Decided on May 07,1973



- (1.) THESE are twenty applications under Article 226 of the Constitution, at the instance of different landlords most of which are Deities impugning the provision contained in Section 4 (9) of the Orissa Land Reforms Act of 1960 (hereinafter called the Act) as ultra vires the Constitution and for a direction that the said provision cannot be effectively worked out until the manner by rules is prescribed. Other contentions have also been raised with which we shall deal in due course. As common questions have been raised and at the desire of the different counsel only one set of arguments has mainly been advanced on both sides, we propose to dispose of all the writ applications by a common judgment. It is not necessary to deal individually with the facts of each of the writ petitions. It is sufficient to indicate broadly the questions of law raised before us and the contentions from both sides relating to that. According to the petitioners Section 4 (9) of the Act cannot be given effect to on the following grounds:- (a) Under the Act, raiyats pay rent in cash, rent in kind and cash, and in kind only. There is no justification as to why provision should have been made to deal with rent in kind alone. The manner in which fair and equitable rent has to be determined under the Act would inevitably bring about a reduction in the cash equivalent of the rent payable in kind. As parity had been maintained from before in the matter of Payment of rent, as the fixed rent in cash has not been disturbed, there Is no justification as to why the quantum of kind rent should be interfered with. It is discriminatory. (b) No guideline is Provided in the matter of fixation, of fair and equitable rent and as such unpuided Dower has been vested in the revenue Officer under Section 4 (9) of the Act. Such a provision is also hit by Article 14 of the Constitution. (c) Section 4 (9) left it to the State Government to prescribe the manner. Rules having not been made prescribing the manner the provision under Section 4 (9) is not workable. (d) Rule 12 of the Rules made under the Act which is referable to section 4 (9) of the Act is not only incomplete, short of the requirement of the statutory provision, but is contrary to the statute itself and, therefore, is liable to be struck down. It is next contended that- (e) Under Section 73 (c) of the Act to the trust estates which are exclusively set apart for religious purposes, the provisions of the Act do not apply.
(2.) ON behalf of the tenants as also the State these allegations have been refuted. A preliminary point regarding maintainability of a single writ petition with reference to several cases as indicated in the writ petitions has also been raised. We proceed to deal with the preliminary point first. Several cases have been registered at the instance of different tenants under Section 4 (9) of the Act. Jn some cases, applications under Section 4 (9) of the Act having been disposed of ap-peals have been filed and are pendine. There are even cases where the proceedings have become final. In some of these writ applications, the landlord has asked for quashing of several different cases on the same ground. It is the contention of counsel for the opp. parties that a single writ petition challenging the maintainability of several O. L. R. cases or disputing the final order in such cases is not tenable in law and the applications should be -dismissed as not maintainable.
(3.) WE are not impressed with this argument. That writ petitions of the type in question are civil proceedings is not open to dispute now. (see Ramesh v. Gendalal. AIR 1966 SC 1445 and Arbind Kumar v. Nand Kishore, AIR 1968 SC 1227 ). A Special Bench of the Calcutta High Court in the case of Jay Engineering works Ltd. v. State of West Bengal. AIR 1968 Cal 407 (SB) in our view has given cogent reasons as to why the Civil Procedure Code should apply in the matter of such writ applications. In the case of Bhagaban Rath v. State of Orissa (1972) 1 cut WR 646 = (1972 Lab IC 1402) on the peculiar facts of that case, this Court came to the conclusion that a single writ petition was not maintainable at the instance of different teachers whose grievances had to be adjudicated with reference to different sets of facts. That was a case where the teachers from different ex-State areas governed by different sets of Rules came to this Court for relief. This Court actually found that if a common petition was maintained on varying allegations from petitioner to petitioner, justice could not be done to the case. There is preponderance of authority that writ proceeding is a civil proceeding and to such a proceeding the code of Civil Procedure--unless by the Rules of the Court specially framed for disposal of writ proceedings provide to the contrary --applies. In these cases, two common questions have been raised for adjudication:-- (i) ultra vires character of Section 4 (9) of the Act, and (ii) unworkability thereof once the Code applies. Rules 1 and 3 of Order 1 would be applicable and several common questions of law and fact relating to several petitioners can be combined in one writ petition. We do not therefore, see any justification in the preliminary objection. In the facts of the pre-sent case, we would, on the other hand, hold that such petitions are maintainable. The preliminary ground, therefore, is overruled. ;

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