JUDGMENT : 1. This is an application under Articles 226 and 227 of the Constitution, against the order of the Board of Revenue, dated the 8th May 1956, in a batch of six revision cases, Nos. 141, 142, 143,144, 145 and 146 of 1955.56, filed by six tenants against the orders of the lower courts directing their evection. 2. The Petitioner is the trustee of a Deity Sri Brahmeswara Mohaparabhu, who is the landlord of some lands in village Latti in Berhampur Taluk of Ganjam district. On the 17th of February 1954:, he instituted six suits, O.T.P. Cases Nos. 5 to 10 of 1954, against the tenants alleging that they failed to pay the entire rajabhag due to the landlord for the year 1950.51, and consequently they were liable to eviction. His prayer was two-fold. Firstly, he wanted a decree for arrears of rent due for the period in question and secondly he wanted a decree for eviction of the tenants from the suit lands. All the suits were heard analogously and disposed of by one judgment, by the trial court, the appellate court, and the court of revision. The trial court decreed the arrear rental due and also directed eviction of the tenants and this order was upheld on appeal, by the Additional District Collector of Ganjam. The Board of Revenue, however while maintaining the decree for arrears of rent, with a slight modification as regards the rate of interest, set aside that portion of the trial court's order dealing with the eviction of the tenants from the land. 3. There has been some inaccurate statements of the fact by the parties themselves, when the cases were fought out before the lower courts. I find that in the original application before the trial court, the Petitioner described his application as a suit u/s 7 of the Orissa Tenants Protection Act read with Madras Estates Land Act. It is now admitted by Mr. Ramdas on behalf of the Petitioner that the village is in the ryotwari area of Ganjam district and it is not governed by the provisions of the Madras Estates Land Act at all. The property of the Petitioners is a minor inam and the relationship between the Petitioner and his tenants would ordinarily have been governed by the provisions of the Transfer of Property Act. The property of the Petitioners is a minor inam and the relationship between the Petitioner and his tenants would ordinarily have been governed by the provisions of the Transfer of Property Act. But by virtue of the Orissa Tenants Protection Act which Came into force on the 1st September 1947, protection from eviction was given to all classes of tenants even under a minor inamdar and the landlord's right to evict them was circumscribed In the various provisions of that Act. The inaccurate statement of the Petitioner in his plaint about the applicability of the Madras Estates Land Act to the lands in question misled the Member of the Board of Revenue, into thinking that produce rent for 1951-52 and 1952-53 was recovered by means of a proceeding u/s 74 of the Madras Estates Land Act. It is, however, now conceded before us by Mr. Ramdas, on behalf of the Petitioner, that the produce rent due to the Petitioner from the tenants for the year 1951-52 and 1952-53, was recovered not under the provisions of the Madras Estates Land Act but by an application to the Revenue Officer under Clause (e) of Sub-section (1) of Section 7, read with Sub-section (8) of that Section of the Orissa Tenants Protection Act. It is indeed unfortunate that such wrong statements should have been made before the lower court leading to some confusion. 4. The facts found may be summarised as follows. The arear produce rent for the year 1950.51 Was due from the tenants on the 21st February 1951. The tenants paid a substantial portion of the rent due but some balance of rent was still due from them. Thus, in O.T.P. Case No. 5 of 1954, it is the Petitioner's own case that the total rajabhag due was 1 bharanam and 9 now tis out of which they had paid 1 bharanam, leaving a balance of 9 nowtis alone as due. Doubtless, by adding interest to the balance the total arrear due on the date of the suit was increased. Similarly, in O.T.P. Case No. 6 of 1954 the Petitioner alleged that the total rent due to him was 3 bharanams and 10 nowtis out of which the tenants paid 2 bharanams and 16 nowtis leaving only a balance of 14 nowtis as due from them. It is unnecessary to describe in detail the claim in the other petitions. Similarly, in O.T.P. Case No. 6 of 1954 the Petitioner alleged that the total rent due to him was 3 bharanams and 10 nowtis out of which the tenants paid 2 bharanams and 16 nowtis leaving only a balance of 14 nowtis as due from them. It is unnecessary to describe in detail the claim in the other petitions. It is sufficient to say that on the landlord's own case a substantial portion of the bhag rent had been paid and the default was only in respect of a small portion. As the default took place on the 21st February 1951 it was open to the landlord to immediately apply to the Revenue Officer under Clause (d) of Sub-section (1) of Section 7 of the Orissa Tenants Protection Act, for a decree for arrears of rent and also for an order for eviction of the tenants. Sob-Section (2) of Section 7 of that Act confers on the Revenue Officer the discretion to direct the tenant to cease to cultivate the land if, after holding an enquiry he is satisfied that such an order would be appropriate. The landlord, however, did not take immediate action, either for realization of arrear rent or for eviction of the tenants. On the other hand, he allowed the tenants to cultivate the land and realised bhag rent due to him for the two succeeding years namely 1951-52 and 1952.53, by applying to the Revenue Officer for division of the produce as permitted by Clause (e) of Sub-section (1) of Section 7, read with Sub-section (8) of Section 7 of the Orissa Tenants Protection Act. Having thus allowed the tenants to remain on the land and having appropriated his share of the bhag with the help of the Revenue Officer, the landlord, three years later, suddenly took it into his head to file these applications for arrear of rent and for eviction of the tenants. 