Collector vs Binodbihari Panda and Others

This revision is on a motion of the Collector, Kalahandi u/s 59(2) of the Orissa Land Reforms Act.

Suo motu proceedings were initiated by the Revenue Officer, Jaipatna to determine the ceiling area of Binod Bihari Panda who, according to information then available with the Revenue Officer, was holding Acs. 279.29 of land. Of these Acs. 2.27 was stated to be homestead land which would qualify for exclusion u/s 39(a). Binod Bihari Panda produced certain registered documents to claim that 191.07 acres, out of 279.29 acres were not held by him.

(i) No. 1856 of 16 November 1962 in which Acs. 48.92 of bhogra lands had been gifted by the father of Binod Bihari Panda to his grandson Dilip Kumar Panda.

(ii) No. 1851 of 16 November 1962 in which Binod Bihari Panda transferred Acs. 58. 85 to his mother Harapriya Devi.

(iii) No. 995 of 27 March 1972 in which Binod Bihari Panda gifted Acs. 53. 42 to his grandson Radhamohan Patra and

(iv) No. 996 of 27 March 1972 in which Subhrakesi Devi, wife of Binod Bihari Panda, gifted Acs. 29.88 to her daughter Annapurna Devi.

On the other hand it was claimed that there were Acs. 27.00 which had not been taken into account, of which Acs. 16.99 had been purchased through a registered sale deed No. 568 dated 3 May 1957. The Revenue Officer calculated that mother Harapriya Devi, the "individual" Binod Bihari Panda, wife Subhrakesi Devi and son Dilip Kumar Panda held among them Acs. 302.16.

During enquiry the Revenue Officer was told that Harapriya Devi had "delivered possession" of Ac. 38.72 in 1962, by a plain paper arrangement, to Brajmohan Patra another grandson of Binod Bihari Panda.

The learned Revenue Officer treated each of the five individuals-Binod Bihari Panda, Harapriya Devi, Dilip Kumar Panda, Brajamohan Patra and Radhamohan Patra-as separate persons and let them keep 34.56, 37.78, 32.63, 38.72 and 35.62 acres respectively. He excluded 0.33 acres out of the holding of Binod Bihari Panda on the ground that it has a Sevashram School on it. Gift of 29.88 acres to Annapurna Devi was ignored on the ground that she was not in possession of the land. Acres 123.02 were declared as the surplus area.

I have heard the learned Counsel who have presented their respective contentions and arguments most ably. It has been often emphasised by the Board of Revenue that the definition of a family u/s 37(b) is a secular definition designed exclusively for the purposes of determination of the ceiling area and that the ceiling which is imposed is on the holding of a Land-holder or Raiyat. It has no relevance to rights and interests in property under personal laws nor has it any relevance to land which is not the balding of a landholder or a raiyat.

The expression "separation by partition or otherwise", in Section 37(b), requires that separation accompanied by partition of the land should be distinguished from separation in status without partition of the land. Also that, notwithstanding any other law, Section 19 requires that for a partition to be valid, it has to be made by

(a) a registered instrument or

(b) a decree of a Court or

(c) an order of the Revenue Officer in the manner prescribed, on mutual agreement.

Partition effected in any other manner has to be ignored in computing the area of land held individually.

On the other hand separation, as distinct from partition, does not require a document. Once there is a definite and unmistakable indication on the part of a major married son to separate he cannot be counted as a member of the "family". His right to obtain and possess his share is unimpeachable. But, his share ought to have been divided and become his holding before 26th of September 1970 if it is not to be taken into account in determining the ceiling area of his father.

It is not disputed that Binodbihari Panda who had separated before 26 September 1970 from the "family" of which his mother is the "individual" was a major and was married before that date. The lands held by him cannot therefore be clubbed with the lands of his mother, Harapriya Devi, in the determination of her ceiling area.

Dilip Kumar Panda the married son of Binodbihari Panda is stated to have been given 4892 acres by a gift registered on 16 November 1952. It would appear that the transfer was by partition of the land and it was held individually by Dilip Kumar Panda. If it was so, his holding would be insulated from the determination of the ceiling area of his father Binod Bihari Panda provided if is proved that. Dilip Kumar Panda was a major, was married and was separated as such before the 26th day of September 1970. It is such separation which was disputed in the hearing before me. It is necessary, as would be clear from the use of the expression " who as such", that the date of attainment of majority and the date of marriage should both have been before the 26th day of September 1970. On a reference, the learned Collector has confirmed in his report of 9 September 1977 that Dilip Kumar Panda was married and was a major when he separated and that the separation took place before the 26th day of September 1970. He would not be therefore a member of the family of Binodbihari Panda.

