The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK OJC No. 688 OF 1985 (An application under Article 226 of the Constitution of India) ***** Parsuram Choudhury and others …. Petitioners Mr. Saktidhar Das, Senior Advocate being assisted by Mr. Haripada Mohanty, Advocate Dama Gouda and others -versus- …. Opp. Parties Mr. Dillip Kumar Mishra, Additional Government Advocate (For Opp. Party Nos.2 to 4) None [For Opp. Party Nos.1(a) to 1(h)] ----------------------------------------------------------------- Heard and disposed of on 10.01.2023 --------------------------------------------------------------- CORAM: JUSTICE K.R. MOHAPATRA JUDGMENT K.R. Mohapatra, J 1. This matter is taken up through hybrid mode. 2. The Petitioners in this writ petition seek to assail the order dated 31st December, 1984 (Annexure-5) passed by learned Additional District Magistrate (L.R.), Ganjam, Chatrapur in O.L.R. RC. Nos.7 and 8 of 1984, reversing the order dated 14th December, 1983 (Annexure-4) passed by the Officer on Special Duty, Land Reforms, Berhampur in O.L.R. Appeal Nos.24 and 25 of 1983 by which, order dated 25th February, 1983 (Annexure-3) passed by the Revenue Officer-cum-Additional Tahasildar, Berhampur in O.L.R. Case No.372 of 1974 under Section 36-A OJC No. 688 OF 1985 Page 1 of 10 // 2 // and No. 52/81 under Section 15 of the Odisha Land Reforms Act, 1960 (for short ‘the Act’), was set aside. 3.
Legal Reasoning
The case has a chequered carrier. The parties are litigating since, 1971. In the meantime, the recorded tenant, namely, Bharata Choudhury has died and his legal heirs are the Petitioners in this writ petition. A dispute arose in the year, 1971 between Bharat Choudhury and his sons, namely, Parsuram Choudhury and Bhaskar Choudhury. Opposite Party No.1-Dama Gouda along with others, were appointed as arbitrators to resolve the dispute. Accordingly, a settlement was made partitioning the property between Bharata and his sons. As Parsuram and Bhaskar did not allow Bharata to cultivate his land and created disturbance threatening dire consequence, Bharata took the help of Dama and put him in possession to cultivate the land in question. That became the basis to file an application by Bharata under Section 36-A of the Act to declare the land non-resumable and determine the compensation. The said case was filed on 12th September, 1974 and registered as OLR Case No.372 of 1974. Bharata, Parsuram and Hadi Devi Choudhury (w/o-Bharat) appeared through Advocate and filed their objection on 18th November, 1974. However, an ex parte order was passed on 8th July, 1975 declaring Dama Gouda as a tenant. Bharata Choudhury and three others filed an application on 16th September, 1975 to set aside the ex parte order, which was dismissed on 16th August, 1975. Challenging both the orders, viz. 8th July, 1975 and 16th August, 1975, Parsuram Choudhury and others preferred OLR Appeals vide OLR Appeal Nos.40 and 64 of 1975. The said appeals were OJC No. 688 OF 1985 Page 2 of 10 // 3 // dismissed by a common order dated 31st August, 1976. Being aggrieved, Bhaskar Choudhury and three others filed two revision cases in Revision Case No.01/80(234/76) and 02/80(238/76) before the Additional District Magistrate, Ganjam. The said revision cases were allowed and the matter was remitted back to the Revenue Officer-cum-Additional Tahasildar, Berhampur to dispose of the OLR Cases after hearing both the parties and making proper enquiry. However, assailing the order of remand, Dama Gouda filed OJC No.1256 of 1981 before this Court, which was dismissed vide order dated 11th August, 1981 directing to dispose of the OLR Cases expeditiously. At that juncture, Parsuram Choudhury filed an application under Section 15 of the Act in OLR Case No.52 of 1981 against Dama Gouda for a direction to deliver vacant possession to him and for recovery of rajbhag (rent). Both, the applications i.e. OLR Case Nos.372 of 1974 and 52 of 1981 were heard and disposed of by a common judgment dated 25th February, 1983 declaring Dama Gouda as tenant under the Petitioners by allowing the application filed by Dama Gouda and dismissing the application filed by Parsuram Choudhury. Assailing the same, the Petitioners preferred OLR Appeal Nos.24 and 25 of 1983. The said appeals were allowed on merit vide order dated 25th February, 1983 under Annexure-3. Assailing the same, Dama Gouda-Opposite Party No.1 filed O.L.R. RC Nos.7 and 8 of 1984, which were allowed by the Additional District Magistrate (LR), Ganjam, Chatrapur vide order dated 31st December, 1984 under Annexure-5. The Petitioners being aggrieved, filed OJC No.688 of 1985, which was dismissed by this Court vide order dated 6th August, 1995. OJC No. 688 OF 1985 Page 3 of 10 // 4 // Assailing the same, Parsuram Choudhury filed SLP (C) No.17282 of 1985. While granting leave vide order dated 28th August, 1996, Hon’ble Supreme Court has passed the following order: “Leave granted. We find that the Additional District Magistrate in the order dated 31st December, 1984 (A/5) passed in revision proceeded on the basis that the status of the revision petitioner (respondent No.1) as a tenant over the suit lands under Bharat Choudhury and after him under his sons Parsuram (Petitioner) and Bhaskar is an admitted fact, to allowed the revision of respondent No.1. This is in-consistent with the specific case set up in the petition filed by the appellant-Pursuram under section 15 of the Orissa Land Reforms Act wherein he has expressly stated that respondent No.1 was merely a servant who was permitted by the receiver to cultivate the lands temporarily. There is no admission of the status of respondent No.1 as a tenant therein. The basis on which the Additional District Magistrate proceeded to allow the revision of respondent No.1 is, therefore, non-existent. However, the High Court dismissed the petition of the appellant filed under Article 227 of the Constitution of India in limine without giving any reasons. The High Court’s order must, therefore, be set aside requiring the High Court to decide the matter afresh after hearing both sides on all the points involved. Consequently, the appeal is allowed. The matter is remitted to the High Court for a fresh decision of the appellant in accordance with law. No costs.” Accordingly, the matter is remitted back for hearing on merit.
