Orissa High Court
Ram Narayan Sahani & Others (In vs State Of Odisha & Others (In All) on 20 January, 2026
Author: Chittaranjan Dash
Bench: Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A No.3018 of 2024,
W.A. No.3042 of 2024,
W.A. No.3043 of 2024
&
W.A. No.3045 of 2024
In the matter of appeals under Clause 10 of the Letters
Patent of Patna High Court read with Article 4 of the Orissa
High Court Order, 1948 from a common order dated
13.09.2024 passed by the learned Single Judge in W.P.(C)
Nos. 16606 & 16608 of 2024 as well as WP(C) Nos. 19813 &
19814 of 2011.
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W.A Nos.3018, 3042 & 3043 of 2024,
Ram Narayan Sahani & Others (In ... Appellants
all)
-versus-
State of Odisha & Others (In all) ... Respondents
W.A. No.3045 of 2024
Prakash Kumar Sahani .... Appellant
-versus-
State of Odisha & Others .... Respondents
Advocates Appeared in this case
For Appellants - M/s. Bibekananda Bhuyan, S.S.
Bhuyan & S.Sahoo, Advocates
For Respondents - Mr. S.B. Panda,
Addl. Government Advocate
Page 1 of 16
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CORAM :
MR. JUSTICE DIXIT KRISHNA SHRIPAD
MR. JUSTICE CHITTARANJAN DASH
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Date of Hearing & Judgment : 20.01.2026
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PER KRISHNA S. DIXIT, J.
These Intra-Court Appeals seek to call in question a common order dated 13.09.2024 of the learned Single Judge of this Court whereby Appellants' W.P.(C) Nos.16606 & 16608 of 2024 & W.P.(C) Nos.19813 & 19814 of 2011 have been negatived. In the said Writ Petitions, they had called in question Tahasildar's order dated 28.10.2010 passed under Section 43 of the Orissa Land Reforms Act, 1960, whereby their claim to retain particular lands giving up others on account of surplus holding, has been negatived on the ground that the applicants had not filed return under Section 40-A(1) of the 1960 Act.
Page 2 of 16
2. Learned counsel appearing for the Appellants, having taken the Court through the provisions of Chapter-IV of the Act and Rules 29(e) & 30 of the Orissa Land Reforms (General) Rules, 1965, succinctly argues that his clients are ready & willing to give up the surplus land, as has been determined by the Tahsaidlar under Section 43; however, the scheme of statute gives a legal right to the surplus holder to retain such of the lands which he wants to, whilst giving up other; this important aspect having been wrongly decided by the learned Single Judge, interference in the Appeals is eminently warranted.
3. Learned AGA appearing for the Respondents opposes the appeal contending that choice of retention of lands, does not avail to a surplus land holder, who failed to file the return as required under Section 40-A(1) of the Act; admittedly, no return having been filed, no such choice can be claimed by the Appellants. It is contended that there is legal difference between suo motu surplus proceedings initiated by the official and surplus proceeding Page 3 of 16 initiated on the return filed by the surplus holder. Agreeing with the submission of Appellants would obliterate this subtle difference and therefore, it should be rejected. He further adds that the vesting of surplus lands happens by operation of law, the order of Revenue Officer being passed in a formal way.
4. Having heard learned counsel for the Parties and having perused the Appeal papers, we are inclined to grant indulgence in the matter as under and for the following reasons:
4.1. AS TO WHAT THE JUGULAR VEIN OF THE CASE IS:
Regardless of the thickness of the Paper-Book of Appeals and shorn of several points urged at the Bar, that the question that would fall for our consideration is: Whether for exercising the choice of retention of certain lands from amongst the surplus and thereby surrendering other lands, the filing of return by the surplus holder is a sine qua non.... ? In other words, whether such a choice of retention does avail when the Revenue Official has initiated suo motu surplus proceedings.... ?
Page 4 of 16 4.2. A THUMB NAIL DESCRIPTION OF CHAPTER IV OF 1960 ACT:
(i) The right to property was a fundamental right under Article 19(1)(f) of the Constitution as it then was, till the enactment of 44th amendment, w.e.f. 20.06.1979. By the said amendment, this right is removed from Part-III of the Constitution and relegated to Chapter IV of Part XII. Even then, under Article 300A which appears in this Chapter, constitutional guarantee to property avails as expansively discussed in K.T. Plantation Pvt. Ltd. V. State of Karnataka, AIR 2011 SC 3430.
