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1989 DIGILAW 18 (ORI)

VYSYARAJU BADRI NARAYAN MURTY RAJU v. MEMBER BOARD OF REVENUE

1989-01-23

P.C.MISRA, S.C.MOHAPATRA

body1989
JUDGMENT : P.C. Misra, J. - This writ application arises out of a ceiling proceeding under the O.L.R. Act. 2. Suo motu proceedings were started (O.L.R. Case No. 46/74 and O.L.R. Case No. 52/74) for determining the ceiling surplus lands in the hands of the Petitioner u/s 42 of the O.L.R. Act. When a draft statement was prepared, the Petitioner filed his objection claiming that he is not a ceiling surplus holder. One of the objections taken against the draft statement" was that the Petitioner had given away land to an extent of A 30.84 cents to his four daughters under four different registered sale deeds dated 4-4-1965 and that the daughters are in possession and enjoyment of the same since the date of gift. He also contended that an area of A 5.95 decimals of land had been tenanted away and the tenant has been settled with the same in a proceeding u/s 36-A of the said Act. The Revenue Officer on a consideration of the facts placed, before him came to hold that the aforesaid area of A 30.84 decimals which was gifted away to his daughters and A. 5.95 decimals which were settled with a tenant in a properly constituted proceeding u/s 36-A shall have to be, excluded from the calculation of the ceiling area. He allowed 14 standard acres of land to be enjoyed by the family and ultimately determined that A. 1.331 standard acres of land would vest with the State Government as ceiling surplus. Being aggrieved by the aforesaid order, the State Government instead of preferring an appeal before the appellate authority filed a revision u/s 59(2) of I the said Act before, the Member, Board of Revenue. The Collector referred the matter to Board of Revenue praying for revising the order of the Revenue Officer. Two revision applications one against the decision of the Revenue Officer in O.L.R. Case No. 60 of 1976 u/s 36-A of the Act and another against the order relating to the ceiling surplus were registered before the Board of Revenue as Revision Case Nos. 51/78 and 52/78 respectively. Both the said revisions Were heard and disposed or by the Board of Revenue by a common judgment dated 9-7-1979 (vide Annexure-4) in which the exclusion of A 30.84 decimals of land which were gifted away to the daughters of the Petitioner was upheld. 51/78 and 52/78 respectively. Both the said revisions Were heard and disposed or by the Board of Revenue by a common judgment dated 9-7-1979 (vide Annexure-4) in which the exclusion of A 30.84 decimals of land which were gifted away to the daughters of the Petitioner was upheld. As regard the settlement of A 5.95 decimals with the tenant is concerned the Member. Board of Revenue directed the Revenue Officer to check up whether the local committee was constituted and if so, whether they were consulted in the matter. Accordingly this aspect of the matter was remanded for further enquiry and to that extent the order of the Revenue Officer was set aside. Thereafter the Collector, Ganjam filed two review applications before the Member, Board of Revenue which were registered as Revenue Case Nos. 6/79 and 7/79 seeking to review the order passed in Revision Case Nos. 51 and 52 of 1978 respectively. Review Case No. 6/79 relating to Revision Case No. 51/78 was not pressed by the Standing Counsel before the Member Board of Revenue and accordingly the same was dropped. As regards the other review case (Review Case No. 7/79), the Member, Board of Revenue set aside the judgment of his predecessor in office vide Annexure-6 holding that the review application is competent and that the lands gifted to the daughters of the writ Petitioner shall stand included in the computation of the ceding area of the land holder, The Petitioner has challenged the legality of this order passed in Review Case No. 7/79, in this writ application. 3. The Orissa Land Reforms Act gives the Board of Revenue the jurisdiction to review an order passed by the Revenue Officer exercising powers under that Act. There is no provision for review of the said order by the same, authority under any of the provisions of the Act. While dealing with toe review applications, toe Member, Board of Revenue has treated the application for review as one u/s 7(1) of the Board of Revenue Act read with Section 151, Code of Civil Procedure. It was contended by the learned Counsel for the Petitioner that the Board of Revenue having once exercised the power of revision u/s 59(2) of the said Act, further power of review u/s 7(1) of the Board of Revenue Act was not available to be exercised. It was contended by the learned Counsel for the Petitioner that the Board of Revenue having once exercised the power of revision u/s 59(2) of the said Act, further power of review u/s 7(1) of the Board of Revenue Act was not available to be exercised. It is well settled in law that power of review is a creature of the statute and no authority can exercise such a power unless clothed with the jurisdiction by the terms of a statute, In that view of the matter, an application for review of the judgment on merits by the Board of Revenue was not available and the review application was, therefore, incompetent. The Orissa Land Reforms Act is a complete statute making provision for appeal and revision of different orders passed by the Revenue Officers. Section 59(2) of the said Act gives the Board of Revenue the jurisdiction to revise the order passed under any of the provisions of the said Act. Having exhausted the said power given in the special Statute the general power of review of the Board of Revenue u/s 7(1) of the Board of Revenue Act is no more available to be exercised. Thus the order of the Board of Revenue in Annexure-6 in Review Case No. 7/79 cannot be one with jurisdiction and consequently the same is liable to be quashed which we hereby do even on merits, the subsequent order of the Member Board of Revenue passed in Review Case cannot be sustained in view of the Full Bench decision of this Court reported in Anusuya Rath and Another Vs. State of Orissa and Others wherein this Court has held that the properties of a daughter married prior to the appointed date cannot be aggregated with the property of the 'family' of the father. Had we not held that the Board of Revenue had no power of further revision u/s 7(1) of the Board of Revenue Act, our conclusion would have been that the properties gifted away to the daughters should be excluded from the computation of the ceiling area of the father. 4. Had we not held that the Board of Revenue had no power of further revision u/s 7(1) of the Board of Revenue Act, our conclusion would have been that the properties gifted away to the daughters should be excluded from the computation of the ceiling area of the father. 4. In the result, the order in Annexure-4 passed by the Board of Revenue directing a limited remand of the matter as stated earlier shall be upheld and the subsequent order of the Board of Revenue in Annexure-6 in exercise of its purported power u/s 7(1) of the Board of Revenue Act is set aside. No costs. S.C. Mohapatra, J. I agree. Writ application disposed of accordingly.