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2008 DIGILAW 707 (ORI)

MAHANT NAGA JAGANNATH DAS v. JOGI KANDI

2008-08-18

SANJU PANDA

body2008
JUDGMENT : Sanju Panda, J. - In this writ application challenge has been made to the order dated 28.10.1993 passed by the Addl. District Magistrate, Puri in O.L.R Revision Case No. 9", I 45 of 1979-80 on remand by this Court. 2. The facts as narrated in the record are as follows: Opposite Party Nos. 1 to 16 and prior to them their predecessors-in interest filed 14 cases, i.e., O.L.R Case Nos. 466 to 479, of 1974 before the Revenue Officer, Nimapada u/s 15(1)(b) of the O.L.R Act (hereinafter referred to as "the Act") against the present Petitioner No. 1 and Ors. and each of them claimed separate parcels of land in village Ballara and seven of them in their cases also claimed separate parcels of land in village Kandalpur. Similarly opposite party Nos. 17 to 30 or their predecessors-in-interest filed 6 cases, i.e, O.L.R. Case Nos. 661 to 666 of 1974, u/s 16 of the Act claiming them as tenants of Petitioner No. 1 in respect of an area Ac.1.20 decimals of land in Plot No. 9", in village Kandalpur. The Revenue Officer issued notice to all the parties and the present Petitioner No. 1 also appeared before him and only admitted that Ac.1.20 decimals of land in village Kandalpur are in his personal cultivation and opposite party Nos. 1 7 to 30 or their predecessors are the tenants in respect of those lands. 3. On 28.11.1974 the Revenue Officer clubbed together all the O.L.R. Cases and orders passed under Sections 15(1)(b) and 16 of the Act in respect of village Ballara and Kandalpur. After taking into consideration the oral and documentary evidence adduced by the parties and after his spot inspection to the; disputed plots in connection with the appraisal of crops in presence of the parties and their Advocates, he came to a finding that the applicants in O.L.R. Case Nos. 466 to 479 of 1974 were in cultivable possession of only Ac.3.70 decimals of land in village Ballara and Petitioner No. 1 was in Khas cultivable possession of the rest of the lands in village Ballara with the help of hired labourers. The six applicants in O.L.R. Case Nos. 661 to 666 of 1974 were in possession of Ac.1.20 decimals of land in village Kandalpur as Bhagchasi under Petitioner No. 1. The six applicants in O.L.R. Case Nos. 661 to 666 of 1974 were in possession of Ac.1.20 decimals of land in village Kandalpur as Bhagchasi under Petitioner No. 1. The Revenue Officer specified the plot number and area of each of the 14 applicants in O.L.R. Case Nos. 466 to 479 of 1974, but on 10.10.1975 he passed one judgment (vide Annexure-I) in O.L.R. Case No. 9", of 1974 and the same order was carried out in the other cases Being aggrieved by the said order, the 14 Bhag Tenants together preferred one joint appeal bearing O.L.R. Appeal No. 9", of 1975 before the Sub-Divisional Officer, Puri instead of filing separate appeals although separate orders were passed in each case and defect was pointed out to them. The Sub-Divisional Officer vide his order dated 20.12.1978 (Annexure-2) allowed the appeal and declared the opposite parties as Bhagchasi in respect of all the lands claimed by them in villages Ballara and Kandalpur rejecting the claim of the opposite parties in respect of Ac.1.20 decimals of land in village Kandalpur and the case of Khas possession and personal cultivation of the present Petitioner No. 1, but without assigning any reason set aside the finding of the Revenue Officer who had taken into consideration the fact of payment of Raj Bhag, regarding boundaries of the disputed lands, claim of tanks, Bagayats, Government acquired lands and even lands on the river bed and evidence showing Khas cultivable possession of the Petitioner in village Ballara at the time of appraisal in presence of the parties. Therefore, the present Petitioner No. 1 and opposite party Nos. 17 to 30 or their predecessors-in-interest filed O.L.R Revision Case No. 833/45 of 1979-80 before the Addl. District Magistrate (L.R), Puri and on 18.1.1988 the same was allowed. Against that order, opposite party Nos. 1 to 16 filed O.J.C. No. 1905 of 1988 before this Court and this Court quashed the said revisional order and remanded the matter to the revisional court for fresh disposal in accordance with law. On remand, the Addl. District Magistrate (L.R) on 28.10.1993 rejected the revision. Hence, this writ application. 4. Learned Counsel for the Petitioners submitted that the Addl. On remand, the Addl. District Magistrate (L.R) on 28.10.1993 rejected the revision. Hence, this writ application. 