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Sankarsan Misra and ors. Vs. State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberOriginal Jurn. Case No. 828 of 1977
Judge
Reported inAIR1983Ori277; 56(1983)CLT463
ActsOrissa Land Reforms Act, 1960 - Sections 37 and 42
AppellantSankarsan Misra and ors.
RespondentState of Orissa and ors.
Appellant AdvocateS.C. Ghose and ;S. Mohanty, Advs.
Respondent AdvocateStanding Counsel and ;U.N. Sahu, Adv. for No. 5
DispositionPetition allowed
Excerpt:
.....assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - in the result, we quash the original order as well as the appellate and revisional orders as per annexures-1, 2 and 3. we direct the revenue officer, opposite party 2, to give adequate opportunity to opposite party 5 and the petitioners of being heard and of adducing evidence if they so like, to establish their case. if possession has been taken, on the success of the landholder, the property has to be restored......partition as synonymous with separation. secondly, no opportunity was afforded to opposite party, party 5, and the petitioners to establish their case.6. section 37 (b) reads as follows:-- '37 (b). 'family' in relation to an individual, means the individual, the husband or wife, as the case may be, of such individual said their children, whether major or minor, but does not include a major married son who as such had separated by partition or otherwise before the 26th day of september, 1970.'a major and married son separated by partition or otherwise before 26-9-1970 is to be excluded while determining the family of the landholder.7. separation is net synonymous with partition. partition conceptually may be either partition of status or partition of property. separation means.....
Judgment:

R.C. Patnaik, J.

1. This writ application arises out of a ceiling proceeding under Chap. IV, Orissa Land Reforms Act.

2. The petitioners are the sons of late Gour Chandra Misra. Their mother is Sitamani, opposite party No. 5.

3. A suo motu proceeding underSection 42, Orissa Land Reforms Act (forshort, the Act) was started treating Sitamani as the head of the family. The sonswere not parties. In due course draftstatement was prepared showing 8.48acres as surplus and was published requiring the landholder to file objection, objection was filed by Sitamanistating that her sons after partition were in possession ofsubstantial part of the property in theirown rights. They were not members ofher family as per the definition of'family' contained in Section 37 (b) of theAct. It was also contended that Sitamaniwas holding certain land as donee undera deed of gift executed by her late husband. It was canvassed that proceedingin respect of Sitamani could be for thelands received by her as a donee and therest of the land in respect of whichthere had been partition between thesons should be excluded.

4. On 2-1-76 objection was filed and the Revenue Officer required the landholder to produce documentary evidence. After some adjournments were granted for the production of the deed of gift, the case was posted to 23-3-76 for delivery of judgment. It may be noted here that the case was not posted to any date specifically for hearing, except that the landholder had been required to produce documentary evidence. By his final order, the Revenue Officer held that the deed of partition dated 28-12-68 being an unregistered one was not admissible in evidence and the sons being members of the family with Sitamani the property belonging to all the sons should be aggregated for finding out the ceiling area and the surplus land. He rejected the contention raised on behalf of opposite party 5. In appeal and in revision, the order of the Revenue Officer was concurrently sustained.

5. Mr. S. C. Ghose, the learned counsel for the petitioners, has urged that all the forums misconceived the position in law by treating partition as synonymous with separation. Secondly, no opportunity was afforded to opposite party, party 5, and the petitioners to establish their case.

6. Section 37 (b) reads as follows:--

'37 (b). 'Family' in relation to an individual, means the individual, the husband or wife, as the case may be, of such individual said their children, whether major or minor, but does not include a major married son who as such had separated by partition or otherwise before the 26th day of September, 1970.'

A major and married son separated by partition or otherwise before 26-9-1970 is to be excluded while determining the family of the landholder.

7. Separation is net synonymous with partition. Partition conceptually may be either partition of status or partition of property. Separation means separation in status. Separation in status may be accompanied or followed by partition of property, but partition of property is not essential for separation in status. There can be separation in status by a mere unequivocal declaration to separate. The expression 'partition' in Section 37 (b) denotes partition of property, i. e., division of property by metes and bounds. The revenue authorities, under Section 37 (b) of the Act are required to determine separation in status.

8. The forums in this case have negatived the contention of the petitioners merely on a finding that the deed of partition was inadmissible for lack of registration. What they were required by the law to find was separation before 26-9-1970. Negativing partition was not the end of the exercise. The claim of the landholder was not available to be rejected merely on that finding. It was further to be found that there was no separation, i. e., separation of status before 26-9-1970. An unregistered deed of partition inadmissible in evidence to prove partition may nevertheless be used for a collateral purpose, namely, separation in status.

9. Neither of the forums has considered the case from this angle. The determination, therefore, of the Revenue Officer as confirmed in appeal and revision, is not sustainable.

10. We further find that the parties have been denied processual justice. The Revenue Officer did not at all post the case for hearing. By his order dated 2-1-76 he directed the opposite party 5 to produce documentary evidence only. This, in our opinion, misdirected the party anal denied him the opportunity of hearing, pulling forth whatever he intended to.

11. In a proceeding where there is likelihood of serious consequences for the landholder, the processual course should be fair and reasonable. Fair must not only be the end product, but fairness shall also permeate the entire process so that a party does not leave the portal of a court with the feeling that he did not receive justice at the hands of the dispenser of justice. The Revenue Officers hold their courts not only at headquarters where legal assistance is available to the parties but in camps also far away from headquarters where legal assistance may not be available to them due to their incapacity la engage counsel or unwillingness of counsel to go outlying areas or remote places. Very often it happens that the parties appear personally. Is it not, therefore, obligatory upon the Revenue Officer not only to decide the case according to law but apprise the party properly of the procedure and his burden? There may be disposal of cases but there may not be dispensation of justice. Under a system of jurisprudence governed by the rule of law, dispensation of justice is more important than mere disposal of cases. Disposal is a mockery where there is no dispensation of justice.

11A. In the result, we quash the original order as well as the appellate and revisional orders as per Annexures-1, 2 and 3. We direct the Revenue Officer, opposite party 2, to give adequate opportunity to opposite party 5 and the petitioners of being heard and of adducing evidence if they so like, to establish their case. After such evidence is adduced, he shall dispose of the proceeding according to law keeping in mind the abservations made herein. There would be no order as to costs.

12. It has been urged on behalf of opposite parties 1 to 4 that lands found surplus in the ceiling proceeding have already been distributed to opposite parties 6 to 17. The petitioners and opposite party 5, however, have urged that possession of the lands found surplus has not yet been taken from the petitioners and opposite party 5. It is unnecessary to resolve the said controversy. After the decision of the Revenue Officer the matter was carried in appeal and revision and thereafter has been brought to this court by way of an application under Articles 226 and 227 of the Constitution. The decision of the Revenue Officer has been impugned. Any action taken in pursuance of the decision would, therefore, be subject to the ultimate decision in the matter. If possession has been taken, on the success of the landholder, the property has to be restored. If either distribution of the property or delivery of possession thereof has been made, restitution has to be made in exercise of inherent powers according to the spirit of the law contained in Section 144, Civil P. C.

B.K. Behera, J.

13. I agree.


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