Legal Reasoning
4. Mr. Das, learned Senior Advocate appearing for the Petitioners made a lengthy argument by filing his written note of submissions. 5. Amongst other grounds, Mr. Das, learned Senior Advocate for the Petitioners raised two contentions, which are necessary for OJC No. 688 OF 1985 Page 4 of 10 // 5 // consideration of this case. He argues that there is no material on record to come to a conclusion that Dama Gouda-Opposite Party No.1 was inducted as a tenant under the Petitioners. There is no material on record to show that he was paying rajbhag (rent) to Bharata Choudhury or his legal heirs. It is also submitted that due to dispute between the Bharata Choudhury and his sons, assistance of Dama Gouda was solicited by Bharata Choudhury. In course of his argument, he also submitted that being not satisfied with the partition effected by arbitrators including Dama Gouda, Pursuram Choudhury had filed T.S. No.70 of 1971 before learned Subordinate Judge, Berhampur, Ganjam. Pursuant to an application filed under Order XL Rule 1 C.P.C., a receiver was appointed. Said Dama Gouda, who was then in possession of the land in question, filed an application before the receiver categorically stating that he was cultivating the land on behalf of Bharata Choudhury for the said agricultural season (1971) and had raised crop. Hence, he prayed to handover the crops to him or to allow him to give vacant possession after depositing the rajbhag. Thus, it is his submission that since in the year, 1971, Dama Gouda himself had admitted that he was cultivating the land for that agricultural year only. Hence, he cannot be said to be a raiyat under Bharata Choudhury or his legal heirs. This material aspect was not taken into consideration by the Revenue Officer, Berhampur, who allowed the application declaring Dama Gouda as raiyat. He further submitted that application under Section 15 of the Act in OLR Case No.52 of 1981 was filed in an abundant caution. Such application ipso facto cannot be a ground OJC No. 688 OF 1985 Page 5 of 10 // 6 // to declare Dama Gouda as a raiyat, unless he satisfied the ingredients of the order under Section 36-A of the Act. 6. In support of his case, Mr. Das, learned Senior Advocate relied upon a decision in the case of Kamala Jena –v- Binapani Chand and others, reported in 2011 (Supp.-II) OLR 669. In the said case, this Court has categorically held that mere cultivating possession of a person over a land without any proof that such possession was under the system known as ‘Bhag’, ‘Sanja’, ‘Kata’ or such similar expression under any other system, on payment of rent, cannot confer the status of a raiyat on the occupier. Learned appellate Court discussing the material on record in details, rejected the claim of Dama Gouda. However, learned revisional Court, basing on a resolution of a local committee and the statement of so-called committee members, which has never seen the light of the day, allowed the revision filed by said Dama Gouda. 7. It is his categorical submission that Dama Gouda, who had examined as P.W.3 on 19th August, 1982, categorically stated that a muchilika was executed in between him and Bharata Choudhury inducting him into the suit lands for cultivation, but he had lost the said muchilika. Had that muchilika been produced in Court, it would have thrown some light on the manner of possession of Dama Gouda over the suit land. It is his submission that Dama Gouda was inducted to help Bharata Choudhury for cultivation, as there was a quarrel between Bharat and his sons. But that itself does not confer the right of tenancy on said Dama Gouda, unless the ingredients, as aforesaid are satisfied. He, therefore, prays for OJC No. 688 OF 1985 Page 6 of 10 // 7 // setting aside the impugned order under Annexure-5 and to dismiss the petition filed by Dama Gouda under Section 36-A of the Act. 8. Mr. Mishra, learned Additional Government Advocate submits that since it is a dispute of landlord and tenancy, the State has a little role to play, except acting as a statutory authority. He however, submits that order may be passed taking into consideration the rival contentions of the parties. 9. None appears for the contesting Opposite Party Nos.1 (1) to 1(h). On last occasion, i.e., on 5th December, 2022, none had also appeared on behalf of the contesting opposite Parties. However, to provide another opportunity to the contesting Opposite Parties, the matter was adjourned to be listed today for hearing. 