B.K.PATEL, J. RVWPET NO.25 OF 2009 (Decided on 16.09.2011) RAMKINKAR SINGH DEO ..…….Petitioner. .Vrs. COLLECTOR, NUAPADA & ORS. …….Opp.Parties. ORISSA LAND REFORMS( GENERAL )RULES 1965-RULE 27-B& 27-C For Petitioner - M/s. C.A.Rao, B.Pr.Das, S.K.Behera, B.M.Sarangi, & A.Patnaik. For Opp.Parties - A.S.C. (for O.P.4) M/s. D.P.Sahoo, N.Chakravorty. M/s. K.N.Kanungo, D.P.Patnaik, M/s. Akhil Mohapatra, J.M.Rout & S.C.Nayak for O.P.5) B.K.PATEL,J. Petitioner has filed this petition for review of the order dated 7.2.2007 dismissing O.J.C. No.6709 of 1994. 2. Facts culminating in filing of this review petition may be stated as follows: Opposite party no.5 filed OLR Case No.42 of 1976 under Section 36-A of Orissa Land Reforms Act, 1960 (for short ‘the OLR Act’) claiming to be Bhag Chasi in respect of Ac.4.49 decimals of land belonging to petitioner’s father late Satyabrata Singh Deo. By order dated 15.11.1976, petitioner’s application was disallowed by the Revenue Officer-Cum-Tahasildar, Khariar on the basis of the finding that opposite party no.5 was a “C” class contractor having no land near the case land and no agricultural land anywhere. It was also observed that case land, adjoining to Khariar-Nuapada road is not capable for growing crops as claimed by opposite party no.5 and is rather suitable for development into house site. OLR Appeal No.4 of 1997 preferred by opposite party no.5 against the said order was dismissed by order dated 22.3.1977 passed by Additional District Magistrate, Kalahandi. Opposite party no.5 filed Revision Case No.145 of 1977 before the Revenue Divisional Commissioner, Southern Division, Orissa, Berhampur (for short ‘the R.D.C.’) assailing the orders passed by Revenue Officer- Cum-Tahasildar and Additional District Magistrate. By order dated 6.12.1979, the revision was allowed and the matter was remanded to the Revenue Officer-Cum- Tahasildar, Khariar with specific directions. Relevant part of the order passed by the R.D.C. in Revision Case No.145 of 1977 reads: “3. The original O.L.R. Case record in No.42/1976 before the Revenue Officer does not show if any notice was served on the villagers under rule 27-B of the Rules inviting objections to the settlement claimed by the petitioner. The record also does not show notice having been issued to members of the Local committee for consultation. Rule-27(C) of the Rules prescribe that the Revenue Officer shall consult the committee in a meeting on the appointed day. This rule has not been complied with by the Revenue Officer in his order dated 15.11.1976 though he has stated that he “consulted the local committee members”. Mere mention about consultation is not sufficient compliance to the requirement of the statutory rules. It is, therefore, clear that Rule-27(B) and Rule-27(C) of the Rules have not been complied by the Revenue Officer. This is a serious omission which vitiates the proceedings. 4. In the result the orders of Lower court are set aside and the case is remanded to the Revenue Officer, Khariar for convening a meeting of the Local Committee for consultation and to come to the finding keeping in view evidence on behalf of the petitioner and during the local enquiry collected earlier. 5. Revision allowed.” Upon remand, OLR Case No.42 of 1976 was dealt with by the Revenue Officer- Cum-Tahasildar, Khariar on different dates. Finally by order dated 21.6.1980 opposite party no.5’s application under Section 36-A of the OLR Act was allowed. O.L.R. Ceiling Appeal No.2 of 1989 and O.L.R. Revision Case No.9 of 1991 preferred against aforesaid order by the petitioner and his mother opposite party no.6 having been dismissed by order dated 19.6.1990 passed by Sub-Collector, Nuapada and order dated 25.6.1994 passed by Collector, Nuapada respectively, the petitioner filed O.J.C. No.6709 of 1994 assailing the orders passed by Sub-Collector and Collector upon remand. Order dated 7.2.2007 passed in O.J.C. No.6709 of 1994, sought to be reviewed, reads: “Heard. 2. This Writ application has been filed inter alia challenging the order dated 25.6.1994 passed by the Collector, Nuapada in OLR Revision Case No.9/91. 3. A petition was filed under Section 36-A of the O.L.R. Act before the Tahasildar, Khariar by opposite party no.5 praying to settle the disputed lands measuring Ac.4.49 decimals appertaining to Plot No.283 of Khata No.60 situated in village Godramunda, P.S: Khariar. The Tahasildar registered the said application as OLR Case No.42/76 and after conducting necessary enquiry rejected the petition on the ground that the said petitioner was not the “bhaga chasi”. Being aggrieved an appeal was filed before the A.D.M., Kalahandi. After hearing the parties the appellate court also rejected the petition. Thereafter the applicant preferred a revision before the R.D.C., (SD), Berhampur. The R.D.C. was pleased to remand the case to Tahasildar for de novo