HIGH COURT OF ORISSA : CUTTACK ORIGINAL JURISDICTION CASE NO. 6097 OF 1992 In the matter of an application under Articles 226 and 227 of the Constitution of India. -------------- Manguli Barala …… Petitioners -Versus- Dhoi Pradhan & Ors. …… Opp. Party For Petitioner : M/s. N.C.Pati, B.Sahoo, A.K.Sahoo & A.K.Misra. For Opp. Parties : M/s. M.Mishra, S.B.Mohanty & Miss Mamata Mishra. --------------- P R E S E N T : THE HON’BLE MR. JUSTICE INDRAJIT MAHANTY. Date of Judgment: 22.06.2011 I.Mahanty, J. The petitioner, namely, Manguli Baral, son of late Radhu Baral has filed the present writ application, inter alia, seeking to challenge the order dated 10.9.1991 passed by the learned Additional District Magistrate (Land Reforms), Puri in O.L.R. Revision Case No. 53 of 1987, by which order the revisional court dismissed the petitioner’s revision and confirmed the order passed by the Additional Tahasildar, Puri in O.L.R. Case No. 1001 of 1976 dated 11.6.1986 as well as the order dismissing the opposite parties’ appeal in O.L.R. Appeal Case No. 50 of 1986 vide order dated 19.5.1987 under Annexure-1 and 2 respectively. 2. Learned counsel for the petitioner raised a claim that the petitioner was “a person under disability” as defined under Section 2(21) (e) of the Orissa Land Reforms Act, 1960 (in short “the Act”) and the said plea of the petitioner not having been considered rendered the impugned order illegal. Apart from the above, it is stated on behalf of the petitioner that there was no consultation with the local committee as contemplated under the Orissa Land Reforms Act and therefore, rendering the impugned order unlawful. 3. A common counter affidavit has been filed on behalf of private opposite parties 1 to 9 and opposite parties 10 (Additional Tahasildar) and 11 (O.S.D./OLR, Puri have also filed their separate counter affidavits. 4. From the facts and the pleadings of the parties it appears that the parties have been litigating for nearly forty years. The case of the petitioner is that he had purchased the land in dispute, i.e., Ac.2.86 decimals situated at village Balabhadrapur Utarans, District Puri, by way of registered sale deed in the year 1966. The petitioner claimed that he has been in cultivating possession since then. It appears that certain disputes arose regarding possession of the said land and the petitioner-Manguli Baral had filed a civil suit registered as Original Suit No. 51-56 of 1974-76 before the learned Subordinate Judge, Puri, which came to be dismissed of by its judgment dated 16.7.1974 holding therein 2 that the Civil Court has no jurisdiction to decide the issue relating landlord and tenant in view of the provisions embodied under Section 15 and the bar contained under Section 67 of the OLR Act, 1960. The petitioner being aggrieved by the said order preferred Title Appeal No. 27-39 of 1976-74 before the learned District Judge, Puri, which was allowed in favour of the petitioner. Thereafter the present opposite parties preferred Second Appeal No. 10 of 1976 before the High Court and the said Second Appeal was allowed by judgment dated 8.12.1977, on a finding that, in view of provisions of Section 51-D, which has retrospective effect, the civil suit is barred under Section 67 of the OLR Act and therefore held that the Civil Court has no jurisdiction to entertain the suit and was pleased to direct dismissal of the suit. During pendency of the Second Appeal before this Court, the private opposite parties herein, filed a petition under Sections 4(1), 4(5) read with Section 36-A of the OLR Act before the Tahasildar, Puri, with a prayer to declare whole of the disputed land as “non-resumable” and further to declare the opposite parties as “Sthitiban Tenants” on payment of compensation to the present petitioner in view of the fact that, the opposite parties had been recorded as “Sikim Tenants” in the Record of Rights prepared by the Settlement Authorities. This proceeding came to be registered as OLR Case No. 1001 of 1976 and the same was allowed by order dated 8.9.1996 declaring the present opposite parties as tenants under the petitioner, who had purchased the landlord interest. Hence, the opposite parties were declared as “Bhag Tenant” under the petitioner and held that the disputed 3 land was “non-resumable” and the opposite parties were directed to pay compensation at the rate of Rs.800/- per standard acre to the petitioner and were also declared as “Raiyat”. 5. The petitioner preferred OLR Appeal Case No. 231 of 1976 before the Additional District Magistrate, which came to be dismissed, affirming the order of the Revenue Officer-cum-Tahasildar. The petitioner thereafter preferred OLR Revision Case No. 582 of 1979 before the Revenue Divisional Commissioner, Central Division, Cuttack. The revisional authority allowed the said revision on 28.1.1983. The said order was challenged before this Court in OJC No. 350 of 1983 and this Court by its order dated 11.7.1983 set aside the said revisional order and directed the revisional court to dispose of the revision afresh. The order of remand the matter was directed to be heard de-novo and accordingly quashed the order passed by the Revenue Officer in OLR Case No. 1001 of 1976 and directed for disposal of the same “afresh” by affording opportunity of leading evidence to both the parties. 6. In the light of the aforesaid order, the Revenue Officer-cum- Tahasildar granted opportunities to both the parties to lead their evidence and thereafter passed orders afresh by order dated 11.6.1986 (Annexure-1) after taking note of oral and documentary evidence as well as the views of the local committee as required under OLR Act and came to conclude that, the present opposite parties were tenants in cultivating possession over the suit land and are entitled to “Raiyat rights” over the same under Section 36-A of the OLR Act. 4 This order of the Revenue Officer was challenged once again in appeal before the Officer on Special duty, Land Reforms, Puri in OLR Appeal Case No.50 of 1986 and the said appeal was dismissed by order dated 19.5.1987 affirming the order passed by the Revenue Officer. Thereafter OLR Revision No.53 of 1987 was preferred by the present petitioner which once again came to be dismissed by the Additional District Magistrate(Land Reforms), Puri under the impugned Annxure-4 vide order dated 10.9.1991, which is the subject matter of challenge in the present writ petition. 