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1996 DIGILAW 208 (ORI)

NITYANANDA SATPATHY v. MEMBER, BOARD OF REVENUE

1996-07-22

R.K.DASH, R.K.PATRA

body1996
JUDGMENT : R.K. Patra, J. - In this application under Arts. 225 and 227 of the Constitution, the petitioners seek quashing of the proceedings in O. E. A. Revision Case No. 15 of 1989 at Annexure-1 and the final order dated 1-1-1992 at Annexure-4 passed by the Member, Board of Revenue, Orissa (opp. party No. i)error. 2. The case of the petitioners is that the ex-intermediaries of Paikapada Maj estate under Touzi No. 268 in the district of Puri were owners in khas possession of lands measuring Ac. 659.37 decimals under khata No. 23, in mouza Gadabangoro and Ac. 167.10 decimals under khata No. 153 in mouza-Badagaon. The estate came to vest in the State Government on 25-8-1953. The then Deputy Collector, Puri in O. E. A. Case No. 8/43-54 illegally restrained the ex-intermediaries from felling and removing casuarina trees from the disputed lands and transferred the same to the Divisional Forest Officer, Puri Division, Khurda for management during the pendency of the aforesaid case. On 10-8-1957 the case was finally disposed of wherein the Deputy Collector held that the lease granted by the ex-intermediaries to one Radha Mohan Mukhopadhaya and two others was benami transaction in view of the fact that they(ex-intermediaries) were themselves in khas possession of the disputed lands on the date of vesting. Thereafter, the ex-intermediaries applied to the Tahasildar-cum-O. E. A. Collector, Nimapara under Sections. 6 and 7 of the Orissa Estates Abolition Act, 1951 (hereinafter referred to as 'the Act') for settlement of the lands in their favour which came to be registered as O. E. A. Case No. 83/481 of 1959-60. By order dated 17-6-1964 at Annexure-H/2, the O. E. A. Collector settled the lands with the applicants as the raiyats on payment of rent to the State from the date of vesting. Despite the success of the ex-intermediaries as indicated above, the Divisional Forest Officer kept the disputed lands under his management which compelled them to file a writ application (OJC No. 455 of 1970) impleading State of Orissa, Collector, Pun, Divisional Forest Officer and Ors. as opposite parties. Despite the success of the ex-intermediaries as indicated above, the Divisional Forest Officer kept the disputed lands under his management which compelled them to file a writ application (OJC No. 455 of 1970) impleading State of Orissa, Collector, Pun, Divisional Forest Officer and Ors. as opposite parties. This Court by order dated 9-11-1970 allowed the writ application with a direction that the lands with plantations should be restored to the ex-intermediaries on payment of maintenance charges to the Divisional Forest Officer Pursuant to the said direction, the ex-intermediaries paid the maintenance charges and the possession of the lands was restored to them on 7-5-1971. Thereafter, a ceiling proceeding under the provisions of the Orissa Land Reforms Act (O. L. R. Case No. 4 of 1975) was initiated against the ex-intermediaries for determination of ceiling surplus lands. The said case finally terminated on 26-5-1979 in which the ex-intermediaries were allowed six ceilings and lands measuring Ac. 122.00 were found to be surplus which vested in the State Government. The Government distributed the surplus lands to landless persons. The petitioners in the year 1983 purchased Ac. 201.00 from mouza Gudubangoro and Ac. 3.00 from mouza Badagaon from the ceiling holders. It is the allegation of the petitioners that long after the settlement of lands, the Collector Puri made a reference u/s 38-B of the Act alleging illegalities committed by the O. E. A. Collector in settling the lands and the Member. Board of Revenue, Orissa, Cuttack by the impugned order at Annexure-4 set aside the settlement. 3. The opp. parties 2 and 3 (State of Orissa through Collector, Puri and Tahasildar-cum-O. E. A Collector, Nimapara) have filed counter affidavit in support of the impugned decision. The only contention urged by Shri S. Mishra-2 is that although there is no time-limit for revising any decision or order u/s 38-B of the Act, it should be done within a reasonable time and O. E. A. Revision Case No. 15 of 1989 having been initiated 25 years after the order of revision having been passed after 25 years, the entire proceeding is liable to be quashed. Shri B. B. Mohanty, learned counsel appearing for opp. parties 5 to 8 supported the aforesaid contention-raised on behalf of the petitioners. Shri B. B. Mohanty, learned counsel appearing for opp. parties 5 to 8 supported the aforesaid contention-raised on behalf of the petitioners. Seri Mohanty also contended that the order dated 17-6-1964 of the O. E. A. Collector was appellable