Khiradhar Patel and ors. Vs. State of Orissa and ors.

Decided On : Jun-27-1985

Court : Orissa

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			'appealno' => 'O.J.C. No. 635 of 1978',
			'appellant' => 'Khiradhar Patel and ors.',
			'authreffered' => '',
			'casename' => 'Khiradhar Patel and ors. Vs. State of Orissa and ors.',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  Being satisfied that the family of Khiradhar consists of six persons, i. Benga Bewa, it has been held :Under Section 59(2), the Collectors of the districts and the Land Reforms Commissioner have been vested with jurisdiction when they are satisfied that there has been miscarriage of justice or an order/decision is illegal, to make a reference to the Board of Revenue. The prescribed authority may be satisfied suo motu having himself coming across proceeding/ decision or by being apprised of it by an aggrieved party or other person.',
			'caseanalysis' => null,
			'casesref' => '(Arda Murari v. State of Orissa;',
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			'counselplain' => 'P.K. Misra, Adv.',
			'counseldef' => 'R.K. Patra, Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1985-06-27',
			'deposition' => 'Revision allowed',
			'favorof' => null,
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			'judge' => 'D. Pathak, C.J. and ;S.C. Mohapatra, J.',
			'judgement' => '<p style="text-align: justify;">S.C. Mohapatra, J.</p><p style="text-align: justify;">1. This writ application under Article 226 of the Constitution of India arises out of a proceeding under Chap. IV of the Orissa Land Reforms Act, 1960 (hereinafter referred to as the 'Act').</p><p style="text-align: justify;">2. The Revenue Officer, Sundargarh initiated a suo motu proceeding under Section 42 of the Act for determining the ceiling surplus lands in the hand of the family of Khiradhar Patel, petitioner No. 1. Khiradhar objected to the draft statement on various grounds one of them being that there has been a partition among Khiradhar and his three sons, petitioners 2 to 4 since the year 1963. The Revenue Officer disbelieved the partition. He came to the conclusion.</p><p style="text-align: justify;">'....I hold that the younger sons are notseparate from the date of execution of the partition deed....'</p><p style="text-align: justify;">3. Taking the family to be consisting of five members, the Revenue Officer allowed 10.68 standard acres to be retained and declared 5.52 standard acres as surplus land. This order was confirmed in an appeal under Section 44(2) of the Act and in revision under Section 59( 1) of the Act. The petitioners approached the Land Reforms Commissioner to move the Board of Revenue to revise the orders inexercise of the power under Section 59(2) of the Act. Being satisfied that the family of Khiradhar consists of six persons, i.e., Khiradhar (Petitioner No. 1), his wife (Baidehi), his three sons, namely, Purna Chandra (petitioner. No. 2), Upendra (petitioner No. 3) and Govind (Petitioner No. 4) and his married daughter Sumitra, the Land Reforms Commissioner moved the Board of Revenue to revise the order under Section 59(2) of the Act.</p><p style="text-align: justify;">4. At the time of hearing, petitioners submitted before the Member, Board of Revenue to consider the matter on merits on all points and on the only illegality pointed out by the Land Reforms Commissioner. The Board of Revenue did not accept the contention and held :</p><p style="text-align: justify;">'....While the revisional power is notrestricted and is of wide amplitude there is a clear distinction between revision by the prescribed authority under Sub-section (1) of Section 59 and revision by the Board of Revenue under Sub-section (2). The jurisdiction of the Board of Revenue cannot be invoked by parties to proceedings however aggrieved they may be with the orders of the other authorities. The object of specifying that the Board of Revenue can be moved only by the Collector of a District or by the Land Reforms Commissioner is to discourage the Board of Revenue being turned into a second forum in revision. It is not the intention that parties to proceedings who have the opportunities of appeal and of revision by the prescribed authority will use the device of filing a petition before the Collector or the Land Reforms Commissioner to secure a further revision by the Board of Revenue.....'</p><p style="text-align: justify;">The Board of Revenue found that the eldest son Purna Chandra had separated before the 26th day of September, 1970 and accordingly he would not be taken as a member of family of Khiradhar. The Member, Board of Revenue found that the family of Khiradhar consisted of five members only excluding Purnachandra and accordingly upheld the order of the Revenue Officer permitting the family to retain ten standard acres.</p><p style="text-align: justify;">5. While Mr. P. K. Misra, the learned counsel for the petitioner assailed the order of the Board of Revenue, Mr. R. K. Patra, the learned Additional Government Advocatejustified the order. On the rival contentions, the following questions arise for consideration.</p><p style="text-align: justify;">(a) What is the scope and ambit of the revisional power of the Board of Revenue under Section 59(2) of the Act?</p><p style="text-align: justify;"> (b) What is the effect of the finding of the Board of Revenue that being separated before the 26th day of September, 1970, Purna Chandra is not a member of the family of Khiradhar.</p><p style="text-align: justify;"> 5. Question No. (a)</p><p style="text-align: justify;"> Section 59 reads as follows : --</p><p style="text-align: justify;"> '59(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.