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2016 DIGILAW 988 (ORI)

Sudam Nayak v. Kanhei Sahoo

2016-10-28

BISWANATH RATH

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JUDGMENT : Biswanath Rath, J. By filing the writ petition, the petitioners have prayed for issuing a writ in the nature of certiorari and for quashing of the impugned orders under Annexures-2 and 3. 2. Short background involved in the case is that admittedly the father of the petitioners was a tenant in respect of Sabik Plot No.846, area Ac.1.76 decimals under Sabik Khata No.76 in village-Sandhagada corresponding to Hal Plot No.837, area Ac1.80 decimals under Hal Khata No.299. The landlord Sri Kanhei Sahoo, opposite party no.1 on the premises of non-payment of arrear rent initiated O.L.R. Case under Section 14 (1) (c) of the O.L.R. Act praying for eviction of the tenant, the father of the present petitioners on the premises of non-payment of arrear rent for the period 1980-81, 1981-82, 1982-83, 1983-84 and 1984-85. The original proceeding vide O.L.R. Case No.1 of 1985 was dismissed on the ground of filing of the application beyond the prescribed period of time but after observing that the tenant was utilizing the land in proper use. Appeal being filed, at the instance of the owner vide O.L.R. Appeal No.20 of 1987, the appeal was allowed vide Annexure-2 directing eviction of the tenant on the ground that the tenant was a defaulter for payment of due within the stipulated time. A revision at the instance of the present petitioners challenging the appeal order was dismissed vide Annexure-3. Assailing the impugned order under Annexure-3, Sri Nayak, learned counsel appearing for the petitioners contended that looking into the provisions contained in Section 15 (2) proviso of the O.L.R. Act in the event of arrear involving a dispute for eviction of the tenant, the mandatory requirement of the statute is before directing for eviction of the tenant, the tenant is required to be given reasonable opportunity to pay arrear rent to his landlord. It is in these premises, Sri Nayak, learned counsel for the petitioners contended that the orders passed in the appeal as well as in the revision are bad in law. Besides, looking to the limitation provided under the statute, claim of arrear for 1980-81, 1981-82 and 1983-84 could not have been entertained. 2. It is in these premises, Sri Nayak, learned counsel for the petitioners contended that the orders passed in the appeal as well as in the revision are bad in law. Besides, looking to the limitation provided under the statute, claim of arrear for 1980-81, 1981-82 and 1983-84 could not have been entertained. 2. Sri K.K. Mishra, learned Additional Government Advocate appearing for the State-opposite parties contended that even looking to the provision assuming that there can be no direction for eviction of the tenant without being affording an opportunity of payment of arrears, the appellate order cannot be sustained. So far the direction contained therein in respect of arrear dues involving the year 1980-81, 1981-82 and 1982-83, which were all grossly time barred being beyond the prescribed period of limitation under the O.L.R. Act, consequently, revisional authority for having not considered the above appropriately the revisional order also cannot be sustained. 3. Considering the rival contentions of the parties, this Court finds provisions at Sections 15 (1), 15 (1) (a),15-(d)(a), 15 (2), including the proviso since required to be considered, are quoted as herein below:- “15. Recovery of rent and dispute between landlord and raiyat or tenant- (1) Any claim for recovery of arrears of rent by a landlord and any dispute between a landlord and his raiyat or tenant, as the case may be, regarding – 15 (1) (a) the quantum of the rent payable; 15(d)(a) a claim for recovery of arrears of rent shall be filed within one year from the date on which such arrears fall due. 15 (2) On receipt of the application under Sub-section (1), the Revenue Officer may, after making such enquiry as he deems fit direct the payment of arrears of rent, if any, found due or, determine the quantum of rent under Clause (a) or [in cases under Clauses (b) (c) and (d) thereof] order the tenant by a notice served in the prescribed manner and specifying the grounds on which order is made to cease, to cultivate the land: Provided that in cases of dispute arising out of a matter mentioned in clause (c) of sub-section (1) of section 14, the Revenue Officer before ordering the tenant to cease to cultivate the land shall decide, if rent had been duly offered and may allow reasonable opportunity to the tenant to pay or deliver to his landlord the rent payable.” Looking to the provisions contained in Section 15 of the O.L.R. Act as quoted hereinabove, this Court finds the owner is required to file an application for claiming recovery of arrear rent within one year from the date of which such arrear falls due and further this Court also finds in dealing with the matters under Section 15(1) (c) of the O.L.R. Act the mandate of the statute is, the Revenue Officer before ordering the tenant to cease to cultivate the land shall decide after rent has been duly offered and may allow reasonable opportunity to the tenant to pay or deliver to his landlord, the rent payable. Looking to the appellate order as well as the revisional order, this Court finds the appellate authority and the revisional authority have not exercised their power entrusted under Section 15 of the Act. 4. Considering the submissions of learned counsel for the petitioner and after perusing the impugned orders, this Court finds the order under Annexures-2 and 4 are not sustainable in the eye of law but taking into consideration that the claim of the opposite party no.1 being made on 23.4.1985 claiming arrear for the period 1982 to 1985, this Court finds that the application of the owner vide O.L.R. Case No.1 of 1985 was maintainable at least for the period 1983-84 and 1984-85. Consequently interfering in the impugned orders, this Court allows the O.L.R. Case No.1 of 1985 directing the petitioners-tenants to pay arrear rent for the years 1983-84 and 1984-85 within a period of two months hence. Consequently interfering in the impugned orders, this Court allows the O.L.R. Case No.1 of 1985 directing the petitioners-tenants to pay arrear rent for the years 1983-84 and 1984-85 within a period of two months hence. The writ petition stands allowed but to the extent indicated hereinabove. However there is no order as to cost.