and no appeal having been filed against the said order, the revisionsl authority is not competent to disturb the said order by invoking the revisional jurisdiction after such long lapse of time. In this connection, the learned counsel for the petitioners placed reliance on a Full Bench Judgment of the Court in Laxminarayan Sahu y. State of Orissa 1991(1) OLR 82 . The learned Additional Government Advocate contended that the petitioners having not objected to the initiation of the proceedings on the ground of delay cannot be allowed to agitate the same in this case. 4. Before examining the contention urged on behalf of the petitioners, it would be profitable to trace the legislative history of Section 38-B of the Act. The said provision was not in the original statute. It has come to be inserted by President's Act 21 of 1973 which so far as relevant read as follows : "38-B. Revision :--(1) The Board may, on its own motion or on a report from the Collector, call for and examine the record of any proceeding in which any authority subordinate to the Board has made any decision or passed an order under this Act............for the purpose of satisfying itself as to the regularity of such proceeding or the correctness, legality or propriety of such decision or order and if in any case it appears to the Board that any such decision or order ought to be modified, annulled, reversed or remitted, it may pass orders accordingly, (2) The Board shall not revise any decision or order under this section : (i) after the expiry of one year from the date of such decision or order and (ii) without giving the parties concerned an opportunity of being heard in the matter." By Orissa Act 16 of 1976, Section 38-B was amended by virtue of which" the word 'Board' wherever it occurred, the words "Board of Revenue" came to be substituted. For Sub-Section (2), the following sub-section was substituted which reads as folios : "(2) The Board of Revenue shall not,-- (i) initiate any proceeding under this section after the expiry of one year from the date of such decision or order; and (ii) revise any decision or order under this section without giving the parties concerned an opportunity of being heard in the matter." By Orissa Act 22 of 1979, Clause (i) of Sub-Section (2) of Section 38-B has come to be deleted. We may now quote Section 38-B, so far relevant, as it now stands : "38-B. Revision--(1) The Board of Revenue may, on its own motion or on a report from the Collector, call for and examine the record of any proceeding in which any authority subordinate to the Board of Revenue has made any decision or passed an order under this Act.........for the purpose, of satisfying itself as to the regularity of such proceeding or the correctness, legality or propriety of such decision or order and if in any case it appears to the Board of Revenue that any such decision or order ought to be modified, annulled, reversed or remitted, it may pass order accordingly. (2) The Board of Revenue shall not- (i) xx xx xx (ii) revise any' decision or order under this section without giving the parties concerned an opportunity of being heard in the matter." From the aforesaid it would appear that at the relevant time, there was no time-limit prescribed for the Board of Revenue to initiate a proceeding for exercise of its power u/s 33-B of the Act. 5. In Mansaram Vs. S.P. Pathak and Others one of the questions which came up for consideration before the Supreme Court was whether in absence of any limitation prescribed in Clause 28 (1) of the Rent Control Order, the Collector could rectify an order at any point of time. After considering the relevant provisions, the Court observed as follows : "............But when the power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner. Exercise of power in a reasonable manner inheres the concept of its exercise within a reasonable time ......... But as stated earlier, where power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner and the reasonable exercise of power inheres its exercise within a reasonable time. Exercise of power in a reasonable manner inheres the concept of its exercise within a reasonable time ......... But as stated earlier, where power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner and the reasonable exercise of power inheres its exercise within a reasonable time. This is too well-established to need buttressing by a precedent. However, one is readily available in The State of Gujarat Vs. Patil Raghav Natha and Others, We may state here that in the Full Bench Judgment of this Court in Laxminarayan Sahu (supra), the question whether power of revision u/s 59 (2) of the OLR Act, 1950 could be exercised at any time did not arise for consideration which is evident from the discussion made in the penultimate paragraph of the Judgment. The Court after referring to the Judgment of the Supreme Court in Mansaram (supra). however, observed that in absence of any period of limitation, in Sec, 59(2)of the OLR Act the said power has to be exercised in a reasonable manner which necessarily stipulates that it should be exercised within a reasonable time. In Labanyabati Devi and Others Vs. Member, Board of Revenue and Others a Bench of this Court quashed the order on the ground that the Board of Revenue exercised the suo motu revisional jurisdiction u/s 59 (2) of the Orissa Land Reforms Act after lapse of twelve years. In absence of period of limitation whether the authority in exercise of powers under be:. 