</p><p style="text-align: justify;"> (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.</p><p style="text-align: justify;"> (3) For the purposes 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.</p><p style="text-align: justify;"> Provided that no order under this sectionshall be passed without giving the partiesconcerned a reasonable opportunity of beingheard.' </p><p style="text-align: justify;">6. The language of the section is clear that there is no ambiguity. The scope of revision of an appellate order under Sub-section (1) and any order under Sub-section (2) is the same.</p><p style="text-align: justify;">While considering the scope and ambit of Sub-section (1) it has been held in ILR (1977) 2 Cut 334 : (AIR 1978 (NOC) 86) (Naresh Chandra Tripathy v. Revenue Officer-cum-Additional Tahasildar, Angul):</p><p style="text-align: justify;">'.....The jurisdiction of the revisionalauthority is not fettered by any limitation. In fact, as has been universally accepted, a revision as provided under this Statute is wide in its amplitude and the revisional authority has full powers to pass appropriate orders for ends of justice.....'.</p><p style="text-align: justify;">In a recent Division Bench decision of this Court reported in (1985) 59 Cut LT 237 : (AIR 1985 Orissa 58) Kalicharan Paikaray v. Benga Bewa, it has been held :</p><p style="text-align: justify;">'Under Section 59(2), the Collectors of the districts and the Land Reforms Commissioner have been vested with jurisdiction when they are satisfied that there has been miscarriage of justice or an order/decision is illegal, to make a reference to the Board of Revenue. The prescribed authority may be satisfied suo motu having himself coming across proceeding/ decision or by being apprised of it by an aggrieved party or other person.....'</p><p style="text-align: justify;">The main object of the power of revision is to correct the errors in the ends of justice. It is not fettered by any limitation as under Section 115 of the Civil P. C. which is confined only to questions of jurisdiction. While exercising the power either under Sub-section (1) or Sub-section. (2) of Section 59 of the Act, the revising authority is to examine the record and pass such order as they deem fit which is the clear language of Sub-section (3). The phrase 'as they deem fit' under Sub-section (3) of Section 59 makes the position clear that there is no restraint on the Board of Revenue to confine the examination only to the point on which it has been moved either by the Collector of the district or by the Land Reforms Commissioner. The decision of the Board of Revenue thus suffers from an error of law apparent on the face of the record.</p><p style="text-align: justify;">7. Question No. (b)</p><p style="text-align: justify;">On the finding that Purna Chandra being separate is excluded from the family of Khiradhar, the scope of determination of ceiling surplus land in the hand of the 'family' in relation to Khiradhar has changed. In a decision reported in ILR (1979) 1 Cut 22 : (AIR 1979 Orissa 58) (Arda Murari v. State of Orissa), this Court observed : </p><p style="text-align: justify;">'.....We are sure that the Revenue Officerwhile examining the matter would certainly take into consideration the words 'separated by partition or otherwise' appearing in the definition of 'family' in Section 47(b) of the Act and would not be wholly guided by Section 19(1) thereof.'</p><p style="text-align: justify;">Another Division Bench of this Court in a decision reported in (1983) 56 Cut LT 463 : (AIR 1983 Orissa 277) (Sankarsan Misra v.State of Orissa) held that the Revenue Authorities under Section 37(b) of the Act are required to determine the effect of separation in status. Therefore, the Board of Revenue ought to have set aside the order of the Revenue Officer, Appellate Authority and Revisional Authorities. Thus, on this account the order of the Board of Revenue is vulnerable.</p><p style="text-align: justify;">8. In view of the above, the order of the Board of Revenue in Annexure 3 is quashed and the Revenue Officer is directed to proceed with the ceiling proceeding No. 164 of 1975 on the basis that the family of Khiradhar as defined under Section 37(b) of the Act consists of five members and Purna Chandra is not a member of the family of Khiradhar. The petitioners are directed to appear before the Revenue Officer on 29-7-1985 for fixation of date of further proceeding in the matter and no notice need be sent to them by the Revenue Officer who shall dispose of the proceeding under Section 42 of the Act from the stage of the publication of the draft statement under Section 43(1) of the Act in accordance with law.</p><p style="text-align: justify;">9. In the result, the writ application is allowed, but without any order as to costs.</p><p style="text-align: justify;">D. Pathak, C.J.</p><p style="text-align: justify;">10. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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	'Judgement' => array(
		'id' => '528340',
		'acts' => 'Orissa Land Reforms Ac, 1960 - Sections 37, 59(1), 59(2) and 59(3); <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 115',
		'appealno' => 'O.J.C. No. 635 of 1978',
		'appellant' => 'Khiradhar Patel and ors.',
		'authreffered' => '',
		'casename' => 'Khiradhar Patel and ors. Vs. State of Orissa and ors.',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  Being satisfied that the family of Khiradhar consists of six persons, i. Benga Bewa, it has been held :Under Section 59(2), the Collectors of the districts and the Land Reforms Commissioner have been vested with jurisdiction when they are satisfied that there has been miscarriage of justice or an order/decision is illegal, to make a reference to the Board of Revenue. The prescribed authority may be satisfied suo motu having himself coming across proceeding/ decision or by being apprised of it by an aggrieved party or other person.',
