Krishna Melka and others vs State of Orissa and others

Biswanath Rath, J. Â

This writ application is filed assailing the order passed by the Member, Board of Revenue, Cuttack at Annexure-5 involving O.L.R. Revision Case

No.118/1987 and the order in the remand proceeding passed by the Tahasildar, Bissam Cuttack at Annexure-6.

Leaving aside the facts not necessary for the purpose of decision involving the case, this Court only takes note of the facts relevant for the purpose.

Assailing the impugned order at Annexure-5, Sri S.S.Rao, learned counsel for the petitioners submitted that originally the O.L.R. Revision Case

No.118/1987 was initiated involving the father of the petitioners. The proceeding was initiated on 19.11.1987 but involving the father of the petitioners

alone in spite of his death on 15.7.1987. It is under the circumstance, Sri Rao, learned counsel for the petitioners contended that the judgment involving

Annexures-3 & 5 was against a dead person. Further taking to the observation in the impugned order that there was no general proclamation following

the provision contained in Sub-Rule (2) of Rule 27-B of the O.L.R. (General) Rules, 1965, the Board of Revenue held for there being no general

publication inviting objection from the general public, the proceeding got vitiated. Sri S.S.Rao, learned counsel for the petitioners submitted that the said

observation remains contrary to the actual position. By taking this Court to the order-sheet involving O.L.R. Case No.82/76, a proceeding under

Section 36 A of the O.L.R. Act specifically referring to the order-sheets dated 3.4.77 and 23.4.77, Sri Rao, learned counsel for the petitioners further

contended that there is clear material establishing not only the general notice inviting objection was issued but simultaneously a notice was also issued

to the members of the local committee to remain present but there is also order-sheet indicating that in spite of general notice inviting objection, no

objection has been received. It is under the circumstances, Sri Rao appearing for the petitioners opposed the impugned order firstly on the premises

that the proceeding was taken up involving a dead person and without involvement of the legal heirs of the tenant, who was dead by then and

secondly, for the clear order-sheet involving a 36 A proceeding, the finding of the Member of Board of Revenue appears to be contrary to the record.

Further assailing the impugned order at Annexure-6, Sri Rao, learned counsel for the petitioners reiterating his submission that in this proceeding

also there was no notice to the petitioners and the proceeding has been decided only accepting the evidence collected behind the back of the

petitioners. It is under the circumstance, Sri Rao for the petitioners for the petitioners prayed this Court for interfering in the impugned orders and

setting aside the same.

Sri K.K.Mishra, learned Additional Government Advocate appearing for the O.Ps. while seriously disputing the fact on deciding the matters

involving the orders at Annexures-5 & 6 behind the back of the petitioner and without notice to the petitioners, thus taking this Court to different

stages of the proceeding in the impugned orders, Sri Mishra contended that in spite of notice, there appears the petitioners did not participate in the

proceeding, and therefore, no fault can be found with the authority deciding the matter involving Annexures-5 & 6. Further coming to answer on the

dispute being raised on the question of compliance of provision under Rule 27-B, Sri K.K.Mishra, learned Additional Government Advocate taking this

Court to the discussion part involving the proceeding, vide Annexure-5 submitted that for the observation of the learned Member, Board of Revenue, it

appears, the learned Member has applied his mind and in absence of any material contradicting the same, such observation need not be interfered

with. Further taking this Court to the findings of the Tahasildar involving the proceeding at Annexure-6 and his reasons being based on the evidence

available therein, Sri K.K.Mishra, learned Additional Government Advocate prayed for not interfering in the impugned orders and dismissing the writ

application thereby.

