RABINDRA KUMAR BADAJENA v. BICHITRANANDA KHATEI — 1991 DIGILAW 288 (ORI)

A. K. PADHI, J. ( 1 ) CHALLENGING the orders of the Revisional Authority and that of member, Board of Revenue under S. 59 (2) of the Orissa Land Reforms Act (hereinafter referred to as the 'act'), arising out of an application under Section 36-A of the Act, this writ application has been filed. ( 2 ) IN the writ application the petitioner has asserted that while the petitioner was a minor the disputed property comprising an area of Ac. 2. 43 decimals was purchased by him from one Tilatoma Bhuyan. After the purchase there was a proceeding under Section 144, Cr. P. C. between the petitioner and Damei Khatei, the grand father of opp. party No. 1 which was convened to one under Section 145, Cr. P. C. proceeding and possession was declared in favour of the petitioner. During the pendency of the 145, Cr. P. C. proceeding the disputed property was in attachment. After conclusion of enquiry there was delivery of possession. Grand father of opp. party No. 1 had filed an application under Section 26 (2) of the Act to declare the land to be non-resumable. The Revenue Officer while holding that an application under Section 26 (2) of the Act is not maintainable, gave a finding that the relationship of landlord and tenant exists between the parties. The appeal filed by the present petitioner was allowed and the appellate Court held that the application under Section 26 (2) of the Act was not maintainable and there is no relationship of landlord and tenant. The grand father of the petitioner died in the year 1973. On 3-2-1975 opp. party No. 1 filed an application under Section 36-A of the Act which was registered as O. L. R. Case No. 975 of 1975. The application under Section 36-A of the Act was rejected by the Revenue Officer holding inter alia that :- (A) there is no relationship of landlord and tenant and in between the petitioner and opp. party no. 1; (B) the petition is not maintainabe as the Bhagchasi right is not being heritable and the same ended with the death of Demei Khatei; and (C) opp. party No. 1 was never inducted as a tenant in respect of the disputed land. Being unsuccessful, opposite party No. 1 filed O. L. R Appeal No. 6 of 1983 which was rejected by the appellate authority. party No. 1 was never inducted as a tenant in respect of the disputed land. Being unsuccessful, opposite party No. 1 filed O. L. R Appeal No. 6 of 1983 which was rejected by the appellate authority. Thereafter opposite party No. 1 filed revision under Section 59 (1) of the Act. The Revisional Authority allowed the revision. Petitioner filed an application under Section 59 (2) of the Act before the Member, Board of Revenue who has dismissed the application with the finding: Section 7 (1) of the Act conferring the rights of heritability on Bhag tenants is not retrospective. The Member further held that the application under Section 36-A of the Act was filed before the amendment came into force and hence opposite party No. 1 cannot claim the right of tenancy by way of inheritance. Basing on the report of the Local Committee, the Member, Board of Revenue came to the conclusion that the relationship of landlord and Bhagchasi exists between the petitioner and opposite party No. 1. ( 3 ) CHALLENGING the orders of the Revisional Authority and that of the Member, board of Revenue the learned advocate for the petitioner submits that- (A) the Member, Board of Revenue has held that Section 7 (1) of the Act is not retrospective. Since Demei Khatei, the grand father of opp. party No. 1 died on 22-12-1973 the alleged fight of Bhagchasi ended with him. Opp. party No. 1 having failed to prove induction of fresh tenancy, the application should have been dismissed; (B) since the application filed by Damei Khatei under Section 26 (2) of the Act had been dismissed on the finding that there was no relationship of landlord and tenant the same will operate as res judicata in the present proceeding; (C) Mandatory provisions under Rule 27 (c) of the Orissa Land Reforms Rules having not been complied with while obtaining the views of the Local Committee, the entire proceeding is vitiated; and (D) in view of the admission of opp. party No. 1 that he had not been inducted as tenant after death of his grand father, the petition under S. 36-A of the Act is liable to be dismissed. Learned advocate for opp. party No. 1 submits that : (A) it is true that at the time when the application was filed by opp. party No. 1 that he had not been inducted as tenant after death of his grand father, the petition under S. 36-A of the Act is liable to be dismissed. Learned advocate for opp. party No. 1 submits that : (A) it is true that at the time when the application was filed by opp. party No. 1 the right of a tenant was not heritable, but the authorities have the jurisdiction to come to the finding that relationship of landlord and tenant existed in between the petitioner and opp. party No. 1 and the same was also expressed by the Local Committee. This finding regarding the relationship of landlord and tenant in between the petitioner and opp. party No. 1 is not based on heritable right; (B) the application under Section 26 (2) of the Act having been dismissed as not maintainable any finding thereunder cannot operate as res judicata; (C) the procedure under Rule 27 (c) of the Orissa Land Reforms Rules is mandatory but as the same has been complied with the report of the Local Committee is acceptable; and (D) there is no admission by opp. party No. 1 that he was never a tenant rather the tenor of the evidence shows that he along with his grand father was a tenant under the petitioner. ( 4 ) FROM the rival contentions of the parties the moot questions which arise for consideration are :- (I) Whether the finding of the earlier proceedings under Section 26 (2) of the Act shall operate as res judicata? (II) Whether the application under Section 36-A of the Act is maintainable as earlier application under Section 26 of the Act had been rejected? (III) Whether the procedure laid down under Rule 27 (c) of the Orissa Land Reforms Rules is mandatory and has been complied with in this case? and (IV) Whether in view of the admission of opp. party No. 1 the