Decided on January 12,1953

Sashibhusan Pati Appellant
Mangala Biswal Respondents


NARASIMHAM, J. - (1.) THIS is a petition under Article 226 of the Constitution for a declaration that the provisions of the Orissa Tenants Protection Act, 1948 (Orissa Act 3 of 1948) are void as being inconsistent with the fundamental rights guaranteed Hinder the Constitution and that proceedings under that Act pending in the Court of the Second Officer, Russelkonda, in Misc. Petition No. 38 of 1950 are without jurisdiction.
(2.) THE petitioner claims to be the owner of about 22 acres of agricultural land in Canjam district. He alleged that formerly he allowed the opposite party to cultivate about five acres of his land; but as the latter defaulted in payment of rent he evicted him as early as 1946 and took over the cultivation of the said land through his farm servants. In January 1948, the Orissa Legislative Assembly passed, an Act entitled the Orissa Tenants Protection Act, 1948, which having been assented to by the Governor -General, came into force in all the districts of the old Province of Orissa, except Sambalpur, on 14 -2 -1948. It was alleged by the petitioner that taking advantage of some of its provisions, the opposite party filed a petition (M. P. No. 35 of 1949) in the Court of the Second Officer, Russelkonda, requesting that Revenue Officer to allow him to remain in possession ofthe said lands. When notice of that application was served on the petitioner he entered appearance before the said Revenue Officer and urged that the provisions of the O. T. P. Act became void after the advent of the Constitution. The Second Officer of Russelkonda while rejecting the contention of the petitioner observed : 'This subject -matter can better be moved and decided by the Hon'ble High Court of Orissa. So. the petition is rejected and this Court will proceed with the present proceedings.' Thereupon the present application under Article226 of the Constitution was filed before us. It will be useful at this stage to review briefly the history which preceded the passing of the O. T. P. Act, 1948 (hereinafter referred to as the impugned Act). The tenancy laws in force in North Orissa (excluding Sambalpur) and South Orissa. were respectively known as the Orissa Tenancy Act, 1913 and the Madras Estates Land Act, 1908. Both the Acts were mainly concerned with safeguarding the interests of 'Raiyats' (known as Ryots in South Orissa) who, according to the definition of the expression, were persons who primarily acquired a right to hold land for the purpose of cultivating the same with the help of the members of their family and hired labourers. But in due course of time raiyati interests were acquired by persons who were not actual cultivators and who sub -let the same to persons who were known as under -raiyats, undertenants or Bhag -chasis, who were the actual tillers of the soil. The interests of these Bhag -chasis were not adequately protected in the aforesaid two Acts and they were liable to eviction on the expiry of the agricultural year, or on the expiry of the term of the lease under which they cultivated the land of a raiyat. Their tenancies were held on produce rent and the share payable to their landlords was generally half the gross produce.
(3.) IMMEDIATELY above the raiyats were a class of tenants known as 'tenure -holders' (practically unknown in South Orissa) who acquired the right to hold land for the primary purpose of settling tenants and collecting rents from them. Most of their lands were held by raiyats who paid cash or produce rent to them; but some of their lands were in their khas possession and these were known as Nij -jote or Nijchas. These lands also were usually sub -let to Bhag -chasis who actually cultivated the same and gave half the gross produce as rent to the tenure -holders.;

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