		'caseanalysis' => null,
		'casesref' => '(Arda Murari v. State of Orissa;',
		'citingcases' => '',
		'counselplain' => 'P.K. Misra, Adv.',
		'counseldef' => 'R.K. Patra, Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1985-06-27',
		'deposition' => 'Revision allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'D. Pathak, C.J. and ;S.C. Mohapatra, J.',
		'judgement' => '<p style="text-align: justify;">S.C. Mohapatra, J.</p><p style="text-align: justify;">1. This writ application under Article 226 of the Constitution of India arises out of a proceeding under Chap. IV of the Orissa Land Reforms Act, 1960 (hereinafter referred to as the 'Act').</p><p style="text-align: justify;">2. The Revenue Officer, Sundargarh initiated a suo motu proceeding under Section 42 of the Act for determining the ceiling surplus lands in the hand of the family of Khiradhar Patel, petitioner No. 1. Khiradhar objected to the draft statement on various grounds one of them being that there has been a partition among Khiradhar and his three sons, petitioners 2 to 4 since the year 1963. The Revenue Officer disbelieved the partition. He came to the conclusion.</p><p style="text-align: justify;">'....I hold that the younger sons are notseparate from the date of execution of the partition deed....'</p><p style="text-align: justify;">3. Taking the family to be consisting of five members, the Revenue Officer allowed 10.68 standard acres to be retained and declared 5.52 standard acres as surplus land. This order was confirmed in an appeal under Section 44(2) of the Act and in revision under Section 59( 1) of the Act. The petitioners approached the Land Reforms Commissioner to move the Board of Revenue to revise the orders inexercise of the power under Section 59(2) of the Act. Being satisfied that the family of Khiradhar consists of six persons, i.e., Khiradhar (Petitioner No. 1), his wife (Baidehi), his three sons, namely, Purna Chandra (petitioner. No. 2), Upendra (petitioner No. 3) and Govind (Petitioner No. 4) and his married daughter Sumitra, the Land Reforms Commissioner moved the Board of Revenue to revise the order under Section 59(2) of the Act.</p><p style="text-align: justify;">4. At the time of hearing, petitioners submitted before the Member, Board of Revenue to consider the matter on merits on all points and on the only illegality pointed out by the Land Reforms Commissioner. The Board of Revenue did not accept the contention and held :</p><p style="text-align: justify;">'....While the revisional power is notrestricted and is of wide amplitude there is a clear distinction between revision by the prescribed authority under Sub-section (1) of Section 59 and revision by the Board of Revenue under Sub-section (2). The jurisdiction of the Board of Revenue cannot be invoked by parties to proceedings however aggrieved they may be with the orders of the other authorities. The object of specifying that the Board of Revenue can be moved only by the Collector of a District or by the Land Reforms Commissioner is to discourage the Board of Revenue being turned into a second forum in revision. It is not the intention that parties to proceedings who have the opportunities of appeal and of revision by the prescribed authority will use the device of filing a petition before the Collector or the Land Reforms Commissioner to secure a further revision by the Board of Revenue.....'</p><p style="text-align: justify;">The Board of Revenue found that the eldest son Purna Chandra had separated before the 26th day of September, 1970 and accordingly he would not be taken as a member of family of Khiradhar. The Member, Board of Revenue found that the family of Khiradhar consisted of five members only excluding Purnachandra and accordingly upheld the order of the Revenue Officer permitting the family to retain ten standard acres.</p><p style="text-align: justify;">5. While Mr. P. K. Misra, the learned counsel for the petitioner assailed the order of the Board of Revenue, Mr. R. K. Patra, the learned Additional Government Advocatejustified the order. On the rival contentions, the following questions arise for consideration.</p><p style="text-align: justify;">(a) What is the scope and ambit of the revisional power of the Board of Revenue under Section 59(2) of the Act?</p><p style="text-align: justify;"> (b) What is the effect of the finding of the Board of Revenue that being separated before the 26th day of September, 1970, Purna Chandra is not a member of the family of Khiradhar.</p><p style="text-align: justify;"> 5. Question No. (a)</p><p style="text-align: justify;"> Section 59 reads as follows : --</p><p style="text-align: justify;"> '59(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.</p><p style="text-align: justify;"> (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.</p><p style="text-align: justify;"> (3) For the purposes 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.</p><p style="text-align: justify;"> Provided that no order under this sectionshall be passed without giving the partiesconcerned a reasonable opportunity of beingheard.' </p><p style="text-align: justify;">6. The language of the section is clear that there is no ambiguity. The scope of revision of an appellate order under Sub-section (1) and any order under Sub-section (2) is the same.