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1985 DIGILAW 127 (ORI)

HARIHAR PANDA v. STATE OF ORISSA

1985-03-25

P.C.MISRA, S.C.MOHAPATRA

body1985
JUDGMENT : S.C. Mohapatra, J. - Father and his two separated major married sons have approached this Court for exercise of the extraordinary jurisdiction under Article 226 of the Constitution to get back their land distributed u/s 51 of the Orissa Land Reforms Act, 1960 (hereinafter referred to as 'the Act'). 2. In a ceiling surplus proceeding under Chapter IV of the Act, the Revenue Officer, Boudh treating the two sons as members of the family of Petitioner No. 1 issued the draft statement of the ceiling surplus lands and confirmed the same u/s 44(1). Having failed in appeal u/s 44(2), the Petitioners went in revision u/s 59. The revisional authority set aside the orders and remitted back the proceeding to the. Revenue Officer for further enquiry. In the meantime, the surplus lands as had been found by the Revenue Officer, bad already been distributed to opposite party Nos. 4 to 14. After remand, the Revenue Officer found on further enquiry that the two sons being major and married and separated from their father cannot be treated as members of the family of Petitioner No. 1. Since the lands had already been distributed in June, 1976, he passed the order to move the Collector for interference in the matter by recalling the Pattas already granted to the opposite parties 4 to 14. In view of the instructions issued by the State Government in Revenue Department letter No. 27,588 dated 15.4.1977 to the effect that in such cases, the aggrieved party may seek relief in the Civil Court where the provision of Section 67 of the Act barring the jurisdiction of the Civil Court, would not be applicable, the Additional District Magistrate advised the Petitioners to move the competent forum as per instructions indicated in the said letter of the Government. Hence, the Petitioners have approached this Court in the present writ application for relief. 3. In a decision of this Court reported in Naresh Chandra Tripathy v. Revenue Officer-cum-Additional Tahasildar, Angul and Ors. ILR (1977) Cutt. 334, it has been held that until the revision is disposed of, the statement could not be final and conclusive in terms of Section 44(3) of the Act. 3. In a decision of this Court reported in Naresh Chandra Tripathy v. Revenue Officer-cum-Additional Tahasildar, Angul and Ors. ILR (1977) Cutt. 334, it has been held that until the revision is disposed of, the statement could not be final and conclusive in terms of Section 44(3) of the Act. Section 45 of the Act provides that the interests of the person to whom the surplus lands relate shall stand extinguished and the said lands shall vest absolutely in the Government free from all encumbrances with effect from the date on which the statement becomes final u/s 44(3). u/s 45-A, a duty is cast on the person in possession of the surplus land to deliver the land to the Revenue Officer within seven days from the date of service of the order on him and on failure he shall be forcibly dispossessed. 4. No material has been produced in this Court to indicate when the order directing any of the Petitioners to deliver possession of the land was served and when there was actual delivery of possession. In any event, it is clear that before the disposal of the revision, the land does not vest in the State Government. In such circumstances, in the reported decision in Naresh Chandra's easel, (supra) it was held: ...On the date the lands are said to have been distributed, Petitioner was still the owner and there had been no extinguishment of his title, there has been no vesting of the property in Government and the Revenue Officer, therefore, had no jurisdiction at all to proceed to settle the property in terms of Section 51 of the Act.... 5. In a decision of this Court reported in Sankarsan Misra and Others Vs. State of Orissa and Others it has been held: ...If possession has been taken, on the success of the land-holder, the property has to be, restored. If either distribution of the. property or delivery or possession thereof has been made, restitution has to be made.... 6. Both the reported decisions were considered in a recent decision or this Court in Smt. Arda Mahalaxmi and Anr. v. District Magistrate and Collector, Ganjam and Ors. O.J.C. No. 53 of 1980 - D/21-3-1985, decided on 21.3.1985. If either distribution of the. property or delivery or possession thereof has been made, restitution has to be made.... 6. Both the reported decisions were considered in a recent decision or this Court in Smt. Arda Mahalaxmi and Anr. v. District Magistrate and Collector, Ganjam and Ors. O.J.C. No. 53 of 1980 - D/21-3-1985, decided on 21.3.1985. It was held that the Revenue Officer possesses the power or restitution or property distributed when it is found that such distribution is a nullity inasmuch as the Revenue Officer has no jurisdiction u/s 51 to distribute the land which had not vested in the State Government. When the Revenue Officer can restore back the property to the land-holders who became successful to satisfy him that there is no surplus land, there is no necessity for the landholders to seek relief in the Civil Court. 7. In course of hearing, it has been brought to our notice by an affidavit that the order of the Revenue Officer dated 27.11.1976 finding that there is no ceiling surplus land, is now the subject-matter or revision before the Board of Revenue on being moved by the Collector u/s 59(2) of the Act. The learned Government Advocate therefore, prays that this Court should not give any direction until disposal of the revision in the Board of Revenue. Such a contention if accepted would keep the Petitioners out of their possession of the property which, at present, they are entitled to possess and of which they have been deprived without authority of law. Hence, the Petitioners are entitled to restoration of the property. In the event of the Board of Revenue coming to a conclusion after hearing the parties that the Petitioners have lands in excess of the ceiling area, Section 45 of the Act would come into play and then only after service of the order as required u/s 45, the Petitioners can be forcibly dispossessed unless they deliver possession in compliance with such order. 8. Opposite party Nos. 4 to 14 do not acquire any right, title or interest on the lands distributed to them. Accordingly, we direct the opposite party Nos. 4 to 14 not to enter upon the lands of the Petitioners any further and we also direct the Revenue Officer to take possession or those lands and deliver the same to the Petitioners. 9. 4 to 14 do not acquire any right, title or interest on the lands distributed to them. Accordingly, we direct the opposite party Nos. 4 to 14 not to enter upon the lands of the Petitioners any further and we also direct the Revenue Officer to take possession or those lands and deliver the same to the Petitioners. 9. In the result, the writ application is allowed; We make no order as to costs. P.C. Misra. J. 10. I agree. Final Result : Allowed