ARJUN RAUTARA Vs. MAHARAJA KRISHNA CHANDRA GAJPATI NARAYAN DEO

JUDGEMENT

(1.) This case has been referred to a Full Bench, as it raises two questions of considerable difficulty and importance. The first is whether the High Court under Section 115, Civil P.C., has jurisdiction to revise a decision of the Collector in a case under the Orissa Tenancy Act (B.&O. Act 2 of 1918) wherein the Collector has wrongly usurped to himself the appellate powers conferred upon the District Judge under Section 204(3) of the Act, or, in the alternative, has acted in the exercise of his own revisional powers under Section 204(5) of the Act. The second is whether a suit under Section 31B, Orissa Tenancy Act, as amended by Act 8 of 1938, is cognizable by the revenue Courts, or by the ordinary civil Courts. The facts are these: Section 81, Orissa Tenancy Act, as it stood before the Amendment Act of 1988 provided inter alia: When any occupancy-holding or portion of a holding is transferred by private sale, the transferee or his successors-in-interest shall within two years from the date of the commencement of this Act or within one year from the date of the transfer, whichever is later, apply to the landlord to whom the rent of the holding or portion is payable j for registration of the transfer. The maximum fee payable on such registration shall be a sum equal to 25 per centum of the consideration money or to six times the annual rent of the holding or portion thereof, whichever is greater. Section 193 of the Act provides inter alia: The following suits and applications shall be cognizable by the Collector and shall be instituted and tried or heard under the provisions of this Act, and shall not be cognizable in any other Court except as provided in this Act, namely (a) all suits and applications under any portion of this Act other than Chap. 11.

(2.) The rest of the section is not material to our present purpose. Section 250 of the Act, as it stood after the Orissa Tenancy Amendment Act (B.& O. Act 2 of 1929) was in the following terms: The provisions of this Act applicable to arrears of rent and suits and proceedings for the recovery thereof, shall, as far as may be, apply to anything payable or deliverable in respect of (a) any sub-proprietary interest, (b) any nij-jote, khamar, khudakast or nij-ehas land held by cosharers, (c) any land held by cosharers, under the provisions of Sub- sections. (2) and (3) of Section 26, (d) any rights of pasturage, forest rights, rights over fisheries and the like, and (e) any registration fees prescribed in Secs.14, 15, 16, 31 and 31A.

(3.) Under these provisions suits by the landlord to recover his mutation fees were always entertained in the revenue Courts. For example, in Mritunjpy Praharaj v. Sree Jagannath Jeu A.I.R 1918 Pat. 255, it was held that the transferee of an occupancy holding is bound to deposit the registration fee prescribed by Section 31, Orissa Tenancy Act, 1918, and if he fails to do so the landlord may sue for it. That case dealt with a suit in the revenue Court. A similar case was Balmakund Kanungoe V/s. Mritunjoy Paharaj A.I.R. 1920 Pat. 377 and also so was Raja Ramchandra Deb V/s. Fakir Paikara ( 38) 17 Pat. 325 Act 8 of 1988 abolished the transfer fee. Section 6 of that Act inserted a new Section 30A, which provided, inter alia, that: The occupancy holding of a raiyat, or a portion or share thereof, shall be transferable by sale, exchange, gift or bequest without the landlord's consent and without payment of any fee to him. Such transfer shall carry with it the occupancy right in the holding and all the rights appurtenant thereto.