TaxTMI 
TaxTMI 
1994 (1) TMI 287
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....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 Court by order dated 10 5 1993 quashed the order of Board of Revenue finding that the revisional power under Section 38 B of the Act was illegally exercised after a lapse of 27 years. The appeal out of SLP No. 15486/1993 thus arises. Preceding thereto despite the respondent's objections, when the road was being laid across his lands, the respondent filed O.J.C. No. 2761/1992 and the Division Bench by its order dated 20 10 1992 held that the respondent was in possession of the lands as a tenant 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. Sin....
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.... invalid. He also contended that the Tehsildar having had jurisdiction, rightly recognised the respondent as a tenant and continuous acceptance of rent fortifies the respondent's right, title and interest in the land which would be divested only in accordance with law, i.e. acquisition under Land Acquisition Act and payment of compensation. He attacked the exercise of 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 vested rights of the tenant. (4.) IN view of the diverse contentions, the first question that arises for consideration is whether the appellants are bound to acquire the land in question. In the Collector of Bombay v. Nusserwanji Rattanji Mistri this Court while approving the ratio of Madras High Court in Dy. Collector, Calicut ....
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.... 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, the other interests held by the intermediary, before the date of vesting, shall stand ceased " and the lands shall stand vested absolutely in the State Government free from all encumbrances. Clause (i) of Section 5 gives power to the Collector, in respect of any settlement or a lease of any land granted prior to the date of vesting, to be satisfied that the transfer made before 1 1 1946 was with the object of defeating any of the provisions of the Act or to obtain higher compensation thereunder; 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....
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....t to be modified, annulled, reversed or remitted, it may pass orders accordingly. (2) The Board of Revenue shall not - (i) * * * (ii) revise only decision or order under this section 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 proceeding or order and, if in any case it appears to the Board that such a decision is not correct or illegal or improper, it has been empowered to modify, annul, reverse or remit the case to the authority for decision according to law. Before taking any such decision or passing an order, it is enjoined to give an opportunity of being heard in the matter to the affected party. In Basanti Kumar Sahu v. State of Orissa, the Full Bench of the Orissa High Court had to deal with the effect of the steps taken by the Tehsilda....
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.... suffice to state that patta granted to the respondent by Gokulanand purported to be in the year 1944 was on a white plain paper without any approval by any competent authority. Lambardar Gountia could be appointed by the Deputy Commissioner in accordance with the provisions of Section 137 of the Central Provinces Land Revenue Act of 1881 and the rules framed thereunder. Thereunder in Clause 3 the Lambardar alone was entitled to dispose of the waste lands and not the cultivable lands etc. which would be under his management subject to the provisions thereunder. When the revenue 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 vesting. It is already held that it was without jurisdiction. Even otherwise unless patta was confirmed by the Board of Rev....
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....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 miscarriage of justice would ensue. Accordingly, it brought on statute Section 38 B and conferred suo motu revisional jurisdiction and power on the Board of Revenue. It is not right to contend that Section 38 B has been given retrospective effect. The Board of Revenue was empowered to initiate action only after Section 38 B had come into force. Obviously it has to exercise revisional power with reference to the orders, decisions made or proceedings taken under the Act earlier thereto. Otherwise it 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 ord....
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....e the order of the High Court. It was contended therein that the Act provides a period of 3 years' limitation to exercise review jurisdiction under Section 38 A at the instance of the aggrieved parties. For the exercise of the suo motu power also the same limitation should be construed. The exercise of the power after a long lapse of time thereafter would be illegal. While negating 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 suppression of the material facts or fraud, it was open to the tribunal to reopen the same. The limitation would start running from the date of the discovery of the fraud or suppression of material or relevant fact or omission thereof and an order under Section 17 in that Act was not a bar to exercise suo motu revisiona....