Chaitanya Mahapatra vs Member, Board of Revenue and Others

R.N. Misra, J.—These six applications filed by different Petitioners raise a common question of law namely before which forum the revision application contemplated in Section 12 of the Orissa Prevention of Land Encroachment Act of 1972 as amended by Orissa Act 4 of 1975 would lie. The unamended Section 12 of the Act provided:

(1) An appeal from any decision or order made under this Act shall lie to

(a) the Subdivisional Officer, if such decision or order made by a Deputy Collector or a Sub-Deputy Collector;

(b) the Collector, if it is made by a Subdivisional Officer otherwise than on appeal; and

(c) the Board of Revenue, if it is made by the Collector otherwise than an appeal.

(2) The Collector may revise decision or order made under this Act by a Sub-Divisional Officer, Deputy Collector or by a Sub-Deputy Collector and the Board of Revenue may revise any decision or order made under this Act by the Collector.

(3) ....

By Orissa Act 4 of 1975, Section 12 was amended and the amended provisions are these:

(l) An appeal from any decision or order made under this Act by the Tahsildar shall lie to the Sub-Divisional Officer.

(2) The Collector may revise a decision or order made by a S.D.O. under Sub-section (l).

(3) The Board of Revenue may can for and examine the records of any proceedings under this Act before any officer in which no appeal or revision lies.

....

Under the Orissa Revenue Divisional Commissioner Act, 1957, Board''s revisional power under the Orissa Prevention of Land Encroachment Act, 15 of 1954 had been assigned to the Revenue Divisional Commissioner. Orissa Act 15 of 1954 which was the previous Act dealing with prevention of land encroachment had conferred revisional jurisdiction on the Board of Revenue and the assignment made under the Revenue Divisional Commissioners Act which was a statute subsequent to the Orissa Prevention of Land Encroachment Act of 1954 had thus assigned the revisional jurisdiction of the Board in favour of the Divisional Commissioner. The question for consideration now is as to whether the revisional jurisdiction provided in the parent Act of 1972 or by the Amending Act of 1974 in the Board of Revenue would be exercisable by the Revenue Divisional Commissioner in view of the assignment made earlier under the provisions of the Revenue Divisional Commissioners Act, 1957. There is no dispute before us that the Orissa Prevention of Land Encroachment Act of 1972 came into the statute book when its predecessor Act of 1954 was declared ultra vires by this Court on the authority of the decision of the Supreme Court in Northern India Caterers Private Ltd. and Another Vs. State of Punjab and Another, . The revisional power of the Board of Revenue under Orissa Act 15 of 1954 was being exercised by the Revenue Divisional Commissioner in view of the assignment clearly indicated in the Schedule to that Act under the Rules made under the 1957 Act. When the Act of 1972 was brought into the statute book, the Legislature must have been aware of the delegation of power under the earlier Act in favour of the Revenue Divisional Commissioner. Yet, the statute in 1972 conferred the revisional power in the Board of Revenue and the Amending Act of 1974 similarly conferred power on the Board of Revenue in the matter of exercise of suo motu powers. Admittedly, there has been no adoption yet in the Schedule relied upon by learned Additional Government Advocate in favour of his contention that the Revenue Divisional Commissioner is the appropriate authority. In view of the categorical provision in the later Acts, we are not inclined to accept the stand of the State that it is the Revenue Divisional Commissioner though not named in the Act in question that would be entitled to entertain the revision statutorily provided to be entertainable by the Board of Revenue. Accordingly we would hold that the revisional power indicated in the statute is exercisable by the Board of Revenue and not the Revenue Divisional Commissioner.

We may now refer to each of the cases for the purpose of finding out what relief can be granted.

O.J.O. No. 2 of 1976:

Petitioner had carried a revision against the appellate order before the Collector of the district and having lost before him Petitioner had moved a further revision, before the Revenue Divisional Commissioner. The Commissioner refused to entertain the application by saying:

In view of Government''s letter No. 97461 dated 19-12-1975 any revision filed after 14-1-1975 should lie before the Board of Revenue. Hence, this revision is returned to the party for presentation before the proper Court, if he so likes.

Petitioner came before this Court relying on an order of the Board of Revenue in a different case where the Board took the view that not the Board but the Revenue Divisional Commissioner would have jurisdiction to entertain the revision.

