Sourindra Narayan Bhanja Deo Vs. State of Orissa and ors. - Court Judgment

R.K. Patra, J.

1. These two writ application under Articles 226 and 227 of the Constitution of India were heard together as they arise out of the common order dated the 8th October, 1993, passed by the Member, Board of Revenue, Cuttack, under the Orissa Land Reforms Act, 1970 (hereinafter referred to as 'the Act') in respect of the lands which the petitioners claim to have retained the same by orders of the Revenue Officer, Kanika, and also the revisional authority.

2. The facts of the case are as follows :

The disputed Lands stood recorded in the name of Late Sailendranarayan Bhanja Deo (Ceiling Holder, since dead). Orissa Land Reforms Case No. 47 of 1974 was initiated by the Revenue Officer, Kanika, against the said ceiling holder under Section 41 (2) of the Act on the allegation that the ceiling holder failed to submit return under Section 40 of the said Act. The proceeding was initiated on 20.5.74. On 12.2.1975 the Revenue Officer was satisfied that all the three sons of the ceiling-holder were major, married and were separate from the ceiling-holder and passed orders holding that the lands held by those sons (writ petitioners) should be excluded from the ceiling proceeding. Accordingly, separate ceiling proceedings were initiated against the petitioners (sons) and the same were finally disposed of by order dated 4.8.1976. The said cases were subjected to appeal, revision, writ jurisdiction and S.L.P. and the same were dismissed. As the matter stood thus, O.L.R. Case No. 47 of 1974 in respect of the Late Sailendranarayan Bhanja Deo, original ceiling-holder continued and after his death in 1982, against his widow Late Smt. Manjula Manjari Dei (one of the petitioners) which was also concluded finally on 27.1.1984 and draft statement was published and the same were modified and confirmed under Section 44 (1) of the Act. While this was the position, a suo motu motion was initiated by the Collector, Cuttack under Section 59(2) of the Act referring to the order dated 27.1.1984 of the Revenue Officer, Kanika passed in O.L.R. Case No. 47 of 1974 against the original ceiling-holder Late Sailendranarayan Bhanja Deo. The following are the references :

'(I) As many as 23 O.L.R. Cases under Section 36-A of the O.L.R. Act considering the lands involved in the aforesaid ceiling case were pending at the time of finalisation of the ceiling case. These cases should have been disposed of before finalising the ceiling case.

(II) The ceiling land-holder (Sailendranarayan Bhanja Deo) disowned the claim of Amar Kumar Deo (OP. No. 5) as a co-sharer. Subsequent to his death, his widow (O. P. No. 1) admitted the claim of Amar as a co-sharer. The admission of the widow conceeding the claim of Amar as a co-sharer should have been ignored by the R.O.'

The reference of the Collector. Cuttack. was accepted by the Member, Board of Revenue, and registered as O.L.R. Revision Case No. 107 of 1987. The parties to the revision appeared before the Member, Board of Revenue and filed their respective objections in the said reference made by the Collector. After hearing the parties, learned Member, Board of Revenue, disposed of the revision by order dated 8.10.1993 setting aside all the final orders passed by the Revenue Officer, Kanika in O.L.R. (Ceiling) Case Nos. 47 of 1974, 82 of 1975, 83 of 1975 and 1 of 1984 and remitted the cases to the Revenue Officer, Kanika for fresh hearing and disposal. The learned Member further directed the parties to appear before the Revenue Officer, Kanika on 8.12.1993 with clear observation that no notice need be served on them by the Revenue Officer, Kanika. Against the said order of the Member, Board of Revenue, the petitioners have preferred these two writ applications.

3. A counter-affidavit has been filed by opposite party No. 2 stating therein that in the aforesaid ceiling cases thousand acres of lands are involved in Kanika Raj Estate. The lands which should have been included while determining the ceiling units, have been excluded and also the land which should have been excluded have been included. Apart from above, persons who are not legally entitled to ceiling unit have been allowed a ceiling unit in contravention of the provisions of the Act. As a matter of fact, O.L.R. (Ceiling) Revision Case No. 47 of 1974 decided on 27.1.1984 is sought to be revised under Section 59 (2) of the Act by the motion of the Collector, Cuttack. He further stated in the counter-affidavit that the orders passed by the Revenue Officer are not legally correct inasmuch as he excluded the garden and Kanika Museum from the purview of the ceiling case. It is further stated in the counter-affidavit that there is absolute necessity of reopening of the ceiling case and to decide the matter afresh. Therefore, the Member, Board of Revenue rightly decided the matter remitting back to the Revenue Officer for fresh hearing as persons who were not parties, can be now heard if they have substantial interest in the lands.

4. Before dealing with the submissions of the respective parties, it would be apt to indicate below the undisputed facts :

(1) The order of the Revenue Officer in O.L.R. Case No. 47 of 1974 dated 27.1.1984, under Section 42 (2Kb) of the Act was not challenged by the State Government; and

(2) The State Government did not prefer any appeal against the orders of the Revenue Officer in the O.L.R. Cases, and, as such, the orders passed by the Revenue Officer, so far as the State Government is concerned, has become final.

