S.C. Mohapatra, J.
1. This is an application under Articles 226 and 227 of the Constitution arising out of a proceeding under Chapter IV of the Orissa Land Reforms Act, 1960 (hereinafter referred to as 'the Act').
2. Suo motu proceeding under Section 42 of the Act registered as Ceiling Case No. 17 of 1974 was initiated by the Revenue Officer-cum-Tahasildar, Salipur to determine the ceiling surplus lands of the petitioner. The draft statement was confirmed under Section 44(1) of the Act on 14-11-1975 declaring that the petitioner has 3.504 acres of surplus land. The petitioner preferred an appeal registered as O.L.R. Appeal No. 42 of 1975 under Section 44(1)of the Act. By order dt. 26-4-1976, the appeal was dismissed on the sole ground that the statement in the meantime has been finally published for which no appeal could' be entertainable. Immediately thereafter, 2.815 standard acres of land was distributed to opposite parties 3 to 14 under Section 51 of the Act. Revision of the petitioner under Section 59 of the Act was held not to be maintainable. The petitioner approached this Court in O.J.C. No. 754 of 1976 to quash the orders of the statutory authorities. Opposite parties Nos. 3 to 14 were also made parties to the writ' application. This Court quashed the appellate order and the revisional order and directed the appellate authority to decide the appeal on merits by order dt. 23-6-1977. In compliance with the aforesaid direction of this Court, the appellate authority heard the appeal and by his order dt. 6-11-1978 held that the petitioner did not hold any land to be surplusbeyond the ceiling limit fixed under the Act and as such the order of the Revenue Officer was set aside.
3. After the decision in appeal, the petitioner made an application before the Revenue Officer for restoration of the property. The Revenue Officer, however, refused the prayer of the petitioner on the following, finding :
'Land to the extent of Ac. 2.864 dec. has already been distributed among the landless persons leaving a balance of Ac. 0.188dec. As the landholder did not implead the lessees as third party, hence the land could not be returned to the landholder (as) decided by Hon'ble High Court decided in O.J.C. No. 867 of 1976.........'
There being no other efficacious remedy available, the petitioner has approached this Court for exercise of the extraordinary writ jurisdiction.
4. Mr. P. K. Misra, the learned Counsel appearing for the petitioner submitted :
(i) The Revenue Officer had no jurisdiction to distribute the lands under Section 51 of the Act before finalisation of the proceeding and as such the distribution being a nullity opposite parties 3 to 14 do not get any interest in the land on the basis of such distribution.
(ii) The order of the Revenue Officerdetermining the ceiling surplus land having been vacated by the appellate authority, the distribution of land is a nullity and it is the duty of the Revenue Officer to restore back the property to the petitioner which has been distributed without any authority of law as the same would amount to confiscation of petitioners property.
(iii) Opposite parlies 3 to 14 having no valid title to the property are, to be prohibited from interfering with the possession of the petitioner.
I n support of his submissions Mr. Misra placed reliance on ILR (1977) 2 Cut 334 : (AIR 1978 NOC 86) Naresh Chandra v. Revenue Officer-Cum-Addl. Tahasildar, Angul, 56 Cut LT 463 : (AIR 1983 Ori 277) (Sankarsan Misra v. State of Orissa), O.J.C. No, 53 of 1980 decided on 21-3-1985 Reported in (1985) 1 Ori Law Rev 457. Smt. Arda Mahalaxmi v. District Magistrate and Collector, Ganjam and O.J.C. No. 635 of 1979 decided on 25-3-1985 : (1985) 59 Cut LJ 537), (Harihar Panda v. State of Orissa).
5. Mr. D. P. Sahoo, the learned Standing Counsel has brought to our notice the decision in O.J.C; No, 867 of 1976 decided on 21-9-1976, Parsuram Sahu v. Revenue Officer, Nuapada relying upon which the Revenue Officer held that the land could not be returned to the landholder.
6. Reliance on the decision in O.J.C. No. 867 of 1976 is no more available to the opposite parties. Placing reliance on this decision, the Board of Revenue issued a circular on 10-9-1979 that the matter, where land has been distributed, is not to be reopened This Court had occasion to consider the decision in O.J.C. No. 867 of 1976 (Supra) and the circular of the Board of Revenue in O.J.C. No. 53 of 1980 decided on 21-3-1985 (supra). The decision in O.J.C No. 867 of 1976 (supra) was distinguished as the same was not a case of restitution and in the interest of justice on account of the peculiar facts of that case, it was held that the Revenue Officer would not reopen the matter in case it was satisfied that the lands have been settled in third parties who have not been impleaded. In respect of the circular of the Board of Revenue dt. 10-9-1979 it was held :
'......The circular of the Board of Revenuedated 10-9-1979 is contrary to the principle laid down in ILR (1977) 2 Cut 334 (supra) : (AIR 1978 NOC 86) and is not binding on the statutory authorities under the Act in discharge of their functions.........'
In ILR (1977) 2 Cut 334 (supra) at pp. 339 and 340 : (AIR 1978 NOC 86) it had been categorically held :
'.......until the revision had been disposedof, the statement could not be made final and would not become conclusive and there would be no vesting of surplus lands in Government. As the lands would not vest in Government, the Revenue Officer would have no jurisdiction to deal with the property....... On the date thelands 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........'
In para 7 at page 342 of the aforesaid decision, while dealing with the preliminary objection that the persons to whom the land has been distributed are to be made parties and to be heard, it was held :
'.....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 nullity) should be given a hearing.'
7. On the aforesaid analysis, it is clear that the Revenue Officer in the present case had no jurisdiction to distribute the property of the petitioner during the pendency of the appeal which was a nullity and opposite parties 3 to 14 acquired no right to the land distributed to them.
8. In the decision reported in 56 Cut LT 463 : (AIR 1983 Ori 277) (supra) it has been laid down that on the success of the landholder the property has to be restored. Following the said principle it was held in O.J.C. No. 53 of 1980 decided on 21-3-1985 : (1985) 1 Ori Law Rev 457 (supra) and in O.J.C. No. 635 of 1979 decided on 25-3-1985 (supra) : (1985) 59 Cut LT 537) that the distribution being nullity, the land is to be restored back to the landholder. The persons to whom lands were distributed were prohibited from entering upon the same any further as they acquired no right, title or interest therein.
9. In view of the well-settled principle that the Revenue Officer is to restore back the property without driving the aggrieved land-holder to a Civil Court, the refusal to restore back the property in this case amounts to non-exercise of the power vested in law. The order of the Revenue Officer, Salipur (Opp. Party No. 2) dt. 24-7-1981 as per Annexure-3 is, therefore, quashed. The Revenue Officer, Salipur is directed to restore back the property to the petitioner after taking back the possession of the lands from opposite parties Nos. 3 to 14 in case they are in possession on the basis of the distribution. Opposite parties Nos. 3 to 14 are directed not to enter upon the lands of the petitioner any further as the settlement in their favour is a nullity and having acquired no right, title or interest they cannot take advantage of the same.
10. In the result, the writ application is allowed. In the peculiar circumstances of this case, there shall be no order as to costs.
D. Pathak, C.J.
11. I agree