trial. Thereafter it appears that the Tahasildar after holding elaborate enquiries came to the conclusion that in fact the applicant was occupying the land in question as “Bhaga Chasi” since last 12 years allowed the petition and recognized the petitioner as a tenant. The said order was assailed before the Collector. An appeal was preferred against the said order, which was confirmed. Thereafter the aforesaid revision was filed before the Collector. The Collector after perusing the materials and discussing the evidence confirmed the finding arrived at by the authorities below. The Collector further observed that in the meanwhile the case lands had vested in the State in consonance with the provisions under the O.L.R. Act as the same were declared ceiling surplus land. The landowner 2 having received compensation amount, according to Collector it was not open to him to assail the order of vesting of the disputed land as he ceases to be landlord any further. 4. It is submitted by learned counsel for the petitioner that the entire proceeding initiated under Section 36-A of the OLR Act was not maintainable as the lands were vested as ceiling surplus land in the State before passing any order. The landlord also knowing about the said fact submitted his choice not to retain the lands. In view of the aforesaid fact the submission made is not tenable. This observation is made only on the basis of submission made by the parties. 5. After going through the impugned order, I do not find any infirmity or illegality therein and decline to interfere with the same. Consequently the Writ Petition is dismissed.” 3. Petitioner filed W.A. No.11 of 2007 before this Court assailing the order dated 7.2.2007 dismissing O.J.C. No.6709 of 1994. Order dated 19.1.2009 by which W.A. No.11 of 2007 was disposed of reads: “Mr. C.A. Rao, learned counsel for the appellant prays to withdraw the writ appeal with liberty to file a review application. Accordingly, the appeal stands dismissed as withdrawn with the liberty to move an application for review.” 4. Sri C.A. Rao, learned Advocate appearing for the petitioner submitted that remand order in Revision Case No.145 of 1977 was passed solely on the ground of non- compliance of mandatory provisions under Rules-27-B and 27-C of the Orissa Land Reforms (General) Rules, 1965 (for short ‘the Rules). It was not an open remand of the matter to the Revenue Officer-Cum-Tahasildar to hold enquiry afresh. It was categorically observed that Rules-27-B and 27-C of the Rules have not been complied with which is a serious omission by the Revenue Officer-Cum-Tahasildar vitiating the proceeding. While setting aside the orders passed by Revenue Officer-Cum-Tahasildar and appellate authority direction was made by the revisional authority for convening meeting of the local committee for consultation to arrive at a finding keeping in view the evidence adduced on behalf of the petitioner and collected during local enquiry earlier. 5. It was further submitted that, after the remand, by order dated 13.2.1980 Revenue Officer-Cum-Tahasildar took note of the fact that proceeding was remanded for non-compliance of provisions under Rules 27-B and 27-C and issued notices to members of local committee fixing the date for meeting to 29.2.1980. However, without waiting till the date fixed for the meeting, the matter was taken up by the Revenue Officer-Cum-Tahasildar on 19.2.1980. Order dated 19.2.1980 indicates that Revenue Officer-Cum-Tahasildar once again took note of the remand order for compliance of provisions under Rules 27-B and 27-C of the Rules and directed for issuance of notice to petitioner’s father to appear on 31.3.1980 and of proclamation/general notice inviting objections from the villagers within fifteen days. At the same time it was observed in the order dated 19.2.1980 that members of the local committee who were noticed were present in court, meeting was held and proceeding was drawn up. Thereafter, the 3 Revenue Officer-Cum-Tahasildar proceeded to pass order dated 21.6.1980 by which application under Section 36-A of the OLR Act was allowed. 6. It was strenuously contended by Mr. Rao that the Revenue Officer-Cum- Tahasildar passed the order allowing the application under Section 36-A of the OLR Act in violation of the remand order without complying with provisions under Rules 27-B and 27-C of the Rules. Rule 27-B of the Rules contemplates issuance of general notice to the villagers to file objections within a period of fifteen days whereas Rule 27-C of the Rules provides for service of notices on the members of the local committee for consultation seven clear days before the meeting. In the present case, no general notice was issued by order dated 13.2.1980. Though by order dated 13.2.1980 notices were issued to members of local committee fixing the date for meeting on 29.2.1980, proceeding was taken up on 19.2.1980 when general notices to the villagers and notice to petitioner’s father were directed to be issued. Though local committee meeting was fixed to be convened on 29.2.1980, said meeting was stated to have been held on 19.2.1980 without waiting for clear seven days from the date of issuance of notices. Therefore, it was argued, order passed by the Revenue Officer-Cum-Tahasildar directing to settle the case land in favour of opposite party no.5 is not sustainable in law in view of non-compliance of mandatory provisions under the Rules. In this connection, learned counsel for the petitioner placed reliance on the decisions of this Court in Kalicharan Paikaray –vrs.