K.S. Raghupathi Member, Land Reforms Commissioner vs Sriram Mahakud

K.S. Raghupathi, Member

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

During the hearing three points have come up for decision-

(i) Would individuals recorded jointly in respect of a holding constitute a body of individuals forming one "person".

(ii) Would lack of notice in terms of Rule 30(2) to each of the individuals forming a "body of individuals" be a material irregularity vitiating subsequent proceedings, and

(iii) Would Section 5 of the Limitation Act apply to filing of appeals under Sub-section (2) of Section 44.

Sriram Mahakud who was asked to file a return u/s 40-A filed a petition to explain that the lands held by him both as a landholder and as a raiyat did not together exceed ten standard acres. The Revenue Officer took into account lands held jointly with a number of other people, clubbed them, prepared a draft statement u/s 43(1) and determined the ceiling treating all the persons as one "person" entitled together to only one ceiling.

Of the lands taken into account in determining the ceiling area, Acres 40.49 were Bhogra land out of Khata No. 4 which had vested in the State Government on 1 April 1966. They were settled jointly with Sriram Mahakud and four others under orders passed on 17 January 1974 in Case No. S A 568 of 1967. The four others were a brother a maternal cousin, an aunt and the husband of another aunt as in the table below Neta Bewa widow of Gobinda Kheti Debaki Sri Ram (1) Krushna (2) Dhira Mahargu Karna (3) Sukruta (4) Sarita m Khageswar (5) Another Acs. 9.22 of Khata No. 35 were raiyati lands jointly recorded in the names of Sriram Mahakud and Krushna Mahakud. Some other lands in Khatas 3. 26 and 31 were left out on the ground that they "do not come under this ceiling".

On 31 December 1973 when Sriram Mahakud filed his petition he was justified in making the statement that he was not holding any land in excess of ten standard acres. At that time the Bhogra lands had not been settled with him. They had been resumed and remained vested in Government with the consequence that in respect of those lands Sriram Mahakud was neither a raiyat nor a land holder within the scope of Sub-section (16) of Section 2 of the Orissa Land Reforms Act. Unless he held any other lands besides Acs. 9.22 of Khata No. 35 to bring him within the purview of Section 37 B, he was not required to submit a return u/s 40-A.

The question then is whether on joint settlement of the Bhogra lands on 17 January 1974, Sriram Mahakud became liable under the provisions of Section 52. It is the case of Sri ram that even then he did not become liable.

It is pointed out that the Tahsildar had found on local inquiry, on 5 October 1967, in Sarbarkari Abolition Case No. 568 of 1967 that Sriram Mahakud was in separate cultivating possession of 11.07 acres. Krushna of 1026 acres, Sukruta of 1.00 acre, Mahargu Karna of 303 acres. Khageswar of 3 53 acres, Neta Bewa of 7.37 acres and Debaki of 5.58 acres. It is contended that not withstanding the joint recording the ceiling of Sriram Mahakud should be determined taking into account only the lands which he held in his separate cultivating possession.

In law, there are many unincorporated associations consisting of a body of individuals which are entitled to hold property. For instance, a partnership firm is an unincorporated body of individuals. A society consisting of several individuals whether registered or unregistered under the provisions of the Societies Registration Act of 1860 comes within the definition of ''person''. Joint recording is presumptive of joint ownership but it is open to the individuals to prove that title and possession have been separated and that they do not come within the scope of "an association or other body of individuals, whether incorporated or not."

The settlement made on 17 January, 1974 was not under the provisions of Section 5 of the Orissa Merged Territories (Village Offices Abolition) Act whereby vested Bhogra lands could be settled with the former Village Officer, his co-sharers or tenants under them only individually to the extent that each one was in separate and actual cultivating possession. It was under Executive Instructions on side that Act. It was done on a specific application, supported by an affidavit, made on 17 January, 1974 seeking joint settlement. Indeed Sriram Mahakud, went on to pay Salami for the entire; Acres 40.49. Sriram Mahakud and his four fellow holders were thus a body of individuals who would together constitute a "person". They could not held more than ten standard acres. But, before coming to this conclusion it would be necessary to give notice to each member of the "body of individuals" inviting objections if any.

If the Revenue Officer comes to the finding that they were a body of individuals constituting a "person", the next question which would arise would be whether the other 9. 22 acres of Khata 35 ought to be pooled with the 40. 49 acres to determine the ceiling of this "person". The answer is "no". Sriram Mahakud and Krushna Mahakud who hold the 9.22 acres jointly in Khata No. 35 would be quite a different entity and would be another "body of individuals".

Even after determination of the ceilings of these two different "bodies of individuals". Sriram Mahakud, or for that matter any one of the joint holders, would nevertheless be liable independently to determination of his own ceiling if the aggregate of his own shares in the different joint holdings together with any other lands he might hold by himself exceed ten standard acres. In such determination of Sriram Mahakud''s own ceiling and the proviso to Section 37-A would apply.

In regard to the notice under Sub-rule (2) of Rule 30 it is incumbent for a copy of the draft statement to be communicated to the person. Where the "person" is a body of individuals which is not incorporated such notice has to be communicated to each member of the body of individuals. As has been held in Rahas Debi and Ors. v. Revenue Officer, Aska and Ors. O.J.C. 1947 of 1975, an order made without notice to the person affected cannot take away the rights of the person.

In a case where there has been no notice and consequently no hearing of the persons affected, it is academic to go into the question whether Section 5 of the Limitation Act would apply to the filing of appeals u/s 44(2).

Natural justice required that I set aside the orders of the learned lower authorities and remit the case to the learned Revenue Officer to communicate copies of the draft statement to every member of the body of individuals constituting the "person" and then proceed according to law.