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Judgment
R.N. Misra, J.—Petitioner, a landholder, has filed this application for a direction to the Revenue Officer (opposite party No. 1) to implement the order passed by the Revenue Divisional Commissioner (opposite party No. 4) in Revision Case No. 41 of 1976.
Petitioner made a return as provided u/s 40A of the Orissa Land Reforms Act (hereinafter referred to as the ''Act''). The Revenue Officer found that the return was not appropriate and on his own information he initiated a suo motu proceedings for fixation of the ceiling area in the hands of the Petitioner. He published a draft statement and after hearing objections, by order dated 6-4-1976, he modified the statement and confirmed it declaring the ceiling surplus to be 17.05 standard acres.
Petitioner carried an appeal being O. L. R. Appeal No. 8 of 1976. By order dated 22-5-1976, the appellate authority gave partial relief in regard to the properties alleged to have been sold, the homestead and tank and directed a fresh investigation in regard thereto. On 23-5-1976, the Revenue Officer passed an order to the following effect:
This is put up to me today after being remanded from the appellate Court. Seen the observation of the appellate Court. Amin to verify in the field with old and new maps and ascertain the extent of land sold prior to 26-9-1970 and to report whether the vendees are in possession of the land. He is further directed to report the extent of area used as homestead by the land owner....
On 25-5-1976, he saw the verification report supplied by the Amin and passed a fresh order the operative part of which ran thus:
The total extent of land excluding the lands sold prior to 26-9-1970 comes to A. 70.03. After exemption of homestead and tank the area comes to A. 67.69 and after conversion it comes to 29.45 standard acres. The land owner is entitled for 16 standard acres. The ceiling surplus land is 13 45 standard acres or 41.43 in acres. The confirmed statement is now modified accordingly. Publish the modified confirmed statement for 15 days and send a copy of the statement to land owner by registered post with A. D....
It is obvious that the enquiry after remand was without notice to the Petitioner and not withstanding the direction of the appellate authority, the Revenue Officer proceeded to complete the further enquiry unilaterally. After receiving the confirmed statement as directed to be issued to the Petitioner by order dated 25-5-1976, Petitioner made an application to the Revenue Officer to give him an option to retain the lands within the ceiling area. The said application was rejected on 21-6-1976.
Within the time allowed by law, Petitioner carried a revision to the Revenue Divisional Commissioner (opposite party No. 4) challenging the appellate order which had rejected claims for relief and had remanded the matter for investigation on two questions. In the revision petition, Petitioner also pressed for an opportunity to be given to him to choose the lands to be included in his ceiling area. That relief was asked on the basis of a Government Circular bearing No. 46458/R, dated 17-6-1975 in the Revenue Department wherein it had been said that where ceiling surplus lands have vested in the Government without the land owner getting the benefit of selecting the lands to be retained by him or making a convenient selection advantageous to him and where he approaches the Revenue Officer for relief, the cases may be reviewed by the latter u/s 60 of the Act and on the selection specified by the land owner, the Revenue Officer may allow the selected area to be retained within the ceiling on surrender of an equivalent area of land by him (in terms of standard acres) in favour of the Government. The revision was filed on 26-6-1976 and on that very day, an order of stay of further proceeding before the Revenue Officer was passed. On 28-6-1976, an affidavit was filed before the Revenue Officer stating the fact of stay. On that day, the following order was passed by the Revenue Officer:
The land owner is present and files affidavit stating that he has obtained stay order from R. D. C. against the order in this case. He submits affidavit today at 3.30 P. M. requesting not to proceed further. In this connection it may be mentioned that the land vested in Government has already been distributed before he submits affidavit. Wait till receipt of orders from R.D.C....
The Revenue Divisional Commissioner disposed of the revision petition by order dated 10-8-1976. The operative portion of the older is as follows.:
As regards the right of choice, the party had applied to the Revenue Officer for permission to retain certain parcels of land. The Revenue Officer in his order dated 21-6-1976 has rejected this. But the grounds of rejection were that lands suggested for retention in the draft statement are better than those asked for by the land owner and that on the lands suggested for retention there is no house, cow-shed or building. It is true that against this order dated 21-6-1976, the party has not gone on appeal and hence it is open to question whether the party can raise this issue before a Revision Court. Be that as it may, the recorded owner has the intrinsic right to select lands for himself unless he is brought within the mischief of the proviso to Section 40A or Section 39B. In this case no such disqualification is there. Besides it is open to the owner to select comparatively poorer quality lands or lands without buildings. Hence this order of Revenue Officer dated 21-6.1976 denying the choice of parcels cannot stand. Hence the Revenue Officer may give suitable opportunity to the owner for selecting parcels of land for himself.
