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2014 DIGILAW 826 (ORI)

Binod Behari Panda v. Revenue Offr. -Cum-Tahasildar, Jaipatna

2014-12-02

B.K.NAYAK

body2014
ORDER : B.K. Nayak, J. 1. Heard learned counsel for the petitioner and learned Additional Government Advocate. Perused the records. Order passed by the Member Board of Revenue, Orissa, Cuttack in OLR Revision Case No. 38 of 1992 which was referred by the Collector, Kalahandi under section 59(2) of the OLR Act has been assailed in this writ petition. 2. The facts of the case are that a suo motu ceiling case bearing No. 27 of 1974 was initiated against the petitioner. Draft statement was issued on 30.10.1974 showing Ac.76.98 of land, equivalent to 21.90 standard acres owned by the ceiling holder. Out of the same 11.90 standard acres were shown as ceiling surplus. The petitioner submitted objection before the Revenue Officer to the effect that he had two major married sons who were residing separately. He produced an unregistered partition deed dated 16.5.1965 and a registered partition deed No. 1406 dated 05.10.1970. The Revenue Officer passed final order on 03.03.1975 accepting the unregistered partition deed, even though, the registered partition deed was made subsequent to the enforcement of the ceiling law, i.e., 26.09.1970. By his order, the Revenue Officer excluded some lands as per the recital in the registered partition deed and some other lands in favour of Shri Purushotham Thakur. The balance land owned by the petitioner was held to be 7.56 standard acres, which was less than the permissible retainable area. The Revenue Officer, therefore, dropped the ceiling proceeding. 3. In 1992 the Collector, Kalahandi made a reference under section 59(2) of the OLR Act to the Member, Board of Revenue, Orissa, Cuttack for revising the final order dated 03.03.1975 passed by the Revenue Officer in the ceiling case on the grounds; (i) that neither the Local Committee was consulted nor memorandum of enquiry was prepared by the R.O. in support of the finding that the petitioner had two major married sons; (ii) classification of the land was not enquired into; and (iii) the details of the land particulars owned by the land holder and his family members were not collected from other Tahasils. 4. 4. On hearing the counsel for the parties, the learned Member, Board of Revenue came to the conclusion that the ceiling case was finalized before amendment of the OLR Act necessitating consultation with the Local Committee if any, and therefore, non-consultation with the Local Committee is not a good ground for revising the order. However, taking into consideration the discrepancy in the age of the two sons of the petitioner as mentioned in the partition deeds, the learned Member entertained doubt that the second son of the petitioner was a major married separated son on the appointed date, i.e., 26.09.1970. The Member ultimately came to the conclusion that the Revenue Officer did not go deep into the matter and excluded the property held by the two sons from the purview of the ceiling case without thorough inquiry. Accordingly the impugned order was passed by him setting aside the order dated 03.03.1975 passed by the Revenue Officer in the ceiling case and remanding it for fresh disposal on merits as per law. 5. Learned counsel for the petitioner submits that it was not competent on the part of the Member, Board of Revenue to revise the order of the Revenue Officer after 17 years. Referring to some old decisions of this Court he contended that even if no limitation was prescribed for entertaining a revision by the Member under section 59(2) of the OLR Act, such power of revision however has to be exercised within a reasonable time. He cited some decisions where revision under section 59(2) of the OLR Act against orders passed before 11 to 14 years were held to be unreasonable on the facts and circumstances of those cases. 6. Section 59(2) of the OLR Act has been amended by Orissa Act 29 of 1993, prescribing a limitation period of 25 years for revising an order of a subordinate authority by the Board of Revenue on a reference made by the Collector of the District. Prior to the amendment, no limitation at all was prescribed by the statute for the purpose of such revision. 7. Learned counsel for the petitioner submits that the amendment must be held to be prospective in nature and shall have no application to the present revision before the Member, Board of Revenue which was initiated in 1992, i.e., 17 years after passing of the order by the Revenue Officer in the ceiling case. 7. Learned counsel for the petitioner submits that the amendment must be held to be prospective in nature and shall have no application to the present revision before the Member, Board of Revenue which was initiated in 1992, i.e., 17 years after passing of the order by the Revenue Officer in the ceiling case. There is no dispute that by way of amendment of enactment vested rights cannot be taken away unless the amendment has been specifically made retrospective. A Division Bench of this Court in the case of Duryodhan Samal v. Smt. Uma Dei and others, 1985 (2) OLR 309 have held as follows:-- "6. Before we enter into discussion of the question at issue, we may state the accepted principle of interpretation of a statute that every legislation is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. The question whether a statute operates retrospective or prospectively is one of legislative intent. If the terms of the statute are clear or unambiguous and it is manifest that the legislature intended the Act to operate retrospectively, unquestionably, it must be so construed. If, however, the terms of a statute do not of themselves, make an intention certain or clear, it should be presumed to operate prospectively. An Act is retrospective if it takes away or impairs any vested right acquired under an existing law or creates a new liability or obligation in respect of transactions already past, or creates a new obligation or liability in respect of past transactions. The said Act does not spell out that it would have effect from a date anterior to its enactment nor, as already stated, it does purport to take away, destroy or impair a vested right. It does not create a new obligation or liability in respect of any past transaction either expressly or by necessary implication. But the presumption that a statute is ordinarily prospective has no application to a statute or those provisions of a statute making procedural alteration or which affects the procedural law only. It does not create a new obligation or liability in respect of any past transaction either expressly or by necessary implication. But the presumption that a statute is ordinarily prospective has no application to a statute or those provisions of a statute making procedural alteration or which affects the procedural law only. It is, therefore, necessary to find out the nature of the right which is affected by the new statute in order to determine the retrospective nature of Sec. 16(2) of the Act." It is clear from the aforesaid decision that the presumption that a statute is ordinarily prospective has no application to those provision of amendment which make procedural alteration or which affects the procedural law only. 8. Providing a period of limitation by an enactment for the purpose of entertaining of appeals or revisions is in the realm of procedure. Therefore, it cannot be said that procedural law cannot be amended retrospectively. In the instant case by virtue of the amendment to section 59(2) of the Act prescribing the period of limitation no vested right of the petitioner is being taken away. Originally there was no limitation at all for entertaining a revision under section 59(2) of the OLR Act. For the first time limitation of 25 years was prescribed by way of amendment. Therefore, the amendments which came into force during the pendency of the revision before the Member, Board of Revenue will be governed by the amendment. It is not a case where a small period of limitation was initially provided for and after the expiry of the period of limitation for revision the order of the Revenue Officer is sought to be revised taking recourse to the larger period of limitation prescribed by the amendment. I am, therefore, of the view that the amendment prescribing limitation would apply to the instant revision, which was pending before the Member, Board of Revenue when the amendment came into force. Therefore, a delay of 17 years cannot be a ground to hold that the revision was barred by limitation. Even assuming that the amended provision was not applicable, what would be a reasonable time for a revision under section 59(2) would depend on the facts and circumstances of each case. Therefore, a delay of 17 years cannot be a ground to hold that the revision was barred by limitation. Even assuming that the amended provision was not applicable, what would be a reasonable time for a revision under section 59(2) would depend on the facts and circumstances of each case. In the instant case the Member, Board of Revenue has given good reasons for doubting the correctness of the order of the Revenue Officer excluding lands held by the sons of the petitioner accepting them to be major, married and separated on the appointed date. Therefore, I do not find any infirmity in the impugned remand order. The writ petition is, therefore, dismissed.