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State of Orissa Versus Brundaban Sharma

Civil Appeals Nos. 827 828 of 1994 - Dated:- 28-1-1994 - K. RAMASWAMY AND B.L. HANSARIA, J. - JUDGEMENT (1.) SPECIAL leave granted. (2.) SINCE common questions of law and facts arise for decision in the cases, they are disposed of together. Ekatali village in Jharsuguda District in Orissa State was part of the erstwhile Sambalpur District. To lay the road from Jharsuguda to Belpahar a notification was published on 25 9 1962 under Section 4(1) of the Land Acquisition Act excluding 4.19 acres in P .....

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e to the respondent in O.E.A. Revision Case No. 37 of 1989 to show cause for cancellation of patta granted to him by the Tehsildar. After considering his objections and giving an opportunity of hearing, by order dated 2 12 1992, set aside the patta granted to the respondent as a tenant by Gokulanand Gountia and recognised by the Tehsildar under Section 8(1) of the Orissa Estates Abolition Act, 1951, Act 1/52, for short 'the Act '. In O.J.C. No. 781/1993, the Division Bench of Orissa High .....

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ant under the ex intermediary, the Lambardar Gountia, as recognised by the Tehsildar and, therefore, his right to the lands cannot be interfered with in any manner by the State without acquiring the land by due process of law. Since the road had already been laid, no direction was issued to the appellants to restitute the lands to the respondent; but the Bench directed the Revenue Department to pay him compensation according to law. When the pendency of revision under Section 38 B was brought to .....

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respondent as a tenant under Section 8(1) of the Act unless he obtains prior confirmation from the Board of Revenue. After this fact was brought to the notice of the authorities in the representation of the respondent dated 24 12 1982, immediate action was initiated and no delay, much less appreciable delay, had occurred to correct the order under Section 38 B of the Act. Even otherwise, the order of the Tehsildar being without jurisdiction is void and non est. The delay does not stand in the w .....

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ssession of Government land without any right, title and interest in the land. Thereby the decision in O.J.C. No. 2761/1992 is also illegal. (3.) SRI A.K. Sen, learned Senior Counsel for the respondent, contended that the Government had accepted the rent from the respondent without any protest and continued to accept the same till initiation of the acquisition proceeding in the year 1962 before which the Government admitted the title of the respondent. Having recognised the respondent as owner o .....

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f the power under Section 38 B on two fold contentions. According to the learned counsel, the Tehsildar's order is only an administrative order recognising the tenancy rights of the tenant under Section 8(1) of the Act and administrative order cannot be set aside after lapse of 27 years. As a second limb of his arguments, he contended that Section 38 B was brought on statute for the first time on 1 11 1973. Therefore, retrospective effect cannot be given to Section 38 B to unsettle the veste .....

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acquires such interest in the land as does not already belong to the Government held that: "When Government possesses an interest in land which is the subject of acquisition under the Act, that interest is itself outside such acquisition, because there can be no question of Government acquiring what is its own. An investigation into the nature and value of that interest will no doubt be necessary for determining the compensation payable for the interest outstanding in the claimants, but tha .....

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its mistake obviously withdrew the same and published a fresh notification in which admittedly the land was omitted for acquisition and thereafter proceeded to lay the road on its land. However, the High Court found that the respondent as a tenant under the Act and Government unauthorisedly took possession from him and directed the Government to pay compensation. The immediate question, therefore, is whether the respondent had acquired any tenancy rights under the Act. Section 3 of the Act empo .....

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nt under Section 4, as the case may be, the consequences enumerated therein would ensue. Subject to the provisions in Chapter II, the entire estate including all communal lands, and porambokes, other non raiyati lands, etc. etc. would vest absolutely in the State Government free from all encumbrances and an intermediary would cease to have any interest in such estate, other than the interests expressly saved by or under the provisions of the Act. Thereby, "except the interests of the raiyat .....

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eunder; he has power to make enquiries in respect of such settlement or lease or transfer etc. etc. In cases where the Collector decides not to set aside any such settlement, lease or transfer, "he shall refer the case to the Board of Revenue for confirmation of the settlement, lease or transfer and the orders passed by the Board of Revenue in this behalf shall be final ". Under Section 2(d) the Collector means any officer appointed by the State Government to discharge all or any of th .....

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e into its correctness. Even in case he himself is competent and decides not to set aside the lease, he should have referred the case for confirmation to the Board of Revenue. The object of conferment of such power on the Board of Revenue appears to be to prevent collusive or fraudulent acts or actions on the part of the intermediaries and lower level officers to defeat the object of the Act. (5.) THE lease was said to have been granted to the first respondent by Gokulanand Patel as Lambardar Go .....

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question is whether the lease of the respondent was valid and whether the Board of Revenue was justified to exercise its jurisdiction under Section 38 B of the Act. Section 38 B of the Act reads thus: "Section 38 B. -(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 had made any decision or passed an order under this Act (not being a decision against .....

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ection without giving the parties concerned an opportunity of being heard in the matter. " A reading thereof clearly indicates that the Board of Revenue, either 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 the Act to satisfy itself as to the regularity of such proceeding or to the correctness, legality or propriety of such decision or pro .....

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taken by the Tehsildar in collecting the rent after settlement of the land in favour of a raiyat and whether it is an administrative order or quasi judicial order. It was held by the Bench that the Tehsildar had no jurisdiction to settle any land under Section 5(1) and if he acts as such that amounts to usurping jurisdiction not vested in him. But any rent collected after the settlement is only an administrative act and not quasi judicial. The action taken by the Tehsildar in recognising the te .....

