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1997 DIGILAW 221 (ORI)

PURNA CHANDRA SAMINI v. MEMBER, BOARD OF REVENUE

1997-08-26

D.M.PATNAIK, P.K.MISRA

body1997
JUDGMENT : P.K. Misra, J. - Petitioner and opposite party No. 5 are the sons of opposite party No. 4. A suo motu ceiling proceeding under Chapter - IV of the Orissa Land Reforms Act, 1960 (hereinafter referred to as, the "Act") was initiated by the Revenue Officer against opposite party No. 4. In the ceiling proceeding, it was claimed on behalf of the present petitioner that since he was a major, married and separated son of Mahadev Saini (present opposite party No. 4) prior to 26th September, 1970, he is entitled to a separate ceiling and his separate property and that of opposite party No. 5 should not be lagged to the ceiling case started against the present opposite party No. 4. Similar objection had also been filed by the present opposite party No. 5. The Revenue Officer after recording the statement of the present petitioner and opposite party No. 5 called upon the Revenue Inspector, Satalma, to submit the report of the Local Committee as well as his report after field enquiry, specially in connection with the alleged separation. Ultimately after receipt of the reports from the Revenue, Inspector, Satalma, the Revenue Officer posted the matter to 22.11.1982. On that day, the following order was passed : "Party absent on call. Although the party was given the last opportunity to this date but he is absent. Thus the objection is rejected for default. The R.I. has submitted the Local Committee Opinion, but as the party is not complying the order of the Court the Local Committee Opinion is not acceptable. The D/S (Draft Statement) issued earlier is confirmed u/s 44(1) of the O.L.R. Act. Ordered ex parte on 22nd day of Nov. 1982." Thereafter the present petitioner filed O.L.R. Review Case No. 54 of 1983 before the appellate authority u/s 60(2) of the Act. The said application having been rejected, a reference was made to the Member, Board of Revenue, u/s 59(2) of the Act, recommending that the orders of the Revenue Officer in the ceiling case and the appellate authority in review should be revised. The said revision having been rejected by the Member, Board of Revenue, the present writ application has been filed. It appears that after disposal of the review by the appellate authority, the ceiling surplus lands have been distributed. 2. The said revision having been rejected by the Member, Board of Revenue, the present writ application has been filed. It appears that after disposal of the review by the appellate authority, the ceiling surplus lands have been distributed. 2. It has been contended on behalf of the petitioner that the Revenue Officer has disposed of the ceiling proceeding in violation of the principles of natural justice and has dismissed the objection merely on the ground of absence of the petitioner without considering on merit the materials on record. It is further submitted that the appellate authority who had been approached by way of review application, as provided u/s 60(2) of the Act, without considering the main contentions raised by the petitioner, has rejected the said application. It is further submitted that the opinion of the Local Committee and the evidence of the present petitioner as well as opposite party No. 5 clearly established about the separation of the petitioner and opposite party No. 5 and the Member, Board of Revenue, has not considered the matter in its proper perspective. The learned counsel appearing for the State has supported the decisions of the authorities and has further submitted that since the lands have already been distributed, the present writ application should not be entertained. 3. From the order-sheet of the ceiling case No. 422 of 1976, it is apparent that the evidence of the petitioner as well as present opposite party No. 5 had already been recorded. The father of the petitioner had also produced a copy of the petition dated 6.10.1966 in V.P.A. Case No. 353 of 1963-66, wherein it had been alleged that he, his brother and four sons were possessing lands separately. It is true that the Revenue Officer had posted the case for further evidence and also for obtaining the Opinion of the Local Committee and the report of the Revenue Inspector. In fact, the order dated 19.11.1982 indicates that the report from the Revenue Inspector had been received. Therefore, instead of rejecting the Objection for default, on 29.11.1982, the Revenue Officer should have, at least, scanned the evidence and the report submitted by the Revenue Inspector as well as the Opinion of the Local Committee. The observation of the Revenue Officer to the effect," ...... Therefore, instead of rejecting the Objection for default, on 29.11.1982, the Revenue Officer should have, at least, scanned the evidence and the