present proceeding is maintainable. ( 5 ) ANNEXURE-7 is a certified copy of the order passed in O. L. R. Appal No. 2 of 1969 arising out of the application under S. 26 (2) of the Act. From the order of the appellate Court, it is clear that the Revenue Officer decided the proceeding on preliminary issue regarding the maintainability and while holding that the relationship of landlord and tenant exists between the parties. From the order of the appellate Court, it is clear that the Revenue Officer decided the proceeding on preliminary issue regarding the maintainability and while holding that the relationship of landlord and tenant exists between the parties. The learned appellate Court also observed that no evidence was led on the issue of relationship of landlord and tenant. In view of this specific finding, in our opinion, since the application under Section 26 (2) of the Act was rejected under the preliminary issue holding it to be not maintainable, the finding of the appellate court shall not operate as res judicata. ( 6 ) LEARNED Advocate for the petitioner has vehemently urged that in view of the prohibition under Section 36-A of the Act since the landlord filed an application under Section 26 of the Act the application under Section 36-A of the Act is not maintainable. Section 36-A of the Act as it stood then when the application was filed contains a prohibition clause :-". . . . . . . . . . WHERE neither the landlord nor the tenant, having a right to make an application under Section 26 in respect of any land, has made such an application the Revenue Officer may, on an application made in that behalf. . . . . . . . "section 26 of the Act reads as follows :-"the landlord shall have the right to make his selection under Section 25 and may within three months from the commencement of the Act shall apply. . . . . . . . . . . . "section 25 of the Act enumerates the extent of resumable lands. Section 24 (2) of the Act reads as follows :-"nothing in this Chapter shall apply in respect of lands held by a landlord who is a privileged raiyet or a person under disability. "it is apparent from O. L. R. Appeal No. 2 of 1969 (Annexure-7) objection was raised in the proceeding under Section 26 of the Act that the same was not maintainable as R. K. Badajena, the landlord was a minor and on the finding that the landlord was a minor the application under Section 26 of the Act was rejected. "it is apparent from O. L. R. Appeal No. 2 of 1969 (Annexure-7) objection was raised in the proceeding under Section 26 of the Act that the same was not maintainable as R. K. Badajena, the landlord was a minor and on the finding that the landlord was a minor the application under Section 26 of the Act was rejected. Since the tenant did not have a right to file an application under Section 26 of the Act as the landlord, being a minor was a person under disability, by virtue of Section 24 (2) of the Act, the entire proceeding under Section 26 of the Act was not maintainable. Since the tenant did not have right to make an application under Section 26 of the Act the prohibition under Section 36-A of the Act is nor applicable and therefore the application under Section 36-A of the Act is maintainable. ( 7 ) THE next question which arises for consideration is as to whether the provisions of rule 27 (c) are mandatory and have been complied with. Rule 27 (c) of the Orissa Land Reforms General Rules, 1965 (hereafter referred to as the 'rules') lays down the procedure regarding consultation with the Local Committee under Section 36-A of the Act. Sub-rule (2) of Rule 27 (c) of the Rules requires that the Revenue Officer shall inform the members of the Committee and he is to consult the Committee in the meeting on the appointed date. The two essential features of the sub-rule are, that the members must be appraised with before the meeting of the matter for consultation and the consultation must be in a meeting of the members with the Revenue Officer. Sub-rule (3) of Rule 27 (c) of the Rules requires that the proceedings of the meeting of the Committee shall form part of the proceeding under Section 36-A of the Act. Admittedly, in this case the proceedings of the meeting of the Local Committee is not available in the record nor the Revenue Officer consulted the committee. The Revenue Officer directed the Revenue Inspector to convene the meeting. In such circumstances from the records available, it is clear that while consulting the Local Committee as envisaged under S. 36-A of the Act and the procedure laid down in Rule 27 (c) of the Rules has not been complied with. The Revenue Officer directed the Revenue Inspector to convene the meeting. In such circumstances from the records available, it is clear that while consulting the Local Committee as envisaged under S. 36-A of the Act and the procedure laid down in Rule 27 (c) of the Rules has not been complied with. In the case of Kalicharan Paikray v. Banga Bewa 1985-59 CLT 237 their Lordships have opined that compliance of rule 27 (c) of the Rules is mandatory and noncompliance vitiates the entire proceeding. We are in respectful agreement with the view expressed in the aforesaid decision. Since in this case the mandatory revisions as required under Rule 27 (c) of the Rules have not been complied with the entire proceeding has been vitiated and therefore the orders passed by the Revenue Officer, the Appellate Authority, the Revisional Authority and that of the Member, Board of Revenue are liable to be quashed. ( 8 ) REGARDING the submission of the learned advocate that the proceeding was not maintainable as there was an admission by opp. party No. 1 that he was never inducted as a tenant, after reading the evidence of opp. party No. 1, we are of the view that there is no such categorical admission to render the proceeding under Section 36-A of the Act not maintainable. ( 9 ) IN the result, we quash the orders passed under Annexures 1, 3, 4 and 5 and remit the matter to the Revenue Officer to consult with the Local Committee in accordance with Rule 27 (c) of the Rules and proceed thereafter in accordance with law. In the circumstances of the case, there shall be no order as to costs. ( 10 ) B. L. HANSARIA, C. J. :- I agree. Order accordingly.