Radhamohan alias Radhagobind Deb and Others vs Udayanath Kandi and Others

R.N. Misra, J.—This application under Article 226 of the Constitution is directed against an appellate order of the Additional District Magistrate of Puri as upheld by the Revenue'' Divisional Commissioner in a revision under the Orissa Land Reforms Act (hereinafter referred to as the ''Act'').

Opposite party No. 1 made an application purporting to be u/s 36-A of the Act on 5-12-1975 and the said application was registered as O. L. R. Case No. 977 of 1975. On behalf of the Petitioner, an affidavit was filed to the effect that the Petitioner owned and possessed a total area of Ac. 2 80 of land and was a person under disability as defined in Section 2(21) of the Act. After hearing both sides on 25-11-1976 the Revenue Officer found that the Deity was the owner of the property; it owned and possessed less than three acres of land and there was no relationship of landlord and tenant. Accordingly the application was rejected.

On appeal, the Additional District Magistrate found that the Revenue Officer had not made any enquiry into the claim u/s 36-A and even for determining the existence of relationship of landlord and tenant, which was a factual question, parties had not been given opportunity of leading evidence. He further held:

.... u/s 36A(3), the learned Revenue Officer is competent to decide any dispute regarding the existence of the relationship of landlord and tenant. The learned Revenue Officer should have proceeded to decide the disputes as regards the existence of the relationship of landlord and tenant and in case his finding was in the affirmative, the Appellant should have been entitled to benefit of Section 15 if not Section 36-A. In case his finding was negative, the claim of the Petitioners should then have been rejected, In view of this, I consider it necessary to remand the record to the lower Court for disposal in the light of above observation....

Petitioners challenged the appellate order by filing a revision before the Revenue Divisional Commissioner. The revisional authority dismissed the application by saying:

On perusing the certified copy of the appellate order, I find that the appellate Court has remanded the case to the lower Court for disposal. In- other words, scope is still available to the Petitioner to putforth his view before the Revenue Officer.

In the circumstances, I am not inclined to exercise my revisionary jurisdiction in this case. The application for admission of the revision petition is accordingly rejected.

The application of opposite party No. 1 was clearly one u/s 36-A of the Act. Different forms have been provided under the Rules made under the Act for applications to be made under Sections 15 and 36A of the Act. To maintain an application u/s 15, there must be a pre-existing dispute and the application has to be made within a specified period of limitation from the date when the case of action arose. For making an application u/s 36A of the Act, no pre-existing dispute is necessary and different periods of limitation have been prescribed. Merely because by the Amending Act of 1976, Sub-section (3) has been added to Section 36A which indicates that in a proceeding u/s 36A the Revenue Officer will have power to decide a dispute regarding existence of relationship of landlord and tenant or as to the identity of tenant, the proceeding u/s 36A cannot be converted to one u/s 15 of the Act. The observation of the appellate authority in that regard thus seems to be uncalled for.

Petitioners, however, are not entitled to dispute the order of remand. Opposite party No. 1 in his application u/s 36A had asserted certain facts which were not accepted by the Petitioners. The matter, therefore, called for an investigation. The Revenue Officer did not give any opportunity to the opposite party No. 1 to substantiate his claim. He wag obviously impressed by the fact that the Deity was a person under disability and since it did not possess more than three acres of land, it was covered by Section 2(21)(e) of the Act. Section 24(2) of the Act excludes the application of Chapter-III in respect of lands held by a person under disability. Section 36A is a part of Chapter-III. If Petitioner would come u/s 2(21)(e) of the Act, the benefit u/s 36-A of the Act may not be available to opposite party No. 1. But there has been no appropriate investigation by the Revenue Officer and there is no dear finding that the Deity is a raiyat as contemplated under that provision. Opposite party No. 1 had maintained that there was no Deity at all and the transaction in its favour in 1975 was a sham one. These aspects also fell for consideration.

We accordingly decline to interfere in the matter and would direct the order of remand to be sustained except that the Revenue Officer shall not give relief to opposite party No. 1 u/s 15 of the Act if his application u/s 36-A is not to succeed. There would be no order for costs.

B.K. Ray, J.

I agree.

Ordered accordingly.