Orissa High Court
Batai Chittamma vs Revenue Officer-Cum-Tahasildar, ... on 18 August, 1989
Equivalent citations: AIR1990ORI136, AIR 1990 ORISSA 136
Bench: D.P. Mohapatra, A. Pasayat
JUDGMENT Pasayat, J.
1. The petitioner has challenged the orders passed by the authorities' under the Orissa Land Reforms Act, 1960 (hereinafter referred to as 'the Act') holding that she had land in excess of the permissible ceiling. She has prayed for issue of a writ of certiorari to quash the orders passed by the said authorities as contained in Annexures 2, 3 and 4 and for a writ of mandamus or any other appropriate writ/writs to drop the proceeding against her and to deliver possession in respect of the land taken over, and to declare that she is not a ceiling surplus landholder.
2. The factual backdrop of the case is as follows :--
A proceeding was initiated under Section 42 of the Act against one Batai Mohan. Draft statement was prepared on the basis of information as obtained from the settlement authorities and the same was published on 29-7-1975. The notice issued to the aforesaid Batni Mohan returned back with a remark that he was dead. The petitioner, who is the widow of Batni Mohan, participated in the proceeding. The proceeding was continued against the petitioner. The petitioner through her Advocate submitted objection on 14-10-1976, indicating that there was incorrect recording in the draft statement in respect of land situated in village Baulojholi which was sold away in the year 1972 and that the same should have been excluded from the computation of the ceiling area. The classification of the land as Class II wet land was disputed on the ground that the land in reality was Class III rain-fed land. After considering the objection and after hearing the Advocate for the petitioner, the draft statement was confirmed and it was held that she was in possession of Ac. 10.833 of land of various categories equivalent to 4.030 standard acres and that the said land being over and above the ceiling limit was to vest in the State Government free from encumbrances. The order was pronounced in open Court on 5-1-1977. That very day the petitioner submitted her option statement. The draft statement was finalised on 5-2-1977 by the Revenue Officer (opposite party No. 1) with a finding that the appeal period was over and there was no intimation of any appeal having been filed. The confirmed statement was directed to be published by affixing a copy in the notice board for 15 days. A copy of the final statement was served on the petitioner by the process server on 22-2-1977. There is some amount of dispute raised as to whether the said copy was really served. We shall deal with this aspect later on. The surplus land in question was distributed to landless persons by order of the Revenue Officer dated 4-3-1977 and the allottees were inducted on the land. The petitioner applied for certified copy of the order on 7-7-1977 and received the same on 30-7-1977. An appeal was filed before opposite party No. 2 on 19-1-1979. A petition for condonation was filed stating that the petitioner was absent from her village and was ailing and, therefore, there was delay in presenting the appeal. The appeal was dismissed by the Addl. District Magistrate, Ganjan (opposite party No. 2) holding that the same was barred by limitation. He disbelieved the plea of the petitioner that there was no service of the copy of the final statement on her on 22-2-1977 and that the signature was not genuine. He found that the petitioner had not signed and on the other hand there was a thumb impression of her which was obtained in the presence of one witness, He also did not accept the grounds indicated for the delayed presentation of the appeal holding that there was no material to support the contention raised. The appellate order (Annexure-3) passed on 2-4-1979 was assailed before the Special Officer, Land Reforms, Southern Division, Orissa, Berhampur in Revision Case No. 180 of 1982. The said authority on consideration of the materials came to hold that the appellate authority had rightly dismissed the appeal and that there was no acceptable ground for interference with the order. This order dated 8-11-1982 is Annexure-4 to the writ application. As aforesaid, the orders in Annexures 2, 3 and 4 are impugned in this writ application.
3. Mr. Ratho, learned counsel for the petitioner, vehemently urged that the authorities have acted with material irregularity and their orders suffer from several infirmities which vitiate them. Even though several grounds of challenge were indicated in the writ application and were initially urged for our consideration, ultimately Mr. Ratho confined his challenge to three grounds of attack as to the sustainability of the orders in question. They are as follows :
(i) There was improper classification so far as they related to the disputed Ac. 1.900 of land. While the petitioner claimed them to be Class III rain-fed lands, the opposite party No. 1 without any material basis had treated them to be Class II wet lands. On a proper classification, the petitioner would be entitled to retain a further area of land. Since notice of publication of draft statement was not properly served on the petitioner, the proceeding is vitiated. Reliance was placed on a decision of this Court reported in AIR 1979 Orissa 58 : Arda Murari v. State of Orissa for this proposition.
