Land Reforms Commissioner vs Additional District Magistrate and Others

K.S. Raghupathi, Member

This case is on a motion of Land Reforms Commissioner u/s 59(2) of the Orissa Land Reforms Act to revise the order of the Revenue Officer, Chatrapur passed on 5 August, 19/6 in his Case O. L. R. No. 426 of 1975.

Proceedings were initiated suo motu on the 27th February, 1975 by the Revenue Officer, Chatrapur to determine the ceiling area and surplus lands of Madhab Mohapatra, son of Batakrishna Mohapatra of village Angu in the district of Ganjam. It was learnt by the Revenue Officer from the notice which was returned that the person was dead. The legal hens of the deceased person are stated to have been made parties and a draft statement was published determining the ceiling area as 18 standard acres and declaring 11.929 acres as surplus. When the draft statement was published an objection was filed by a Niranjan Mohapatra son of Markand Mohapatra. This was overruled and the draft statement confirmed.

A review petition u/s 60(2) was filed by a Narasingh Mohapatra pointing out that his lands had been included and shown as surplus without any notice or opportunity of hearing. Review was declined by the learned Additional District Magistrate who went on to reduce the ceiling area from 18 standard acres to 10 standard acres on the ground that the persons recorded jointly were a "body of individuals" and not a "family".

I have perused the records and heard the parties. I am appalled by the manner in which the Revenue Officer has conducted the proceedings and even more by the handling of the Review petition by the Additional District Magistrate.

As has been held by the Board of Revenue in the case of K.S. Raghupathi Member, Land Reforms Commissioner Vs. Sriram Mahakud, it is incumbent under Sub-rule (2) of Rule 30 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 it is necessary for a copy to be communicated to each member of the body of individuals. In the case of a "family" a copy must be communicated to every member of the "family". It was not enough to notice Niranjan. On this ground alone the proceedings before the Revenue Officer Chatrapur are irregular and are quashed.

In instituting fresh proceedings either u/s 37B or u/s 52 the Revenue Officer should bear the following in mind.

(i) The scheme of Chapter IV of the Orissa Land Reforms Act is that for determination of the ceiling area of a person what counts is the land held by him as a "raiyat" or as a "landholder" but in reckoning the extent of his holding transfers or partitions of land made after the 26th day of September 1970 are not recognised. There is also restriction on suits for specific performance. For determination of the ceiling area, whether it be after the return is filed u/s 40A or 40B or whether it be suo motu u/s 42, an investigation is contemplated. After the investigation, the Revenue Officer is required to prepare a draft statement. The statement has to be published inviting objections. If objections are received they have to be heard. Enquiries as deemed necessary by the Revenue Officer have to be made. Particulars specified in the draft statement may be altered or amended thereafter by an order where reasons have to be recorded in writing for the alteration or amendment.

(ii) 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 ''family'' as defined in Section 37(b) should not be confused with a Hindu joint family. There can be many "37(b) families" in a Hindu joint family.

(iii) It has also been observed by the Collector Vs. Parameswar Naik, that separation from a "family" has nothing to do with the petition of lands which may be jointly held by the members of the family.

(iv) Separation of major married son implies that he is recognised as a separate "person" u/s 37. It insulates him and his own family from the rights and obligations of his father''s family under Chapter IV of the Act. Thus If there is any land which he holds in his own right it will not be clubbed with the holding of his father, mother or any other member of his father''s family for purposes of determination of either his own ceiling area or that of his father. Thus one has to distinguish between "separation by partition" and "separation otherwise" in their incidence on the joint holding, if any, of the family.

(v) The operative section which prohibits a person holding any land in excess of the ceiling area is Section 37B which reads.

"On and from the commencement of the Orissa Land Reforms Amendment Act, 1973 (President Act, 17 of 1973), no person shall either as landholder or raiyat or as both be entitled to hold any land in excess of the ceiling area.

" Explanation - For the purposes of this section all lands held individually by the members of a family or jointly by some or all the members of a family shall be deemed to be held by the family. "

It should not be forgotten that the reference is not to a Hindu Joint Family but to a "ceiling family" as defined in Clause (b) of Section 37.

(vi) 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''. A Hindu joint family would not automatically be a

"body of individuals" for purposes of Clause (a) of Section 37 but joint ownership of land would make it so. 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 the do not come within the scope of "an association or other body of individuals, whether incorporated or not".

(vii) Any partition of a holding made on or after 1 October 1965 shall not be valid unless made in accordance with the provisions of Section 19. But even if partition of land has been effected in accordance with the provisions of Section 19 it shall be void if it had been made between the 20th of September

1970 and 2 October 1973 by a person who held on the 26th day of September 1970 land in excess of the ceiling area. This will be evident from Clause (b) of Section 39 which reads.

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 commencement of the Orissa Land Reforms (Amendment) Act, 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.

With these observations, the proceedings are quashed.

Ordered accordingly.