5. Mr. Pal, learned counsel appearing for the petitioners, submitted that though Sub-section (1) of Section 59 of the Act deals with the revision powers of the prescribed authority to revise any appellate orders under Section 58 (1) or Section 44 (2) of the Act, Sub-section (2) of Section 59 of the Act deals with the matter, where State Government is not a party aggrieved, for the limited purpose of revising any order by any authority under the Act on the basis of memorandum filed by the Collector or the Land Reforms Commissioner. He further submitted that the State Government who is a party aggrieved, ought to have filed appeal under Section 44 (2)(b) of the Act and if the appeal would have been dismissed, then the State Government would be a party aggrieved under Section 59(1) of the Act. He further argued that the order of the Revenue Officer in the said O.L.R. cases though merged with the appellate order, the revisional order, the High Court's order and the Hon'ble Supreme Court's order in S.L.P. and the remedy forum for the State Government aggrieved by the order of the Revenue Officer was available,for challenge by filing an appeal under Section 44 (2) of the Act, but not under Section 59(2) of the Act. He further contended that the order of the Board of Revenue (Annexure-2) relates to the finding and decision in respect of the petitioners. Therefore, the impugned order of the Board of Revenue is without jurisdiction. non-est and is liable to be quashed.

Mr. P. C. Raut, learned Additional Standing Counsel, on the other hand, contended that the Member, Board of Revenue has rightly remitted back the matter to the Revenue Officer for fresh enquiry after taking the evidence and he has the jurisdiction to decide the matter under Section 59(2) of the Act. He further contended that the finding arrived at by the Member, Board of Revenue is based on documents placed before him at the time of hearing of the case. The Member, Board of Revenue has given adequate opportunity to the respective parties to put forth their cases before passing the final orders. He further argued that in the aforesaid O.L.R. cases thousand of acres of lands were excluded in the ceiling proceeding and the persons who were not legally entitled to a ceiling unit have been allowed a ceiling unit in contravention of the provisions of the Act.

Mr. P. K. Rautray. learned counsel appearing for opposite parties 6 and 7, argued that the land-holders were not entitled to retain the lands since all the sons of the original ceiling holder were not married prior to 26.9.1970 and any property that has been partitioned in the family arrangement dated 19.8.1970 between the ceiling holder Sailendra Narayan Bhanja Deo and his sons is contrary to the decision of the Apex Court. He further argued that any order passed by any authority can be revised by the Member, Board of Revenue with 25 years from the date of such order, as envisaged under Section 59(2) of the Act. This provision has been inserted by the Orissa Gazette No. 29 of 1993 which was published in the Orissa Gazette on 30.11.1993. He further clarified that any order passed of the Member, Board of Revenue within 25 years is valid in the eye of law.

6. Though several contentions have been raised by the respective parties, the moot question that arises for consideration is, whether the Board of Revenue has exercised Us powers correctly under Section 59(2) of the Act ?. This question is required to be answered at the outset. Because, if we find that the Board of Revenue has correctly exercised its powers under Section 59 (2) of the Act, we may not require to examine other points canvassed in course of hearing.

Therefore, to appreciate the contention raised on this score, it would be profitable to extract Section 5b of the old Act in extenso:

'59. Revision :

(1) The prescribed authority may, on application by any party aggrieved by any order passed in an appeal under any provision of this Act filed within the prescribed period, revise such order.

(2) 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.

(3) For the purpose of revising any order, the prescribed authority and the Board of Revenue shall follow such procedure as may be prescribed and shall have power to call for and examine the records of the proceedings wherein such order was passed and to pass such order as they deem fit :

Provided that no order under this section shall be passed without giving the parties concerned a reasonable opportunity of being heard :'The aforesaid provision was examined by a Full Bench of this Court in the case of Laxminarayan Sahu v. State of Orissa. 1991 (I) OLR 82 wherein it was held that the Board of Revenue has been conferred with an unrestricted power under Section 59 (2) of the Act and the only limitation is for entertaining a matter which must be only moved by the Collector of a district or by the Land Reforms Commissioner.

7. It may be noted here that the Board of Revenue has exercised the power under Section 59(2) of the Act as it stood prior to 30.11:1999 inasmuch as, by Orissa Act 29 of 1993 Section 59(2) of the Act was substituted as follows :

'59. Revision -

(1) x x x

(2) The Board of Revenue may, 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 within twenty-five years from the date of such order.

Validation - Notwithstanding anything to the contrary in any judgment, decree or order of any Court of other authority, any order passed by the Board of Revenue in exercise of the powers of revision under Sub-section (2) of Section 59 of the principal Act, as it stood prior to the date of publication of this Act shall, if such order has been passed within twenty-five years from the date of the order revised, be deemed, for all intents and purposes, to have been validly and effectively passed as if Sub- section (2) of Section 59 of the principal Act as amended by Section 2 of the Act was in force at all material times and, accordingly, no suit or other legal proceeding shall be instituted, maintained or continued in any Court or before other authority on the ground that the Board of Revenue had exercised its power of revision, under the said Sub-section (2) of Section 59 without reasonableness and with undue delay.'

The amended provision of Sub-section (2) of Section 59 of the Act makes it crystal clear that the Board of Revenue has been conferred with unrestricted power and the only limitation is for entertaining a matter which must be only on being moved by the Collector of a district or the Land Reforms Commissioner. By this amended provision, the Board of Revenue has been authorised to revise any order passed within twenty-five years from the date of such order. The validation clause appended to Sub-section (2) of the Act which begins with a non-obstante clause has further widened the scope and power of the Board of Revenue. In other words the Board of Revenue has been vested with enormous powers to revise any order passed by any authority within 25 years from the date of such order, the only restriction being that it should be moved by the Collector of a district or by the Land Reforms Commissioner.

8. Undisputedly the impugned order of the Board of Revenue was passed pursuant to a reference made by the Collector, Cuttack. Thus, we do not find any infirmity in the impugned order..

9. In view of our finding with regard to the powers of the Board of Revenue, it is not necessary for us to examine other points urged on behalf of the petitioners

In the result, the writ applications have no merit which are accordingly dismissed.

Pradip Mohanty, J.

10. I agree.