85-3 of the Employees State Insurance Act. 1948 can recover carriages from the employer ten years after the default in payment of contribution came up for consideration in M/s. Samrat Industries v. Regional Director Employses State Insurance Corporation 1994 (II) OLR 323 before a Bench of this Court in which one of us (R. K. Patra, J.) was a member. The Court relying on the Judgment of the Supreme Court in Mansaram (supra) has held that initiation of a proceeding for recovery of damages ten years after the default in payment of the contribution was not a reasonable exercise of power within a reasonable time. 6. In the case at had, there is no dispute that the O. E. A. Collector, Nimapara passed order on 17-6- 1964 settling the lands in que3tion. From the records of the Board of Revenue which were produced by the learned Addl. 6. In the case at had, there is no dispute that the O. E. A. Collector, Nimapara passed order on 17-6- 1964 settling the lands in que3tion. From the records of the Board of Revenue which were produced by the learned Addl. Government Advocate it transpires that a petition dated 5-4-1033 was filed u/s 38-B of the O. E. A. Act by the Additional Standing Counsel on behalf of the State of Orissa praying to set aside the aforesaid order dated 17-6-1964. The said petition came to be registered as O. E. A. Revision No. 15 of 1989 on the file of the Member, 3oard of Revenue. It was placed before the Member, Board of Reveue on 18-4-1989 who admited the petition on 10-3-1989. He ultimately passed the final order on 1-1-1992 at Annexure-4 setting aside the order dated 17-6-1964 of the O. E. A. Collector. The power of the Board of Revenue u/s 38-B to revise a decision or order of any authority subordinate to it is not disputed, but that power has to be exercised in a reasonable manner within a reasonable time. No hard and fast rule can be laid down as to what should be the reasonable time. Each case has to be decided on facts and circumstances peculiar to it. By the time the petition u/s 38-B was filed before the Member, Board of Revenue to revise the order dated 17-6-1964 more than a quarter of century had lapsed. Quarter of a century is not such a spell which can be lightly ignored. During these long years, the lands might have suffered transfer from one hand to another creating new rights and liabilities amongst themselves. In the circumstances, unsettling a settled position in abject disregard of consequences cannot be countenanced. For the aforementioned reasons, we have no hesitation to hold that the entire proceedings before the Member, Board of Revenue culminating in the final order at Annexure-4 are liable to be quashed on the ground that the revisional authority has failed to exercise the power in a reasonable manner within a reasonable time. We may note the contention of the learned Additional Government Advocate here that the petitioners having not taken objection before the Member, Board of Revenue with regard to initiation of the proceeding beyond reasonable time cannot be permitted to urge such ground in this application has to be stated to be rejected. We may note the contention of the learned Additional Government Advocate here that the petitioners having not taken objection before the Member, Board of Revenue with regard to initiation of the proceeding beyond reasonable time cannot be permitted to urge such ground in this application has to be stated to be rejected. It is not a question whether the petitioners could have raised the question of propriety or otherwise of initiation of proceedings and passing of the final order by the Member, Board of Revenue. The precise question is whether the Board of Revenue exercised the revisional power vested in it u/s 38-B of the O. E. A. Act in a reasonable manner within a reasonable time. 7. In the result, the entire proceeding in O. E. A. Revision Case No. 15 of 1989 on the file of the Member, Board of Revenue including the impugned order passed by him at Annexure-4 are hereby quashed. The writ application is allowed. There shall be no order as to costs. R.K. Dash, J. I agree. Final Result : Allowed