4. Learned Counsel for the Petitioners submitted that the Addl. District Magistrate (L.R) misread the evidence and further stated that the land in village Kandalpur (Ac.l.20 decimals in Plot No. 9", under Khata No. 1) as per the finding of the Revenue Officer, Nimapada was in possession of opposite party Nos. 17 to 30 and they were declared as Bhag Tenants in respect of the said lands and opposite party Nos. 1 to 16 also claimed the said area in respect of village Kandalpur and their specific case was that they were only entitled to be declared as tenants in respect of Ac.3.70 decimals of land both in villages Ballara and Kandalpur. They were not able to prove their case before the Revenue Officer for which he made an on-the-spot enquiry and took into consideration the evidence adduced by the parties and by his order dated 10.10.1975 declared the 14 persons as tenants in respect of the lands in villages Ballara and to the extent of land measuring Ac.3. 70 decimals in Ballara, they were in cultivable possession. He further stated that the Revenue Officer had specifically given a finding in respect of the land measuring Ac.1.20 decimals in village Kandalpur that the present Petitioner No. 1 and six persons, who are the predecessors-in-interest of opposite. party Nos. 1 7 to 30, are in Khas possession of the land and the six persons are the tenants. The Sub Divisional Officer as well as the Addl. District Magistrate (L.R) both of them did not distinguish the fact that though opposite party Nos. 1 to 16, who are the 14 persons claimed only Ac.3.70 decimals in villages Ballara and Kandalpur, if their case was accepted, they would take more lands what they claimed because an area of Ac.1.20 decimals were included in respect of village Ballara and Kandalpur within their claimed area of Ac.3.70 decimals and the anomaly was not clarified by the Sub-Divisional Officer in the O.L.R Appeal as well as the Addl. District Magistrate (L.R) in the Revision. If the same is allowed to stand, it will cause grave injustice to the Petitioners as well as opposite party Nos. 17 to 30 who are in cultivable possession of the land as tenants and they were entitled to get benefit under O.L.R Act. District Magistrate (L.R) in the Revision. If the same is allowed to stand, it will cause grave injustice to the Petitioners as well as opposite party Nos. 17 to 30 who are in cultivable possession of the land as tenants and they were entitled to get benefit under O.L.R Act. As the Sub-Divisional Officer as well as the Addl. District Magistrate (L.R) has not considered those facts, this Court should interfere with the impugned order. 5. Learned Counsel for opposite party Nos. 1 to 16 submitted that the order passed by the Sub-Divisional Officer in O.L.R Appeal as well as the Addl. District Magistrate (L.R) in the Revision is reasonable and they have taken into consideration the facts and materials available on records. Therefore, the said orders need not be interfered with. However, it has not been clarified as to how the area of Ac.1.20 decimals has been included in villages Ballara and Kandalpur and how opposite party Nos. 1 to 16, who are the 14 applicants before the Revenue Officer, would be entitled to more than Ac.3.70 decimals in both villages Ballara and Kandalpur, if they will be declared as tenants under the Act. 6. The facts of the case and the submissions of the learned Counsel for the parties, as stated in the above paragraphs reveal that the revisional court did not take into consideration the materials available on record and proceeded with the matter on an erroneous assumption which is an error apparent on the face of the record. 7. In this regard, reference may be made to the decision reported in 1997(II) OLR (SC) 305 Achutananda Baidya v. Prafullya Kumar Gayen and Ors. wherein the apex Court held that law is well settled by various decisions of this Court that the High Court can interfere under Article 227 of the Constitution in cases of erroneous assumption or acting beyond its jurisdiction, refusal to exercise jurisdiction, error of law apparent on record as distinguished from a mere mistake of law, arbitrary or capricious exercise of authority or discretion, a patent error in procedure, arriving a finding which is perverse or based on no material, or resulting in manifest injustice. As in the present case the finding of the revisional authority as well as the appellate authority are perverse and an error apparent on the face of the record, this Court in exercise of its jurisdiction under Article 227 of the Constitution of India, quashes the order dated 28.10.1993 passed by the Addl. District Magistrate (L.R.), Puri passed in O.L.R. Revision Case No. 833/45 of 1979 80 and restores the order dated 10.10.1975 passed by the Tahasildar-cum Revenue Officer, Nimapara in O.L.R. Case No. 9, of 1974. 8. The writ application is accordingly allowed. No costs. Final Result : Allowed