Ramkali Bibi alias Surjbala vs Gaurishankar Mishra and Others

R.N. Misra, J.—This is an application under Article 226 of the Constitution for quashing of an order of remand made by the Board of Revenue in a revision filed by opposite party No. 1 under the provisions of the Orissa Land Reforms Act (hereinafter referred to as the ''Act'').

Petitioner made an application u/s 4(1)(i) of the Act before the Revenue Officer (opposite party No. 5) and the said application was registered as Case No. 32 of 1966. In column 3 of the application he gave the following particulars:

Identifying particulars like H.S. Plot No. Area Classification

survey, plot number, holding 112 0.40 Berna

number, classification, area and 115 2.04 Mal

other details of the land in 116 0.35 Berna

question. 117 0.62 Mal

118 0.61 At

120 2.29 Mal

5.71

All the above plots will come under Class IC of land Reforms Act.

According to the Petitioner, these plots had been included in the Parch a issued to Mohammad Usman under holding Nos. 30 and 63. One Ganga Prasad Agarawalla was recorded as the sikimi tenant though he was the owner and claimed the lands on permanent basis in his own right, title and interest Bansidhar happened to be Ganga Prasad''s brother and Petitioner is Banshidhar''s son''s widow. She claimed that she was the only heir of Ganga Prasad and was entitled u/s 4(5) of the Act to be declared as a raiyat in respect of the lands. Pursuant to the notice in the said application, opposite parties 1 and 3 appeared and filed objections. On 27-1-1971, the proceeding was disposed of ex parte allowing the claim of the Petitioner. An appeal by opposite parties 1 and 3 was dismissed as being barred by limitation. The revision application is said to have been dismissed for default. Thereafter opposite party No. 1 carried a revision to the Board of Revenue. After considering the matter at length, the Member, Board of Revenue came to find that there was no adequate enquiry and the statutory requirements which were condition precedent for a declaration u/s 4(5) of the Act had not been found. Therefore, he directed:

... The revision is accordingly allowed and the order of the learned Additional District Magistrate remitted for re-consideration with the direction .that the application made under Sub-section (5) of Section 4 of the Orissa Land Reforms Act should be necessary to determine -

(i) Whether Ramkali Bibi was in cultivating possession immediately before the commencement of the Act; and

(ii) Whether in terms of the tenancy law in force at that time in the Sadar Police Station of Sambalpur district, the right of sikimi tenant was heritable and if it was whether Ramkali Bibi inherited such a right.

Section 4(1)(i) of the Act ran thus:

(1) the following persons shall be deemed to be raiyats for the purposes of this Act in respect of the lands held by them, namely:

xx xx xx xx

(i) Subject to the provisions of Sub-sections (5) to (8) persons who are immediately before the commencement of this Act in personal cultivation of any land and recorded as sub-tenants or under-raiyats in respect of such land in the record-of-rights under any law in force in any part of the State.

By Amending Act 29 of 1976, the words "immediately before the commencement of this Act" were deleted and at the end of the of clause "and their successors-in-interest" were added. The present application was disposed of on the law as it existed prior to the 1976 amendment. Sub-section (5) before amendment provided:

The Revenue Officer, on an application in that behalf on the prescribed form and manner by the subtenant or under raiyat, as the case may be, referred to in Clause (i) of Sub-section (1) made not later than ninety days from the commencement of this Act or within such further period not exceeding thirty days as such officer in his discretion allows, may, after such enquiry as may be necessary, by order declare such subtenant or under raiyat to be a raiyat in respect of the land referred to in the said clause:....

Before a claim as raised by the Petitioner can be allowed, it is necessary that an applicant should be in personal cultivation of the land immediately before the commencement of the Act and the claimant should be a sub-tenant or under-raiyat in respect of the land in the record-of-rights under the law in force in the appropriate area of the State. The Board of Revenue has found that there was no enquiry on these aspects and not keeping the legal provisions in view, the Revenue Officer had disposed of the matter. At the time the revision was filed before the Board, it had jurisdiction suo motu to revise orders of subordinate authorities and had power to remit for re-consideration. Having examined the matter with reference to the records of the proceedings before the subordinate forums, we are satisfied that the order of remand is in the interests of justice and it is not a fit case calling for any interference in exercise of our extraordinary jurisdiction.

The writ application is accordingly dismissed. We make no order for costs.

N.K. Das, J.

I agree.

Application dismissed.