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Dasarathi Purohit Vs. State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtOrissa High Court
Decided On
Case NumberOriginal Jurn. Case No. 937 of 1977
Judge
Reported inAIR1983Ori73; 54(1982)CLT506
ActsConstitution of India - Article 226; Orissa Land Reforms Act, 1960 - Sections 37 and 37A
AppellantDasarathi Purohit
RespondentState of Orissa and ors.
Appellant AdvocateS.S. Basu, Adv.
Respondent AdvocateAddl. Govt. Adv.
DispositionPetition dismissed
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........and revision.3. petitioner's stand has been that he, his wife and the children got divided under a deed of partition dated 11th of march, 1970 and in terms of the definition of 'family' given in section 37 (b), these divided members could not be treated any longer as belonging to one family.4. there is a deed of partition dated 11th march, 1970. admittedly, the five children were minor and have been found to be living with the parents. the revenue officer who enquired into the matter has in his order under annexure-1 indicated:--'.........the family of the noticee consists of himself, his wife and 5 children namely amitabh, biswajit, surajit, abhijit and a daughter susmita who are all minors and living jointly.........'the appellate authority relied on this observation of the revenue.....
Judgment:

R.N. Misra, C.J.

1. Petitioner challenges the orders made by the Revenue Officer (opposite party No. 4), the appellate authority (opposite party No. 3) and the revisional authority (opposite party No. 2) holding that the petitioner, his wife and his five children constitute one family and entitled to a ceiling area of 14 standard acres in terms of Section 37-A of the Orissa Land Reforms Act.

2. There is no dispute that the family of the petitioner consisted of himself, his wife and four sons and a daughter. Petitioner and his brother Bhagirathi and their father Balaram were separated under a registered deed dated 27-1-1966, Under the deed, petitioner got 33.35 acres which taking into account the classification of land worked out to 16.91 standard acres. The Revenue Officer in a ceiling proceeding under the Act came to hold that the petitioner, his wife and the five children constituted one family and this family was entitled to 14 standard acres in terms of Section 37-A of the Act. That order has been upheld in appeal and revision.

3. Petitioner's stand has been that he, his wife and the children got divided under a deed of partition dated 11th of March, 1970 and in terms of the definition of 'family' given in Section 37 (b), these divided members could not be treated any longer as belonging to one family.

4. There is a deed of partition dated 11th March, 1970. Admittedly, the five children were minor and have been found to be living with the parents. The Revenue Officer who enquired into the matter has in his order under Annexure-1 indicated:--

'.........the family of the noticee consists of himself, his wife and 5 children namely Amitabh, Biswajit, Surajit, Abhijit and a daughter Susmita who are all minors and living jointly.........'

The appellate authority relied on this observation of the Revenue Officer. A counter has been filed where in paragraph 4, it has been asserted:--

'.........The partition has been rejected on the ground that his wife and minor eons live in a joint mess with him and there is no separation.........'

With this finding which amounts to saying that the deed of partition was a sham one and notwithstanding it, the members of the family continued to be joint, the legal proposition revolving round the definition in Section 37 (b) has been advanced as not justifying the claim of partition. It is one matter to say that there has been a partition in accordance with law as otherwise understood and yet in view of the statutory definition in the Act of the term 'family', the separated members constitute one family for the purpose of determining the incidence of the Act. The position is very much different here on facts, namely there is an independent finding that there has been no partition as a fact. We do not think, the finding of fact that there has been no partition and the alleged separated members of the family live jointly, is available to be disputed in a writ petition. Once this is found, the legal question does not fall for consideration.

Another aspect should be taken notice of. The petitioner has admittedly been granted a ceiling. The persons who are aggrieved and have been claiming a separate ceiling are the allegedly separated members of the family. If there was any grievance it was of the wife or the four sons or the daughter and there can be no grievance for the petitioner to make because he has been allotted a ceiling area and in his name there is in fact an allotment of four acres in excess as required under the law. Grievance at the instance of the petitioner, therefore, is not to be entertained. On this analysis, the writ application fails and is dismissed. We, however, make no order for costs.

J.K. Mohanty, J.

I agree.


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