(ii) The dismissal of the appeal and the confirmation thereof by the revisional authority was bad in law, as the submissions made by the petitioner and the materials adduced have not been considered in their proper perspective. There was no reasonable basis for the authorities to come to a conclusion of any laches on the part of the petitioner for the delayed presentation of the appeal.
(iii) Even though the lands in question may have been allotted to third parties, the allotment in their favour was contrary to law and the declaration of the surplus land itself being a nullity, they derived no legal right over the land and the petitioner was entitled to restoration thereof. In any event they are not necessary parties to this writ application and the matter can be adjudicated in their absence.
In support of the aforesaid contentions, reliance has been placed by Mr. Ratho on several decisions of this Court. They are : ILR (1977) 2 Cut 334 : (AIR 1978 NOC 86) : Naresh Chandra Tripathy v. Revenue Officer-cum-Additional Tahasildar, Angul; (1985) 1 Ori Law Rev 457 : (AIR 1986 Orissa 20) : Smt. Arda Mahalaxmi v. District Magistrate and Collector, Gunjam; (1985) 1 Orissa LR 554 : (AIR 1986 Orissa 140): Jagannath Kar v. Subdivisional Officer, Cut-tack; (1983) 56 Cut LT 463 : (AIR 1983 Orissa 277): Sankarsan Misra v. State of Orissa; and (1985) 59 Cut LT 537 : Harihar Panda v. State of Orissa.
Mr. S. K. Das, learned Standing Counsel appearing for the authorities strenuously urged that there being no legal infirmity pointed out, the orders do not need any interferenge and the findings arrived at by the authorities being findings of fact there is no scope for any interference in a writ application. Further, the allottees having not been impleaded as parties, the writ application is bound to fail.
4. We shall now proceed to first examine the legal issues raised by rival contentions. The controversial issues are :
(a) Whether the revenue authorities have power of distribution of ceiling surplus land before disposal of the appeal and/or revision, as the case may be?
(b) Whether there can be any order for restitution after the land has been distributed if the proceeding in which the surplusage is found as irregular or illegal? And
(c) Whether the allottees are necessary or proper parties in a proceeding subsequent to the allotment, if the determination of surplusage is challenged?
5. So far as the first issue is concerned, strong reliance was placed by Mr. Ratho on the four decisions of this Court as referred to above. In these cases it was held that until the disposal of the appeal or the revision, as the case may be, the statement prepared under Section 44 of the Act would not attain finality and conclusiveness and there could not be any vesting of the surplus land in the Government and as a consequence and corollary, there cannot be distribution of the land in exercise of the power under Section 51 of the Act. At this stage it would be necessary to refer to the relevant provisions of the Act. The duties and responsibilities of the land-holders and the requirement of submission of return are provided in Sections 40-A, 40-B and 41 of the Act. The principles for determining the ceiling area are provided in Section 39. The Revenue Officer on receipt of the return under Sub-section (1) of Section 40-A or under Section 40-B, and on consideration of the selection made by the person concerned having a right to do so, in respect of the lands opted to be retained and after consultation with the local committee is required to record the findings in a draft statement. After publication of the draft statement, objections are invited from the persons interested and after hearing the objections which are received within thirty days of such publication and after making such enquiry as deemed necessary and after consultation with the local committee, if any, the Revenue Officer is either to confirm, or modify or alter the same, as the case may be. On termination of the proceeding under Section 43, the Revenue Officer is to confirm the draft statement with such alteration or amendments as has been made. An appeal is provided in Section 44(2) of the Act which is to be presented within thirty days from the date of the order. In the case of State Government if dissatisfied with the order, the period of limitation for presenting the appeal is sixty days. It is relevant to mention here that in Section 44 there is no forum for revision provided for. But Section 44(3) refers to a revision, which was brought in by way of amendment of the Act with effect from 19-5-1976. Even before the amendment, this Court had taken a view which was confirmed by the Supreme Court that a revision lay. (See (1976) 42 Cut LT 796 : (AIR 1977 Orissa 19): Arakhita Bisoi v. Revenue Officer, Aska and AIR 1977 SC 1194 : State of Orissa v. Arakhita Bisoi). Therefore, there is no scope for any dispute that after confirmation or modification of the draft statement in appeal or revision, as the case may be, the same is published by the Revenue Officer in the manner as provided for and after expiry of such period the statement becomes final and conclusive. A copy of the final statement is to be furnished to the person concerned. Section 45 provides that with effect from 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 were being held stand extinguished, and the said lands vest absolutely in the Government free from all encumbrances. Section 51 deals with settlement of surplus lands on persons specified therein. Considering the nature of the provisions, this Court held in the aforesaid four cases that before the matter was finally adjudicated in appeal or revision as the case may be, there was no scope for any distribution because no finality was reached to the statement as prescribed. In