R.N. Misra, C.J.
1. Challenge in this application is to the order of the Revenue Officer under the provisions of the Orissa Land Reforms Act (hereinafter referred to as the 'Act') and the further orders in appeal and revision passed under the Act.
2. The petitioner was the ex-Ruling Chief of the State of Bamra and held extensive properties. As the petitioner's claims for settlement of certain lands which had vested under the Orissa Estates Abolition Act were still to be disposed of under Chapter II of the Orissa Estates Abolition Act, when the Orissa Land Reforms (Amendment) Act of 1973 came into operation from 2-10-1973, he furnished a provisional return on 31-12-1973 under Section 40-A of the Act. Orissa Land Reforms Ceiling Case No. 30 of1974 was instituted on the basis of the return and a draft statement was published on 3-9-1975 under Section 43 (1) of the Act. The petitioner preferred objection to the draft statement and contended that Ac. 72.09 decimals of land were held by an industrial and commercial undertaking and were exempt from ceiling under Section 38 (b) of the Act.He also contended that there were certain tanks with an area of a little more than six acres which were exclusively used for pisciculture and were not connected with agricultural operations and such tanks were also not to be taken, into account for determining the ceiling. The petitioner's third contention was that he had lands and bouses located in certain areas situated within the Deogarh Municipal limits and since such lands were not connected with agricultural operations they were also not to be taken into account. The Revenue Officer negatived all the contentions of the petitioner except holding that Ac. 72.09 decimals of land were exempt under Section 38 (b) of the Act and he called upon the petitioner to make a formal application. The petitioner preferred an appeal to the Sub-divisional Officer asking for relief on other scores. Though under Section 44 (2) (b) of the Act an appeal at the instance of the State Government lay against the order of the Revenue Officer, no appeal was filed and the Revenue Officer's direction exempting Ac. 72.09 decimals of land while determining the ceiling was allowed to become final. Sub-section (3) of Section 44 of the Act makes the confirmed statement final and the order of the Revenue Officer unless modified in appeal receives statutory finality. The appellate authority, even though there was no appeal, looked into the propriety of the Order of the Revenue Officer in regard to Ac. 72.09 decimals of land and observed :--
'So the Tahasildar is advised to reconsider his decision in the light of the above discussion and take steps to make necessary amendment in the confirmed draft statement.'
He rejected all the other contentions of the petitioner. The petitioner thereupon carried a revision to the Revenue Divisional Commissioner. All the contentions referred to above were re-canvassed before the revisional authority. The revisional authority sustained the appellate order except giving a direction that as far as homestead lands were concerned, the case would be remanded for enquiry as to whether the homestead was used for agriculture or was ancillary to agriculture.
3. Before us, Mr. Mohanty for the petitioner raises three questions, namely(1) In the absence of an appeal the appellate authority had no jurisdiction to go into the question of exemption of Ac. 72.09 decimals under Section 38 (b) of the Act. The order of the Revenue Officer having become final the appellate authority's jurisdiction to deal with the question was not open to entertain that point. (2) Lands located within the urban area were exempt from consideration for computing the ceiling unless such lands were found to be connected with agricultural operations; and (3) Tanks were not connected with agriculture and since pisciculture was not within the definition of agriculture, the tanks claimed as exempt should have been kept out.
4. As we have already indicated, the Revenue Officer's order with reference to 72.09 acres became final in the absence of any challenge in appeal by the State. It is not disputed before us that the impugned order of the Revenue 'Officer was open to challenge in appeal at the instance of the State Government as clearly provided in Section 44 (2) (b) of the Act. Where there was a right of appeal and the same was not availed, relief granted by the Revenue Officer should not have been questioned by the appellate authority. The petitioner could not be prejudiced in his own appeal by vacating a favourable direction in his favour, particularly when there was no challenge to that part of the order. The direction of the appellate authority that the Revenue Officer should reconsider the question, therefore, was not a valid one.
5. The learned Government Advocate canvassed before us that the direction of the appellate authority was in accordance with law and since a non-sustainable relief had been granted by the Revenue Officer and that had been vacated, our extraordinary jurisdiction should not be permitted to be invoked in support of the erroneous order. Reliance has been placed on certain authorities in support of this submission of the learned Government Advocate, We are inclined to agree with Mr. Mohanty for the petitioner that in the facts of the case the precedents have no clear application. The scheme of the Statute is that both the parties, i.e. the landholder as also the State Government, have been given a right of appealagainst the order of the Revenue Officer. Subject to appeal, every order of the Revenue Officer has been made final under Sub-section (3) of Section 44 of the Act. In view of such clear-cut provisions,, in the absence of an appeal the order of the Revenue Officer became final and the appellate authority should not have, while dealing with the petitioner's appeal, interfered with the relief granted by the Revenue Officer.
6. The petitioner claimed exemption in respect of tanks with an area of about 6 acres of land. Undoubtedly, the Statute deals with agrarian reforms. Section 2 (1) defines 'agriculture' and the definition is an inclusive one. Certain operations which may not ordinarily go under the head of 'agriculture' have been included in the definition. Mr. Mohanty for the petitioner relied upon the fact that even though the definition was inclusive, pisciculture had not been included. Therefore, tanks should not be taken into account while determining the ceiling. The learned Government Advocate on the other hand placed reliance on the Expln. appearing in Section 2 (5) (a) of the Act which states that for the purposes of the said clause tanks were to be deemed as class III land. The petitioner's contention has been that such tanks as are connected with agricultural purpose were required to be treated as class III land and unless a tank set apart for pisciculture came within land to be taken into account, merely by placing reliance on the Explanation the petitioner's contention could not be negatived. Section 39 (a) of the Act provides that homestead lands, or tanks with their embankments, or both, to the extent of three acres in the aggregate shall not be taken into account in determining the ceiling area. Such tanks as are exempt Under Section 39 (a) of the Act are not connected with agriculture, but the legislative intention is clear that tanks would be taken into account. If within the homestead lands tanks of more than 3 acres exist, the exemption covered only 3 acres and the rest were to be taken into account. The scheme of the Statute in our opinion does not make any provision for excluding tanks, and on the submission that the tanks were meant for pisciculture the petitioner cannot obtain exemption of tanks in the matter of computation of the ceiling area. The second contention of the petitioner must fail.
7. Certain lands are located within the urban area. Unless such lands or buildings are connected with the agricultural operation of the petitioner, they cannot be taken into account. Reference to Section 73 of the Act by the appellate and revisional authorities was wholly unwarranted. Where lands are located in the urban area it is for the Revenue Officer to establish the link, that is to show that such lands were connected with agricultural operations and therefore, were to be taken into account; otherwise, as pointed out by this Court in the case of Mahurilal Agarwalla v. Dusasan Sahu, 43 Cut LT 681 : (AIR 1977 NOC 298 (Orissa)), a house located in the urban area would not be includible. The Revenue Divisional Commissioner has directed an enquiry regarding the homestead. We think, interests of justice would be best served if that direction is slightly clarified so as to include an enquiry into this aspect. The law has been clearly indicated in the decision referred to above and the Revenue Officer shall now have a direction to also enquire into the ten-ability of the petitioner's contention as to whether the urban lands are to be taken into account.
8. The writ application is disposed of with the aforesaid directions. There would be no order for costs.