whether in the-same village or in different villages) did rot exceed thirty-three acres the petitioner would not be entitled to claim such an immunity from eviction.
5. It was urged that the opposite parties were also proprietors of several villagers holding large areas of Nijchas and Nijjote lands. It was also urged that the total extent of their raiyati lands also exceeded thirty-three acres. From the judgments of both the Courts it does not appear that the evidence led by the parties was carefully scrutinised bearing in mind the essential principles mentioned above. Apparently the parties also did not lead adequate evidence. While, therefore, maintaining the remand order of the lower appellate Court I would clarify the same as follows : 'The finding that the petitioner was in possession of the disputed land on 1-9-19-17 should be taken as concluded and neither party should be allowed to reagitate the same. The main question for decision by the trial Court alter remand would be -
(i) whether the immediate landlord of the petitioner in respect of the disputed land is a raiyat or not; and
(ii) if he is a raiyat, what is the total extent of raiyati land in his possession (whether in the same village or in different villages taken together)?'
6. If the trial Court' finds that the immediate landlord of the petitioner in respect of the disputed land was a tenure-holder or a proprietor, it should give him protection from eviction. If, however, it finds that the immediate landlord was a raiyat and it further comes to a finding that the total extent of the land in the possession of that raiyat on 30-11-1947 exceeded thirty-three acres, it should also give protection from eviction to the petitioner. If, however, it finds that the total extent of land in the possession of that raiyat did not exceed thirty-three acres on that date the petitioner's claim for immunity from eviction or interference with possession under the provision of the O. T. P. Act would necessarily fail.
7. As the matter has been much delayed the trial Court should take effective steps for speedy hearing. Costs will abide the result.
8. The validity of the O. T. P. Act on the ground that its provisions were inconsistent with the fundamental rights was also urged in support of this petition. This point has been fully discussed in O. J. C. No. 38 of 1951 where I have held that the provisions of the O. T. P. Act are valid.
9. This judgment disposes of O. J. C. No. 181 of 1950 also.
10. I agree.