Dismissed

Rabinarayan Binod v. Land Reforms Commnr.

Orissa HC5 Oct 2016WP(C)/4625/2006

Case brief

AI extract

What is this about?

The Orissa High Court dismissed a writ petition challenging a remand order and subsequent revenue proceedings in an O.L.R. case. The Court held that while the appellate remand was valid due to natural justice violations, the revenue authority failed to hear opposite parties on evidence. A decision was remanded.

What did the court decide?

Writ petition dismissed; parties directed to appear before Revenue Authority to afford opportunity of hearing before taking final decision within four months.

Rabinarayan Binod Vs Land Reforms Commnr. — Landlord and Tenant | Orissa HC (2016)

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ORISSA HIGH COURT: CUTTACK

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W.P.(C).No.4625 of 2006

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In the matter of an application under Articles 226 and 227 of the Constitution of India.

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---------Rabinarayan Binod & another … … … Petitioners -versus- The Lane Reforms Commissioner, Orissa and others … … … Opp. Parties For Petitioner : M/s. U.K.Samal, R.N.Sutar, S.D.Sahoo, S.P.Patra & S.Naik. For Opp.Parties : Mr.N.C.Panigrahi, Sr.Advocate. M/s.S.K.Nayak-2, H.K.Mohapatra & S.P.Dhal. M/s.P.Panda, T.K.Panigrahi (O.p.6 to 8) Sri K.K.Mishra, Addl.Govt.Advocate. (O.P.Nos.1 to 5) Date of Hearing: 26.09.2016 Date of Judgment: 05.10.2016

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P R E S E N T:

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THE HONOURABLE MR. JUSTICE BISWANATH RATH

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Biswanath Rath,J. This matter involved prayer for upholding the certificate of nonresumable granted to the petitioner on 9.11.1983 under Annexure-4/1, quashing the order of Sub-Divisional Officer dated 10.12.1985 passed in O.L.R. Appeal No. 24 of 1983 under Annexure-5, quashing the order dated 28.6.1990 passed by the Additional District Magistrate under Annexure-6, quashing the further proceeding on the file of Tahasildar on remand and also for quashing the proceeding and notice issued by the Tahasildar dated 23.7.2001 under Annexure-7.

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2. Short back ground involved in the case is that petitioners father filed an application under Section 36 (A) of the O.L.R. Act before the Tahasildar-cum-Revenue Officer, Rajgangpur registered as O.L.R. Case No.23 of 1975 in respect of Sabik Khata No.55, area Ac.19.28 decimals

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corresponding to Hal Khata No.55 of Mouza-Rajgangpur to declare the whole land under cultivation of the tenant to be non-resumable on the premises that the father of the petitioners was inducted as a Bhagchasi (tenant) since the year 1962 and subsequently a registered lease deed involving the disputed property was also executed by the landlord in favour of the petitioners father on 11.4.1972. The Revenue Officer, Rajgangpur disposed of the O.L.R. Case No.23 of 1975 by his final order dated 30.4.1976 observing that cultivation of the land by the father of the petitioners over the disputed land is established. The Revenue Officer also held that Kanhei Lal Sharma and Gouri Sankar Sharma have no further right to hold the disputed land and they being already evicted from the land in question, no compensation is accrued to them. Being aggrieved by the final order in O.L.R. Case No.23 of 1975 (Annexure-1), Kanhei Lal Sharma and Gouri Sankar Sharma, the opposite party no.6 and the father of opposite party nos.7 and 8 preferred O.L.R. Appeal No.25 of 1976. This appeal was allowed by order dated 27.3.1979 setting aside the order passed by the Tahasildar. A revision was preferred by the father of the petitioners challenging the order passed in O.L.R. Appeal No.25 of 1976 and it was registered as O.L.R. Revision No.23 of 1979 on the file of Revenue Divisional Commissioner, Sambalpur. Upon vesting of revisional power with the Collector, the matter was transferred to the Collector, who by his final order on 18.7.1981 set aside the order passed in the appeal and remanded the matter back to the Revenue Officer, Rajgangpur to decide on the specific points framed therein. On remand, the original proceeding was decided by order dated 11.10.1983 after affording opportunity to both the sides. In disposing the original proceeding on remand, the Revenue Officer by invoking his power under Section 29 of the O.L.R. Act read with Sub-Rule (1) of Rule 26 issued non-resumable certificate in favour of the petitioners, the order of the original authority in Annexure-4 and the non-resumable certificate is at Annexure-4/1. The Revenue Officer also calculated compensation to be Rs.2,700/-. Challenging the order passed by the Revenue Officer after the order of remand, Kanhei Lal Sharma and Gouri Sankar Sharma preferred appeal to