- Benga Bewa : 1985 (1) OLR 62 and Rabindra Kumar Badajena – vrs.- Bichitrananda Khatei : AIR 1992 Orissa 133. 7. It was further submitted that specific grievance was made and contentions were raised before the appellate and revisional authorities assailing the order of the Revenue Officer-Cum-Tahasildar on the ground of non-compliance of mandatory provisions. Both the authorities having failed to consider the petitioner’s grievance, petitioner approached this Court in O.J.C. No.6709 of 1994 in which it was contended that provisions under the above said Rules as well as the remand order were not complied with by the Revenue Officer-Cum-Tahasildar. It was also contended that application under Section 36-A of the OLR Act was not made by opposite party no.5 in accordance with Rule 27-A of the Rules. Though application was required to be submitted under Form No.19, application had been made in Form No.1 of the Rules. 8. It was further submitted that none of the members of the local committee stated to have attended the meeting on 19.2.1980 belonged to village Godaramunda in which case land is situated. 9. It was argued that the Revenue Officer-Cum-Tahasildar in allowing the application under Section 36-A of the OLR Act arrived at the finding that opposite party no. 5 is a Bhag Chasi on the basis of earlier evidence. It was argued that on the basis of self-same evidence the Revenue Officer-Cum-Tahasildar could not have come to a finding different from one recorded earlier by the same authority. In this context, Sri Rao, learned counsel for the petitioner placing reliance on the decision of the Hon’ble Supreme Court in Biecco Lawrie Ltd. –vrs.- State of West Bengal : AIR 2010 SC 142 contended that it was not open for the same forum to appreciate the same evidence differently. 4 10. It was further contended that though orders passed by the Revenue Officer- Cum-Tahasildar, appellate authority and revisional authority were assailed in OJC No.6709 of 1994 on the ground of non-compliance of mandatory provisions and the grounds stated above, by order dated 7.2.2007 the writ petition was dismissed on other grounds which are factually disputed. It was specifically contended that no concession was made on behalf of the petitioner regarding non-retention of case land or regarding receipt of compensation. It was contended that no compensation has been received by the petitioner for the case land. On the contrary, it was argued, in case the case land vested with the State Government as ceiling surplus land, it could not have been settled with opposite party no.5 as a Bhag Chasi. Ceiling surplus land vests with the Government free from all encumbrances. Therefore, recognition of opposite party no.5 as Bhag Chasi on the basis of application under Section 36-A of OLR Act is illegal and untenable. 11. It was contended that petitioner’s contentions having not been dealt with and order having been passed on misconception, petitioner preferred W.A. No.11 of 2007 which was permitted to be withdrawn with liberty granted to the petitioner to file review petition. 12. In reply, Sri A. Mohapatra learned counsel for the opposite party no.5 submitted that while dismissing O.J.C.No.6709 of 1994 by order dated 7.2.2007 not only notice was taken of the observations of the Collector to the effect that in the meanwhile case land had vested in the State as the same was declared ceiling surplus land and the land owner has received compensation, but also of the submissions made on behalf of the petitioner that the case land was vested as ceiling surplus land in the State and the landlord had submitted his choice not to retain the case land. It was further argued that compensation in respect of the case land having already been received, there is no basis for the petitioner’s claim. 