that context it was held that if any land was found surplus, the same was not to be distributed prior to the disposal of the appeal or revision, as the case may be, because the same was a nullity. So far as this legal position is concerned, there is hardly any scope for any exception. But the further question that arises is as to whether this is an absolute proposition. There may be several cases where the land-holders move the appellate or the revisional authority belatedly. In the meantime because of expiry of the period provided for the appeal which is the stepping stone for a revision, the Revenue Officer may distribute the land. Can his act be termed as irregular or illegal? In our view even though in law the statement does not attain finality till disposal of appeal or revision, yet in some circumstances, the action of the Revenue Officer distributing the land becomes unexceptionable. If a too rigid view is taken that there can be no finality given to the statement until an appeal or a revision is filed or disposed of, then the question will arise as to whether the Revenue Officer will wait till eternity, as there is possibility and probability of an appeal or a revision being filed or preferred at any time, subsequent to the passing of the order by the Revenue Officer. Therefore, it would d,epend upon the facts of each case as to whether the action of the Revenue Officer directing distribution of the land is regular or irregular. In the case of Naresh Chandra Tripathy, (AIR 1978 NOC 86) (Orissa) (supra), a very short time had elapsed between the order under Section 44 confirming the draft statement after alteration or modification as the case may be, and the order directing distribution of the surplus land. The ratio of the decision in the said case has no application because that was a case in which this Court heavily commented upon the action of the Revenue Officer who was more interested in getting a good officer certificate, as the Court held, than to act in due process of law. This Court found as a matter of fact that the action of the Revenue Officer was nothing but an attempt to thwart the order of the revisional authority. Similarly, the cases of Smt. Arda Mahalaxmi, (AIR 1986 Orissa 20) (supra) and Jagannath Kar, (AIR 1986 Orissa 140) (supra) are distinguishable on facts. In the former case'on remand the Revenue Officer found that there was no surplus land and the proceeding was dropped. But since the land had been distributed, the petitioner directly moved this Court as there was no specific provision for restitution. Similar was the case in the latter decision in which it was held that there was no surplus land and the petitioner in that case claimed to be helpless on account of absence of specific provision for restitution in the Act and accordingly moved this Court. The observations made in those cases are not really helpful for our purpose and may be treated to be applicable to the peculiar facts of these cases. The facts involved in Harihar Panda's case, (1985 (59) Cut LT 537) (supra) are somewhat similar to the facts of these cases. In the present case, we find the appeal was not presented within the time prescribed. The same was presented after about two years. The Revenue Officer waited till the expiry of the appeal period and thereafter directed distribution. We find nothing illegal in his action. In the facts and circumstances, we hold that even though there was an appeal and/or revision preferred subsequently, that had in essence and effect no bearing on the distribution of the land.
6. So far as the second issue is concerned, we find that there is a direct authority for the proposition that in cases where there has been distribution of land, no restitution can be directed. (See O.C.J. No. 867 of 1974 : Parsuram Sahu v. Revenue Officer, Muapada and Ors., disposed of on 21-9-1978). In that case it was held that where distribution has been effected, the land could not be returned to the land-holder. Placing reliance on the said decision, the Board of Revenue also issued a circular on 10-9-1979 to the effect that where the land has been distributed, the case cannot be reopened. The above finding given in Parsuram Sahu's case (supra) was analysed by this Court in the case of Jagannath Kar, (AIR 1986 Orissa 140) (supra). This Court was of the view that the earlier decision in Naresh Chandra Tripathy's case, (AIR 1978 NOC 86) (Orissa) (supra) held the field and the direction in the unreported case of Parsuram Sahu (supra) was to be confined to the facts of that case alone. For this purpose, support was sought from the ratio of the decision in Smt. Arda Mahalaxmi's case, (AIR 1986 Orissa 20) (supra). The cases of Smt. Arda Mahalaxmi (supra) and Jagannath Kar (supra) have proceeded on the basis that the principle of restitution is available to be applied. The conclusion seems to be attractive. But we feel to point out here that the question is not as simple as it appears. There is no provision in the statute providing for restitution. The statute is a welfare statute intended to strike a balance between the persons who have surplus land and the persons who are in need. The property lawfully belonging to one is to be protected, and there can be no scope for any deprivation without authority of law. But a beneficiary or a welfare statute cannot be made to suffer for the actions over which he has no control. The authorities declare land to be surplus and distribute it. If their actions are exceptionable, there is bound to be injustice caused to the allottees. Therefore, while we agree that there is scope for restitution, a machinery should be provided so as to mitigate the injustice that may result from the restitution. We shall deal with this matter elaborately while dealing with the third issue.