</p><p style="text-align: justify;">While considering the scope and ambit of Sub-section (1) it has been held in ILR (1977) 2 Cut 334 : (AIR 1978 (NOC) 86) (Naresh Chandra Tripathy v. Revenue Officer-cum-Additional Tahasildar, Angul):</p><p style="text-align: justify;">'.....The jurisdiction of the revisionalauthority is not fettered by any limitation. In fact, as has been universally accepted, a revision as provided under this Statute is wide in its amplitude and the revisional authority has full powers to pass appropriate orders for ends of justice.....'.</p><p style="text-align: justify;">In a recent Division Bench decision of this Court reported in (1985) 59 Cut LT 237 : (AIR 1985 Orissa 58) Kalicharan Paikaray v. Benga Bewa, it has been held :</p><p style="text-align: justify;">'Under Section 59(2), the Collectors of the districts and the Land Reforms Commissioner have been vested with jurisdiction when they are satisfied that there has been miscarriage of justice or an order/decision is illegal, to make a reference to the Board of Revenue. The prescribed authority may be satisfied suo motu having himself coming across proceeding/ decision or by being apprised of it by an aggrieved party or other person.....'</p><p style="text-align: justify;">The main object of the power of revision is to correct the errors in the ends of justice. It is not fettered by any limitation as under Section 115 of the Civil P. C. which is confined only to questions of jurisdiction. While exercising the power either under Sub-section (1) or Sub-section. (2) of Section 59 of the Act, the revising authority is to examine the record and pass such order as they deem fit which is the clear language of Sub-section (3). The phrase 'as they deem fit' under Sub-section (3) of Section 59 makes the position clear that there is no restraint on the Board of Revenue to confine the examination only to the point on which it has been moved either by the Collector of the district or by the Land Reforms Commissioner. The decision of the Board of Revenue thus suffers from an error of law apparent on the face of the record.</p><p style="text-align: justify;">7. Question No. (b)</p><p style="text-align: justify;">On the finding that Purna Chandra being separate is excluded from the family of Khiradhar, the scope of determination of ceiling surplus land in the hand of the 'family' in relation to Khiradhar has changed. In a decision reported in ILR (1979) 1 Cut 22 : (AIR 1979 Orissa 58) (Arda Murari v. State of Orissa), this Court observed : </p><p style="text-align: justify;">'.....We are sure that the Revenue Officerwhile examining the matter would certainly take into consideration the words 'separated by partition or otherwise' appearing in the definition of 'family' in Section 47(b) of the Act and would not be wholly guided by Section 19(1) thereof.'</p><p style="text-align: justify;">Another Division Bench of this Court in a decision reported in (1983) 56 Cut LT 463 : (AIR 1983 Orissa 277) (Sankarsan Misra v.State of Orissa) held that the Revenue Authorities under Section 37(b) of the Act are required to determine the effect of separation in status. Therefore, the Board of Revenue ought to have set aside the order of the Revenue Officer, Appellate Authority and Revisional Authorities. Thus, on this account the order of the Board of Revenue is vulnerable.</p><p style="text-align: justify;">8. In view of the above, the order of the Board of Revenue in Annexure 3 is quashed and the Revenue Officer is directed to proceed with the ceiling proceeding No. 164 of 1975 on the basis that the family of Khiradhar as defined under Section 37(b) of the Act consists of five members and Purna Chandra is not a member of the family of Khiradhar. The petitioners are directed to appear before the Revenue Officer on 29-7-1985 for fixation of date of further proceeding in the matter and no notice need be sent to them by the Revenue Officer who shall dispose of the proceeding under Section 42 of the Act from the stage of the publication of the draft statement under Section 43(1) of the Act in accordance with law.</p><p style="text-align: justify;">9. In the result, the writ application is allowed, but without any order as to costs.</p><p style="text-align: justify;">D. Pathak, C.J.</p><p style="text-align: justify;">10. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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	'title_for_layout' => 'Khiradhar Patel and ors. Vs. State of Orissa and ors. Semantic Analysis',
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			(int) 0 => 'Article 226 of the Constitution of India',
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			'id' => '528340',
			'acts' => 'Orissa Land Reforms Ac, 1960 - Sections 37, 59(1), 59(2) and 59(3); <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 115',
			'appealno' => 'O.J.C. No. 635 of 1978',
			'appellant' => 'Khiradhar Patel and ors.',
			'authreffered' => '',
			'casename' => 'Khiradhar Patel and ors. Vs. State of Orissa and ors.',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  Being satisfied that the family of Khiradhar consists of six persons, i. Benga Bewa, it has been held :Under Section 59(2), the Collectors of the districts and the Land Reforms Commissioner have been vested with jurisdiction when they are satisfied that there has been miscarriage of justice or an order/decision is illegal, to make a reference to the Board of Revenue. The prescribed authority may be satisfied suo motu having himself coming across proceeding/ decision or by being apprised of it by an aggrieved party or other person.',
			'caseanalysis' => null,
			'casesref' => '(Arda Murari v. State of Orissa;',
			'citingcases' => '',
			'counselplain' => 'P.K. Misra, Adv.',
			'counseldef' => 'R.K. Patra, Addl. Govt. Adv.',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1985-06-27',
			'deposition' => 'Revision allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'D. Pathak, C.J. and ;S.C. Mohapatra, J.',
