NITYANANDA SATPATHY Vs. MEMBER BOARD OF REVENUE

JUDGEMENT

(1.) In this application under Arts. 225 and 227 of the Constitution, the petitioners seek quashing of the proceedings in O. E. A. Revision Case No. 15 of 1989 at Annexure -1 and the final order dated 1 -1 -1992 at Annexure -4 passed by the Member, Board of Revenue, Orissa (opp. party No. i)error.

(2.) THE case of the petitioners is that the ex -intermediaries of Paikapada Maj estate under Touzi No. 268 in the district of Puri were owners in khas possession of lands measuring Ac. 659.37 decimals under khata No. 23, in mouza Gadabangoro and Ac. 167.10 decimals under khata No. 153 in mouza -Badagaon. The estate came to vest in the State Government on 25 -8 -1953. The then Deputy Collector, Puri in O. E. A. Case No. 8/43 -54 illegally restrained the ex -intermediaries from felling and removing casuarina trees from the disputed lands and transferred the same to the Divisional Forest Officer, Puri Division, Khurda for management during the pendency of the aforesaid case. On 10 -8 -1957 the case was finally disposed of wherein the Deputy Collector held that the lease granted by the ex -intermediaries to one Radha Mohan Mukhopadhaya and two others was benami transaction in view of the fact that they(ex -intermediaries) were themselves in khas possession of the disputed lands on the date of vesting. Thereafter, the ex -intermediaries applied to the Tahasildar -cum -O. E. A. Collector, Nimapara under Sections. 6 and 7 of the Orissa Estates Abolition Act, 1951 (hereinafter referred to as 'the Act') for settlement of the lands in their favour which came to be registered as O. E. A. Case No. 83/481 of 1959 -60. By order dated 17 -6 -1964 at Annexure -H/2, the O. E. A. Collector settled the lands with the applicants as the raiyats on payment of rent to the State from the date of vesting. Despite the success of the ex -intermediaries as indicated above, the Divisional Forest Officer kept the disputed lands under his management which compelled them to file a writ application (OJC No. 455 of 1970) impleading State of Orissa, Collector, Pun, Divisional Forest Officer and Ors. as opposite parties. This Court by order dated 9 -11 -1970 allowed the writ application with a direction that the lands with plantations should be restored to the ex -intermediaries on payment of maintenance charges to the Divisional Forest Officer Pursuant to the said direction, the ex -intermediaries paid the maintenance charges and the possession of the lands was restored to them on 7 -5 -1971. Thereafter, a ceiling proceeding under the provisions of the Orissa Land Reforms Act (O. L. R. Case No. 4 of 1975) was initiated against the ex -intermediaries for determination of ceiling surplus lands. The said case finally terminated on 26 -5 -1979 in which the ex -intermediaries were allowed six ceilings and lands measuring Ac. 122.00 were found to be surplus which vested in the State Government. The Government distributed the surplus lands to landless persons. The petitioners in the year 1983 purchased Ac. 201.00 from mouza Gudubangoro and Ac. 3.00 from mouza Badagaon from the ceiling holders. It is the allegation of the petitioners that long after the settlement of lands, the Collector Puri made a reference under Section 38 -B of the Act alleging illegalities committed by the O. E. A. Collector in settling the lands and the Member. Board of Revenue, Orissa, Cuttack by the impugned order at Annexure -4 set aside the settlement.

(3.) BEFORE examining the contention urged on behalf of the petitioners, it would be profitable to trace the legislative history of Section 38 -B of the Act. The said provision was not in the original statute. It has come to be inserted by President's Act 21 of 1973 which so far as relevant read as follows : '38 -B. Revision : - -(1) The Board may, on its own motion or on a report from the Collector, call for and examine the record of any proceeding in which any authority subordinate to the Board has made any decision or passed an order under this Act............for the purpose of satisfying itself as to the regularity of such proceeding or the correctness, legality or propriety of such decision or order and if in any case it appears to the Board that any such decision or order ought to be modified, annulled, reversed or remitted, it may pass orders accordingly, (2) The Board shall not revise any decision or order under this section : - - - - (i) after the expiry of one year from the date of such decision or order and (ii) without giving the parties concerned an opportunity of being heard in the matter.' By Orissa Act 16 of 1976, Section 38 -B was amended by virtue of which' the word 'Board' wherever it occurred, the words 'Board of Revenue' came to be substituted. For Sub -Section (2), the following sub -section was substituted which reads as folios : '(2) The Board of Revenue shall not, - - (i) initiate any proceeding under this section after the expiry of one year from the date of such decision or order; and (ii) revise any decision or order under this section without giving the parties concerned an opportunity of being heard in the matter.' By Orissa Act 22 of 1979, Clause (i) of Sub -Section (2) of Section 38 -B has come to be deleted. We may now quote Section 38 -B, so far relevant, as it now stands : '38 -B. Revision - -(1) The Board of Revenue may, on its own motion or on a report from the Collector, call for and examine the record of any proceeding in which any authority subordinate to the Board of Revenue has made any decision or passed an order under this Act.........for the purpose, of satisfying itself as to the regularity of such proceeding or the correctness, legality or propriety of such decision or order and if in any case it appears to the Board of Revenue that any such decision or order ought to be modified, annulled, reversed or remitted, it may pass order accordingly. (2) The Board of Revenue shall not - (i) xx xx xx (ii) revise any' decision or order under this section without giving the parties concerned an opportunity of being heard in the matter.' From the aforesaid it would appear that at the relevant time, there was no time -limit prescribed for the Board of Revenue to initiate a proceeding for exercise of its power under Section 33 -B of the Act.