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the S.D.O.(Sadar), Sundargarh and the appeal was registered as O.L.R. Appeal Case No.24 of 1983. Appellate Authority by order dated 12.3.1985 while allowing the appeal at the instance of the opposite party no.6 and father of opposite party nos.7 and 8, set aside the order of the Revenue Officer for having no sufficient discussion on certain issues and remanded the matter to the Revenue Officer for consideration of the O.L.R. Case pointing out specific two issues. Being aggrieved by the remand order passed by the Sub-Divisional Officer, appearing at Annexure-5, one of the landlords, Kanhei Lal Sharma, the father of the present opposite party nos.7 and 8 filed Revision No.2/25 of 1986. The Additional District Magistrate dismissing the revision, confirmed the order of remand, appearing at Annexure-5, by his order dated 28.6.1990 vide Annexure-6 after a gap of eleven years of the dismissal of the revision. The Tahasildar issued notice to the tenant, present petitioners, all appeared and contested the case on 22.8.2001 . On 11.7.2001 the Revenue Officer issued notice in the O.L.R. Misc. Case No.23 of 1975 directing the petitioners to produce document/records in their file making their presence before the Tahasildar, Rajgangpur at 10.30 A.M. on 22.8.2001, as appearing from Annexure-7. It is on receiving this letter, the petitioners claim that they preferred an application under Section 59 (2) of the O.L.R. Act to examine the propriety of the order of remand and the jurisdiction of the appellate authority after the Revenue Authority exercising power under Section 29 of the O.L.R. Act. This matter was registered as O.L.R. Revision No.6 of 2001 and was ultimately dismissed by the final order of the Board of Revenue, Land Reform Commissioner holding that the application under Section 59 (2) of the O.L.R. Act was not maintainable. The pleadings further reveal that while the matter stood thus, the opposite party no.6 and the father of opposite party nos.7 and 8 instituted a Title Suit before the Subordinate Judge, Sundargarh, registered as T.S.No.20 of 1974, for determination of lack on forfeiture on breach of condition with further relief of eviction of the defendant, the father of the present petitioners from the suit land and also for delivery of possession of the suit land to the landlords, namely, Kanhei Lal Sharma and Gouri Sankar Sharma. The suit was disposed of by

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judgment and decree dated 26.2.1983 and 8.8.1983 respectively. In Execution Case No.10 of 1983, the judgment debtor filed an application under Section 47 of the Code of Civil Procedure. This petition having been rejected, the father of the petitioners preferred C.R.No.663 of 1984 before this Court, which revision has been allowed by the order dated 17.7.1986 passed by this Court directing the executing court to take up the execution proceeding only after finality of the matter involving O.L.R. Act and will be decided taking into the developments in the O.L.R. proceeding.

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3 . In assailing the impugned orders, Sri Samal, learned counsel for the petitioners contended that the Collector, Sundargarh vide order dated 18.7.1981, as appearing from Annexure-3, set aside the order of the appellate authority and remanded the case to the Revenue Officer to examine the points referred therein and the Revenue Officer having decided the matter on remand giving opportunity of hearing to the parties concerned keeping in view the point for determination directed by the Revisional Authority, there was no scope for the Appellate Authority to remand the matter once gain to the Revenue Officer, vide Annexure-5, instead of taking a decision thereon itself. Sri Samal, learned counsel in assailing the impugned order further contended that following the Revenue Officer passed the order vide Annexure-4,appearing in the remand original case, in a subsequent order the Revenue Officer has already issued certificate of non-resumable of land and consequently also issued Form-8 in exercise of power under Section 29 and Sub-Rule (1) of Rule 26 of the O.L.R. Act., hence no further application was entertainable, consequently sought for declaring the orders passed after the order under Annexure-4 and Annexure-4/1 as illegal and prayed for setting aside the same.

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In his opposition, Sri N.C. Panigrahi, learned Senior Counsel appearing for the private opposite party nos.6 to 8 while not refuting to the developments taken through several proceedings and the order passed therein, up to the order passed vide Annexure-9 however, objected the claim of the petitioners on the premises that the order of the Revisional Authority remanding the matter, though framing three particular issues