7. In view of the contention raised by the learned counsel for the petitioner, the Court had given anxious consideration to the same. Insofar as the claim of the petitioner that he was the “person in disability” as contemplated under Section 2(21)(e) read with Section 56-A of the OLR Act is concerned, it is clear from the record, that, the Revenue Officer had dealt with such an issue in his order under Annexure-1 and had come to hold that, the present petitioner having not taken any step under Section 56-A of the OLR Act to declare him as a person under “disability” cannot be termed as such and his claim was rejected. The Officer on Special Duty, Land Reforms, Puri (the lower appellate court) has also come to a finding that the “local committee” had been duly constituted and due notice had been issued to all the persons and that appellant (present petitioner) has got more than 10 Acres of land and hence, he cannot be said a persons under “disability” and certificate of disability has not been obtained. 5 The Additional District Magistrate, Land Reforms, Puri, the revisional authority also dealt with this part of the claim of the petitioner and came to hold that, the petitioner Mangu Baral, was never in cultivating possession of the suit land and could not claim any relief under disability since he had not made any application under Section 56-A of the OLR Act and no such certificate was also produced in course of the proceeding. Apart from the above, the revisional authority also came to a finding that although the petitioner had claimed to be a “person under disability”, he could only be permitted to make such a claim and seek such relief under disability, if the land is actually cultivated by some one else other than him. The very fact that the petitioner had raised such a plea clearly goes to show that he was not in cultivating possession of the land. Apart from the above, it was also held that since the petitioner had raised such a plea, the onus was on the petitioner to substantiate the same and in the absence of any adjudication and/or certificate of disability being produced by the petitioner such claim was out rightly rejected. Sections 56-A, 56-B and Section 2(21) (e) of the Orissa Land Reforms Act, 1960 are extracted herein below for reference:- “56-A. Certificate of disability- (1) A person under disability specified in Sub-clause (a), (b) or (c) of Class (21) of Section 2 may, subject to the rules made in that behalf, apply for a certificate specified in the proviso to that clause to the Revenue Officer. (2) On receipt of such application (the Revenue Officer) shall give the person concerned or his guardian, if he is minor or of unsound mind an opportunity of being heard and may, after making such other enquiries (as he may deem fit) either reject 6 the application or issue a certificate to the effect that such person is incapable of cultivating his land personally: Provided that if no orders are passed on such application within thirty days from the date of its filing the application shall be deemed to have been rejected. (3) The application under Sub-section 9(1) and the certificate to be issued under Sub-section (2) shall be in the prescribed form and the application shall be accompanied by the prescribed fee. Section 56-B. Cancellation of certificate of disability and its consequences-(1) If the Revenue Officer, on application in that behalf by a tenant cultivating land under a person who is a person under disability, is satisfied that a certificate under Section 56-A was obtained by such person by fraud or by misrepresentation or suppression of the material fact, he may, after giving the tenant and the person an opportunity of being head, cancel the certificate. (2) On cancellation of the certificate, the Revenue Officer may, on an application made in that behalf by the tenant within sixty days from the date of such cancellation and after giving the parties interested an opportunity of being heard, declare the whole of the land 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 of 33 (both inclusive), 35-A and 36 shall, so far as may be, apply. Section 2(21) (e) - a raiyat the total extent of whose land held in any capacity whatsoever does exceed three standard acres; or)” 8. On a plain reading the scope of Section 56-A of the OLR Act it is clear that any person who claims the benefit of “disability”, is required to make an application before the Revenue Officer, who after being satisfied, shall issue certificate to that effect. Section 56-B mandates the procedure under which a 7 certificate of disability can be cancelled. It would be suffice for the present purposes to take note of the fact that admittedly the petitioner has never made any application seeking issue of certificate of disability. There is a finding made by the appellate forum that the petitioner has more then 10 acres of land. Therefore, the plea of the petitioner that he was entitled to be considered to be a person under disability is wholly without any substance of basis and is hereby rejected. The plea of non-constitution of the “local committee” and alleged non-consultation is also found to be false and stands rejected. 9. In view of the finding noted herein above, I find no justification to interfere in the present case and accordingly, direct dismissal of the writ application and confirm the order passed by the learned Additional District Magistrate, Land Reforms, Prui passed in OLR Revision No. 53 of 1987 dated 10.9.1991. ……………………….. I.Mahanty, J The Orissa High Court, Cuttack. June, 2011/AKD. 8 ……………………. I.Mahanty,J. ORISSA HIGH COURT : CUTTACK June, 2011/PKP 9