report submitted by the Revenue Inspector as well as the Opinion of the Local Committee. The observation of the Revenue Officer to the effect," ...... The R.I. has submitted the Local Committee Opinion, but as the party is not complying the order of the Court, the Local Committee Opinion is not acceptable.......", is not supportable by any logic. When Objection had been filed and materials had been produced and the Opinion of the Local Committee and the report of the Revenue Inspector were available, the Revenue Officer should not have rejected the objection for default and instead, should have considered the matter on merit by passing a reasoned order. In fact, the Act and the Rules thereunder do not contemplate dismissal of an objection to Draft Statement for default though the Revenue Officer may reject the objection on the ground of lack of evidence. Such disposal should be on merit and not for default. 4. Similarly, the appellate authority who was approached by way of statutory review as provided u/s 60(2) of the Act should have applied its mind to the materials on record or, at any rate, should have remanded the matter to the Revenue Officer to give a decision on merit. The power of review granted to the appellate authority u/s 60(2) is very much dissimilar from the power of review conferred on the same authority. The scope of Section 60(2) is not limited or narrow as contemplated in Section 60(1) or in Order 47, Rule 1 of the Code of Civil Procedure. In the present case, the appellate authority before whom the review application was filed declined to interfere in the matter on untenable ground by merely stating that no particular land had been wrongly included in the Final Statement u/s 44(3) of the Act. The very fact that the Revenue Officer had disposed of the Objection on the ground of default without disposing of the same on merit contravened the provisions contained in the Act. It is true that the Member, Board of Revenue, in the revision u/s 59(2) of the Act has disposed of the matter on merit and negatived the case of the present petitioner. It is true that the Member, Board of Revenue, in the revision u/s 59(2) of the Act has disposed of the matter on merit and negatived the case of the present petitioner. However, since the original authority as also the appellate authority under the statute have not disposed of the matter on merit; we are inclined to remand the matter to the Revenue Officer to take a decision on merit keeping in view all the materials on record. It would be open to the parties, that is to say, the petitioner, opposite parties 4 and 5, to produce additional materials in support of their respective claims. The Revenue Officer should dispose of the case within six months from the date of receipt of this order without being influenced in any manner by any observations made in the impugned orders including that of the Member, Board of Revenue. 5. The contention of the learned counsel for the State that in view of the distribution of the lands, the proceeding should not be reopened, is not acceptable. Since the Revenue Officer had rejected the Objection for default without disposing of the same on merit, and the appellate authority erroneously refused to interfere in the matter, the subsequent distribution of the lands would not stand in the way of the authorities to re-determine the matter in accordance with law. It has been held by this Court in several cases that subsequent distribution of land would not defeat the rightful claim of a person if it is otherwise available under Chapter - IV of the Orissa Land Reforms Act. 1985 (I) OLR 457 (Smt. Arda Mahalaxmi and Anr. v. District Magistrate and Collector, Ganjam and Ors. and ILR 1977 Cutt 334 (Nares Chandra Tripathy v. Revenue Officer-cum-Additional Tahasildar, Angul and Ors.). It is made clear that if ultimately the ceiling area is re-determined, steps should be taken by the authorities to take back possession of the lands from the beneficiaries and to return the said property to the successful party. In such an eventuality, it would be just and proper if opposite parties 1 to 3 would settle some other lands in favour of the affected beneficiaries as a matter of grace. 6. Subject to the aforesaid observations, the writ application is allowed and the matter is remanded to opposite party No. 3. In such an eventuality, it would be just and proper if opposite parties 1 to 3 would settle some other lands in favour of the affected beneficiaries as a matter of grace. 6. Subject to the aforesaid observations, the writ application is allowed and the matter is remanded to opposite party No. 3. The parties are directed to appear before the Revenue Officer (opposite party No. 3) on 29th September, 1997 on which date the further date shall be fixed by the Revenue Officer for hearing. We make no order as to costs. D.M. Patnaik, J. 7. I agree.