			'judgement' => '<p style="text-align: justify;">S.C. Mohapatra, J.</p><p style="text-align: justify;">1. This writ application under Article 226 of the Constitution of India arises out of a proceeding under Chap. IV of the Orissa Land Reforms Act, 1960 (hereinafter referred to as the 'Act').</p><p style="text-align: justify;">2. The Revenue Officer, Sundargarh initiated a suo motu proceeding under Section 42 of the Act for determining the ceiling surplus lands in the hand of the family of Khiradhar Patel, petitioner No. 1. Khiradhar objected to the draft statement on various grounds one of them being that there has been a partition among Khiradhar and his three sons, petitioners 2 to 4 since the year 1963. The Revenue Officer disbelieved the partition. He came to the conclusion.</p><p style="text-align: justify;">'....I hold that the younger sons are notseparate from the date of execution of the partition deed....'</p><p style="text-align: justify;">3. Taking the family to be consisting of five members, the Revenue Officer allowed 10.68 standard acres to be retained and declared 5.52 standard acres as surplus land. This order was confirmed in an appeal under Section 44(2) of the Act and in revision under Section 59( 1) of the Act. The petitioners approached the Land Reforms Commissioner to move the Board of Revenue to revise the orders inexercise of the power under Section 59(2) of the Act. Being satisfied that the family of Khiradhar consists of six persons, i.e., Khiradhar (Petitioner No. 1), his wife (Baidehi), his three sons, namely, Purna Chandra (petitioner. No. 2), Upendra (petitioner No. 3) and Govind (Petitioner No. 4) and his married daughter Sumitra, the Land Reforms Commissioner moved the Board of Revenue to revise the order under Section 59(2) of the Act.</p><p style="text-align: justify;">4. At the time of hearing, petitioners submitted before the Member, Board of Revenue to consider the matter on merits on all points and on the only illegality pointed out by the Land Reforms Commissioner. The Board of Revenue did not accept the contention and held :</p><p style="text-align: justify;">'....While the revisional power is notrestricted and is of wide amplitude there is a clear distinction between revision by the prescribed authority under Sub-section (1) of Section 59 and revision by the Board of Revenue under Sub-section (2). The jurisdiction of the Board of Revenue cannot be invoked by parties to proceedings however aggrieved they may be with the orders of the other authorities. The object of specifying that the Board of Revenue can be moved only by the Collector of a District or by the Land Reforms Commissioner is to discourage the Board of Revenue being turned into a second forum in revision. It is not the intention that parties to proceedings who have the opportunities of appeal and of revision by the prescribed authority will use the device of filing a petition before the Collector or the Land Reforms Commissioner to secure a further revision by the Board of Revenue.....'</p><p style="text-align: justify;">The Board of Revenue found that the eldest son Purna Chandra had separated before the 26th day of September, 1970 and accordingly he would not be taken as a member of family of Khiradhar. The Member, Board of Revenue found that the family of Khiradhar consisted of five members only excluding Purnachandra and accordingly upheld the order of the Revenue Officer permitting the family to retain ten standard acres.</p><p style="text-align: justify;">5. While Mr. P. K. Misra, the learned counsel for the petitioner assailed the order of the Board of Revenue, Mr. R. K. Patra, the learned Additional Government Advocatejustified the order. On the rival contentions, the following questions arise for consideration.</p><p style="text-align: justify;">(a) What is the scope and ambit of the revisional power of the Board of Revenue under Section 59(2) of the Act?</p><p style="text-align: justify;"> (b) What is the effect of the finding of the Board of Revenue that being separated before the 26th day of September, 1970, Purna Chandra is not a member of the family of Khiradhar.</p><p style="text-align: justify;"> 5. Question No. (a)</p><p style="text-align: justify;"> Section 59 reads as follows : --</p><p style="text-align: justify;"> '59(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.</p><p style="text-align: justify;"> (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.</p><p style="text-align: justify;"> (3) For the purposes 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.</p><p style="text-align: justify;"> Provided that no order under this sectionshall be passed without giving the partiesconcerned a reasonable opportunity of beingheard.' </p><p style="text-align: justify;">6. The language of the section is clear that there is no ambiguity. The scope of revision of an appellate order under Sub-section (1) and any order under Sub-section (2) is the same.</p><p style="text-align: justify;">While considering the scope and ambit of Sub-section (1) it has been held in ILR (1977) 2 Cut 334 : (AIR 1978 (NOC) 86) (Naresh Chandra Tripathy v. Revenue Officer-cum-Additional Tahasildar, Angul):</p><p style="text-align: justify;">'.....The jurisdiction of the revisionalauthority is not fettered by any limitation. In fact, as has been universally accepted, a revision as provided under this Statute is wide in its amplitude and the revisional authority has full powers to pass appropriate orders for ends of justice.....'.