G.B. Pattnaik, J.
1. An interesting question of law arises for consideration in the present writ application as to whether the suo motu power of revision conferred upon the Board of Revenue under Sub-section (2) of Section 59 of the Orissa Land Reforms Act can be exercised over and over again or once the said power is exercised, it is no longer open for the Board to exercise that power afresh.
2. The aforesaid question arises under the following circumstances ; A suo motu ceiling proceeding was registered by the Revenue Officer, Jaipatna (opp. party No. 3) which was registered as O. L. R. Ceiling Case No. 533 of 1977. The petitioner appeared before the Revenue Officer and filed his objection. The Revenue Officer then made a spot enquiry and ultimately by order dated 19-8-1977 came to hold that the petitioner had a surplus land of 1.80 standard acres and the Draft Statement was prepared showing the aforesaid surplus of 1.80 standard acres. The Draft Statement was confirmed by order dated 22-11-1978 and the final statement was prepared on 2-1-1979. Thereafter the Collector of the district moved the Board of Revenue under Sub-section of Section 59 of the Orissa Land Reforms Act (hereinafter referred to as the 'Act') requiring him to examine the records of the proceedings and to correct the illegality committed by the Revenue Officer. That matter was registered as O. L. R. Revision Case No. 66 of 1982. The Member, Board of Revenue, in exercise of his powers under Sub-section of Section 59 of the Act disposed of the revision case by order dated 7th of March, 1983. He set aside the order of the Revenue Officer excluding 12.38 acres of land from the computation of ceiling which was subject-matter of a gift and directed that the said 12.33 acres be included in the ceiling of the petitioner. In accordance with the aforesaid direction of the Member, Board of Revenue. the Revenue Officer re-determined the ceiling by order dated 19-5-1983 and pursuant to such re-determination, another 12.38 acres of land was held to be surplus land of the petitioner and got vested in the State. Thereafter, the Collector, Kalahandi, moved again the Member. Board of Revenue, invoking his jurisdiction under Section 59 (2) of the Act on the ground that the ceiling of the petitioner has been wrongly determined on account of misconception of actual family composition of the petitioner. Pursuant to the said reference, the matter was again registered as O. L. R. Revision Case No. 245 of 1985 and the Board of Revenue accepted the reference and disposed of the matter by order dated 2-6-1987 and held that the Revenue Officer wrongly determined the members of the family of the petitioner which really consisted of only six and not nine, as held by the Revenue Officer. The Board, therefore, directed further amendment of the ceiling determination. It is this order of the Member. Board of Revenue, which is being challenged in the present writ application.
3. The learned counsel for the petitioner contends that the Board of Revenue having exercised its suo motu power of revision under Sub-Section (2) of Section 59 by older dated 7th of March, 1983 in O. L. R. Revision Case No. 66 of 1982 had no further jurisdiction to exercise the suo motu power again and therefore, the impugned order is without jurisdiction.
The learned Additional Government Advocate, on the other hand, contends that the suo motu power conferred on the Board under Sub-section of Section 59 is for the purpose of rectifying any mistake committed by the subordinate revenue authorities in determination of the ceiling. Neither there is any limitation for exercise of that power nor is it susceptible of a construction that the power can be exercised only once. In that view of the matter, there is no infirmity on the part of the Board of Revenue in exercising that power over and over again. The rival contentions require a careful examination of the provision contained in Section 59 and its interpretation.
4. Section 59 (2) of the Act is extracted hereinbelow in extenso;
'The Board of Revenue may, at any time on being moved in that behalf by the Collector of a district or by the Land Reforms Commissioner, revise any order passed by any authority under this Act.'
An examination of the scheme of the Act would reveal that a suo motu power of revision has been conferred on the Member, Board of Revenue, under Sub-section Section 59 without prescribing any period of limitation for exercise of that power on being moved by the district Collector or by the Land Reforms Commissioner, obviously to be exercised where the ends of justice so requires. In other words, whenever either the Collector or the Land Reforms Commissioner comes across any gross illegality or irregularity committed by the Subordinate revenue authorities in discharge of their duties under the provisions of the Act, he can make a reference for rectification of those irregularities or illegalities to the Member, Board of Revenue, and if ultimately the Board is satisfied on the reference, it can pass such order as it deems fit. The statute has conferred the suo motu power on the highest revenue authority without prescribing any guidelines for its exercise on the assumption that the highest authority would exercise the discretion judiciously and in accordance with the requirements of justice. Notwithstanding the fact that there is no limitation prescribed under Sub-section (2) of Section 59 for exercise of power by the Board, judicial pronouncement has been made that the said power must be exercised within a reasonable period and what would be a reasonable period would depend upon the facts and circumstances of each case.
