CHANDABAI SHARMA Vs. ADDL. DISTRICT MAGISTRATE, BARGARH

JUDGEMENT

(1.) In this writ application the petitioner challenges the order dated 18.12.2002 (Annexure-7) passed by the Additional District Magistrate, Bargarh in OLR (R) Case No. 1 of 2002. The admitted facts are that one Manohar Sharma was the owner of Ac. 36.57 of land in two villages, namely, Barhaguda and Talsriguda, which was his self acquired property. M.S. Khata no. 308-Ac.28.10 and Khata no. 309-Ac. 1.60 situated in village-Barhaguda whereas M.S. Khata No. 317 -Ac. 5.28, Khata No. 379-Ac. 1.07 and Khata No. 380-Ac. 0.52 situated in village-Talsriguda. The said Manohar Sharma left behind three sons, namely, Surajmal, Harisankar and Ramkishan (opposite party no. 6) and two daughters, namely, Chandbai, the present petitioner, and Gitabai (opposite party no. 7). Surajmal pre-deceased Manohar Sharma issueless. Harisankar is dead and his two daughters, namely, Jayshree and Pramila are opposite party nos. 4 and 5. Manohar died in 1972 and till the year 1968 he sold Ac. 17.51 of his land. The settlement R.O.R. prepared in the year 1972 stood in the name of Manohar Sharma atone. In the year 1976 a suo motu ceiling proceeding bearing OLR Case No. 261 of 1976 was initiated against Manohar Sharma by the Tahasildar-cum-Revenue Officer, Bargarh, opposite party, no. 3 under Section 42 of the Orissa Land Reforms Act, 1960 (hereinafter referred to as 'the Act'), though Manohar Sharma was already dead by then. On 20.04.1976 notice was issued and the local R.I. was directed to submit report regarding the detail particulars of the land held by Manohar. On 01.09.1982 R.I. submitted report. On 19.05.1982 Harisankar, who is one of the sons of late Manohar appeared and raised objection and stated that out of the entire family property some lands have been sold by Manohar himself and that in a family partition the disputed property has been partitioned between himself, his father and his younger brother-Ramkisan and by virtue of such partition they are possessing their shares separately. The Revenue Officer observed that with regard to sale of land no sale deed or affidavit had been filed and with regard to the plea of partition no paper was produced nor any whereas M.S. Khata No. 317-Ac.5.28, Khata No. 379-Ac.1.07 and Khata No. 380-Ac. 0.52 situated in village-Talsriguda. The said Manohar Sharma left behind three sons, namely, Surajmal, Harisankar and Ramkishan (opposite party no. 6) and two daughters, namely, Chandbai, the present petitioner, and Gitabai (opposite party no. 7). Surajmal pre-deceased Manohar Sharma issueless. Harisankar is dead and his two daughters, namely, Jayshree and Pramila are opposite party nos A and 5. Manohar died in 1972 and till the year 1968 he sold Ac. 17.51 of his land. The settlement R.O.R. prepared in the year 1972 stood in the name of Manohar Sharma alone. In the year 1976 a suo motu ceiling proceeding bearing OLR Case No. 261 of 1976 was initiated against Manohar Sharma by the Tahasildar-cum-Revenue Officer, Bargarh, opposite party, no. 3 under Section 42 of the Orissa Land Reforms Act, 1960 (hereinafter referred to as 'the Act'), though Manohar Sharma was already dead by then. On 20.04.1976 notice was issued and the local R.I. was directed to submit report regarding the detail particulars of the land held by Manohar. On 01.09.1982 R.I. submitted report. On 19.05.1982 Harisankar, who is one of the sons of late Manohar appeared and raised objection and stated that out of the entire family property some lands have been sold by Manohar himself, and that in a family partition the disputed property has been partitioned between himself, his father and his younger brother Ramkisan and by virtue of such partition they are possessing their shares separately. The Revenue Officer observed that with regard to sale of land no sale deed or affidavit had been filed and with regard to the plea of partition no paper was produced nor any witness was cited. The Revenue Officer, however, directed for preparing a draft statement showing the names of Banibai, W/o. Surajmal, Harisankar, Ramkisan, Chandbai and Gitabai showing Ac. 24.96 as ceiling surplus since they are entitled to only 10 standard acres of land and the five persons were treated as body of individuals. On 21.05.1982 the draft statement was prepared and signed by the Tahasildar and direction was given for service of the draft statement on all the parties interested in the property.

(2.) In the meantime, after passing of the order under Annexure-4, consolidation operation started in the villages but the present petitioner, 15 years after passing of the order under Annexure-4, preferred OLR Appeal No. 2 of 2000 challenging the order of the Revenue Officer under Annexure-4 mainly on the ground that in the ceiling proceeding no notice as required under Rule 30(2) of the Orissa Land Reforms General Rules, 1965 (in short 'the Rules') was issued to her by the Revenue Officer even though she had 1/4th interest in the properties left by her late father Manohar Sharma and that there was no partition of the properties. She also asserted that the other sister, Gitabai was also entitled to 1/4th share in the suit property. The Sub Collector (opposite party no. 2) by his order dated 29.09.2001 (Annexure-6) allowed the appeal arid set aside the order under Annexure-4 holding that notices contemplated under Rule 30(2) and 30(3) of the Rules were not served on the appellant and there was complete violation of principle of natural justice in disposal of the proceeding before the learned Tahasildar and accordingly the whole proceeding stood vitiated. The appellate authority having set aside the order under Annexure-4 remanded the ceiling case for fresh hearing after giving due opportunity to the appellant and other holders.

(3.) It is submitted by the learned counsel for the petitioner that admittedly by the date of initiation of the ceiling proceeding the petitioner's father Manohar Sharma, the recorded owner of the land, was already dead and, therefore; the petitioner acquired interest in the property by way of inheritance and that after correction of the draft statement by order of opposite party no. 3 dated 19.5.1982 with direction to issue notice on 21.5.1982 and that issuance of notice under Rule 30 being a mandatory requirement and no notice having been served on the appellant, the entire proceeding stood vitiated and, therefore, the impugned order of the revisional authority cannot be sustained. He further submits that even where a person interested has knowledge of a proceeding, the mandatory requirement of notice cannot be dispensed with. He also submits that even otherwise the finding of the revisional authority that the present petitioner had knowledge of the ceiling proceeding is not based on any material on record. It is also his submission that the petitioner having inherited the property on the death of her father and that she being a major daughter married prior to the appointed date, she cannot be considered as a member of the family of her father or brother and instead she would be regarded as a separate unit and her own family would consist of herself, her husband and her children.