In the matter of an application under Article 226 & 227 of the Constitution v. Mukunda Sahoo & Ors
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.5939 of 2011 In the matter of an application under Article 226 & 227 of the Constitution of India. ----------- Bibekananda Satpathy … Petitioner(s) Versus Mukunda Sahoo & Ors. ... Opposite Parties For Petitioner … M/s. N.K.Acharya & D.P.Kanungo
Legal Reasoning
For Opposite Parties … Mr.B.H.Mohanty, R.K.Nayak, D.P.Mohanty, T.K.Mohanty & P.K.Swain.( (For O.P.nos.1 to 4) Mr.S.Ghose, AGA, (For OP.No.5) PRESENT: J U D G M E N T THE HONOURABLE JUSTICE BISWANATH RATH Date of Hearing and Judgment: 01.02.2023 Biswanath Rath, J Short background involved herein is that petitioner bringing an application under the provision of Section 15 (b) & (d) of the O.L.R. Act (wrongly indicated as Section 18 (b) & (d)) also in the involvement of the private opposite party herein was registered as O.L.R. Case No.140 of 1980. This proceeding appears to have been allowed declaring the petitioner as a tenant by order dated 03.08.1981 vide Annexure-1. This order is never challenged. While the matter stood thus, a fresh proceeding was brought by the Page 1 of 4 // 2 // private opposite party herein under the provision of Section 15(2) and 16 of the O.L.R. Act and the proceeding was registered as O.L.R. Case No.77 of 1998. This proceeding came to be disposed of by the Tahasildar, as the competent authority vides its order dated 26.02.2005 vide Annexure-2. 2. Assailing the order, Mr.Acharya, learned counsel appearing for the petitioner contends that there may not be any difficult in exercise of power under Section 15(2) & 16 of the O.L.R. Act but the Tahasildar in exercise of such power is not empowered to take out the earlier order of the Tahasildar passed under the provision of Section 15(1) (b) & (d) of the O.L.R. Act. Taking this Court to the observation part vide Annexure-2, Mr.Acharya, learned counsel contended that there is illegal exercise of power. 3. Mr.Mohanty, learned counsel appearing for the private opposite party though did not dispute that the illegal discharge of power by the Tahasildar in taking out the order dated 03.08.1981 by the subsequent Tahasildar, however, submits for the provision under Section 15(2) & 16 of the O.L.R. Act, the Tahasildar still has power to determine the issue without being disturbed by the order at Annexure-1. Learned State Counsel supports the stand of Mr.Mohanty. 4. Looking to the provision involved herein through Section 15(1) (b) & (d) of the O.L.R. Act, this Court finds these provisions are as follows: 15. Recovery of rent and dispute between landlord and raiyat or tenant- (1) Any claim for recovery of arrears of rent by a landlord and any dispute between a landlord and his raiyat or tenant, as the case may be, regarding- xxx xxx tenant’s possession of the land and his rights to xxx (b) the benefits under this Act; or [(d) xxx the existence of the relationship of the landlord and tenant;] shall be decided by the Revenue Officer on an application to be filed [in the prescribed manner] by any party interested. xxx xxx Page 2 of 4 // 3 // [Provided that an application in respect of- a claim for recovery of arrears of rent shall be filed within (a) one year from the date on which such arrears fall due; (b) a dispute referred to in clauses (a) and (c), shall be filed within sixty days from the date on which the dispute arises; (c) a dispute referred to in Clauses (b) and (d), shall be filed within two years from the date on which the dispute arises;” Similarly, provision of Section 15(2) & 16 of the O.L.R. Act reads as follows: “Section 15(2): On receipt of the application under Sub- section (1), the Revenue Officer may, after making such enquiry as he deems fit direct the payment of arrears of rent, if any, found due or, determine the quantum of rent under Clause (a) or [ in cases under Clauses (b) (c) and (d) thereof] order the tenant by a notice served in the prescribed manner and specifying the grounds on which order is made to cease, to cultivate the land;” 16. Dispute regarding identity of tenant- If any dispute arises as to the identity of the tenants in cultivation of any land such dispute shall after such inquiry as may be prescribed be decided by the Revenue Officer on his own motion or on the application of the landlord any person claiming to be in such cultivation and the Revenue Officer may pass such order as he may deem necessary.” Reading the provision at Section 15(1), this Court finds this is a provision taking up dispute between landlord and raiyat or tenant also involving recovery of arrears whereas Section 15(2) deals with eviction of tenant to cease and prevent the tenant to cultivate the land but in the circumstances there is an application for non- payment of the rent. This Court here finds the purpose of both the provisions taken note hereinabove are completely different and looking to the nature of application vide Annexure-2 involving O.L.R. Case No.77 of 1998, this Court finds the Tahasildar should have undertaken an independent action altogether without even entering into the order passed under Section 15(1) (b) & (d) of the O.L.R. Act by the earlier Tahasildar. It is at this stage, keeping in view the rival contentions of the parties and entering into the decision of the Tahasildar, this Court finds there is illegal exercise of power by the Tahasildar by unnecessarily entering into the order dated 03.08.1981. The order appears to be in contravention of power with the Tahasildar under Section 15(2) and 16 of the O.L.R. Page 3 of 4 // 4 // Act and in excess to the power of the Tahasildar in taking up the application involved therein. 5. In the process, this Court interfering in the order at Annexue-2, sets aside the same and remits the O.L.R. Case No.77 of 1998 to the Tahasildar, Begunia for fresh adjudication of the proceeding in the involvement of the parties concerned. The fresh order shall not have any influence with either of the observation of this Court or observation in the impugned order at Annexure-2. 6. Let the parties appeared before the competent authority on 20.02.2023 along with copy of this order and take the date of hearing. Proceeding be also concluded by the Tahasildar, Begunia at least within a period of three months from the date of appearance of the parties. 7. The writ petition stands disposed of with the observation and direction made hereinabove but however with the order of remand. No cost. ….…………………… Biswanath Rath, J. Orissa High Court, Cuttack. Dated the 1st day of February, 2023/SKS Page 4 of 4