A. Pasayat, J.
1. In this writ application an interesting point relating to the scope and ambit of Sub-section (2) of Section 37 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (in short, the Act') is involved Since primarily dispute revolves round interpretation of the said provision and some other provisions of the Act, a detailed analysis of factual aspect is not necessary.
2. Petitioners call in question the legality of the view of the Commissioner of Consolidation, Orissa, who held that the order of confirmation of the Provisional Scheme by the Deputy Director of Consolidation Under Section 21 of the Act is not open to be revised by the Director Under Section 37 (2) of the Act. According to the view expressed, the Deputy Director who exercised powers Under Section 21 of the Act, did so as a delegates of the Director and as such the order passed was virtually that of the Director, and since power under Sub-section(2) of Section 37 can be exercised by the Director in respect of orders passed by authorities sub-ordinate to him, there is no scope for interference with such an order. According to the petitioners, interpretation given by the Commissioner erroneous while learned counsel for opp. party No. 6 supports it.
3. For resolution of controversy, a conjoint reading of Clause (1) of Section 2 and Sections 21 and 37 of the Act is necessary. They read as follows :
'2 (1) Director of Consolidation :
He is a person notified as such by the State Government to exercise the powers and to perform the duties of the Director of Consolidation under this Act and the rules made there-under and shall include an Additional Director of Consolidation, a Joint Director of Consolidation and a Deputy Director of Consolidation appointed by the State Government to discharge any of the functions of the Directors under the Act and its Rules.'
'21. Confirmation of Provisional Consolidation Scheme. (1) The Director of Consolidation shall confirm the Provisional Consolidation Scheme after the disposal of all objections and appeals relating to the unit with such modifications as he considers necessary in the interest of proper consolidation or for giving effect to the final order, if any, passed Under Section 15.
(2) The Provisional Consolidation Scheme so confirmed shall be published in the unit and except as otherwise provided under this Act, shall be final.'
'37. Power to call for records. (1) The Consolidation Commissioner may call for and examine the records of any case decided or proceedings taken up by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings or as to the correctness, legality or propriety of any order passed by such authority in the case or proceedings and may, after allowing the parties concerned a reasonable opportunity of being heard make such order as he thinks fit.
(2) The power under Sub-section (1) may be exercised by the Director of Consolidation in respect of authorities subordinate to him.'
4. In terms of Section 21, Provisional Consolidation Scheme after disposal of all objections and appeals relating to the unit with necessary modifications is to be confirmed by the Director. Such confirmation except as otherwise provided under the Act is final. Under Clause (1) of Section 2, by the inclusive definition, 'Director of Consolidation' encompasses a Deputy Director of Consolidation appointed by the State Government to discharge any of the functions of the Director under the Act. Undisputedly, in the present case, confirmation of the Provisional Consolidation Scheme has been made by the Deputy Director. Sub-section (2) of Section 37 of the Act permits the Director of Consolidation to exercise power of calling for and examining the records of any case decided or proceedings taken up by any authorities subordinate to him. Under Sub-section (1) of Section 37, the Consolidation Commissioner has the power to examine correctness, legality or propriety of orders passed in respect of authorities subordinate to him. The provisions relating to appeal and revision are contained in Sections 12, 20 and 36 of the Act respectively. Under Section 12, the Director of Consolidation has power to deal with appeals against orders of Assistant Consolidation Officer and Consolidation Officer passed Under Section 10 or 11 of the Act. Under Sub-section (1) of Section 20,, the Director of Consolidation has the power to decide an appeal preferred by any person aggrieved by an order by the Consolidation Officer made Under Section 19. Finality is attached to the appellate decision of the Director of Consolidation. However, the Commissioner has the power to consider the legality of any order passed by the Director, Under Section 36(1) of the Act.
