Collector vs Harekrushna Panda

K.S. Raghupathi, Member

This is a revision on the motion of the Collector Mayurbhanj u/s 59(2) of the Orissa Land Reforms Act.

On 24 June 1976 the Revenue Officer, Baripada received an application u/s 36-A of the Orissa Land Reforms Act from Harekrushna panda asking for an acre of land in plots 1104 and 1105 of village Gajadidamodarpur to be declared non-resumable, on the ground that the land has been in his cultivation as a tenant. One Damodar Panda was shown as the landlord.

The Revenue Officer, after hearing, dropped the proceedings on the ground that the land was part of the surplus land of Damodar Panda which had vested in Government u/s 45 of the Orissa Land Reforms Act and that the application u/s 36-A had been made after such vesting and just a day before distribution of the land. In passing, the order the Revenue Officer observed that the application could have been filed before the vesting of the land. He also observed that there could have been an objection filed to, the draft statement published u/s 43(2) or an objection filed at the time of the enquiry before distribution of lands u/s 51.

An appeal taken to the Additional District Magistrate, Mayurbhanj was a Hawed and the case remanded to the Revenue Officer to rehear the Petitioner and.

take up field enquiry to enquire if the Petitioner was actually a temporary lessee under the ceiling surplus holder whose lands have vested in Government. If after enquiry it is found that the Petitioner was actually temporary lessee under the ceiling surplus holder, a case u/s 36-A can be admitted against the Government and the case should be disposed of according to provisions of law.

In the hearing before the Board of Revenue it is not disputed that there was no objection filed either to the draft statement published under Sub-section (2) of Section 43 which had included the land in dispute, or to the settlement u/s 51 of the disputed land as part of the surplus lands of Damodar Panda. It is explained by the learned Advocate for the opposite party that it is not contemplated that a tenant need object to a draft statement published under Sub-section (2) of Section 43. But even if he were to, there was no opportunity provided in the present case, as the draft statement was published in the tahsil office in Betanoti whereas the land of the tenant was in another tahsil, namely, Baripada. In so far as the settlement of the surplus lands was concerned, it was in fact consequent on Harekrushna Panda coming to know that the lands which he held as a tenant were proposed to be settled with others that he rushed to make an application u/s 36-A. It is the contention of Mr. Srinivas Misra that the right of a tenant u/s 36-A is not obliterated by the provisions of Section 45 and that the right continues, even after the land has vested, unless the land is used or set apart for any public purpose.

The learned Standing Counsel appearing for the Collector has argued that the definition in Section 2(31) makes it clear that a tenant has no right on the land. He might have an interest but he would have no locus standi in proceedings for determination of the ceiling area when Clause (d) of Section 39 clearly states that the lands in the possession of a tenant or a mortgagee shall be deemed to be lands held by the person (landlord). He has then gone on to contend that once surplus lands have vested u/s 45 of the Act free from all encumbrances there could be no right or claim u/s 36-A in respect of such vested lands. Therefore even if there had been an objection filed by a tenant whether it be in the form of an application u/s 36-A or otherwise to the settlement of surplus lands such objection would be an invalid one.

In the light of the observation of their lordships in paragraph 25 of their decision Bhikari v. State of Orissa ILR 1975 Cutt 843, one cannot accept the contention that a tenant is not an interested person for purposes of Sub-section (2) of Section 43. Nor, can one accept the other contention that it was necessary for the draft statement to be published in the tahsil in which the lands are situated. The law as it stands at present requires the draft statement to be published and kept open for inspection only in the office of the Revenue Officer having jurisdiction to prepare and publish the draft statement u/s 43. One could commend to Government the desirability of issuing proclamation in all villages in which lands included in the draft statement are situated to make it known that a draft statement has been published and is open for inspection on the notice board of the specified Revenue Officer but, with the law as it is at present, proceedings u/s 43 cannot be challenged on the ground if that the draft statement had not been published in all the tahsils in which the lands are situated...

Section 43(1) reads

The Revenue Officer on receipt of the return under Sub-section (1) of section (40-A) (or u/s 40-B) after considering all relevant materials available to him and the selection made by the person concerned (having a right to do so) under the said Sub-section of the lands to be retained by him (and after consulting the local committee, if any) shall record his finding in a draft statements showing

(a) the total area held by the person as a landholder or as a raiyat and the class to which each plot of the land belongs;

(b) the surplus area;

(c) the specific parcels of land to be returned by the person and the total area thereof;

(d) the specific parcels comprising the surplus lands under Clause (b);

(e) lands, if any, exempted u/s 39; and

(f) such other particulars as may be prescribed:

Provided that no part of the lands held by a Company or any other corporate body of which the person concerned may be a member or share-holder shall be shown as surplus lands in respect of such person.

If there is a tenant on any parcel of land which does not come within the "surylus area", there is no doubt that the tenant can exercise, until 30 September 1977, his right u/s 36-A. The question then is whether such right u/s 36-A subsists over any parcel of land which has been included in the surplus area.

