SAKUNTALA SAHOO Vs. STATE OF ORISSA

JUDGEMENT

(1.) This Writ Petition has been filed with a prayer to issue a writ of certiorari to quash the order dated 16.6.1999 passed by the Revenue Officer, Chandbali, in O.L.R. Case Nos. 12/98 and 13/98, in exercise of the powers conferred upon him under Section 9{1) of the Orissa Land Reforms Act. Opposite parties 4 and 5 filed an application under Section 9 of the Orissa Land Reforms Act (for short 'OLR Act') for declaration that they were tenants in respect of Ac.0.27 decs of land each appertaining to Plot No.299, Khata No. 134 (Chaka) of Mouza Balabhadrapur out of a total area of Ac. 0.53 decs. The Revenue Officer called upon the R.I., Motto to conduct a spot enquiry and submit his report. He also directed to issue general proclamation inviting objections. The petitioners being the owners of the aforesaid land filed their objection, inter alia, taking the stand that opposite parties 4 and 5 were neither tenants under them nor did they construct and/or reside in any dwelling house on the disputed lands. In order to establish their case, opposite parties 4 and 5 adduced evidence. Relying upon the said evidence and the report of the R.I., Motto and also after spot enquiry, the Revenue Officer by the impugned order arrived at a conclusion that opposite parties 4 and 5 satisfied all the ingredients of Section 9(1) of the Act and the said section being a beneficial one should be considered liberally. On the basis of such conclusions, the claim of opposite parties 4 and 5 was allowed and lands measuring Ac.0.20 decs in favour of opposite parties 4 and 5 each from out of Ac.0.53 decs were directed to be settled by the impugned order.

(2.) ACCORDING to Mr. S.Mishra -2, learned counsel appearing for the petitioners -land owners, none of the ingredients of Section 9 of the OLR Act were fulfilled by opposite parties 4 and 5. It is submitted that the Revenue Officer committed an apparent error by taking into consideration the report submitted by the R.I., Motto, who was not examined as a witness in the proceeding. It is further submitted that the Revenue Officer acted illegally and with material irregularity in settling the lands with opposite parties 4 and 5, alleged tenants, on the ground that the Act has been enacted for the benefit of tenants. Mr. Mishra, further submitted that neither there was any pleading nor any material were produced before the Revenue Officer to arrive at a conclusion that all the basic ingredients of Section 9(1) of the OLR Act had been fulfilled. In short, according to Mr. Mishra, the order suffers from the vice of non -consideration of materials available on record and consideration of the materials which had no evidentiary value and it is a fit case where the impugned order settling Ac.0.20 decs of land each in favour of opposite parties 4 and 5 should be quashed.

(3.) I have heard learned counsel for the parties at length and perused the relevant materials available. For the sake of brevity, it would be prudent to quote Section 9(1} of the OLR Act which reads as follows: '9(1} Every person who is a raiyat or a tenant in respect, of any land but has no permanent and heritable rights in respect of any site on which his dwelling house or farm house stands, shall with effect from the commencement of this Act be deemed to be a raiyat in respect of the whole of such site or a portion thereof not exceeding one -fifth of an acre whichever is less if he or his predecessor -in -interest has - (a) obtained permission, express or implied, from the person having permanent and heritable rights in the site and having right to accord permission for the construction of such house, and (b) built such house at his own expense.' The provisions quoted above reveal that to invoke jurisdiction under Section 9(1) of the OLR Act, a tenant or a raiyat has to satisfy the following basic ingredients; (1) the applicant must be a raiyat or tenant in respect of any land other than the lands over which the dwelling houses have been constructed, (2) he must not be having any permanent and heritable right in respect of any site on which his dwelling house or farm house stands, (3) he or his predecessor in interest should have obtained permission, either express or implied, from the persons having permanent and heritable right in the site, (4) granter of such permission should not only have permanent and heritable right in the site but should have right to accord permission for the construction of the house and (5) in pursuance of such permission the grantee as well as the raiyat or tenant should have built the house at his own cost. In order to succeed, an applicant must plead and prove all the aforesaid five requirements which are sine qua non for grant of relief under Section 9 of the OLR Act (See Mir Nibiruddin v. Mir Salimuddin and Ors. reported in 1984 (I) OLR 1045).