Learned Additional Government Advocate takes the stand that under the Act, two revisions are not maintainable. Under the amended Section 12, one appeal, one revision and authority of superintendence in the Board appear to have been provided. Sub-section (3) of Section 12 provides that the Board of Revenue may call for and examine the records of any proceeding under the Act before any officer in which no appeal or revision lies. In the parent Act of 1972, jurisdiction under the Act was exercisable by a Collector or subject to his control by a Deputy Collector or a Sub-Deputy Collector. The Amending Act 4 of 1975 vested the original power under the Act in the Tahsildar and defined the word in Section 3(c). "Collector" was also defined by Section 3(a) of the Amending Act. The appellate and the revisional forums were accordingly recast by appropriate amendment in Section 12. An appeal against the order of the Tahsildar was prescribed to lie before the Sub-Divisional Officer and the Collector was authorised to revise the appellate decision of the Sub-Divisional Officer. The Board of Revenue was conferred jurisdiction of calling for and examining the records of any proceedings under the Act before any officer in which no appeal or revision lies. Sub-section (1) of Section 12 having provided that any decision or order made by the Tahsildar would be open to appeal, it would follow that the power of appeal as also the power of revision of the Collector are available against every decision and every order. That being so, it is indeed difficult to envisage a situation where no appeal or revision lay so that the Board would exercise jurisdiction of calling for and examining the records of such proceedings. It would have been understandable to have a provision like the one in Section 115 of the CPC namely that where no appeal lay to the High Court. Under the Act in question, however, there is no scope for an appeal before the Board of Revenue. Therefore, the restriction expressed by the use of the words "in which no appeal or revision lies" is misleading and gives rise to a situation which without any loss of time should be remedied by appropriate amendment of the provision. As the provision stands, we are not inclined to agree with learned Additional Government Advocate that it is the intention of the statute to exclude a second revision. The Board of Revenue being at the helm of Revenue administration appears to have been conferred with the revisional jurisdiction without any further restriction. In view of what we have already said, revision in the instant case lay to the Board of Revenue. It is open to the Petitioner to file a revision and we do not express any opinion as to the delay in presentation of such application. It is for the Petitioner to satisfy the Board in the matter of delay.

O.J.C. No. 90 of 1976:

Petitioner had moved the Revenue Divisional Commissioner in revision Case No. 8 of 1975. By order dated 19-1-1976, the Commissioner returned the petition for presentation before the competent authority. When Petitioner applied to the Board of Revenue in Revision Case No. 14 of 1975, the Board directed return of the same to the Petitioner for presentation before the competent authority. Now that we have settled the position that the Board and not the Revenue Divisional Commissioner would have jurisdiction to deal with the matter, Revision Case No. 14 of 1975 must stand restored to file for disposal on merit.

O.J.O. No. 121 of 1976:

The Petitioner filed a revision before the Collector of Phulbani against the appellate decision of the Sub-Divisional Officer and having lost before the Collector, Petitioner alleges, he wanted to move either the appropriate authority-the Commissioner-or the Board of Revenue, but in the confusion that had been created regarding jurisdiction, he was not in a position to take any further action. Now that we have settled the dispute, it is open to the Petitioner to take such action as he thinks proper. This application is not maintainable in law, inasmuch as the Petitioner had no direct grievance. It is open to him to pursue the remedy in the forum indicated.

O.J.O. No. 169 of 1976:

The Petitioner had filed a revision before the Collector, Phulbani against the appellate decision of the Sub-Divisional Officer and having lost before the Collector, Petitioner alleges, he wanted to move either the appropriate authority-the Commissioner-or the Board of Revenue, but in the confusion that had been created regarding jurisdiction, he was not in a position to take any further action. Now that we have settled the dispute, it is open to the Petitioner to take such action as he thinks proper. This application is not maintainable in law, inasmuch as the Petitioner had no direct grievance. It is open to him to pursue the remedy in the forum indicated.

O.J.O. No. 277 of 1976:

Petitioner appears to have filed a revision before the Revenue Divisional Commissioner as would appear from Annexure-4. Now that we have held that the Board and not the Revenue Divisional Commissioner is entitled to exercise jurisdiction u/s 12 of the Act, the Petitioner''s revision application before the Revenue Divisional Commissioner is not entertainable. It is open to him to take proper steps in accordance with law to move the Board of Revenue.

O.J.O. No. 345 of 1976:

Petitioner appears to have moved the Board of Revenue in revision as stated in paragraph 22 of the writ application. Now that we have already held that the Board is the appropriate authority to entertain the revision, the application may be proceeded in accordance with law.

Each of the applications is accordingly disposed of Parties are directed to bear their own costs.

K.B. Panda, J.

I agree.

Ordered accordingly.