7. Now coming to the third issue reliance has been placed on the cases of Smt. Arda Mahalaxmi, (AIR 1986 Orissa 20) (supra); Jagannath Kar, (AIR 1986 Orissa 140) (supra) and Harihar Panda, (1985 (59) Cut LT 537) (supra), for the proposition that the allottees are not necessary parties. We feel, the conclusions in those cases are not conclusive. In fact a close reading of Naresh Chandra Tripathy's case, (AIR 1978 NOC 86) (Orissa) (supra), which formed the basis of decision in those three cases, would reveal that this Court never held that the allottees are not necessary parties. But it held as follows (at p. 22 of AIR) :
"..... 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 inchoate rights or no rights at all, (as in the instant case where the settlement is a nullity) should be given a hearing."
This observation appears to have been misread in the subsequent cases. Even though the allottees may not be necessary parties, they are proper parties. As a matter of fact, in the cases of Smt. Arda Mahalaxmi (supra); Jagannath Kar (supra); and Harihar Panda (supra), the allottees were parties to the writ applications. It cannot be said that the allottees have no say in the matter because the distribution was irregular or illegal. He shall not be bound by any order passed in a proceeding where he is not impleaded. There may be cases where the allottees after the allotment have developed or made permanent structures. To restrain them from going upon the land or to hold that the restoration of possession to the land-owner is an automatic process, to say the least, would be a flagrant violation of the rule of law. There is no machinery in the statute for restitution, but if the allottee in equity or in law is entitled to be compensated for anything done by way of improvement or alteration to the allotted property, it would be unfair to leave him remediless or to require him to initiate a litigation for redressal. Being a beneficiary of a welfare statute, the allottee should not be the victim of such circumstances which were not his creation. It cannot be the intention of the legislature that the allottee shall be made to suffer for the laches, if any, of the Governmental authorities or the land holder. The legislature would do well to provide for specific machinery for adjudication in this regard so as to alleviate and obliviate the difficulties as indicated by us above. In our view, therefore, the restitution is not an automatic process, and in appropriate cases, where there has been distribution of surplus land, restitution can be refused. We are in agreement with the view expressed in Parsuram Sahu's case (supra) to that extent.
8. So far as the findings of the authorities below are concerned, we find that there is no scope for interference as they are findings of fact. Undisputedly, the petitioner was represented by her Advocate when the order of the Revenue Officer was pronounced on 5-1-1977. The contention regarding the non-service of the final statement on 22-2-1977 is untenable. The service of the copy of the same was challenged on the ground of non-genuineness of the signature of the petitioner as appearing on the notice. The appellate authority on reference to records found that in fact there was no signature of the petitioner, but on the other hand there was a thumb impression given by the petitioner in presence of one witness. This being a finding of fact is not open to be interfered with by us. Similarly the appellate as well as revisional authorities have found on consideration of the materials on record that the reasons given by the petitioner for the delayed presentation of the appeal were not acceptable. There is hardly any scope for interference with such findings.
The allottees have not been impleaded in this writ application. In view of our conclusion that they are to be impleaded, the non-impletion renders the petition non-maintainable.
Even in the scales of equity, the piddling area the petitioner may have been entitled to on the event of success is inconsequential when weighed against the enjoyment of the property by the allottees for more than a decade.
9. In view of our aforesaid analysis of the legal as well as factual positions, the writ application is devoid of any merit and is accordingly dismissed, but in the circumstances without any order as to costs.
D. P. Mohapatra, J.
10. I agree.