R.N. Misra, J.
1. This is an application for quashing the fixation of ceiling in a suo motu proceeding under the Orissa Land Reforms Act (hereinafter referred to as the 'Act').
2. The brief facts relevant for disposal of the application are the following: One Bhagaban Panda was the recorded owner in respect of 17.19 acres of agricultural and waste lands located within Barpalli area of the district of Sambalpur. He died in the month of April, 1970 leaving behind two widows -- Phula and Madhabi --- and two daughters -- Bilas (petitioner) who was long married born through Phula and Krishnapriya, still minor, born through Madhabi. The widows did not file any return as contemplated under Section 40-A of the Act and a suo motu proceeding was initiated by the Revenue Officer. On receipt of notice, the two widows filed an objection in August, 1975, as per Annexure 2. In para. 4 of this objection, it was specifically alleged that Bhagaban had alienated 8.98 acres of land to four named transferees during his lifetime and as such the proceeding was not maintainable. The enquiry was fixed to 6-12-1975, when the two widows appeared. The Revenue Officer declined to enter into an examination of the correctness of the objection by saying:--
'......Seen the objection petitionfiled. The grounds in objection have been decided by the Tahsildar on 26-10-74 i.e. at the time of preparation of draft statement. Hence the objection petition is rejected. Consequently the draft statement is confirmed under Section 44 (1) of the O. L. R. Act. ......'
On 26-10-1974, the enquiry appears to have been in the absence of the widows and the Revenue Officer had stated as follows:--
'Took up the case in my Barpalli camp court. None appears.
The enquiry into this case was taken up in presence of ShelluPadhan, s/o Mahan and Singh Raj Patel, s/o Lala ef Ramta.
This case related to M. S. Holding No. 302 which contains an area of 17.19 acres equivalent to 16.09 standard acres. This area stands recorded in the name of Bhagaban Panda. The Revenue Inspector has reported that Bhagaban is dead and his two wives live in two separate messes and estates. But the local gentries tell that Bhagaban has died since five years and his two wives live in one ,mess and estate. Each has one daughter out of whom Bilas the daughter of the first wife is married since 14 to 15 years. Krishnapriya the daughter of the second wife is still a minor. As such both the wives with one minor daughter are entitled to one ceiling unit. Consequently, there remains an area of 6.09 acres as ceiling surplus. The following area is declared to the ceiling surplus area:
XX XX The remaining area is to be retained by the party.
Prepare draft statement and publish it duly and invite objections....'
The Revenue Officer's order on 6-12-1975 that the grounds in the objection had already been decided by the Tahsildar on 26-10-1974, therefore, is clearly an erroneous approach in dealing with the matter. Section 43 (2) of the Act requires the Revenue Officer to enquire into the objections and to record reasons in writing for his ultimate conclusion. The Revenue Officer has failed to dispose of the objection in accordance with law.
3. The two widows appear not to have carried an appeal against the order. Admittedly petitioner has a share in the property. From the statement in paragraph 3 of the writ petition, it clearly appears that before 26-9-1970, 5.45 acres of land out of 17.16 acres have been alienated under registered sale deeds. In paragraph 4 of the counter affidavit, the Revenue Officer has stated:--
'That in reply to the averments made in paras 3 and 4 of the writ petition, it is submitted that the contention of alienation by sale of A.9.20 of lands by registered deed on different dates by the landholder was never put forth by the objector (petitioner) in this case before, i.e. either at the draft statement stage or at the objection hearing stage or before the confirmation of draft statement stage. ......'
As already indicated, this is not a true averment. In para 4 of the objection, it had been categorically pleaded that during his lifetime Bhagaban had sold away 8.98 acres of land to Gopa Gadtia, Murali Padhan, Kuma Bhoi and Ganda Sahu and this fact the Revenue Officer refused to enquire into. It is not known as to how 17.19 acres of lands were treated as 16.09 standard acres. At any rate, if enquiry had been made and the correctness of the assertion of alienation prior to 26-9-1970 had been determined, the ceiling surplus determination would have been very different. We have no doubts in our mind that the order of the Revenue Officer is clearly erroneous and cannot be sustained.
4. Two more questions remain for consideration. Admittedly the widows did not prefer any appeal and allowed the order of the Revenue Officer to become final. Should the petitioner be permitted to dispute the position by herself? And the next question is whether this application abates as the petitioner, according to learned Government advocate, had a right of appeal?
Admittedly under the Hindu Succession Act of 1956, petitioner has one-fourth share in the disputed property. She has, therefore, a vital interest. It is not the case of the Revenue Officer that she had any notice of the proceeding. We do not think in these circumstances, it would be appropriate to accept the objection of learned Government Advocate that the petitioner should not be permitted to agitate the matter further.
Section 44 (2) of the Act prior to its amendment in 1976 reads thus:--
'An appeal against the order of the Revenue Officer under Sub-section (1) confirming the statement if presented within thirty days from the date of the order shall lie to the prescribed authority and subject to the result of such appeal, if any, the order of the Revenue Officer shall be final.'
After the amendment, the right to appeal has been given to any person aggrieved by the order. Learned Government Advocate has contended that since petitioner had a right of appeal against the final publication her present application is liable to abate under Article 226(3) of the Constitution. Petitioner's counsel has claimed that the right under Section 44 (2) of the Act to prefer an appeal was available to a party to the proceeding and a stranger could prefer an appeal only with leave of the Court. Reliance is placed on the decision in the case of Province of Bombay v. Western India Automobile Association, AIR 1949 Bom 141, where Chagla, C. J., points out:--
'......The Civil Procedure Code doesnot in terms lay down as to who can be a party to an appeal. But it is clear, and this fact arises from the very basis of appeals, that only a party against whom a decision is given has a right to prefer an appeal. Even in England the position is the same. But it is recognised that a person who is not a party to the suit may prefer an appeal if he is affected by the order of the trial Court, provided he obtains leave from the Court of Appeal. Therefore whereas in the case of a party to a suit he has a right of appeal, in the case of a person not a party to the suit who is affected by the order he has no right, but the Court of Appeal may in its discretion allow him to prefer an appeal. ......'
It is claimed that in the circumstances, it would not be appropriate to hold that petitioner had an alternate remedy by way of appeal. We are inclined to agree with the submission and would hold that the application does not abate on the basis of availability of alternate remedy.
There is also some force in the contention of counsel for the petitioner that right to property is being taken away and the application can be maintained under Article 226(1)(a) of the Constitution in which event presence of alternate remedy does not bar the application.
5. The net result, therefore, is that the order of the Revenue Officer dated 6-12-1975 is quashed and he is called upon to dispose of the suo motu ceiling fixation proceeding in accordance with law after hearing parties. There would be no direction for costs.