On 14-9-1976, the Revenue Officer passed the following order:
Perused the orders of R.D.C. passed on 10-8-1976 in O.L.R. Revision Case No. 41 of 1976 which was communicated to this Court in Memo No. 2240 dated 18-8-1976 of the officer of the R.D.C. (N. D). The revisioning authority has ordered that the Revenue Officer may give suitable opportunity to the ceiling surplus holder for selecting parcels of land for himself. But before receipt of this order the lands which had vested in this case in Government on 10-6-1976 have been distributed to the following persons:.
(Here Occurs a list of 82 persons)
These allottees have been settled with ceiling surplus land on 28-6-1976 after realisation of Salami in full in some cases and part in some cases and in some cases they have been allowed to pay salami after a year getting due orders from competent authority. Delivery of possession of the lands has also been made. Thus, the new allottees have already accrued title on the lands coupled with possession of lands. The Revenue Officer under the O.L.R. Act has no power to revoke title from such allottees. Therefore, this Court is completely disabled at the present stage to give effect to the observation of the revisional authority. I may here mention that by the time the stay order was brought to my notice the distribution was over, title had already passed. Further, the allottees did not voluntarily agree for the exchange of lands as I personally contacted them.
Section 44(3) of the Act runs thus:
The draft statement as confirmed or as modified in appeal or revision if any, shall be published by the Revenue Officer in such manner and for such period as may be prescribed, and on the expiry of the said period as may be prescribed, and on the expiry of the said period the statement shall be final and conclusive, a copy whereof shall then be furnished conclusive, a copy whereof shall then be furnished to the person concerned free of cost and another such copy to such authority, if any as may be prescribed.
The words "or revision" were brought in by amendment of the Act under Orissa Act 29 of 1976 which came into force with effect from 19th of May, 1976. Even when the amendment was not there, this Court in the case of Arakhita Bisoi v. Revenue Officer, Aska and Ors. 42 (1076) C.L.T. 796, decided that a revision lay and the said decision has already been affirmed by the Supreme Court in the case of State of Orissa and Others Vs. Arakhita Bisoi, . It is thus clear that until the revision was disposed of, the statement could not be final and conclusive in terms of Sub-section (3) of Section 44 of the Act. Section 45 of the Act provides that with effect from the date on which the statement becomes final under Sub-section (3) of Section 44, the interests of the person to whom the surplus lands relate and of all land-holders mediately or immediately under whom the surplus lands were being held shall stand extinguished and the said lands shall vest absolutely in the Government free from all encumbrances. Section 45A which came into the Statute Book by Orissa Act 29 of 1976 provides that within fifteen days from the date of vesting of the land in Government and in case there by standing crop on the land on the date of vesting, within fifteen days from the date of harvesting of such crop, the person in possession of the surplus land is to deliver the land to the Revenue Officer and if possession is not delivered in accordance with Sub-section (1), the Revenue Officer may direct the person in possession of the surplus lands to deliver possession of such lands within seven days from the date of service of the order on him and if there is no compliance, Sub-section (3) authorises forcible dispossession. The order-sheet of the case does not mention as to when possession of the lands was delivered u/s 45 of the Act. Section 51 provides for settlement of surplus lands and gives a guideline.
As we have already indicated, until the revision had been disposed of, the statement could not be made final and would not become conclusive and there would be no vesting of surplus lands in Government. As the lands would not vest in Government, the Revenue Officer would have no jurisdiction to deal with the property. As there is no material before us and the entire record having been examined, there is no indication therein that possession had been delivered by the land-holder (Petitioner), it indeed surpasses our comprehension as to how there could be any distribution. On the date the lands are said to have been distributed, Petitioner was still the owner and there had been no extinguishment of his title; there had been no vesting of the property in Government and the Revenue Officer, therefore, had no jurisdiction at an to proceed to settle the property in terms of Section 51 of the Act. This seems to be one of the instances where the Revenue Officer was anxious to join the call of the day for finding out surplus lands for distribution for oblique purposes and, therefore, without following the law, the Revenue Officer had chosen to offer lands for distribution little realising that by this process he was hoodwinking people by holding out that land with title was being settled with them and on such basis was even collecting salami. His action was bound to give rise to a dispute between the Petitioner and those poor alleged settles who would for defect of title be not able to resist the claim of the Petitioner.