Accordingly Binodbihari Panda together with his wife and daughter Annapurna Devi would be a "family" in terms of Clause (b) of Section 37. It is this "family" which is the "person", in the present proceedings, for purposes of Section 37-B.

Clause (b) of Section 39 reads-

(b) the transfer of any land by sale, gift or otherwise or the partition thereof by a person during the period beginning with the 26th day of September. 1970 and ending with the commencement of the Orissa Land Reforms (Amendment) Act, 17 of 1973 shall, if such person was holding land on the said day in excess of the ceiling area, be deemed to be void, anything contained in any law or agreement or in any decree or order of any Court notwithstanding;

(b) the lands so transferred or partitioned shall be taken into account as if the transfer or partition had not taken effect and the Revenue Officer may, at his discretion, ignore the selection made by the person of lands to be retained in his possession.

The essence of Clause (b) of Section 39 is to prevent any person who was holding land on the 26th of September 1970 in excess of the ceiling area from circumventing the ceiling provisions by transferring land or partitioning his holding. A "person" who was holding on the 26th day of September 1170 land in excess of his ceiling area could not transfer or partition any land of his during the period beginning from the 26th day of September 1970 and ending with the 2nd of October 1973. If any transfers or partitions had been made during that period they would be void in the sense that the lands so transferred or partitioned shalt be deemed to be within the holding of the "person" on the 2nd of October 1973 when the ceiling provisions of Section 37-B came into operation. The object would be defeated if the law is not interpreted strictly.

As Binodbihari Panda and Subhrakesi Devi were a "person" holding land in excess of the ceiling area, the gift of Acs. 53.42 made by Binod Bihari Panda in the deed registered on 27th March 1972 is void for purposes of ceiling determination. Similarly the gift of Acs. 29.88 made in the deed registered on 21 March 1972 is also void even though it has not resulted it the land going out of the holding of the "family". The schedule of surplus lands of the "family" of Binodbihari Panda should be revised accordingly.

While one would not ordinarily question the finding of the Revenue Officer that acres 38.72 was gifted to Brajamohan Patra, it is curious that the gift which is stated to have been made on 16 November 1962 had not been registered whereas the gift of 48.92 acres made to Dilip Kumar Panda on the same day had been registered. I would accordingly direct that the Additional District Magistrate might enquire into this further and satisfy himself that the transfers of land by gift made to Brajamohan Patra was made bona fide before 26th of September 1970. In this context I must make two observations. Firstly, when the Board of Revenue asks the Collector of the District or the Additional District Magistrate to make an enquiry or to render a report it is not sufficient compliance to ask a Revenue Officer to make the enquiry or to transmit the report of a Revenue Officer. The revision u/s 59(2) becomes meaningless if in cases such as the present one, where proceedings before a Revenue Officer have been called into question the verification of facts is entrusted to the very same authority. Secondly, settlement records are of not much use as evidence in ceiling cases when such records have been finally published after the 26th September 1970.

If the learned Additional District Magistrate comes to the finding that the transfer of acres 38 72 by gift to Brajamohan Patra is void, the impugned land must be taken into the holding of the transferor Harapriya Devi and the schedule of surplus lands revised accordingly.

The learned Revenue Officer erred in excluding 3.50 acres of homestead in determining the ceiling area. Clause (a) of Section 39 which reads-

(a) homestead lands, or tanks with their embankments, or both, to the extent of the three acres in the aggregate shall not be taken into account;

is free from any ambiguity. The raison d�etre is that the homestead land and the tanks are essential ancillaries to agricultural production in the ceiling area retained by the "person". If the area in aggregate of the homestead lands or tanks with their embankments or both is more than 3 acres, then only 3 acres can be allowed in terms of Clause (a) of Section 39. The rest of it has to be accommodated in the ceiling area or in the surplus lands. In deciding where it should be recommended revenue officers must (i) take into account the option of the landholder and (ii) ensure that a tank with its embankments is retained as a whole either within, the ceiling area or in the surplus area. It is meaningless dividing a tank or its embankments. If the aggregate of homestead lands, banks and their embankments is less than three acres then one can exclude only the actual area.

With these observations, the case is remitted to the learned Additional District Magistrate to revise the statements of ceiling and surplus lands of Binodbihari Panda and if necessary of Harapriya Devi. The orders passed by the Additional District. Magistrate shall be deemed to be passed in appeal and will be open to revision u/s 59(1) in so far as they concern matters other than those decided by the Board of Revenue in the present order.

Ordered accordingly.

End of Vol. XLIV-Reports.