5. The question that arises for consideration in the present case, however, is slightly different, namely that whom the Board exercises the suo motu power once under Sub-section (2) of Section 59, is it empowered to exercise that power again The answer to this question, in our considered opinion, must be in the negative. Sub-section (2) of Section 59 authorises the Board of Revenue on being moved in that behalf by the Collector of a district or by the Land Reforms Commissioner to revise any order passed by any authority under the Act. Once the Board exercises the said power and passes an order, the same becomes the order of the Board of Revenue itself. In other words, the original or appellate order passed by the subordinate authorities loses its identity and it is the revisional order of the Board that remains operative. There is no provision under the Act and Sub-section (2) of Section 59 of the Act cannot be construed to confer a power on the Board itself to review its own earlier order passed in a revision case in exercise of power under Sub-section (2). In this view of the matter as an analysis of Sub-section (2) of Section 59 of the Act, we are of the considered opinion that the Collector of the district or the Land Reforms Commissioner may move the Board of Revenue to rectify any mistake committed by the subordinate authorities under the Act, but once the Board acts upon the said reference and passes an order which becomes a revisional order of the Board under Sub-section (2) of Section 59, thereafter neither the Collector nor the Land Reforms Commissioner has any power to make any further reference nor the Board has any power to pass any further order under Sub section (2) of Section 59 of the Act.
6. The revisional order passed by the Member, Board of Revenue, in exercise of power under Sub-section (2) of Section 59 of the Act becomes the final order of the Board. Any further order in modification of the same made by the Board would amount to review of the earlier order. It has been held by high authorities that review is a creature of statute and unless specifically conferred, the tribunals cannot exercise that power. The provision in Section 59(2) cannot be held to have conferred the power of review on the Member, Board of Revenue. In this view of the matter, therefore, the Board has no further power to interfere with its earlier order passed under Sub-section (2) of Section 59 of the Act.
7. In this connection it would also be appropriate to notice the provision contained in Section 61 of the Act. Section 61 clearly stipulates that an order passed under any of the provisions of the Act shall be subject to any order passed in appeal or revision, as the case may be, final and shall not be called in question in any Court of law. The statute, therefore, has conferred a finality to the revisional order passed by the authorities under the Act. Once, therefore, the Board exercises its power of revision under Sub-section (2) of Section 59, finality is attached to the same and the question of again interference with the same does not arise. In this view of the matter also, we are of the opinion that the Board of Revenue has no further power to make any modification to the earlier order passed by it under Sub-section (2) of Section 59.
8. The matter can also be examined from another stand-point. Under Rule 43 of the Orissa Land Reforms (General) Rules (hereinafter referred to as the 'Rules') it has been provided that the procedure for filing and disposal of appeals shall be the same as is provided under Order XLI of the Code of Civil Procedure. Rule 45 of the Rules provides that the provisions of Rule 43 shall mutatis mutandis apply to the filing, hearing and disposal of cases of revision. Sub-rule (2) of Rule 45, however, indicates that hearing and disposal of cases of revision before the Board of Revenue shall be regulated by the provisions of the Board of Revenue, Orissa Regulations, 1963. The proceeding before the authorities under the Act is undoubtedly a judicial proceeding. In this view of the matter, the principles of res judicata must apply to the proceedings under the Act. Explanation-IV to Section 11 of the Code of Civil Procedure unequivocally declares that any matter which might and ought to have been made a ground of defence or attack in a former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Therefore, a question which could have been or which ought to have been raised in an earlier proceeding if raised in a subsequent proceeding must be held to be barred by the principle of constructive res judicata. The said principle should apply to the proceedings before the Board of Revenue. If, therefore, the illegalities and irregularties sought to be rectified in the latter proceeding by invoking the power of the Board under Section 59 (2) could have been and ought to have been raised in the former proceeding before the Board when the Board did exercise its power under Sub-section(2) of Section 59 on a reference being made by the Collector, the subsequent proceeding must be held to be barred by the principle of constructive res judicata. Judged from this angle also, the Board of Revenue cannot be said to have been conferred the power under Sub-section (2) of Section 59 to be exercised over and over again.
9. Thus, in any view of the matter, we have no hesitation to conclude that the suo motu revisional power under Sub-section (2) of Section 59 of the Orissa Land Reforms Act cannot be exercised more than once. Accordingly, the impugned order dated 2-6-1987 passed by the Member, Board of Revenue under Annexure-6 is without jurisdiction and we quash the same. The writ application is allowed. In the peculiar circumstances of the case, we make no order as to costs.
D.M. Patnaik. J.
10. I agree.