Considering the rival contentions of the parties,this Court finds, following an application under Section 59(2) of the O.L.R. Act, 1960, the

proceeding, vide O.L.R. Revision Case No.118/1987 was initiated by the Member, Board of Revenue. From the Cause Title at Annexure-3, it

appears, there has been step for substitution involving the O.P.1 therein, the father of the petitioners herein and the application filed by the petitioners

at Annexure-3 under Section 59(2) of the O.L.R.Act has a clear indication of the names of the petitioners in the side column of the petition available

at page-24 of the brief. Further looking to the observations involving the order-sheet available at Annexure-4, this Court from the order dated 2.8.1988

finds substitution aspect involving O.P.1 therein has not only been considered but there has been also direction issuing notice to the substituted O.Ps.

fixing to 26.9.88. The order dated 21.8.89 therein further discloses that notice involving the legal heirs of the deceased O.P.1 remains sufficient. Be

that as it may, for the recordings involving in Annexures-5 & 7, this Court finds, both the proceedings have been decided behind the back of the

petitioners may be for their non-attendance therein even after due notice and therefore, these are all ex parte orders.

Now coming to the second point involved in the matter as to whether the Member, Board of Revenue is justified in observing that there has been no

compliance of mandatory provision of issuing general notice as stipulated in Rule-27(B)(2) of the O.L.R.(General) Rules, 1965 ? This Court from

perusal of the order-sheet at Annexure-1 being produced by the learned counsel for the petitioners in the writ application, from the orders dated

3.4.1977 and 23.4.1977 therein finds as follows :-

“3-4-77. As per the amended rules issue general notice inviting objections giving 15 days time. Also issue notice to the members of the local

committee to remain present at Hat Muniguda on 19-4-77 at 10 A.M. 23-4-77. General notice inviting objections has already been issued. But no

objection has been received from any quarter. Issue notice to the members of the local committee to remain present at Hat Muniguda on 14-5-77 for

consultation.â€​

 Reading of both the aforesaid orders, this Court finds, there is clear recording in the 36-A proceeding that not only general notice inviting objection

giving fifteen days time, as required in the Rule was issued by virtue of the order dated 3.4.1977 but in spite of issuing such notice and posting of the

case to twenty days thereafter on 23.4.1977, it appears no objection has been received from any quarter in the 36-A proceeding. So, therefore, this

Court holds the finding of the Member, Board of Revenue that there was no following of the provision at Rule-27(B) of the O.L.R. (General) Rules,

1965 runs contrary to the material available on record. It thus appears, there is mechanical application of mind by the Member, Board of Revenue in

this regard. It is at this stage coming to consider the merit involving the case and considering the objection of Sri K.K.Mishra, learned Additional

Government Advocate for the O.Ps. that since the petitioners involving the case at Annexure-6 and that the petitioners having a scope for statutory

appeal challenging straightway the order of the Tahasildar in a writ application, the writ application is not maintainable.

This Court for long pendency of the writ application in this Court since 1997 rejects such objection and on the other hand, enters into the merit

involving the order passed by the Tahasildar. It is at this stage, this Court perusing the order at Annexure-6 finds, the Tahasildar has come to his

finding therein based on some evidence of the local member on record by the Tahasildar to ascertain the tenancy with the father of the petitioners and

the continuance thereafter with the petitioners. It is at this stage, since such evidence has been recorded behind the back of the petitioners and the

petitioners did not have the scope for repudiating the same or bringing any evidence in their favour may be for their non-appearance in the Court, this

Court observes, for the dispute involving the tenancy of the petitioners and the father of the petitioners and continuance of the dispute thereafter, the

petitioners should get an opportunity of evidence, objection and participation in the proceeding involving the order at Annexure-6 but however without

entering into the aspect of objection from general public as this aspect has been closed by this Court in this case itself.

As a result, this Court interfering in the order of the Member, Board of Revenue at Annexure-5 to the extent of his observation that there has been

no compliance of Rule-27(B) of the Rules (General), 1965 upholds the remand order by the Member, Board of Revenue and directs the Tahasildar,

Bissam Cuttack to take up the remand proceeding pursuant to the order of the Member, Board of Revenue at Annexure-5 afresh and adjudicate the

matter finally by giving opportunity to all concerned and also giving opportunity of objection as well as evidence to the petitioners more particularly.

Since this matter is decided in contest of the petitioners, this Court directs the petitioners to appear before the Tahasildar in the remand proceeding

involving the petitioners by making their appearance along with a copy of this judgment on 9th April, 20188. The writ application succeeds but

however with an order of remand and the observations made herein above.