</p><p style="text-align: justify;">In a recent Division Bench decision of this Court reported in (1985) 59 Cut LT 237 : (AIR 1985 Orissa 58) Kalicharan Paikaray v. Benga Bewa, it has been held :</p><p style="text-align: justify;">'Under Section 59(2), the Collectors of the districts and the Land Reforms Commissioner have been vested with jurisdiction when they are satisfied that there has been miscarriage of justice or an order/decision is illegal, to make a reference to the Board of Revenue. The prescribed authority may be satisfied suo motu having himself coming across proceeding/ decision or by being apprised of it by an aggrieved party or other person.....'</p><p style="text-align: justify;">The main object of the power of revision is to correct the errors in the ends of justice. It is not fettered by any limitation as under Section 115 of the Civil P. C. which is confined only to questions of jurisdiction. While exercising the power either under Sub-section (1) or Sub-section. (2) of Section 59 of the Act, the revising authority is to examine the record and pass such order as they deem fit which is the clear language of Sub-section (3). The phrase 'as they deem fit' under Sub-section (3) of Section 59 makes the position clear that there is no restraint on the Board of Revenue to confine the examination only to the point on which it has been moved either by the Collector of the district or by the Land Reforms Commissioner. The decision of the Board of Revenue thus suffers from an error of law apparent on the face of the record.</p><p style="text-align: justify;">7. Question No. (b)</p><p style="text-align: justify;">On the finding that Purna Chandra being separate is excluded from the family of Khiradhar, the scope of determination of ceiling surplus land in the hand of the 'family' in relation to Khiradhar has changed. In a decision reported in ILR (1979) 1 Cut 22 : (AIR 1979 Orissa 58) (Arda Murari v. State of Orissa), this Court observed : </p><p style="text-align: justify;">'.....We are sure that the Revenue Officerwhile examining the matter would certainly take into consideration the words 'separated by partition or otherwise' appearing in the definition of 'family' in Section 47(b) of the Act and would not be wholly guided by Section 19(1) thereof.'</p><p style="text-align: justify;">Another Division Bench of this Court in a decision reported in (1983) 56 Cut LT 463 : (AIR 1983 Orissa 277) (Sankarsan Misra v.State of Orissa) held that the Revenue Authorities under Section 37(b) of the Act are required to determine the effect of separation in status. Therefore, the Board of Revenue ought to have set aside the order of the Revenue Officer, Appellate Authority and Revisional Authorities. Thus, on this account the order of the Board of Revenue is vulnerable.</p><p style="text-align: justify;">8. In view of the above, the order of the Board of Revenue in Annexure 3 is quashed and the Revenue Officer is directed to proceed with the ceiling proceeding No. 164 of 1975 on the basis that the family of Khiradhar as defined under Section 37(b) of the Act consists of five members and Purna Chandra is not a member of the family of Khiradhar. The petitioners are directed to appear before the Revenue Officer on 29-7-1985 for fixation of date of further proceeding in the matter and no notice need be sent to them by the Revenue Officer who shall dispose of the proceeding under Section 42 of the Act from the stage of the publication of the draft statement under Section 43(1) of the Act in accordance with law.</p><p style="text-align: justify;">9. In the result, the writ application is allowed, but without any order as to costs.</p><p style="text-align: justify;">D. Pathak, C.J.</p><p style="text-align: justify;">10. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => 'AIR1986Ori215',
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			'respondent' => 'State of Orissa and ors.',
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$title_for_layout = 'Khiradhar Patel and ors. Vs. State of Orissa and ors. Semantic Analysis'
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	'ORG' => array(
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	'DATE' => array(
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		(int) 2 => 'the 26th day of September, 1970',
		(int) 3 => 'the 26th day of September, 1970',
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		(int) 5 => '86',
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		(int) 0 => 'Khiradhar',
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$desc = array(
	'Judgement' => array(
		'id' => '528340',
		'acts' => 'Orissa Land Reforms Ac, 1960 - Sections 37, 59(1), 59(2) and 59(3); <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 115',
		'appealno' => 'O.J.C. No. 635 of 1978',
		'appellant' => 'Khiradhar Patel and ors.',
		'authreffered' => '',
		'casename' => 'Khiradhar Patel and ors. Vs. State of Orissa and ors.',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  Being satisfied that the family of Khiradhar consists of six persons, i. Benga Bewa, it has been held :Under Section 59(2), the Collectors of the districts and the Land Reforms Commissioner have been vested with jurisdiction when they are satisfied that there has been miscarriage of justice or an order/decision is illegal, to make a reference to the Board of Revenue. The prescribed authority may be satisfied suo motu having himself coming across proceeding/ decision or by being apprised of it by an aggrieved party or other person.',
		'caseanalysis' => null,
		'casesref' => '(Arda Murari v. State of Orissa;',
		'citingcases' => '',
		'counselplain' => 'P.K. Misra, Adv.',
		'counseldef' => 'R.K. Patra, Addl. Govt. Adv.',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1985-06-27',
		'deposition' => 'Revision allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'D. Pathak, C.J. and ;S.C. Mohapatra, J.',