Chapter-IV of the 1960 Act, which regulates vesting of private surplus land into State on being determined as such, came to be introduced vide Act No.13 of 1965. Extensive amendments were made to the Chapter by Act No.29 of 1976 w.e.f. 19.05.1976. The Chapter deals with ceiling of land holding and disposal of surplus land. Section 37 is the dictionary clause of this Chapter, which inter alia defines 'person' & 'family'. Section 37(A) prescribes the ceiling area of land; ordinarily it is 10 acres, maximum being 18 when the family comprises of 9 or more members. Section 37-B disentitles any person to hold land in excess of ceiling limit. Section 39 prescribes the modalities for determining the ceiling area on certain principles. Section 40(A), which is the jugular vein of this case, provides for submission of Page 5 of 16 returns by the surplus holder. Section 41 fixes the responsibility of submitting return on certain entities, like guardian, where the holder is minor or on the head of joint family which holds the land.
(ii) Section 42 of the Act which is relevant to this case, speaks of the consequences of failure to file the return. It provides that in the event no return is filed by the surplus holder or one filed is false or defective, the Revenue Officer may secure necessary information and thereafter, publish the statement as provided under Section 43. Section 42 reads as under:
"42. Failure to submit return to entail forfeiture of claim - If any person required to submit a return under Section ²[40-A] ³[or Section 40-B] fails to do so or submits a return which he knows or has reason to believe to be false in respect of all or any of the material particulars, the Revenue Officer may obtain the necessary information through such agency as he may consider proper and shall thereafter proceed to prepare and publish the statement contemplated under Section 43:
Provided that the [amount] payable for the lands declared to be his surplus land in accordance with the provisions of Section 44 shall be [fifty per centum] of the amount which he would have been entitled to, had he submitted a correct return under Section 40-A or Section 40-B."
(iii) Section 43 provides for undertaking return-based- proceedings and in the absence of return, suo motu proceedings for determining the surplus land. The same reads as under: Page 6 of 16
"43. Preparation and publication of draft statement showing ceiling and surplus lands (1) The Revenue Officer on receipt of the return under Sub-section (1) of Section 40-A or under Section 40- B after considering all relevant materials available to him and the selection made by the person concerned having a right to do so under the said sub-section of the lands to be retained by him and after consulting the Local Committee if any shall record his findings in a draft statement showing -
(a) the total area of land held by the person as a land-holder or as a raiyat and the class to which each plot of the land belongs;
(b) the surplus area;
(c) the specific parcels to land to be retained by the person and the
total area thereof);
(d) the specific paroles comprising the surplus lands under Clause
(b);
(e) lands, if any, exempted under Section 39; and
(f) Such other particulars as may be prescribed:
Provided that no part of the lands held by a Company or any other corporate body of which the person concerned may be a member or share-holder shall be shown as surplus land in respect of such person. (2) Subject to the rules made in that behalf, the draft statement under Sub-section (1) shall be published inviting objections, from person interested and the Revenue Officer after hearing the objections if any.
received within thirty days of such publication and making such enquiries as he deems necessary, and after consulting the Local Committee, if any, may, by order recording his reasons in writing alter or amend all or any of the particulars specified in the draft statement:
Provided that in case where a revised return is due to be submitted. under Sub-section (2) of Section 40-A or under Section 40-B the Revenue Officer shall prepare the draft statement under Sub-section (1) after consideration of such return, if any."Page 7 of 16
This provision being important, shall be discussed infra. Section 44 provides for vesting of surplus land in the Government absolutely sans all encumbrances. Section 45A provides for delivery of possession of surplus lands, which the land holder has to do. If he fails, the Revenue Officer shall take possession by employing force, if necessary.
(iv) Section 45B provides for Revenue Officer declaring surplus lands that have escaped ceiling proceedings. In such a case, the amount payable to the land holder shall be materially reduced. Section 47 provides for the determination of amount payable to the land holders, presumably by way of compensation. Section 50 provides for payment of this amount to the land owner once possession of surplus lands is delivered to or taken over by the Revenue Officer. Section 51 provides for allotment of surplus lands to the persons belonging to SEBC on certain criteria. Section 57 gives power of inquiry to the Revenue Officer and prescribes procedure for inquiry. These powers are akin to those of Civil Court in trying a suit under CPC 1908. Other provisions are not much relevant to the adjudication of this case. 4.3. AS TO THE CHOICE OF RETENTION AVAILING TO THE LAND HOLDER SUBJECT TO CEILING LIMIT:
Page 8 of 16
(i) Section 40-A of 1960 Act provides for filing of return by the land holder for the purpose of determining the ceiling & surplus.
