Shri Abhaya Charan Mohanty vs State of Orissa and Others

L. Mohapatra, J.—This writ petition is directed against the judgment and order dated 7.11.2001 passed by the Commissioner, Consolidation, Cuttack in Consolidation Revision Case No. 12 of 2000 dismissing the revision filed u/s 37(1) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972.

From the impugned order it appears that the Petitioner filed the revision u/s 37(1) of the Act to record the consolidation plot Nos. 192, 153, 161, 134, 118, 191, 197, 205, 206, 207 and 207 in his favour exclusively as per the order of the Tahasildar, Salipur in Ceiling Case No. 92 of 1973. The further case of the Petitioner is that he was staying most of the time outside the village and could not take steps before the Consolidation Officer in time and therefore, filed the revision u/s 37(1) of the Act. According to the Petitioner, the consolidation authority could not have overlooked or ignored the orders passed in the Ceiling Case while recording the lands in favour of the opposite party No. 4 and in support of such claim the Petitioner had filed photo-copies of the order passed in Ceiling Case. The contesting opposite parties challenged the matter on the ground that the revision had been filed long after publication of the notification u/s 41(1) of the Act. The learned Commissioner rejected the revision on the ground that the revision had been filed long after final publication u/s 41(1) of the Act.

Shri Das, the learned Counsel appearing for the Petitioner relied upon a decision of this Court in the case of Gulzar Khan Vs. Commissioner of Consolidation and Others, and submitted that even after final publication of the notification u/s 41(1) of the Act, the revision u/s 37(1) is maintainable. The Full Bench of this Court in the aforesaid decision in this connection observed as follows:

The aforesaid being the position, it is apparent that a forum has to be available to a person who was to be aggrieved, after Section 41 notification has been issued, with any order having been passed or anything having been done during the consolidation operation affecting his right, title and interest as stated in the opening sentence of this judgment, there cannot be a right without any remedy and, according to us, the remedy can be made available principally by Section 37 of the Act. As to when such a situation may arise need not be spelt out, indeed, it cannot be the probability of such a situation arising cannot obviously be ruled out. This power being unfettered, we cannot put any fetter; any such action of ours would render some really hard-pressed people without a remedy. May we repeat that we are not at the question as to when power u/s 37 would be, or should be exercised. As already pointed out, this power shall be available only under compelling circumstances, but on compelling circumstances existing, we cannot shut out the invocation of the power. May we also observe that though Section 37 has conferred an unfettered power, it is settled law that every power, be it administrative or judicial, has to be exercised in a reasonable manner, and the reasonable exercise of power inheres in its exercise within a reasonable time as stated at pp.1245-6 of Mansaram Vs. S.P. Pathak and Others, . This apart, no power is really in fettered; every power has to be exercised according to Rules of reason and justice, not according to private opinion; according to law, and not according to humour. The exercise of discretionary power cannot be arbitrary, vague and fanciful; it has to be legal and regular.

On the basis of the observation, it is contended by the learned Counsel appearing for the Petitioner that since the revision was maintainable even after final publication of notification u/s 41(1) of the Act, the learned Commissioner committed gross illegality in dismissing the revision as not maintainable and prayed that the matter should be remitted back to the Commissioner for hearing. No doubt this Court in the aforesaid decision has held that even after final publication u/s 41(1) of the Act, the revision u/s 37(1) is maintainable, but at the same time the Court cannot overlook the conduct of the party in approaching the authority. In the instant case, the final publication u/s 41(1) of the Act was made on 14.7.1988, but the revision was filed on 7.1.2000. It is, therefore, clear that near about twelve years after final publication u/s 41(1) of the Act, the revision had been filed by the Petitioner. This shows the laches on the part of the Petitioner in invoking the jurisdiction u/s 37(1) after a long lapse of time. The Full Bench in the aforesaid decision, in my considered view, never expressed that at any time after final publication u/s 41(1) of the Act, a revision can be entertained. Had such a revision been filed within a reasonable period of time, the same could be entertained, but here the revision had been filed near about twelve years after final publication u/s 41(1) of the Act. In view of the laches on the part of the Petitioner, in my view, the revision was rightly dismissed.

I, therefore, do not find any reason to interfere with the order and accordingly the writ application stands dismissed.