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goes to show the order as an open remand. By referring to the order of the Revenue Authority subsequent to remand of the matter, Sri Panigrahi, learned Senior Counsel draws the attention of the Court to the effect that the Revenue Authority allowed the parties to enter into evidence to strengthen their case and in the process, the application of the father of the present opposite party nos.7 and 8 and the opposite party no.6 seeking time to come prepared having been rejected and the matter has been decided by the Revenue Authority hearing the matter on remand without affording reasonable opportunity, the order of the original authority suffered for no observance of natural justice which forced these opposite parties to prefer appeal and the appellate authority having considered the above aspect and after finding that the points fixed by the Revisional Authority on remand of the matter have not been properly considered by the Revenue Authority, decided to remand the matter for fresh consideration of the Revenue Authority. According to Sri Panigrahi, the learned Senior Counsel, since the petitioner did not challenge the order passed by the Appellate Authority in the year 1985 by way of revision under Section 59(1) of the O.L.R. Act and subsequently came up with a revision under Section 59 (2) of the O.L.R. Act being decided against him in the year 2006, the order of remand passed by the Appellate authority remains final and conclusive. Learned Senior Counsel further contended that the petitioners are estopped from challenging the order of remand by the appellate authority on two counts; one having lost in his battle in the revision under Section 59 (2) and further having not preferred the writ petition within the limited time challenging the order of the appellate authority in the year 1985 and by filing a writ in the year 2006, the writ petition is grossly barred by time and the writ petition is claimed to be not entertainable on this score also.

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Having considered the rival contentions of the parties, this Court finds there is no dispute to the fact that the father of the petitioners was a Bhagchasi under the opposite party no.6 and the father of opposite party nos.7 and 8 since 1962. Looking to the Civil Suit at the instance of the

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opposite party no,6 and father of opposite party nos.7 and 8 declaring the registered lease in favour of the father of the present petitioners invalid and the suit pending for execution depending upon the outcome of the O.L.R. Proceeding, this Court finds this aspect also remain undisputed. There is also no denial by anybody to the fact of entering into a registered lease deed by the landlords in favour of the father of the present petitioners as Bhagchasi. There is no dispute also with regard to initiation of a proceeding under the provision of the O.L.R. Act, may be under Section 36 (A) involving O.L.R. Case No.23 of 1975. Initiation of proceeding under Section 36 (A) of the O.L.R. Act instead of 36 (C) of the O.L.R. Act, as stated by Sri Panigrahi, this Court observes the original application has to be dealt with looking to the prayer made therein and the nomenclature made therein remain immaterial. There is also no denial to the fact that the original case having been decided in favour of the father of the present petitioners, the landlords lost O.L.R. Appeal No.25 of 1976 resulting a revision bearing O.L.R. Revision No.23 of 1979 and that the revision was allowed with an order of remand by framing three issues, to be taken care of by the Revenue Officer.

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Considering the allegations of Sri Samal, learned counsel appearing for the petitioner challenging the remand by the appellate authority on the premises that the remand order was not an open remand but a limited remand with the questions framed thereunder and the submission of Sri Panigrahi, learned Senior Counsel that looking to the particular issues framed by the Revenue Authority passing the order of remand, the original court giving scope of evidence to both the parties, it is wrong to contend that the remand order was a limited one and not an open one. This Court looking to the tenure of the question framed by the revisional authority and further looking to the procedures followed by the Revenue Authority in allowing the parties to enter into evidence, this Court finds the submission of Sri Samal has no force. This Court also observes in the event the petitioners were under impression that the matter was not an open remand then it could not have gone for evidence at all. However, considering that the matter went up to Revisional Authority at the instance

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of one of the contesting party and decided on 19.1.2006 vide Annexure8, this Court observes, the petitioners though did not challenge the order of the appellate authority in the second instance in time but further developments indicated hereinabove and in view of the challenge to all the subsequent orders by the petitioners in this writ petition in 2006, their writ petition cannot be dismissed on account of limitation.

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The next question survives presently to be decided is as to whether the order passed by the appellate authority under Annexure-5 is valid or not. Coming back to the observations made by the Revisional Authority in the O.L.R. Revision No.23 of 1979, appearing at Annexure-3, this Court finds the revisional authority remanded the matter for a decision by the Revenue Authority afresh taking into consideration the following:

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(a) The learned lower court has not, however examined, if the respondents are ryots under disability and thus excluded from Section 36-A and Section 24 read with Section 2 (21) (e) of the OLR Act.

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(b) The learned Tahasildar has also not examined as to how much area is covered under homestead in Municipal area not incidental or ancillary to agriculture and therefore to be excluded from the application of the provisions of the OLR Act.

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(c) The local committee has not been consulted under Rule-27(c) and general notice has not been given under Rule 27 b (2) of the O.L.R. (General Rules). Hence, the case remanded to the Tahasildar, Rajgangpur with the directive to make the aforesaid compliance. The learned Tahasildar while hearing the respondents plea for exemption as ryots under disability in the capacity of each of the co-sharers, must find out if there was a valid partition and if the respondents are note estopped from raising this point.”