This Section employs the word 'shall' and therefore, ordinarily filing of return containing full particulars of land becomes mandatory. Rule 29-D of 1965 Rules mentions the modalities of filing of the return. It prescribes Form No.12 for this purpose. Sub- Section (1) of Section 45-A being relevant is reproduced:
"45-A. Delivery of possession of surplus lands- (1) It shall be the duty of the person in possession of the surplus lands to deliver possession thereof to the Revenue Officer within fifteen days from the date of vesting of the lands in the Government or, if there be any standing crop on the land on the said date, within fifteen days from the harvesting of such crop, whichever is later, and the Revenue Officer shall take over possession of land on behalf of the Government."
This provision, obviously, gives the choice of retaining the parcels of land which the surplus holder wishes to. Ceiling provisions are extent-specific regardless of nature, fertility level, market rate, etc. However, such retention has to be subject to the ceiling limit, is obvious. This can be illustrated: Let us assume that there are four parcels of land namely a, b, c & d. The last two lands are equal in aerial extent. One of these two proves to be surplus. The land holder can indicate which of these two he wishes to retain, agreeing to surrender the other. This is a very important right given to the land owner presumably because his excess land is being compulsorily taken by the State, of course on payment of Page 9 of 16 certain amount. This right is not a privilege. It is a right to retain the property and therefore, has to be jealously protected under Article 300A of the Constitution.
(ii) Section 42 of the Act has a bit misleading heading, namely, "Failure to submit return to entail forfeiture of claim". We say it so because, the substantive provision does not say anything about forfeiture, although the Proviso to the same provides for payment of reduced amount of compensation for the surplus lands taken. After all, heading of a section cannot control the substantive provision coined under it. In English Parliamentary practice, heading to a section in a statute are not voted and therefore, they are not treated as being part of the statute. However, in Indian legislative practice, they too are voted and therefore they are an integral part of the statute. However, when there is variance between heading and the substantive provision, the later overrides the former. Therefore, much milk cannot derived from the heading. This aspect having not been adverted to by the learned Single Judge, the infirmity thus becomes demonstrable from the impugned order. Secondly, the Proviso to Section 42 specifies the consequences of non-filing of return. It tells that the surplus land holder would get 50% of the amount instead of full which he would have got had he filed the return. Beyond this Page 10 of 16 there is no consequence and therefore, the right of choice cannot be denied on the ground that no return was filed. When law specifies the consequence, functionaries under the law cannot add to the same by interpretative process.
(iii) Section 42 of the Act also provides that where no return is filed, the Revenue Officer may obtain all necessary information and thereafter, proceed to prepare and publish the statement of full particulars as provided under Section 43. Section 43(1)(a) requires the statement to contain the specific parcels of lands to be retained by the surplus holder. Therefore, regardless of filing of return a duty is cast on the Revenue Officer to ascertain from the holder as to which of the parcels he wishes to retain and which other he surrenders. This duty is not made dependent on the filing of the return by the holder. Had it been the intent of Legislature, it would have structured the provision in a different text; obviously it has not. If the draft statement is defective, say it does mentions about the wish of the holder, that can be pointed out by filing objections as provided under Sub-section(2) of Section 43. It also provides for hearing of the objections and passing of a reasoned order after inquiry.
(iv) Section 45-B envisages the lands escaping ceiling proceedings and provides for vesting of such surplus lands along Page 11 of 16 with other which are already vested in the Government. Such a escapement maybe due to any reason whatsoever and that no such choice avails to the holder. There is of course some procedure like holding enquiry after giving an opportunity of hearing. Added there is a limitation period of Six years for taking up such proceedings. Further, the compensatory amount payable for such lands shall be reduced proportionate to number of years the lands are held in surplus, after the duty to surrender the same accrue. A relevant part of Sub-section 2 of Section 45-B reads as under:
"(2) All lands declared to be surplus land under Sub-section (1) shall be deemed to have vested in the Government free from all encumbrances alongwith the surplus lands mentioned in the aforesaid statement and the provisions of Sections 45, 45-A and 46 to 51 shall, so far as may be, apply to the lands so vested : ..."
