BALUNKI MAHANANDIA Vs. COLLECTOR

JUDGEMENT

(1.) THE petitioners have filed the above writ applications challenging the order passed by the Member, Board of Revenue in exercise of revisional power under Section 59(2) of the Orissa Land Reforms Act, 1960. The case of the petitioners is that they were cultivating the lands of ex -Sarbarkar who was holding the lands as Village Officer. The system of appointment of Village Officer was abolished on 1.4.1966 and the Bhogra lands continued to remain in possession of the Village Officer thereafter and the ex -Sarbarkar had inducted the petitioners as Bhag tenants under him. The petitioners claiming themselves to be the Bhag tenants filed different cases for declaration of the lands under their possession as non -resumable and fixation of equitable rent. The applications were rejected on the ground that the lands being Bhogra lands and having not been settled on Rayati basis with the ex -Sarbarkar, the applications under Section 36 -A of the O.L.R. Act against the land owner are not permissible. Thereafter, the lands under the possession of the ex -Sarbarkar were settled under Rayati basis and ceiling proceeding was started against the ex -Sarbarkar under the said Act. After settlement of the lands with the ex -sarbarakar on Rayati basis, the petitioners again filed applications under Section 36 -A of the Act to declare the lands under their occupation as non -resumble, before finalisation of the ceiling proceeding against the ex -Sarbarakar. The said applications were allowed and the lands were declared to be non -resumable and orders were passed for issuance of Rayati Patta in favour of the petitioners in respect of the land under their occupation as Bhag tenants. After long lapse of time, the Collector, Phulbani made a reference to the Member, Board of Revenue under Section 59(2) of the Act to set aside the orders passed by the Revenue Officer -cum -Tahsildar allowing the applications filed by the petitioners under Section 36 -A of the Act on the ground that the orders were illegal and have reduced the extent of surplus land that could be found against the ex -Sarbarakar and the lands to that extent could not be vested in the State Government. The said reference was accepted by the learned Member, Board of Revenue and the same having been allowed, these writ applications have been filed.

(2.) THE learned counsel Shri Patnaik appearing on behalf of the petitioners in all the cases challenging the order passed by the Member, Board of Revenue submitted that the petitioners were inducted as tenants after 1.4.1966. Under Section 36 -A of the Act, the land which has been leased out to a tenant after 1st of October, 1965, may make an application within two years from the date of commencement of the Orissa Land Reforms (Second Amendment) Act, 1975 for being declared as a Rayat in respect of such land. The petitioners having filed the applications under Section 36 -A of the Act for such declaration within the statutory period, the same were rightly allowed by the opposite party No.3. It was also contended that the lands in respect of which the applications under Section 36 -A of the Act had been filed were settled on Rayati basis with the ex -Sarbarakar under Section 5(1) of the Orissa Merged Territories (Village Offices Abolition) Act, 1966 and the ex -Sarbarakar became a Rayat with effect from 1.4.1966. Initially when the applications were filed under Section 36 -A of the Act, the Revenue Officer had rejected the same under a wrong notion that the lands had not been settled with the ex -Sarbarakar on Rayati basis and, therefore, he reopened the cases after an order of settlement was passed in favour of the ex -Sarbarakar and declared the lands under occupation of the petitioners as non -resumable. The land owner having admitted the tenancy, there was no option left for the Tahsildar -cum -Revenue Officer except allowing the applications of the petitioners filed under Section 36 -A of the Act. Shri Patnaik also challenged the revisional order on the ground that since there was no dispute with regard to induction of the petitioners as Bhag tenants under the ex -Sarbarkar, non -compliance of Rule 27 -B is not mandatory. In any event, if the revisional Court found any procedural defect, it could have remitted the matter back to the Revenue Officer for consideration instead of setting aside the order and disallowing the claim of the petitioners.

(3.) UNDISPUTEDLY , the petitioners had filed applications under Section 36 -A of the Orissa Land Reforms Act in the year 1975 and by order dated 4.11.1975 the Tahsildar rejected the applications on the ground that the lands have been recorded as Bhogra land and accordingly, the same could not be settled under Section 36 -A of the O.L.R. Act. After the aforesaid order, the proceeding was closed and no appeal was filed by the petitioners against the said order. After settlement of the lands under occupation of the petitioners with the ex -Sarbarakar, who inducted them as Bhag tenants under him, the matter was brought to the notice of the Tahsildar again and on applications filed by the petitioners, all the cases were reopened. The order dated 25.1.1983 passed by the Tahsildar shows that on the basis of the applications filed by the petitioners the cases were reopened and on inquiry it was found that the petitioners were in possession of their respective lands as Bhag tenants under the ex -Sarbarakar who has also admitted induction of the petitioners as Bhag tenants under him. On the above basis, the applications filed by the petitioners under Section 36 -A of the Act were allowed. It further appears that a reference was made by the Collector, Phulbani to the Member, Board of Revenue under Section 59(2) of the O.L.R. Act in the year 1985 for declaring the order passed by the Tahsildar as illegal on the grounds stated in the counter affidavit. The revisional Court allowed the reference on the ground that the O.L.R. cases filed by the petitioners were rejected in the year 1975 and were again reopened in the year 1983 and, therefore, the Tahsildar had no jurisdiction to reopen the cases after dismissal of the same.