5. The Commissioner has proceeded on the basis that for all practical purposes, confirmation of Provisional Consolidation Scheme by the Deputy Director is to be treated as to have been done by the Director of Consolidation, and if it is held that the Director can exercise power Under Section 27(2), it shall mean that he deals with legality of an order passed by him. On the face of it, reasoning appears to be sound, but it does not bear close scrutiny. In the hierarchy, the Deputy Director is subordinate to the Director. Section 37(2) of the Act authorises the Director to exercise powers to call for and examine correctness, legality and propriety of an order passed by any authority subordinate to him. While the Deputy Director exercises power Under Section 21, he does not cease to be a Deputy Director and does not become a Director. He exercises powers Under Section 21 because of the inclusive definition of Director of Consolidation as given in Section 2(1) of the Act and because of several notifications issued in pursuance of Clause (1) of Section 2. It appears that in pursuance of such power, the State Government by various notifications have authorised several Deputy Directors to discharge functions of the Director under several provisions including Sections 12. 20 and 21 of the Act.
6. As indicated above. Section 20 of the Act provides for an appeal against the order of the Consolidation Officer. Provisional Consolidation Scheme is prepared Under Section 17. While dealing with an appeal Under Section 20, the Director of Consolidation has power to revise Provisional Consolidation Scheme to such an extent as deemed necessary and he has power to remit the matter to the Assistant Consolidation Officer or the Consolidation Officer, as the case may be, with such direction as may be necessary. Section 36 of the Act deals with power of the Consolidation Commissioner to revise any decision of the Director. Finality is given to the order of the Commissioner of Consolidation by Sub-section (2) of Section 36. Section 21 deals with confirmation of the Provisional Consolidation Scheme. The designated authority to make such confirmation is the Director of Consolidation, who is authorised to confirm the Provisional Scheme after disposal of all objections and appeals relating to the unit. From the scheme of the statute, it is apparent that the Director of Consolidation has to exercise this power which is more in the nature of administrative action, because what is required to be done is confirmation after disposal of all objections and appeals relating to the unit. Therefore, in the strict sense no judicial or quasi-judicial function is exercised by the Commissioner while confirming the scheme.
7. The provisions where the act has contemplated exercise of power by a person empowered to act as the Director are separable from the provisions where the actions of the Director are contemplated. Powers and functions of a person declared statutorily to be a Director, apart from the notification of the Government depend on the particular function which a particular provision of the Act has contemplated. Reference at this stage to a decision of the apex Court in State of Orissa and Ors. v. Arakhita Bisoi, AIR 1977 SC 1194 is relevant. A view similar to ours was expressed in the context of revisional power exercised Under Section 59 of the Orissa Land Reforms Act, I960 (in short, the 'OLR Act'). Merely because the Deputy Director discharges functions of Director in terms of the notifications issued, any order passed by him does not become an order passed by the Director, as observed by the Commissioner. It is an order passed by an authority subordinate to the Director. In our considered opinion therefore, power Under Section 37(2) of the Act can be exercised by the Director in respect of such order. The view of the Commissioner is indefensible. Accordingly, his order (Annexure-6) is quashed.
8. However, we find substance in the plea of learned counsel for opp. party No. 6 that the Commissioner had power to treat the application as not maintainable on merits. We express no opinion about the merits of the case and leave it open to the parties to place their respective stands before the Commissioner.
9. Making of an application by a -party is not contemplated Under Section 37. However, Such an application may provide the basis for initiation of action Under Section 37. The situations and circumstances where the power Under Section 37 can be exercised have been elaborately dealt with by this Court in Maguni Pradhan v. Commissioner of Consolidation, Oriasa and Ors.. 1992 (I) OLR 246 and M/. Modern Fabricator, firm represented by Satyabrata Mohanty and Ors. v. Rejendra Harichandan and Ors., 1992 (I) OLR 322. The matter shall be considered afresh by the Commissioner in accordance with law.
The writ application is allowed, No costs.
G.B. Pattnaik, J.
10. I agree.