Maheswar Pradhan vs State of Orissa and Others

S.K. Mishra, J.—Petitioner assails the order passed by the Commissioner, Consolidation, Bhubaneswar on dated 28.6.1997 in Consolidation Revision No. 2647 of 1993. In the said order, the Learned Commissioner upheld the orders passed by the Deputy Director, consolidation & Consolidation Officer, Puri, respectively.

Petitioner pleads that he purchased the suit land bearing Hal Plot No. 552 having an area Ac. 0.11 along with Plot No. 547, measuring Ac. 0.44 & plot No. 547/4388 measuring an area of Ac. 0.31 under Hal Khata No. 972 one Suryamani Devi by registered sale deed dated 26.7.1989. The said Suryamani Devi had purchased the same from one Sundari Dei in the year 1986. Petitioner further claims that he is in possession of the land in question peacefully, uninterruptedly & to the knowledge of all concerned.

In course of consolidation operation, the Petitioner filed objection case u/s 9(3) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972, hereinafter referred to as the ''OCH & PFL Act'' for brevity, for recording the aforesaid lands in his name. His objection was registered as objection case No. 594 of 1991. In that objection case Opp. Party No. 5, Arakhita Pradhan was impleaded as a party. He filed his objection to record the suit land in favour of the Plaintiff on the ground that the said lands have already been settled in his favour u/s 15(d) of the Orissa Land Reforms Act, 1960, hereinafter referred to as the ''OLR Act'' for brevity, by the revenue authority.

The Learned Consolidation Officer held that the said Arakhita Pradhan has been declared as ''bhag tenant'' under Sundari Dei & Suryamani Dei (Opp. Party Nos. 6 & 7) u/s 15(d) of the OLR Act in respect of Plot No. 552 & the other plots have been acquired by the Irrigation Department, Sakhigopal Irrigation Sub Division. Thus, the Consolidation Officer recorded the Plot No. 552 in the name of the Petitioner but also reflected the fact that the Opp. Party No. 5 is a bhag tenant with respect to the said land.

Being aggrieved by the said order of the Consolidation Officer the Petitioner preferred an appeal to the Deputy Director, Consolidation, Puri. The Appellate Court also confirmed the findings recorded by the Consolidation Officer. Whereupon, the Petitioner assailed the order passed by the Deputy Director & Consolidation Officer before the Commissioner, Consolidation Orissa, Bhubaneswar in Revision Petition No. 2647 of 1993. The said revision was also dismissed by the Commissioner upholding the orders passed by the Learned Courts below.

Petitioner claims that the consolidation authorities have the powers of the civil Court & are competent to declare right, title & interest on the basis of a valid sale. It is further contended that the consolidation authority has power to restore possession to the rightful owner & hence the order of recording the name of the Petitioner in the remarks column is illegal. Petitioner, therefore, prayed to quash the orders of the consolidation authorities & record the case land exclusively in his favour by deleting the name of the Opp. Party No. 5, Arakhita Pradhan as the ''bhag tenant''.

It is evident from the record that the Addl. Tahasildar-cum-Revenue Officer, Puri in OLR Case No. 95 of 1982 has declared Arakhita Pradhan to be in cultivating possession of the lands in question & has declared him to be a tenant u/s 15(d) with respect to land in question.

The OCH & PFL Act provides the forum for adjudication of civil disputes in those areas which are notified u/s 3 of the OCH & PFL Act. Sub-section (4) of Section 4 of the Act provides that every suit & proceedings for declaration of any right or interest in any land situate within the consolidation area in regard to which proceedings could be or ought to be started under the Act, pending/ before any Civil Court on an order being passed on that behalf by that Court shall abate. Section 51 of the said Act also bars jurisdiction of the Civil Court. u/s 23 of the OCH &. PFL Act provides for provision for enforcement of order has been laid down. It reads as follows:

Entering into possession by land owner - On & after the date of publication of the Map & the record of rights under Sub-section (2) of Section 22, a land owner shall be entitled to enter into possession of the lands allotted to him.