13. Admittedly, application under Rule 36-A of the O.L.R. Act filed by the petitioner was initially rejected by the Revenue Officer-Cum-Tahasildar on the ground that opposite party no.5 failed to substantiate his claim as Bhag Chasi. It is also evident from the order dated 6.12.1979 passed in Revision Case No.145 of 1977 extracted above that the proceeding was remanded by the R.D.C. on the basis of categorical finding that provisions under Rules 27-B and 27-C of the Rules were not complied with by the Revenue Officer-Cum-Tahasildar. Specific direction was issued to convene a meeting of the local committee. Remand order was not to hold a de novo enquiry. On the contrary, specific direction wasthat after compliance of provisions under the above stated Rules, Revenue Officer-Cum-Tahasildar was to “come to the finding keeping in view evidence on behalf of the petitioner and during local inquiry collected earlier.” The order has attained its finality. 14. In Kalicharan Paikaray –vrs.- Benga Bewa(supra) it has been pointed out that because of the far-reaching consequences that ensue from a determination under section 36-A, safeguards have been built into the rules regulating proceedings under the said section . 15. Rule 27-A provides that application under section 36-A shall be made in Form No.19. 5 Rule 27-B of the Rules reads: “(1) Before declaring the non-resumable land of the tenant under Section 36-A the Revenue Officer shall give a notice to the tenant and hear them. (2) A general notice shall also be served on the villagers of the village or villages in which the land situated inviting objections within a period of fifteen days from the date of issue of the notice to the settlement asked for by tenant. (3) The notice shall be served in the manner provided in Rule 4.” Rule 27-C of the Rules reads: (1) For the purpose of consulting local committee under Section 36-A, the Revenue Officer shall inform the members of the Committee of the date, time and place of its meeting by a notice specifying the matters for such consultation and the said notice shall be served seven clear days before the meeting. A copy of the notice signifying the service on the person concerned shall be retained by the Revenue Officer and shall form part of the case record. (2) The Revenue Officer shall consult the Committee in the meeting on the appointed day. (3) The proceedings of the meeting of Committee shall form part of the proceeding under Section 36-A. (4) If consultation with the Committee on the appointed day is not possible due to absence of the members or due to their disinclination or inability to express their opinion, the fact shall be recorded by the Revenue Officer and it shall thereupon constitute sufficient compliance with the requirement of consultation with the committee.” 16. Thus, a general notice is required to be served on the villagers of the village or villages in which the land is situated inviting objections within a period of fifteen days from the date of issue of the notice to the settlement asked for by tenant under Rule 27- B. That apart, for the purpose of consulting local committee Revenue Officer is required to inform the members of the committee of the day, time and place of its meeting by notice specifying the matters for such consultation and the said notice is required to be served seven clear days before the meeting. Sub-rule (4) of Rule 4 of the Rules provides the manner of service of general notice/proclamation. 17. In Kalicharan Paikaray –vrs.- Benga Bewa(supra) it has also been held that not only must notice be issued to the parties as arrayed and impleaded in the application, but a general notice is mandatorily required by Rule 27-B(2) to be served on the villagers of the village or villages in which the land is situated inviting objections within a period of 15 days from the date of notice to the settlement asked for by the tenant. The general notice is by way of a safeguard against collusive or mala fide applications. The notice is required to be served in the manner provided in Rule 4 of the Rules. The manner in which the provision relating to general notice has been framed in Sub-rule(4) of Rule 4 leaves no manner of doubt that institution of a proceeding under section 36-A should receive wide publicity. The provision exhibits the rule makers concern. The institution 6 must be proclaimed in the village and in presence of at least two villagers. It was further held that Rule 27-C prescribes in detail the mode of consultation with the local committee. Analyzed, the rule breaks into the following elements: (a) the consultation with the committee shall be in a meeting, (b) the members shall be intimated about the date, time and place of the meeting by a notice, (c) notice must specify the matters as regards which consultation is necessary and (d) the notice shall be served on the members seven clear days before the meeting. The two most essential features of the provision are that the members must be apprised a week before the meeting of the matter for consultation and that the consultation must be in a meeting of the members with the Revenue Officer. No other mode of consultation is permissible. 18. In Rabindra Kumar Badajena –v- Bichitrananda Khatei & others (supra) it has been reiterated that provision under Rule 27-C of the Rules is mandatory. 