The text of this section internalises the provisions of Section 45, 45-A & 46 to 51, mutatis mutandis. The absence of Section 43 which gives the choice is conspicuous. Thus, wherever legislature intended to deny the choice, the same is textually indicated. Such an denial therefore cannot be readily inferred.
(v) A learned Single Judge of this Court in Collector V. Badar Pujari, 43 (1977) CLT 695 (BR), having considered the identical question as to the availability of choice to the surplus holder, has observed as under:
Page 12 of 16
"The Revenue Officer is to give an opportunity to the "person" to indicate the parcels of land which he wishes to retain. This right is inherent whether the case is one where a return is submitted under Section 40-A or one where proceedings are initiated in terms of Section
42."
Therefore, contention of learned AGA that there is difference between Return based proceedings and suo motu proceedings for the purpose of choice of retention, does not merit acceptance. 4.4. RIGHT TO CHOICE OF RETENTION & VESTING OF SURPLUS LAND:
(i) There is one significant aspect as to the vesting of land under Chapter-IV of the Act, which has something to do with choice of retention of parcels of land from amongst the surplus.
The vesting is not by operation of law, unlike in the case of tenancy. There is a whole lot of procedure to be followed, for vesting to happen. Much of that is mandatory. The proceedings under Section 43 would result into a draft statement being prepared & published for the benefit of all the stakeholders including the person interested in the land. This Section also recognizes in so many words the choice of retention, and it calls that choice a 'right'. Thereafter, the proceedings graduate to the realm of Section 44, which contemplates finalization of the statement of ceiling & surplus lands. Sub-Section (3) of Section 44 reads as under:
Page 13 of 16
"44.Final statement of ceiling and surplus lands-
xxx xxx xxx (3) The draft statement as confirmed or as modified in appeal for 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 the statement shall be final and 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."
On the finalization of the statement under Section 44, the surplus lands would vest in the Government, states Section 45, which has the following text:
"45. Surplus lands to vest in Government - With effect from [the date on which the statement becomes final under Sub-section (3) of Section 44], the interest 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."
(ii) A Co-ordinate Bench of this Court in Nares Chandra Tripathy V. Revenue Officer-cum-Additional, Tahasildar, Angul & Ors., 44 (1977) CLT 449, wherein it is observed that choice can be exercised by the surplus land holder at any time before vesting of the land. We hasten to add that the question whether filing of Return is a pre-condition for availing choice, had not fallen for consideration in the said case. Of course, this question could have been treated by the learned Single Judge, had it been raised in the writ proceedings, as rightly contended by learned AGA Mr. Page 14 of 16 Panda. However, an Appellate Court is not barred from dealing with the said question, if relevant facts emerged from the record, giving reasonable scope for questions of the kind, as has happened in this case.
4.5. All the above being said, learned AGA Mr. Panda is more than justified in contending that this Court having limited supervisory jurisdiction under Article 227 of the Constitution, Article 226 having been ornamentally enshrined in the pleadings, cannot decide the matter on merits. He is right, because several special information the Revenue official has to process, as mentioned in Sections 43 & 44 of the Act. He will have accumulated expertise in the domain, which we, as Judges, arguably lack. An Intra-Court appeal of the kind also will have the constraint, which the learned Single Judge had, while deciding the Writ Petitions. Therefore, we do not propose to undertake the exercise, which the Revenue Official designated under the Act has to undertake in the fitness of things.
In the above circumstances, these appeals succeed. The impugned order of the learned Single Judge is set at naught; Appellants' W.P.(C) Nos.16606 & 16608 of 2024 & W.P.(C) Nos.19813 & 19814 of 2011 having been partly Page 15 of 16 favoured, the Tahasildar's common order dated 28.10.2010 is quashed; matter is remitted to the portal of Tahasildar, Boudh for consideration afresh keeping in view our above observations. An opportunity of hearing shall be given to the land owners and other stakeholders. The remand shall be accomplished by the Tahasilar within a period of six months. All contentions in that regard are kept open.
Costs made easy.
Web copy of the judgment to be acted upon by all concerned.
(Dixit Krishna Shripad) Judge (Chittaranjan Dash) Judge Orissa High Court, Cuttack The 20th Day of January, 2026/Bijay/Sarbani Signature Not Verified Digitally Signed Signed by: SARBANI DASH Page 16 of 16 Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Jan-2026 10:24:46