So the normal rule is that whenever the title of the landed property coming under the consolidation area is decided & the records are prepared in the name of any person(s), then the consolidation authority shall be entitled to restore possession of the lands recorded in his/their name(s). Such being the case, the consolidation authorities, which has also additional task of preparing the land records, has to restore possession of the land in question to the title holder, if he is not in possession. In other words, the execution of the orders has also to be carried out by the consolidation authorities. This provision therefore reveals that the consolidation authority should not record the illegal note of possession in favour of any person even if it is found that the man in possession is not the little holder. The only course opens them to restore possession to the title holder.

However, the aforesaid rule has an exception. The consolidation authorities cannot overrule any order passed by the revenue authorities. It is profitable to take note of Section 51 of the OCH & PFL Act. It reads as follows:

Bar of jurisdiction of Civil Courts - Notwithstanding anything contained in any other law for the time in force, but subject to the provisions contained in Clause (3) of Section 4 & Sub-section (1) of Section 7(1) all questions relating to right, title, interest & liability in land lying in the consolidation area, except those coming within the jurisdiction or Revenue Courts or authorities under any local low for the time being in force shall be decided under the provisions of this Act by the appropriate authority during the consolidation operations; & (2) no Civil Court shall entertain any suit or proceedings in respect of any manner which an officer or authorities empowered under this Act is competent to decide"

(Emphasis supplied)

It is clear from the aforesaid provision that the jurisdiction of the revenue Courts or authorities is not conferred on the consolidation authorities. The Orissa Land Reforms Act is one such Act which shall take all precedence over the provision of OCH & PFL Act. Section 15 of the said OLR Act provides that any claim for recovery of arrears of rent by a landlord & any dispute between a landlord & his raiyat or tenant, as the case may be, regarding quantum of the rent payable or tenant''s possession of the land & his rights to the benefit under the Act or the right of the landlord to terminate the tenancy of tenant u/s 14 or the liability of the tenant who cease to cultivate the land under that Section or the existence of relationship of landlord & tenant shall be decided by the Revenue Officer on an application to be filed in the prescribed manner by the party interested. The procedure of filing & enquiry has been provided thereafter.

Sub-section (31) of Section 2 defines a tenant to be a person who has no right in the land of another but under the system generally known as Bhag, Sanja Kata or such similar expression as under any other system, law, contract, custom or usage, personally, cultivates such land on payment of rent in cash or in kind or in both or on condition of delivery to that person either a share of the produce of such land or the estimated value of a portion of crop raised on the land or a fixed quantity of produce irrespective of yield from the land or produce or its estimated value party in any of the ways described above & partly in another described in the Section.

Learned Counsel for the Petitioner relying on the aforesaid definition submitted that the tenant has no right in the land & his name cannot be recorded in the final publication record of rights indicting that he is a ''bhag chasi''.

It is noted here that this provision has been enacted to protect the right of the tiller of the land. The OLR Act is a progressive legislation, which aims at recognizing the rights of the real cultivators. A person who is cultivating the land has right to cultivate the same & has been protected from paying higher rent or for eviction therefrom. However, if the tenant or the ''bhag chasi'' violates any of the condition mentioned in Section 14 of the OLR Act, he may be evicted therefrom by the landlords.

This Court in Bhikari Nayak v. Brajabandhu Nayak and Ors. 32 (1990) OJD 523 (Civil), in a Division Bench, on reference, has held that the expression "it has no right in the land of another" u/s 2(31) of the OLR Act is to be interpreted as "it has no abiding interest in the land of another". The Court further held that right of cultivation with direction for paying higher rent or for eviction are not abiding interest in land. Where one party to be disputed claim under other party & there is dispute of such relationship on account of factual position or legal position, such dispute is to be decided by the Revenue Officer having exclusively the jurisdiction u/s 15(d) of the OLR Act. Section 67 of the Act bars Civil Court to try & decide such a matter.

The observations made in the aforesaid decision are squarely applicable to this case. Once revenue authorities have held that the Opp. Party No. 5 is the bhag tenant or bhag chasi, then the consolidation authorities have no other option but to take into consideration such order of the revenue officer. In other words, the order passed by the revenue officer exercising jurisdiction under the OLR Act, has a binding effect on the consolidation authorities. The only remedy available to the present Petitioner is to approach Appellate/Revisional authorities under the OLR Act. The order passed by the consolidation authorities, therefore, requires no interference. The Writ Petition fails & the same is not admitted.