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Smt. Arda Mahalaxmi and anr. Vs. District Magistrate and Collector, Ganjam and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberOriginal Jurn. Case No. 53 of 1980
Judge
Reported inAIR1986Ori20
ActsOrissa Land Reforms Act, 1960 - Sections 45 and 51; ;Constitution of India - Article 300A; Code of Civil Procedure (CPC) , 1908 - Sections 144
AppellantSmt. Arda Mahalaxmi and anr.
RespondentDistrict Magistrate and Collector, Ganjam and ors.
Appellant AdvocateB.B. Ratho, Adv.
Respondent AdvocateAddl. Govt. Adv, (for Nos. 1 and 2), ;P. Palit, ;J. Patnaik and ;R. Mohapatra, Advs. (for Nos. 3 to 10)
DispositionApplication allowed
Cases Referred(Parsuram Sahu v. Revenue Officer
Excerpt:
.....de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - state of orissa) where it has been held :if possession has been taken, on the success of the landholder, the property has to be restored. in case the lands have already been settled with third parties, who have not been impleaded and are not before us, we direct that our decision shall not operate and if the revenue officer is satisfied after hearing the petitioner that there has been settlement of the surplus land with strangers, he would not reopen the matter and would allow the final order which was impugned before us to stand. ..in the earlier division bench decision reported in ilr (1977) 2 cuttack 334 :(air 1978 noc 86) (supra), it has been clearly enunciated :the revenue..........remand, petitioners approached the revenue officer and the district collector to redeliver the lands distributed to opp. party nos. 3 to 10. the district collector and the revenue officer issued notice to the persons to whom the land was distributed under section 51 of the act. however, they were helpless in the matter in the absence of any specific provision under the act for restitution and in view of a circular of the board of revenue communicated in memo no. 6433/lr. dated 10-9-1979. hence of a writ in the nature of mandamus for restitution for their property.3. only those ceiling surplus lands which vest in the state government under section 45 can be distributed. where there is no ceiling surplus land, the revenue officer has no jurisdiction to distribute and settle any land......
Judgment:

S.C. Mohapatra, J.

1. This is a second round of the petitioners to approach this Court in an application under Articles 226 and 227 of the Constitution of India.

2. Petitioners, who are mother and son, are landholders. Under the Orissa Land Reforms Act, 1960 (hereinafter referred to as 'The Act') challenging the order in the ceiling surplus proceeding the petitioners approached this Court. During the pendency of the writ application, status quo was directed to be maintained. Ultimately the order was quashed and the Revenue Officer was directed to proceed afresh from the stage of draft publication under Section 43 of the Act -- See ILR (1979) 1 Cuttack 22 : (AIR 1979 Orissa 58), (Arda Murari v. State of Orissa). After remand, the Revenue Officer found that there was no surplus land beyond the ceiling area and accordingly, the proceeding was dropped. However, before the order of this Court directing to maintain the status quo, the Revenue Officer wrongly found surplus land measuring 7.799 acres equivalent to 4.311 standard acres which was distributed. On the finalisation of the proceeding after remand, petitioners approached the Revenue Officer and the District Collector to redeliver the lands distributed to opp. party Nos. 3 to 10. The District Collector and the Revenue Officer issued notice to the persons to whom the land was distributed under Section 51 of the Act. However, they were helpless in the matter in the absence of any specific provision under the Act for restitution and in view of a circular of the Board of Revenue Communicated in memo No. 6433/LR. dated 10-9-1979. Hence of a writ in the nature of mandamus for restitution for their property.

3. Only those ceiling surplus lands which vest in the State Government under Section 45 can be distributed. Where there is no ceiling surplus land, the Revenue Officer has no jurisdiction to distribute and settle any land. It has been held in ILR (1977) 2 Cuttack 334 (Naresh Chandra Tripathy v. Revenue Officer -- cum -- Additional Tahasildar, Angul) as follows :

'.....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 all to proceed to settle the property in terms of Section 51 of the Act.....'

4. Mr. B. B. Ratho, the learned counsel for the petitioners submitted that the distribution and settlement of the lands being a nullity, the persons to whom the same have been distributed do not acquire any interest in such lands and the wrong committed by the Revenue Officer is to be set right by him. Mr. Ratho relied upon the principle of restitution and cited the decision of this Court reported in, (1983) 56 Cut LT 463 (Sankarsan Misra v. State of Orissa) where it has been held :

'.....If possession has been taken, on the success of the landholder, the property has to be restored. If either distribution of the property of delivery of possession thereof has been made, restitution has to be made.....'

5. The learned Additional Government Advocate on the other hand relied upon an unreported decision of this Court in Order J. C. No. 867 of 1976 decided on 21-9-1978 (Parsuram Sahu v. Revenue Officer, Naupada) and submitted that the right having been created in favour of third parties on distribution and settlement, there is no scope for restitution. It is submitted that the Board of Revenue relying on the aforesaid decision of this Court has issued a circular that where the land has been distributed, the matter is not to be reopened.

6. The unreported decision of this Court was dealing with a matter relating to ceiling surplus proceeding. It was not a case of restitution. In the interest of justice and in the peculiar circumstances of that case, it was held;

'.....In case the lands have already been settled with third parties, who have not been impleaded and are not before us, we direct that our decision shall not operate and if the Revenue Officer is satisfied after hearing the petitioner that there has been settlement of the surplus land with strangers, he would not reopen the matter and would allow the final order which was impugned before us to stand. If, however, rights of third parties have not yet been created, the ceiling fixation proceeding shall be redisposed of as indicated above.....'

In the earlier Division Bench decision reported in ILR (1977) 2 Cuttack 334 : (AIR 1978 NOC 86) (supra), it has been clearly enunciated :

'.....The Revenue Officer would certainly have no jurisdiction to settle petitioner's lands in which his rights have not been extinguished and in which Government has 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 inchoate rights or no rights at all, (as in the instant case where the settlement is a nullity) should be given a hearing.'

In view of the clear enunciation of the principle in the earlier Division Bench decision, the direction in the unreported decision is to be confined to the facts of that case alone. The circular of the Board of Revenue dated 10-9-1979 is contrary to the principle laid down in ILR (1977) 2 Cuttack 334 : (AIR 1978 NOC 86) (supra) and is not binding on the statutory authorities under the Act in discharge of their functions.

7. Under Article 300A of the Constitution, no person shall be deprived of his property without authority of law. Provisions of statute are to be interpreted in a manner by which this salutary constitutional provision is given due effect than is violated. In case we accept the submission of the learned Additional Government Advocate that there is no provision in the Act giving power to the Revenue Officer to cause restitution of the property which has been distributed without jurisdiction, it would have the effect of depriving the petitioners of their property without authority of law. Therefore, the interpretation that the Revenue Officer possesses the power of restitution of property distributed as ancillary to an order to the finding that the distribution of the land as a nullity is in furtherance of Article 300A of the Constitution.

8. In view of our discussions as above, we direct the opposite party Nos. 3 to 10 not to enter upon the lands of the petitioners any further and we also direct the Revenue Officer to take possession of those lands and deliver possession of the same to the petitioners.

9. In the result, the writ application is allowed. In the peculiar circumstances of this case, there shall be no Order as to costs.

R. C. Patnaik, J.

10. I agree.


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