5. It was urged by Mr. Having thus allowed the tenants to remain on the land and having appropriated his share of the bhag with the help of the Revenue Officer, the landlord, three years later, suddenly took it into his head to file these applications for arrear of rent and for eviction of the tenants. 5. It was urged by Mr. Ramdas on behalf of the Petitioner that as the Orissa Tenants Protection Act and the rules framed thereunder did not prescribe any period of limitation Ear an application fer eviction of the tenant, the landlord was within his rights in waiting for three years and that merely because for the years 1951-52 and 1952-53 he appropriated his share of the bhag rent with the help of the Revenue Officer his right to evict the tenants which arose on account of their default in paying the entire bhag rent on the 21st February 1951, cannot be taken away. He further urged that the Member, Board of Revenue, erred in law in applying the principle of waiver on the basis of the subsequent conduct of landlord. He cited before us the decision of the Federal Court reported in AIR 1949 124 (Federal Court) where it was held that a statutory tenant protected from eviction by a special law like the Bombay Rent Restriction Act 1942, cannot rely on the principle of 'holding over' laid down in Section 116, of the Transfer of Property Act. Mr. Ramdas urged that the same reasoning should apply so far as the principle of waiver u/s 112 of the Transfer of Property Act is concerned and that the Board of R venue committed an error in saying that the landlord was not entitled to evict because he allowed the tenants to cultivate the land after the date of default and realised rent from them for the two succeeding years. 6. For the purpose of this application it is unnecessary to decide the larger question as to whether a statutory tenant under the provisions of the Orissa Tenants Protection Act can rely on the principle of waiver laid down in Section 112 of the Transfer of Property Act. 6. For the purpose of this application it is unnecessary to decide the larger question as to whether a statutory tenant under the provisions of the Orissa Tenants Protection Act can rely on the principle of waiver laid down in Section 112 of the Transfer of Property Act. The Member, Board of Revenue, did not either expressly or by implication say in his order that the Petitioner's subsequent conduct in realising rent from the tenants for the years 1951-52 and 1952-53 constituted a waiver of his right to evict the tenants for their default in February, 1951. He merely examined the question as to whether, in the peculiar circumstances of this case, the tenants can be said to have "failed to deliver to the landlord the rent accrued due" for the purpose of Clause (d) of Sub-section (1) of Section 7 of the Act so as to Justify the tenants eviction in exercise of the powers conferred on him by Sub-section (2) of that Section. It should be noticed that the landlord does not get a right to evict his tenant under the provisions of the Orissa Tenants' Protection Act. All that the law gives him is a right to apply to the Revenue Officer u/s 7, if there is a dispute between him and his tenant on account of the latter's failure to pay him the rent accrued due. Thereupon, it is left to the discretion of the Revenue Officer under Sub-section (2) of Section 7 to direct the eviction of the tenant. The eviction of the tenant is thus a matter of discretion with the Revenue Officer and it is not a right which accrued to the landlord on the date of default. In exercising such discretion the Revenue Officer is entitled to take into consideration the actual amount of rent that is in arrear and the subsequent conduct of the landlord. Doubtless the first two lower courts were not inclined to attach must importance to these circumstances and thought that once there is an arrear even in respect of a small portion of the rent due, the tenant should be evicted. But the Member, Board of Revenue, in exercise of his revisional powers has also equal jurisdiction to re-examine all the facts bearing on the case and then decide whether the tenant should be evicted or not. But the Member, Board of Revenue, in exercise of his revisional powers has also equal jurisdiction to re-examine all the facts bearing on the case and then decide whether the tenant should be evicted or not. The learned Member has observed that though some portion of the rent for 1950-51 was doe from the tenants the fact that the landlord realised the full bhag rent due from them in subsequent years was sufficient to show that there was no default to pay rent to such an extent as to justify their eviction. He thought that the ends at justice would be served by directing the tenants to pay arrears of rent due, with interest permitted by law. 7. In exercise of our extra-ordinary jurisdiction under Articles 226 and 227 we are not satisfied that sufficient grounds have been made out for interfering with the order passed by the Member, Board of Revenue. There has been unreasonable delay on the part of the landlord in approaching the Revenue Officer for eviction of the tenants. His subsequent conduct in allowing the tenants to remain on the land and in realising his share of the rent with the help of the Revenue Officer would justify the Revenue Court's rejecting his prayer for Eviction of his tenants. The landlord had no right to evict the tenants and in the circumstances of this case I am not satisfied that the exercise of jurisdiction by the Member, Board of Revenue, was without jurisdiction. The petition is therefore dismissed with costs. Heating fee Rs. 50/(Rupees fifty only). Barman, J. I agree. Petition dismissed. Final Result : Dismissed