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2016 DIGILAW 1214 (ORI)

Gopinath Behera v. State of Orissa

2016-12-08

BISWANATH RATH

body2016
JUDGMENT : Biswanath Rath, J. This matter involves the impugned orders passed by the Authorities under the O.L.R. Act, vide Annexures-3 to 5. 2. Short background involved in this case is that the present petitioner filed an application under Section 15(1)(b) & (d) of the O.L.R. Act before the Revenue Officer, Nimapara making therein a claim to declare him as a Bhag Chasi and upon such declaration, to prevent the landlord from interfering in exercising his right as a Bhag Chasi. On appearance of the contesting opposite parties (present O.Ps.2 to 4) raised serious objection on the maintainability of the proceeding on the premises that the owner of the land was a person under disability following the certificate granted by the competent authority. It is under the circumstance, the original authority, i.e., the Revenue Officer, Niampara took up the matter on the question of maintainability and upon hearing the parties, dismissed the matter holding that the application is not maintainable. The appeal preferred by the petitioner was decided on all the points and ultimately, was dismissed confirming the order passed by the Revenue Officer. The revision at the instance of the petitioner has also been dismissed holding the decision of the authorities. 3. Sri J.R.Dash, learned counsel appearing for the petitioner, assailing the impugned orders submitted that for the claim involved in the application under Annexure-1 to examine the aspect of the petitioner being a Bhag Chasi under the landlord and the consequential relief, the original authority instead of disposing of the matter on the maintainability ought to have permitted the petitioner to establish his claim as a Bhag Chasi. This very question being raised before the appellate authority as well as the revisional authority, both the authorities even though entered into such question but have gone wrong on appreciation of the issue resulting illegal dismissal of the appeal as well as the revision. Referring to Section 15(1)(b) & (d) of the O.L.R. Act, Sri Dash, learned counsel for the petitioner, contended that since the matter did not involve the question of eviction of tenant, there is no application of Section 14(2) (b) of the O.L.R. Act, and therefore, the appellate authority and the revisional authority have gone wrong in passing the impugned orders. 4. 4. Sri B.Routray, learned senior counsel appearing for the private O.Ps.2 to 4, on the other hand, while objecting the grounds raised by the learned counsel for the petitioner, submitted that in view of a clear bar for claiming tenancy under a person with disability, there is no question of entering into all other aspects involving the matter. It is thus contended that the impugned orders under Annexures-3 to 5 deciding the matter on maintainability are justified and further for the discussions made by the appellate authority and the revisional authority on other issues involving therein, the petitioner has no case otherwise. Further for the petitioner’s remaining silent before the appellate authority and not making a claim for adducing evidence, the petitioner is estopped otherwise for raising such claim, and hence, contended that there is no illegality committed by the appellate authority as well as the revisional authority in rejecting the claim of the petitioner under the O.L.R. Act. 5. Learned Additional Standing Counsel appearing for O.Ps.1, 5, 6 & 7 supporting the submission of the learned counsel for the private O.Ps., supported the impugned orders. 6. Having considered the rival contentions of the parties, this Court finds, the application under Annexure-1 was merely an application for declaration of the petitioner, as a Bhag Chasi and the consequential relief, vide Annexure-2. The petition was filed by the Objector challenging the maintainability of the proceeding on the premises of land owner being a person under disability as envisaged under Section 2(21) of the O.L.R. Act. The application also accompanied the certificate of the person under disability granted by the competent authority to establish such claim. From the objections raised by the contesting opposite parties, this Court finds, the Revenue Officer has rightly proceeded to first decide the question of maintainability of the petition. Looking to the claim of the petitioner, the objections raised and further looking to the definition of Section 2(21) of the O.L.R. Act read with Section 14 of the O.L.R. Act, this Court finds, there is no question of tenancy or being a Bhag Chasi under a person under disability. It is under the circumstance, this Court also finds, the original authority was justified in getting into the question of maintainability of the proceeding and has thus rightly proceeded. It is under the circumstance, this Court also finds, the original authority was justified in getting into the question of maintainability of the proceeding and has thus rightly proceeded. For the provision contained in the O.L.R. Act, as indicated herein above, this Court also finds, it is also otherwise not possible to get into the question of Bhag Chasi, as it involved tenancy under a person under disability 7. For the concurrent finding of fact and the reasons assigned herein above, this Court finds, there is no infirmity in the impugned orders leaving any scope for interference with the same, for which the writ application stands dismissed. No order as to cost.