BANSHIDHAR NAIK Vs. ANANTA PADHAN AND ORS.

JUDGEMENT

(1.) O .J.C. No. 43 of 1953 is an application under Article 227 of the Constitution, for the issue of a writ and is directed against an order dated 4 -3 -53 passed by Shri V. Ramanathsn, Member, Board of Revenue, in Revision cases Nos. 118 to 116 of 1952 -53. O.J.C. No. 44 of 1953 is also directed against the same order, but by different party. These two Petitioners filed applications before the Collector praying for the eviction of the tenants from the lands which they (the Petitioners) had recent by purchased from a 'ryot'. The admitted facts are that the opposite parties were tenants under a "ryot" owning more than 33 acres of land on 30 -11 -47. The Petitioners purchased a few plots from him in March and April 1952 and sought eviction of the tenants from the plots purchased by him. The further admitted fact is that he Petitioners neither owned on 30 -11 -47, nor own now, 33 acres of land or more. The point for decision is whether the tenants in respect of these lands are entitled protection under any of the provisions of the Orissa Tenants Protection Act.

(2.) THE legislature wanted to provide for temporary protection to certain classes of tenants, by Orissa Act III of 1948, but certain other classes of tenants were also excluded from the benefits of that Act. These are enumerated in Sub -clauses (i) (ii) and (iii) of Sub -section (g) of Section 2, which is the definition Section. That Sub -section says that a tenant shall not include (1) a member of that person's family, or (2) a servant or hired labourer, and (3) a person cultivating the land of a ryot when the total extent of the land in the possession of such a ryot on 30 -11 -47, did not exceed thirty - three acres. This Sub -section however makes an exception in the case of such a ryot in the application of Sections 6, 7, 8 and 10 and thus gives a qualified protection, to a tenant. The result is that the tenant of each ryot namely, one who owns less than thirty -three acres on 30 -11 -47 cannot be evicted except on one or more of the grounds enumerated in Section 7(1), Sub -clauses (a) to (e). The general rule prohibiting eviction is to be found in Section 3 of the Act, which lays down that a person who was cultivating the land as a tenant on 1 -9 -47 shall not be liable to eviction; but this protection against eviction is subject to the provisions of this Act. Section 3(2) contemplates eviction in execution of a decree or order for eviction, and says that no such tenant as satisfies the definition of the word 'tenant' shall be liable to be evicted in pursuance of a decree or order for eviction except to the extent that the Act provides for it. The effect of this Sub -section is to protect the tenants who are governed by the Act against eviction in execution of a decree of order, as separate provision has been made in the Act itself to cover cases of eviction on other grounds. By Orissa Act XVII of 1951 the Legislature introduced certain amendments to the Act and our attention has been drawn to Clause 3 of the Amending Act. That Section introduced an illustration to Sub -section (2) of Section 3 of the original Act. That illustration says:

(3.) WE would accordingly allow this application set aside the orders passed by the Board of Revenue, under revision, and issue a writ or certiorari quashing those orders. We further direct that the landlord shall be put in possession of the lands after evicting the tenants. The landlord shall also have the cost of this application. Hearing fee Rs. 50/ - (Rupees fifty only).