		'judgement' => '<p style="text-align: justify;">S.C. Mohapatra, J.</p><p style="text-align: justify;">1. This writ application under Article 226 of the Constitution of India arises out of a proceeding under Chap. IV of the Orissa Land Reforms Act, 1960 (hereinafter referred to as the 'Act').</p><p style="text-align: justify;">2. The Revenue Officer, Sundargarh initiated a suo motu proceeding under Section 42 of the Act for determining the ceiling surplus lands in the hand of the family of Khiradhar Patel, petitioner No. 1. Khiradhar objected to the draft statement on various grounds one of them being that there has been a partition among Khiradhar and his three sons, petitioners 2 to 4 since the year 1963. The Revenue Officer disbelieved the partition. He came to the conclusion.</p><p style="text-align: justify;">'....I hold that the younger sons are notseparate from the date of execution of the partition deed....'</p><p style="text-align: justify;">3. Taking the family to be consisting of five members, the Revenue Officer allowed 10.68 standard acres to be retained and declared 5.52 standard acres as surplus land. This order was confirmed in an appeal under Section 44(2) of the Act and in revision under Section 59( 1) of the Act. The petitioners approached the Land Reforms Commissioner to move the Board of Revenue to revise the orders inexercise of the power under Section 59(2) of the Act. Being satisfied that the family of Khiradhar consists of six persons, i.e., Khiradhar (Petitioner No. 1), his wife (Baidehi), his three sons, namely, Purna Chandra (petitioner. No. 2), Upendra (petitioner No. 3) and Govind (Petitioner No. 4) and his married daughter Sumitra, the Land Reforms Commissioner moved the Board of Revenue to revise the order under Section 59(2) of the Act.</p><p style="text-align: justify;">4. At the time of hearing, petitioners submitted before the Member, Board of Revenue to consider the matter on merits on all points and on the only illegality pointed out by the Land Reforms Commissioner. The Board of Revenue did not accept the contention and held :</p><p style="text-align: justify;">'....While the revisional power is notrestricted and is of wide amplitude there is a clear distinction between revision by the prescribed authority under Sub-section (1) of Section 59 and revision by the Board of Revenue under Sub-section (2). The jurisdiction of the Board of Revenue cannot be invoked by parties to proceedings however aggrieved they may be with the orders of the other authorities. The object of specifying that the Board of Revenue can be moved only by the Collector of a District or by the Land Reforms Commissioner is to discourage the Board of Revenue being turned into a second forum in revision. It is not the intention that parties to proceedings who have the opportunities of appeal and of revision by the prescribed authority will use the device of filing a petition before the Collector or the Land Reforms Commissioner to secure a further revision by the Board of Revenue.....'</p><p style="text-align: justify;">The Board of Revenue found that the eldest son Purna Chandra had separated before the 26th day of September, 1970 and accordingly he would not be taken as a member of family of Khiradhar. The Member, Board of Revenue found that the family of Khiradhar consisted of five members only excluding Purnachandra and accordingly upheld the order of the Revenue Officer permitting the family to retain ten standard acres.</p><p style="text-align: justify;">5. While Mr. P. K. Misra, the learned counsel for the petitioner assailed the order of the Board of Revenue, Mr. R. K. Patra, the learned Additional Government Advocatejustified the order. On the rival contentions, the following questions arise for consideration.</p><p style="text-align: justify;">(a) What is the scope and ambit of the revisional power of the Board of Revenue under Section 59(2) of the Act?</p><p style="text-align: justify;"> (b) What is the effect of the finding of the Board of Revenue that being separated before the 26th day of September, 1970, Purna Chandra is not a member of the family of Khiradhar.</p><p style="text-align: justify;"> 5. Question No. (a)</p><p style="text-align: justify;"> Section 59 reads as follows : --</p><p style="text-align: justify;"> '59(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.</p><p style="text-align: justify;"> (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.</p><p style="text-align: justify;"> (3) For the purposes 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.</p><p style="text-align: justify;"> Provided that no order under this sectionshall be passed without giving the partiesconcerned a reasonable opportunity of beingheard.' </p><p style="text-align: justify;">6. The language of the section is clear that there is no ambiguity. The scope of revision of an appellate order under Sub-section (1) and any order under Sub-section (2) is the same.</p><p style="text-align: justify;">While considering the scope and ambit of Sub-section (1) it has been held in ILR (1977) 2 Cut 334 : (AIR 1978 (NOC) 86) (Naresh Chandra Tripathy v. Revenue Officer-cum-Additional Tahasildar, Angul):</p><p style="text-align: justify;">'.....The jurisdiction of the revisionalauthority is not fettered by any limitation. In fact, as has been universally accepted, a revision as provided under this Statute is wide in its amplitude and the revisional authority has full powers to pass appropriate orders for ends of justice.....'.