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Now looking to the order passed by the Revenue Authority in O.L.R. Case No.23 of 1975 after remand , this Court finds the case was

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taken up on 7.1.1982 and after being dragged for some dates on some grounds or the other, on 9.9.1982 three witnesses out of five produced by the petitioner were examined and cross-examined. The petitioner declined to adduce any further witness and at this point of time, the opposite parties were asked to adduce witness but they went on filing application after applications seeking some time to get ready to give evidence, which applications being rejected, finally the matter was decided on the submission at the instance of the private opposite party nos.6 to 8, the objectors in the original proceeding but without affording opportunity to have their evidence. Looking to the nature of questions/ subjects framed by the revisional authority and appears that the submission of Sri Samal, learned counsel for the petitioners that there was no open remand, has no force and to add to it further since the original authority entered into evidence and the present petitioners availed opportunity of evidence to strengthen their case involving the questions framed by the revisional authority in all probability the opposite party nos.6 to 8, the parties facing the original proceeding should have been provided with an opportunity of evidence by giving at least one more chance, in absence of which there is no fair consideration of the case of the parties by the original authority. At this stage, it is also necessary to consider the submission of Sri Samal that in view of issuance of certificate of non-resumable of land in Form-8 applying Section 29 and Sub-Rule 1 of Rule 26, no scope for appeal was available with the opposite party nos.6 to 8, this Court finds statute provide remedy of appeal as against the orders passed by the Revenue Authority under Section 58 of the O.L.R. Act against the order passed under Section 36 (A) or 36 of the O.L.R. Act., no statutory right of appeal can be taken away for the reason of bringing out of the certificate of non-resumable in exercise of power under Section 29 of the O.L.R. Act. Hence, the orders vide Annexure-4 and Annexure-4/1 cannot stand.

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Now considering the validity of the order under Annexure-5, passed by the appellate authority taking into consideration the objection and counter by the respective counsels, this Court finds the appellate order vide Annexure-5 having been passed by the appellate authority in exercise of

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power under Section 58 of the O.L.R. Act, the petitioner had the statutory remedy by way of a revision under Section 59(1) of the O.L.R. Act. Further, since the order of the appellate authority being challenged at the instance of the present opposite party nos.6 to 8 by way of revision under Section 59 (1) of the O.L.R. Act vide Revenue Revision No.2/25 of 1986 and this revision having gone against the opposite party nos. 6 to 8 thereby confirming the order of the appellate authority, the order of remand passed by the appellate court remain confirmed. Further, looking to the questions framed by the Revisional Authority on remand of the case to the original authority, as quoted hereinabove, since the original authority entered into evidence and decided the matter without affording an opportunity of evidence strengthening their case to the opposite party nos.6 to 8 and further for the observations of the appellate authority vide Annexure-5 in remanding the matter for further consideration and the directions involved therein, this Court finds there is no error in the order passed by the appellate authority under Annexure-5 for which Annexure-5 does not need any interferfence. In view of the confirmation of the order passed under Annexure-5, the order passed by the original authority remaining in valid, the development taken through Annexure-4/1 cannot be sustained. Under the aforesaid observations, this Court finds there is no illegality also issuing notice under Annexure-7.

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So far the challenge to the order under Annexure-6 to the writ petition is concerned, since the order Annexure-6 is passed in a revision at the instance of the father of opposite party nos.7 to 8 in dismissing the revision and confirming the order passed by the appellate authority under Annexure-5, in view of observation hereinabove holding the order under Annexure-5 valid, the order under Annexure-6 cannot be set aside in a writ petition at the instance of the present petitioners.

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Considering that the original dispute initiated in the year 1975 remaining unresolved even after all most four decades, this Court while dismissing the writ petition for having no merit, directs both the contesting parties to appear before the Revenue Authority in the case No.23 of 1975 within a period of two weeks from the date of judgment and the original

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authority is directed to dispose of the matter keeping in view the observations hereinabove in the matter of affording opportunity to the opposite party nos.6 to 8 and take a final decision in the matter after affording opportunity of hearing to all the parties within a period of four months thereafter.

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In the result, the writ petition stands dismissed but with the above observation indicated hereinabove. However, there is no order as to cost.

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……………………………… Biswanath Rath,J.

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Orissa High Court, Cuttack The 5^th day of October,.2016/sks

Rabinarayan Binod v. Land Reforms Commnr.

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Rabinarayan Binod v. Land Reforms Commnr.

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