10. Taking into consideration the submission of Mr. Das, learned Senior Advocate and on perusal of the record, it is apparent that there is no material on record, as to when Dama Gouda-Opposite Party No.1 was ever inducted as a tenant, as claimed. There is also no material on record to the effect that he was paying rent in the shape of ‘rajbhag’, ‘sanja’ or otherwise to Bharata Choudhury or his legal heirs at any point of time. 11. Law is well-settled that mere possession of a person over a piece of agricultural land cannot confer him the status of tenant/raiyat, unless the ingredients enumerated under Section 36- A of the Act are satisfied. It is also the specific case of Dama Gouda-Opposite Party No.1 that there was a muchilika executed between him and Bharata, but the said muchilika was lost. When Dama Gouda came to the Court with a specific stand that by OJC No. 688 OF 1985 Page 7 of 10 // 8 // virtue of a document, he was inducted as a tenant, burden is on him to establish the same, in absence of which adverse inference should be drawn against him. But, it appears that no endeavour, whatsoever, either by Dama Gouda to produce the document or the Revenue Officer was made to find out the truth with regard to induction of Dama Gouda as a raiyat, as alleged. It is the specific case of Bharata Choudhury that he had taken help of Dama Gouda for cultivation of land, as there was a dispute between him and his sons which gets support from the application filed by Dama Gouda before the receiver appointed in T.S. No.70 of 1971 to the effect that he had cultivated the land in question for agricultural year, 1971-72 only and he had made a prayer before the receiver to allow him to harvest the crop or to vacate the land by depositing the rajbhag. That itself clearly shows that he was in cultivating possession over the suit land for one year only. 12. Dama Gouda was none other than an arbitrator to the dispute between Bharata Choudhury and his sons and the arbitrator partitioned the property. Thus, it cannot be ruled out that taking advantage of his position, Dama Gouda has filed an application under Section 36-A of the Act to be declared as a tenant/ raiyat and to declare the land non-resumable on payment of compensation. 13. Witnesses examined on behalf of the Dama Gouda only deposed that he was in cultivating possession over the suit land for last seven to eight years, when they deposed before the Court. Being in cultivating possession for a certain period, cannot confer the right of tenancy on a person, as held in the case of Kamala OJC No. 688 OF 1985 Page 8 of 10 // 9 // Jena (supra). The burden is on the Applicant to prove that he was in cultivating possession over the land on payment of ‘Bhag’, ‘Sanja’, ‘Kata’ or such similar expression under any other system of payment of rent to the land owner. Neither the Revenue Officer, Berhampur nor the Additional District Magistrate, Ganjam, Chatrapur had made any endeavour to delve into the aforesaid requirement while adjudicating the matter. On the other hand, learned appellate Court has dealt with the matter in detail discussing the pros and cons of the case of the parties and passed the order. 14. Further, an issue that arises for consideration, is as to whether by filing an application under Section 15 of the Act, Pursuram has admitted the tenancy of Dama or not. True it is that, Section 15 of the Act provides for realization of rajbhag/rent from tenant. But that does not by itself can be construed as an admission of tenancy unless the person, who filed an application under Section 36-A of the Act proves to the hilt that he was a tenant under the landlord. Admittedly, there was a dispute between Bharata Choudhury and his sons in one part and Dama Gouda on the other with regard to the tenancy over the land. Thus, it was incumbent on the applicant under Section 36-A of the Act to prove that he (Dama) was a tenant, which he miserably failed. 15. In that view of the matter, this Court is of the considered opinion that both the Revenue Officer, Berhmapur as well as the Additional District Magistrate (LR), Ganjam, Chatrapur have committed error in allowing the application under Section 36-A of OJC No. 688 OF 1985 Page 9 of 10 // 10 // the Act. Accordingly, this Court upholding the order passed in O.L.R. RC. Nos.7 and 8 of 1984, sets aside the impugned orders under Annexure-3 and 5. 16. Since the Opposite Party No.1 does not succeed in his petition under Section 36-A of the Act, question of realization of rajbhag does not arise at all. 17. Accordingly, this Court directs that the Petitioners are not entitled to any rajbhag. 18. The writ petition is accordingly allowed to the extent, as aforesaid. Urgent certified copy of this judgment be granted on proper application. ms (K.R. Mohapatra) Judge OJC No. 688 OF 1985 Page 10 of 10