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he respondent. In this situation, when the report was submitted to the Board of Revenue by the Collector in his proceedings dated 6 10 1982, the Board had to examine whether the respondent had obtained the patta validly according to law. In the paper book in the appeal arising out of SLP No. 15486/1993, the revenue records have been placed as part of the record. The records related to the year 1943 44. In the heading Inspector Sri Chandi Charan Satpathy was mentioned as Revenue Inspector. He mad .....

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ge 39 onwards, we find a Wajib ul arz for Gaontiahi villages of Sambalpur District. The village records for the relevant period shows that Lambardar's name was one Rajendra Singh. He was entitled to act as Gountia. There appears to be divergence of opinion as to whether a Mukaddam is also entitled to grant patta to the third parties. (7.) BE it as it may, it is not necessary for us to go into the controversy, but suffice to state that patta granted to the respondent by Gokulanand purported t .....

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enue records thus discloses that the grantee of the patta had no title to grant patta and it being only on a white paper, the question emerges whether the Tehsildar was right in recognising the respondent as tenant under Section 5(1) read with Section 8(1) of the Act. It is seen that admittedly the lands in question along with other lands in the village stood vested in the State on 1 3 1960, the Tehsildar made settlement to the respondent as a tenant on 24 12 1962 i.e. long after the date of ves .....

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tness of any decision taken, order passed or proceedings taken by any authority under the Act. If it is satisfied that the order is vitiated on any one of the specified grounds, it is open to the Board of Revenue to pass appropriate order suitable to the circumstances. The Board of Revenue held that the claim of the respondent for tenancy was not corroborated by any records, much less unimpeachable evidence given by Lambardar prior to the notified date of the estate. Under the Act it is not open .....

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f the officers. Accordingly, the Board of Revenue held that "the order of the Tehsildar under Section 5(1) read with Section 8(1) settling the land with the opposite party was without jurisdiction and the order of the Tehsildar without obtaining the confirmation from the Board of Revenue was non est in the eye of law ". The question, therefore, is whether the Board of Revenue was justified in exercising the jurisdiction to set aside the proceedings of the Tehsildar dated 24 12 1962. It .....

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e statute on 7 11 1973 by the Amendment Act, 1973. Earlier, under Section 38 A to exercise review power, limitation prescribed was one year that too on an application made by an aggrieved party. Thereby, the legislature realised the need to confer power on the Board of Revenue to take suo motu action to examine the proceeding of any authority and if need be to correct its illegality, impropriety or incorrectness of the order passed, decision made or proceedings taken under the Act. Otherwise mis .....

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bears no significance to confer suo motu power. That apart, Section 38 A gives only the power of review but not a general power of revision. In this view Section 38 B gives power of revision to the Board to correct orders passed or decisions made or proceedings taken by any authority under the Act prior to Section 38 B came into force. But initiation of revisional power must be from and after Section 38 B came into force. In other words, its operation is prospective only. When and under what cir .....

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months the permission applied for shall be deemed to have been granted. Power under Section 211 of the Code must be exercised within reasonable time and the length of the reasonable time must be determined by the facts of the case and the nature of the order which is being revised. On the facts in that case it was held that the Commissioner also should exercise revisional power under Section 211 within three months as the owner would spend money to construct house and hardship would ensue if be .....

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spurious third parties. His declaration was accepted and was held to be within ceiling limit. But in 1977 when the Additional Commissioner came to know of the suppression of those facts, exercising suo motu power under Section 45 of the Maharashtra Land Reforms Act, issued notice, after giving reasonable opportunity he reopened the computation and held that the respondent was in excess of the ceiling limit. It was confirmed on appeal. On further revision, the High Court allowed the writ petition .....

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ting the contention this Court held that it would be open to the State Government to correct any illegality in the proceedings. The obvious intendment in conferring suo motu power was to prevent suppression of the agricultural land, liable to be included, or held by the declarant and he cannot plead in his defence his own fraud or suppression and seek shelter thereunder. When the original order was vitiated by illegality or impropriety committed by officer or authority or was passed due to suppr .....

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be valid. In Laxminarayan Sahu v. State of Orissa a Full Bench of the Orissa High Court held that even though there is no period of limitation in Section 59(2) of Orissa Land Reforms Act, 1960, it must be exercised in a reasonable manner which necessarily stipulates that it should be in reasonable time. What would be a reasonable time so as to be immune from the attack that the power has been exercised in an unreasonable manner would depend upon the facts and circumstances of the case. (11.) IT .....

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Length of time depends on the factual scenario in a given case. Take a case that patta was obtained fraudulently in collusion with the officers and it comes to the notice of the authorities after a long lapse of time. Does it lie in the mouth of the party to the fraud to plead limitation to get away with the order? Does lapse of time an excuse to refrain from exercising the revisional power to unravel fraud and to set it right? The answers would be no. (12.) IT is already seen that the proceedi .....

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s that the lease, transfer or settlement is not to be set aside, he should obtain prior confirmation from the Board of Revenue. No such approval was, in fact, obtained by the Tehsildar. Though in the first instance, when the respondent had brought it to the notice of the Government of his claim, in 1967 proceedings initiated were got dropped by the Government obviously at the instance of the respondent. Later on the instructions of the Government itself, inquiry was got done; and on receipt of t .....

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