</p><p style="text-align: justify;">In a recent Division Bench decision of this Court reported in (1985) 59 Cut LT 237 : (AIR 1985 Orissa 58) Kalicharan Paikaray v. Benga Bewa, it has been held :</p><p style="text-align: justify;">'Under Section 59(2), the Collectors of the districts and the Land Reforms Commissioner have been vested with jurisdiction when they are satisfied that there has been miscarriage of justice or an order/decision is illegal, to make a reference to the Board of Revenue. The prescribed authority may be satisfied suo motu having himself coming across proceeding/ decision or by being apprised of it by an aggrieved party or other person.....'</p><p style="text-align: justify;">The main object of the power of revision is to correct the errors in the ends of justice. It is not fettered by any limitation as under Section 115 of the Civil P. C. which is confined only to questions of jurisdiction. While exercising the power either under Sub-section (1) or Sub-section. (2) of Section 59 of the Act, the revising authority is to examine the record and pass such order as they deem fit which is the clear language of Sub-section (3). The phrase 'as they deem fit' under Sub-section (3) of Section 59 makes the position clear that there is no restraint on the Board of Revenue to confine the examination only to the point on which it has been moved either by the Collector of the district or by the Land Reforms Commissioner. The decision of the Board of Revenue thus suffers from an error of law apparent on the face of the record.</p><p style="text-align: justify;">7. Question No. (b)</p><p style="text-align: justify;">On the finding that Purna Chandra being separate is excluded from the family of Khiradhar, the scope of determination of ceiling surplus land in the hand of the 'family' in relation to Khiradhar has changed. In a decision reported in ILR (1979) 1 Cut 22 : (AIR 1979 Orissa 58) (Arda Murari v. State of Orissa), this Court observed : </p><p style="text-align: justify;">'.....We are sure that the Revenue Officerwhile examining the matter would certainly take into consideration the words 'separated by partition or otherwise' appearing in the definition of 'family' in Section 47(b) of the Act and would not be wholly guided by Section 19(1) thereof.'</p><p style="text-align: justify;">Another Division Bench of this Court in a decision reported in (1983) 56 Cut LT 463 : (AIR 1983 Orissa 277) (Sankarsan Misra v.State of Orissa) held that the Revenue Authorities under Section 37(b) of the Act are required to determine the effect of separation in status. Therefore, the Board of Revenue ought to have set aside the order of the Revenue Officer, Appellate Authority and Revisional Authorities. Thus, on this account the order of the Board of Revenue is vulnerable.</p><p style="text-align: justify;">8. In view of the above, the order of the Board of Revenue in Annexure 3 is quashed and the Revenue Officer is directed to proceed with the ceiling proceeding No. 164 of 1975 on the basis that the family of Khiradhar as defined under Section 37(b) of the Act consists of five members and Purna Chandra is not a member of the family of Khiradhar. The petitioners are directed to appear before the Revenue Officer on 29-7-1985 for fixation of date of further proceeding in the matter and no notice need be sent to them by the Revenue Officer who shall dispose of the proceeding under Section 42 of the Act from the stage of the publication of the draft statement under Section 43(1) of the Act in accordance with law.</p><p style="text-align: justify;">9. In the result, the writ application is allowed, but without any order as to costs.</p><p style="text-align: justify;">D. Pathak, C.J.</p><p style="text-align: justify;">10. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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LAW: Article 226 of the Constitution of India, Section 42, Section 44(2, Section 59, Section 59(2, Section 59(2, Section 59, Section 59(2, Section 59, Section 115, Section 59 of the Act, Section 59, Section 47(b, Section 19(1, Section 42, Section 43(1

PERSON: S.C. Mohapatra, J.1, Khiradhar Patel, Khiradhar, Khiradhar, Khiradhar, Baidehi, Purna Chandra, Upendra, Govind, Purna Chandra, Khiradhar, Purnachandra, P. K. Misra, R. K. Patra, Purna Chandra, Chandra Tripathy, Statute, Paikaray, Benga Bewa, Purna Chandra, Orissa 58, Arda Murari, Purna Chandra, D. Pathak

ORG: Chap, the Orissa Land Reforms Act, the Land Reforms Commissioner, the Board of Revenue, Sumitra, Land Reforms Commissioner, the Board of Revenue, Board of Revenue, the Land Reforms Commissioner, The Board of Revenue, the Board of Revenue, the Board of Revenue, the Board of Revenue, the Collector of a District, the Land Reforms Commissioner, the Board of Revenue, the Land Reforms Commissioner, the Board of Revenue, Board of Revenue, Board of Revenue, the Board of Revenue, Additional Government Advocatejustified, the Board of Revenue, the Board of Revenue, The Board of Revenue, the Collector of a district, the Land Reforms Commissioner, the Board of Revenue, ILR, NOC, Division Bench, Court, AIR 1985, the Board of Revenue, the Board of Revenue, the Collector of the district, the Land Reforms Commissioner, the Board of Revenue, ILR, Court, the Revenue Officerwhile, Court, AIR 1983, Sankarsan Misra, State of, the Revenue Authorities, the Board of Revenue, Appellate Authority and, Revisional Authorities, the Board of Revenue, the Board of Revenue, Act

DATE: 1960, the year 1963, the 26th day of September, 1970, the 26th day of September, 1970, 1977, 86, 1985, 1979, 1979, 1983, 1975, 1985

CARDINAL: one, three, 2, 4, five, 10.68, 1, six, 1, three, 2, 3, 4, 1, 2, five, ten, 5, 2, 3, 6, 1, 2, 1, 2, 334, 59, 237, 58, 1, 2, 3, 3, 1, 22, 56, 463, 277, 3, 164, five, 29

QUANTITY: 5.52 standard acres

NORP: Khiradhar

PRODUCT: Act.4

ORDINAL: second

GPE: Khiradhar, Khiradhar, Khiradhar, Khiradhar, Orissa, Orissa, Khiradhar, Khiradhar

TIME: under this Act