Until the surplus lands vest in Government, u/s 45 of the Act, it is open to the Revenue Officer either suo motu or on an application made in this behalf to declare the land in the personal cultivation of a tenant to be non resumable and determine the fair and equitable rent and the compensation payable by the tenant. It is excepted that Revenue Officers will dispose of any applications u/s 36-A, relating to the lands included in a draft statement before confirming die draft statement. Equally, if a claim is received from a tenant in the form of an objection to the draft statement under Sub-section (2) of Section 43 the Revenue Officer is expected to enquire into it and dispose of it in exercise of his suo motu powers u/s 36-A.

In the present case where there was no such application or objection until after the lands had vested in Government, it is the contention of Mr. Srinivas Misra that the right of a tenant u/s 36-A survives such vesting u/s 45.

It has been urged that in the absence of any definition of the expression "encumbrances" one should adopt, in terms of Section 2(34), the meaning as assigned to the expression "encumbrances" in the Explanation u/s 5(a) of the Orissa Estates Abolition Act and that accordingly "encumbrances" referred to in Section 45 would not include the interest of an "under-raiyat".

It is argued that following the observations in the case of Madhusudan Subudhi Vs. D. Jma alias Dama Swain and Others, , a Bhagchasi who is a tenant would have the status of an "under-raiyat". A "tenant" as defined in Section 2(31) of the Orissa Land Reforms Act would be no inferior to and would include a Bhagchasi tenant. Therefore, the interest of a "tenant" on the land would survive even after his .land has vested in Government. Provisions of Clause (a) of Section 73 which reads "Nothing contained in this Act shall apply to the Government in respect of lands held by them and which is used or set apart for any public purpose" will not exempt the Government from its obligations, either u/s 7(2) or u/s 36-A, in respect of surplus lands.

Mr. Sahu contests this with the argument that the Orissa Estates Abolition Act is not a Tenancy Act and that the Meaning of the expression "encumbrances" cannot be so constricted. He has further argued that if it were the intention of Government to protect the interests of a tenant there would have no necessity to specifically say in the definition in Section 2(31) that a tenant means a "person who has no right in the land of another" nor would it have been necessary to have specifically stated in Clause (d) of Section 39 that "lands in the possession of a tenant or a mortgagee shall be deemed to be lands held by the person", The interest of a tenant cannot be protected any more than that of a mortgagee.

I would agree that the meaning given to the expression "encumbrances" in the Orissa Estates Abolition Act cannot be imported into the Orissa Land Reforms Act in interpreting the provisions of Section 45. It will be an Incongruity. Unlike the Land Reforms Act, the Estates Abolition Act does not deal with raiyati lands. The incongruity is manifest when one finds that the interests not merely of an under-raiyat but also of a raiyat and indeed even of an intermediary are all excluded from the definition of "encumbrances".

Nevertheless, the right conferred u/s 36-A cannot be obliterated by the mere fiat of determining the ceiling area of the landlord before determining the non-resumable land of the tenant. In the absence of any specific provision in the Act to the contrary, Clause (c) of Sub-section (2) of Section 7 would safeguard the tenant''s claim u/s 36-A and a duty is cast on the Revenue Officer to determine the claim u/s 36-A before he determines the ceiling area of the landlord u/s 43. Neither the provisions of Clause (d) of Section 39 nor those of Section 45 can absolve the Revenue Officer of the obligation to so determine a tenant''s claim for raiyati status. If would be open to a tenant to make his claim at any time until 30 September 1977.

Indeed this is what their Lordships hoped in their valuable decision in Bhikari v. State of Orissa1, in meeting the contention that the landlord ought not to be in suspense in regard to the lands which he could retain on raiyati status within the ceiling area. It is in the interest of both the landlord and the tenant that the rights u/s 36-A of tenants, if any, are determined before the ceiling area is determined u/s 43. The Revenue Officer has thus to first ascertain whether there are any tenants on any of the lands included in the draft statement. If there are any tenants their rights u/s 36-A must be determined, If necessary by the exercise of suo motu jurisdiction, irrespective of whether the tenanted lands come within the surplus area or within the lands to be retained by the landlord. It is only after he has satisfied himself that the claims of all the tenants have been determined should the Revenue Officer confirm the statement.

In the decision of the Board of Revenue taken on 31 December 1976 in Case No. O L R 69 of 1976, the order of the learned Revenue Officer passed on 24 September 1975 determining the ceiling area of the landlord Damodar Panda has been set aside and the case remanded. The observations in the present decision of the Board of Revenue should be taken into account by the learned Revenue Officer before he confirms the draft statement.

In so far as the Section 36-A application of Harekrushna Panda is concerned, this decision of the Board of Revenue does not in any way anticipate the conclusion of the Revenue Officer. It only requires that the proceedings which had been dropped must be resumed and the Section 36-A application disposed of on merit.

Ordered accordingly.