19. In view of the above, after the remand, it was incumbent upon the Revenue Officer-Cum-Tahasildar to comply with the provisions under Rules 27-B and Rule 27-C of the Rules before passing order on the application under section 36-A of the O.L.R. Act on the basis of evidence already available on record. 20. It appears that after the remand the case was taken up by the Revenue Officer on 13.2.80. The order dated 13.2.80 reads: “C.R. put up today. The petitioner Sri K.A.Khan is present. Shri S.K.Babu, Advocate files power for the petitioner. Perused the orders passed by the Revenue Divisional Commissioner(S.D.), Berhampur. The lower court’s orders have been set aside by the R.D.C.(S.D.), Berhampur and the case has been remanded for fresh enquiry on the ground that local committee members have not been consulted under rule 27(B) & (C). Issue notice to the local committee members of R.I.Circle, Khariar for their opinion and convene a meeting on 29.2.80. xxx” 21. Though meeting was convened on 29.2.80, the matter was taken up on 19.2.80. Order dated 19.2.80 of the Revenue Officer-Cum-Tahasildar reads: “Perused the order passed by the R.D.C.(S.D.) Berhampur, where in has set aside the orders of the lower courts and remanded the case to this court for fresh enquiry and disposal. The Revenue Divisional Commissioner observed in his judgment that the following procedure have not been followed by the Revenue Officer, while disposing the proceeding. (1) Proceeding of the meeting of the local committee has not been drawn up and attached to the record. (2) Individual notice was not been issued to the land holder(opposite party). (3) Proclamation inviting objection from the village has not been issued. 7 Accordingly, notices were issued to the following members of local committee to appear today. 1. Revenue Inspector, Khariar. 2. Sri Dharamsingh Majhi of Badi 3. Sri Purna Chandsra Panda of Khariar 4. Sri Kalia Harijan of Debahal. All the members are present in my court room and the meeting was held and proceeding drawn up and attached to the case record. Issue individual notice to Sri Satyabrata Deo, the land holder, to appear on 31.3.80. Issue proclamation inviting objection from the village giving 15 days time. Case to 31.3.80. xxx ” 22. Thus, admittedly, no general notice was issued to the villagers on 13.2.80 while convening meeting of the local committee on 29.2.80. Though notices were issued to the members of local committee by order dated 13.2.80, meeting of the members of the local committee was held on 19.2.80, i.e. before expiry of seven days from the date of issuance of notices. None of the members of the local committee appears to be resident of village Gadaramunda in which case land is situated. Shri Rao, learned counsel appearing for the petitioner brought to the notice of this Court order dated 25.6.94 in O.L.R. Revision case No.9 of 1991 and urged that specific contention was made before the Collector that notice was issued to the residents of village Chindaguda instead of Gadaramunda. Also finding of the local committee was in respect of Plot No.18 in case of case Plot No.60. It was also contended that in the revisional order under challenge in the writ petition, specific reference has been made to order dated 19.2.80. However, Collector, Nuapada rejected petitioner’s contention on the basis of presumption that Revenue Officer-Cum-Tahasildar was not likely to deviate himself from complying with the remand order of the R.D.C. 23. Thus, it is found that in allowing the application under Section 36-A of the OLR Act, the Revenue Officer-Cum-Tahasildar does not appear to have complied with the mandatory provisions under Rules 27-B and 27-C of the Rules. Petitioner’s grievance of non-compliance by Revenue Officer-Cum-Tahasildar of the remand order to comply with provisions under the said Rules and record finding on the basis of evidence collected earlier has not been considered in O.L.R. Ceiling Appeal No. 2 of 1989 and O.L.R. Revision Case No. 9 of 1991. 24. Also, petitioner’s contention of non-compliance of said provisions has not been referred to or dealt with in the order dated 7.2.2007 passed in O.J.C. No. 6709 of 1994. In passing the said order, sought to be reviewed in this proceeding, this Court appears to have been actuated solely by the submissions relating to petitioner’s choice not to retain the case land, and vesting of the case land with the State as ceiling surplus case land 8 and receipt of compensation by the petitioner. In doing so, the settled position of law, as pointed out in the decision of Hajari Jayasingh-vrs.-State of Orissa and others reported in 46 (1978) CLT (Notes 85) 43, that upon declaration of ceiling surplus land on vesting with the State application under Section 36-A of the OLR Act is not maintainable in respect of the land declared to be surplus,