R.N. Misra, J.
1. Both the applications seek to quash proceedings taken under the Orissa Land Reforms Act for determination of ceiling surplus lands. Arda Juria died around 1961 leaving behind his widow (petitioner 5n O.J.C. No. 459 of 1978) and a son (petitioner in O.J.C. No. 458 of 1978) and a total area of about seventeen acres of land. After the mother and son lived together for some time, disputes arose between the mother and her daughter-in-law and petitioners maintain that on 10th of March, 1968 they effected an amicable partition in terms of Annexure-1. A suo motu proceeding was initiated under Section 42 of the Orissa Land Reforms Act (hereinafter referred to as the 'Act') for determining ceiling surplus lands and the draft statement was published on 30-11-1974. Petitioners maintain relying upon the order-sheet (Annexure-6) that by 31-12-1974, service return of the notice of publication of the draft statement had not been received. The Revenue Officer, therefore, ordered:--
'..... It will be expedient if the notice would be issued on him through the P. S. ...... Invite objection from the O.P. giving 30 days' time, stating that the draft statement was published on 5-1-75, Put up on 4-2-75.'
On 4-2-1975, the Revenue Officer recorded the following order :--
'The notice on the O.P. was issued on 15-1-75. No objection was received during the stipulated period. Therefore, the draft statement published earlier Is confirmed with the alteration regarding the number of family members. In the draft statement mother of the O.P. was included as a member of his family. But according to the recent clarification from the Board of Revenue, she should not be Included. Therefore, the total number of family members of the O.P. is 3. There is no alteration in the land schedule. Publish the confirmed draft statement tomorrow in the office notice beard for 30 days.'
Petitioners allege In their respective writ applications that by 4-2-1975, the notice of publication of the draft statement had not been served and without satisfying himself about such service, the Revenue Officer confirmed the draft statement. The fact of publication of the confirmed statement together with a certified copy of such statement as required under Rule 32(9) of the Orissa Land Reforms (General) Rules (hereinafter called the 'Rules') had not been sent to Murari in whose name the confirmed statement was ordered to be published. Having come to know about the development in the matter on 24-9-1975, petitioner in each of the cases applied for review, On 1-12-1975, the applications for review were rejected and appeal carried by each of the petitioners was dismissed on the ground of limitation such appeals having been filed beyond thirty days from the date of the original adverse order.
2. It Is contended on behalf of each of the petitioners that 9) in the absence of the statutory notice of publication of draft statement and in the further absence of compliance of Rule 32 (3) of the Rules, the entire proceedings are vitiated; (ii) certain alienations made prior to 1970 have not been taken note of and the ceiling area was determined taking such lands into consideration as belonging to Murari; (iii) partition having taken place prior to the relevant date, it was not open to the Revenue Officer to determine the ceiling area taking the entire extent into account; and (iv) the determination of classification of lands is erroneous and if opportunity had been given to the petitioners or at least to Murari, he would have been able to satisfy the Revenue Officer that the basis of classification was wrong and, therefore, the result was vitiated.
3. A counter-affidavit has been filed on behalf of the opposite parties by the Superintendent of Land Records of the Collectorate. It has been pleaded that the claim of partition advanced in the writ petition was not placed before the Revenue Officer. In fact, no objection was filed to the draft statement. In paragraph 9 of the counter-affidavit, it has been averred that Murari was aware of the proceeding as he had filed a petition on 31-12-1973 and had furnished a list of the members of the family on 4-7-1974 for the purposes of disposal of the proceeding. Notice of publication of the draft statement is claimed to have been served on 15-1-1975. In para 16 of the counter-affidavit, it has been asserted that before notice in the present proceeding and the order of stay were communicated from this court, the surplus lands on the basis of the impugned orders had been already distributed to some people whose names have not been disclosed,
4. As already indicated, the order dated 4-2-1975 states that the notice on the opposite party was issued on 15-1-75. There is no indication in the order-sheet of service of notice. The assertion in the counter-affidavit by the Superintendent of the Collectorate that notice was served on 15-1-19-75 does not fit in with the order-sheet. No document showing service of notice of publication of the draft statement has been furnished along with the counter-affidavit. The assertion made in para 13 of the writ petition that Rule 32 (3) of the Rules had not been complied with has not at all been challenged in the counteraffidavit. In fact, paragraph 10 of the counter-affidavit which seeks to deal with para 13 of the writ petition does not at all advert to the matter. In the absence of notices contemplated in Rules 30 (2) and 32 (3), it must be held that the entire proceeding is vitiated and the rights to property of Murari have been prejudicially affected without complying with the requirements of the rules which are in consonance with the principles of natural justice. Given an opportunity, the landholder would have been in a position to file his objection against the draft statement and could have preferred the appeal provided under Section 44 of the Act. The Revenue Officer had no jurisdiction to confirm the draft statement and proceed to take action under Section 45 and 45-A of the Act. In the circumstances, we would quash the orders of the Revenue Officer as also the appellate orders and direct that the Revenue. Officer shall proceed with the matter from the stage of draft publication. He shall issue fresh notice to Murari giving him an opportunity to file objection against the said statement in accordance with law. So far as the widow is concerned, in view of the definition of 'family' in Section 37 (b) of the Act, when the ceiling area is being determined in the hands of Murari, she would not be a member of his family and as such she would not be shown as a member of Murari's family in the records. If, however, either Murari or she appears before the Revenue Officer of own accord after notice is given and is able to satisfy the Revenue Officer that there had been a partition before the 'relevant date', the lands of the widow would certainly be not taken into account In regard to the ceiling surplus area. We are sure that the Revenue Officer while examining the matter would certainly take into consideration the words 'separated by partition or otherwise' appearing in the definition of 'family' in Section 37 (b) of the Act and would not be wholly guided by Section 19 (1) thereof.
5. The writ applications are allowed in the manner indicated above, There would be no order for costs.
B.K. Ray, J.
6. I agree.