With a view to avoiding the effect of stay order and in his anxiety to answer the call for finding out surplus lands, the particular Revenue Officer seems to have come forward with an untenable stand of distribution prior to the order of stay having been intimated. The Revenue Officer seems to have lost sight of the fact that he was a statutory authority created by the Act with limited powers; the Statute indicated his jurisdiction, defines his powers and lays down the activities he was required to perform. It was not certainly open to him while functioning as a tribunal within the limits of the law to over-reach the law for purposes not known to the statute, defy the mandate of the Legislature, throw the rights of the land-owner to the winds and thereby turn out to be a "good officer". This particular Revenue Officer should have realised that he was bound by the ultimate Rule to Law; in the hierarchical system of administration, he was not the absolute authority and his orders were open to appeal and revision and if a revisional authority was interfering with his order, he was duty bound to abide by the order of the superior and was not entitled to avoid it by putting forward a wholly untenable stand. We are inclined to think that this Revenue Officer in fact committed contempt of the order of the Revenue Divisional Commissioner, but since we are disposing of the matter and we would not like to take cognisance of contempt of the Revenue Divisional Commissioner without a report, no further action in that regard is called for . We would, however, certainly commend to the State Government that the particular Revenue Officer (Shri M. Mohapatra) should be suitably dealt with by the Government and for that purpose a copy of our judgment may be sent to the Revenue Divisional Commissioner of Northern Division for onward transmission to the appropriate authority.
In view of what we have stated above, it must follow that the lands have not yet vested in Government and Petitioner is still entitled to have his choice of lands for retention within his ceiling area. We are somewhat amused to find that the Revenue Officer appeared to be more interested in the Petitioner than Petitioner himself. What would be convenient to the Petitioner for his ceiling area is a matter entirely within his choice and it was preoosterous for the Revenue Officer to say that the lands which had been allowed to be retained by the Petitioner were of better type and more valuable than the lands which Petitioner was asked for being permitted to retain. Petitioner appears to have already indicated his choice to the Revenue Officer. The Revenue Officer shall now proceed to give effect to the choice in terms of the direction of the revisional authority and then proceed to deal with the case in accordance with law.
Before we part with the case, we must sound a warning to the tribunals constituted under statutes that power has been conferred to them for specified purposes and they are required to act in terms of the statutes and Rules made thereunder and are to discharge their duties keeping in tune with the Rule of Law. Within a few months past, we have come across several instances, particularly in the administration of the Land Reforms Act, where high-handedness of Revenue Officers has come to light. In
the hope that administration would improve we have not taken any serious action even where circumstances calling for the same have come to our notice, but continued dereliction cannot go unpunished. Government for the sake of administration and this Court in exercise of its powers would certainly take serious view appropriate to the occasion when there is recurrence of such conduct on the part of statutory tribunals. We only hope that there would be no recurrence.
We may now turn to two preliminary aspects which learned Additional Government Advocate had at the hearing raised and we had revered to deal with at the end. According to learned Counsel for the opposite parties, the persons with whom lands had been settled are necessary parties and without hearing them we could not dispose of this application. We have given reasons to show that the settlement itself was a nullity inasmuch as the lands continued to belong to the Petitioner and had not vested in Government. The Revenue Officer would certainly have no jurisdiction to settle Petitioner''s lands in which his right had not been extinguished and in which Government had not acquired title. Again, the rule for impletion of parties as indicated in a recent decision of the Supreme Court would depend upon the facts of each case and there cannot be any universal rule that in every case parties having inherent rights or no rights at all (as in the instant case where the settlement is a nullity) should be given a hearing.
The other objection was that the order of the Revenue Divisional Commissioner in directing that the option of the Petitioner be accepted was without authority. This submission seems to be without foundation. The jurisdiction of a revisional authority is not fettered by any limitation. In fact, as has been universally accepted, a revision as provided under this Statute is wide in its amplitude and the revisional authority has full powers to pass appropriate order for ends of justice. The State Government itself in realisation of the fact that the administration of the Land Reforms Act was not being done properly has issued a Circular to which we have made reference already that at any stage and even after the land is vested in Government, the landholder in entitled to exercise his option on condition of substituting lands. This being the position, we cannot appreciate the stand taken by learned Additional Government Advocate before us.
The writ application accordingly succeeds. The Revenue Officer is directed to implement the order of the Revenue Divisional Commissioner. The Petitioner shall have his costs of the proceeding. Hearing fee is assessed at rupees one hundred to be realised from the Revenue Officer (opposite party No. 2) only. The State Government is directed not to burden the Consolidated Fund for meeting the costs.
N.K. Das, J.
I agree.
Application allowed.