B.K.NAYAK, J. O.J.C. NO.11016 OF 1997 (Decided on 18.08.2011) KAMALA JENA ……...Petitioner. .Vrs. BINAPANI CHAND & ORS. …….Opp.Parties. (A) ORISSA LAND REFORMS ACT, 1960 (ACT NO.16 OF 1960) – S. 36-A. (B) ORISSA LAND REFORMS ACT, 1960 (ACT NO.16 OF 1960) – S.36-A. R/w Rule 27-C of Orissa Land Reforms (General) Rules 1965. For Petitioner - M/s. B.H.Mohanty, D.P.Mohanty, S.C.Mohanty, J.K.Bastia & R.K.Nayak. For Opp.Parties - M/s. Rama Prasad Mohapatra, Miss Deepali Mohapatra B.K.NAYAK, J. Order under Annexures-2 to 4 passed by the appellate and revisional authorities under the Orissa Land Reforms Act rejecting the claim of the present petitioner under Section 36-A of the Orissa Land Reforms Act (hereinafter referred to as ‘the Act’) have been challenged by the petitioner, in this writ petition. 2. The petitioner filed O.L.R. Case No.348/1976 before the Revenue Officer-cum- Tahasildar, Bhadrak for declaration of the case land measuring Ac.1.14 dec. as non- resumable under Section 36-A of the Act. The Revenue Officer by order dated 10.02.1983 allowed the petition which was challenged by the predecessor in interest of the present opposite party nos.1 to 4 in O.L.R. Appeal No.31 of 1983 before the S.D.O., Bhadrak, who allowed the appeal and rejected the claim of the petitioner holding that though the petitioner has been able to prove her possession over the land, there has been no assertion or proof with regard to payment of rent to the landlord for such possession, which is a necessary ingredient for conferring status of tenancy on the person in cultivating possession and, therefore, since the petitioner has failed to prove tenancy, the question of non-resumability of the land under Section 36-A of the Act does not arise. The other ground for allowing the appeal was that the requirement of consultation with the local committee under Rule-27-C of the Orissa Land Reforms (General Rules)1965 (hereinafter referred to as ‘the Rules’) have also not been satisfied. The revision filed by the petitioner before the A.D.M.(L.R), Bhadrak in Revision Case No. 43 of 1994 challenging the appellate order was dismissed on 25.08.1988 and thereafter a further petition filed by the petitioner before the Collector, Bhadrak to make a reference to the Member, Board of Revenue under Section 59(2) of the Act for a further revision was also rejected in OLR Revision No.13 of 1994 by order dated 16.05.1997. 3. Learned counsel for the petitioner submits that since the Revenue Officer found cultivating possession of the petitioner and accordingly decided the status of her tenancy and declared the land to be non-resumable, the appellate court should not have set aside the said finding without there being any contest by the landlord before the Revenue Officer. 4. Learned counsel for the opposite party nos. 1 to 4, on the other hand, contends that the payment of rent by the tenant to the landlord for his occupation of the land being a necessary ingredient of the tenancy right of the tenant and that having not been proved, the appellate court has rightly held the petitioner to be not a tenant. It is also submitted that the mandatory provision of Rule 27-C of the Rules having not been followed by the Revenue Officer, the appellate court was justified in setting aside his order. 5. Sub Section (1) of Section 36-A of the Act which is relevant for the purpose of extracted below: “36-A. Tenant to become raiyat in respect of the whole of the land in certain cases- (1) Notwithstanding anything contained in the foregoing provisions of this Chapter, but subject to the provisions of Sub-section (2) of Section 24, the Revenue officer may on an application made in that behalf by the tenant within two years from the commencement of the Orissa land Reforms (Amendment) Act,1973 (President’s Act, 17 of 1973) and after giving the parties interested an opportunity of being heard and after consulting the Local Committee, if any, declare the whole of the land in cultivation of the tenant to be non-resumable and determine the fair and equitable rent and the compensation payable by the tenant in respect of the land in accordance with the provisions of Section 28 and on such determination, the provisions of Sections 29 to 33 (both inclusive), 35-A and 36 shall, so far as may be, apply: Provided that nothing in this sub-section shall apply to any land where- (a) the particulars of the resumable and non-resumable portions thereof have already been determined under Section 27 or under Section 35; or (b) proceeding for the determination of such particulars are pending : 2[ * * *] (c) 2[* * *]” It is evident from the aforesaid provision that it is a tenant who can claim for declaration that the land in question is non-resumbale. The appellate court has rightly taken into consideration the definition of ‘tenant’ given in Section 2 (31) of the Act and come to the conclusion that payment of rent in the manner specified in the definition of ‘tenant’ is a necessary ingredient for deciding the status of tenant. Mere cultivating possession of a person over land without any proof that such possession was under the system known as Bhag, Sanja, Kata or such similar expression under any other system on payment of rent, the status of the possessor or occupier of the land would not 2 become tenant under the Act. Unless, a person in possession is a tenant, the land in his possession can not be declared as non-resumbale under Section 36-A of the Act. 6. Learned counsel for the petitioner does not dispute that even though some witnesses were examined on behalf of the petitioner before the Revenue Office, there is neither any assertion in the claim petition nor any evidence to the effect that the petitioner was paying rent as a bhag tenant being in cultivating possession of the case land. Therefore, the appellate authority and the Revisional Authority are justified in holding that the petitioner having failed to prove payment of rent, she has no right to relief under Section 36-A of the Act. 7. Further, though admittedly the Revenue Officer issued notices to the village committee for the purpose of consultation, admittedly no consultation for the purpose of declaration of Section 36-A of the Act has been made. A Division Bench of this Court in the case of Rabindra Kumar Badajena v. Bichitrananda Khatei and others; AIR 1992 ORISSA 133 have held that Rule 27-C of the Rules is mandatory in nature and non-compliance thereof vitiates the proceeding under Section 36-A of the Act. 8. In the aforesaid view of the matter, I do not find any infirmity in the impugned orders and the writ petition is accordingly dismissed. Writ petition dismissed. 3