SANJU PANDA, J. W.P.(C ) NO.2077 OF 2009 (Decided on 10.08.2011) DR. SUDHANSU SEKHAR RATH ……...Petitioner. .Vrs. STATE OF ORISSA & ORS. ……..Opp.Parties. ORISSA LAND REFORMS ACT, 1960 (ACT NO.16 OF1960) – Ss. 40-A, 42, 43. For Petitioner - M/s. Pramod Ku. Routray, B.G.Mishra, N.K.Deo, A.Routray & J.Bhuyan. For Opp.Parties - Addl. Govt. Advocate (for O.P.1 to 5) [ S. PANDA, J. The petitioner has filed this writ petition challenging the orders of the Revenue authorities. 2. The brief facts of the case are that the petitioner is the purchaser of the disputed land appertaining to Khata No.289, Plot No.192, H3.200 out of H3.255 in Mouza- Nuagaon, District-Phulbani, Hal District- Kandhamal. He purchased the said land from opposite party no.6 by registered sale deed dated 12.7.1982 and is in possession of the same till date. 2.1 Admittedly, opposite party no.6 was the owner of the property referred to above along with other properties. The Tahasildar-cum-Revenue Officer, Baliguda initiated OLR (Ceiling) Case No.100 of 1999 in the name of opposite party no.6 basing on the report of the Revenue Inspector, Nuagaon. It was found that he was the owner of an area of H24.280R of land including house site of H0.370 R. On conversion to standard acres, it comes to A16.39 acres as per the Orissa Land Reforms Act (in short, “the Act”). Accordingly, Ac.6.39 standard acres of lands were declared as ceiling surplus. Admittedly, the possession of the ceiling surplus land had not been taken by the authorities as required under Section 45-A of the Act. The said surplus land was not in possession of opposite party no.6. 2.2. After coming to know about the initiation of the ceiling proceeding, the petitioner appeared before the Revenue Officer praying for exclusion of the land from the ceiling surplus area and keeping the said area in the retention area of the land- holder as the land-holder had taken the benefit of the said land and appropriated the consideration amount. The petitioner being a bona fide purchaser should not be deprived of the said land as the land-holder did not disclose anything at the time of sale as required under the Transfer of Property Act. The Tahasildar rejected the claim of the petitioner by order dated 23.12.2000 in OLR (Ceiling) Case No.100 of 1999 on the ground that the draft statement was issued to the ceiling surplus land-holder and the copy of the same was also published through beat of drum inviting objections from the parties/public involved, affected or interested within the stipulated period. As no objection was filed by ceiling surplus holder or anybody/public, the draft statement so issued had been confirmed on 18.3.2000 declaring the lands measuring H.10.330 (S.A.6.39 or Ac.25.82) including the objected plot No.192 as ceiling surplus land. The confirmed draft statement was published keeping a period of fifteen days for inspection of the confirmed draft statement free of charge by any person interested, involved or affected. After completion of publication period, the ceiling surplus land had been vested with the Government on 15.5.2000. The ceiling surplus land-holder was asked to hand over the possession of the ceiling surplus land. As ceiling surplus land-holder failed to comply with the court’s order, the possession of the ceiling surplus land had been taken over through Revenue Inspector, Nuagaon. As per the order dated 28.6.2000, the ceiling surplus land was taken to the Government Khata and the record-of-rights was corrected accordingly. Now a separate lease proceeding, i.e., OLR Lease Case No.4 of 2000 had been opened for distribution of the ceiling surplus land among the landless beneficiaries. The Tahasildar rejected the objection filed by the objector on the ground that there was no sufficient ground or reason to accept or appreciate the prayer of the objector regarding deletion of Plot No.192 measuring H.3.2000R from the ceiling surplus land at this belated stage. Being aggrieved by the said order of the Tahasildar, the petitioner preferred OLR Appeal No.1 of 2001 before the Sub-Collector, Baliguda. However, the appellate authority on 27.2.2001 dismissed the appeal holding that the responsibility lies on the ceiling surplus land-holder for option on condition of substitution of lands. Since the appellant failed to produce the ceiling surplus holder, it was not possible to identify encumbrance free land in the absence of ceiling surplus holder who had failed to turn up despite three chances given to him. Against the order of the appellate authority, the petitioner filed OLR (Ceiling) Revision No.5 of 2001 before the Addl. District Magistrate, Kandhamal. The revisional authority by order dated 25.4.2003 held that since the ceiling surplus land- holder had transferred the land after the cut off date i.e. 26.9.1970, the transfer is void. Against the said order, the petitioner preferred revision bearing OLR (RC) No.1 of 2004 before the Revenue Divisional Commissioner (Southern Division), Berhampur. As the revision was not maintainable, the same was withdrawn. Thereafter, OLR Revision No.8 of 2006 was filed before the Commissioner, Land Reforms, Orissa, Cuttack praying to refer the matter to the Board of Revenue. The Commissioner, Land Reforms held that the petitioners being a well to do person no reference was possible to be made either in the eye of law or in the interest of natural justice. Hence this writ petition. 3. Learned counsel for the petitioner submitted that the disputed land is in possession of the petitioner from the date of purchase till date and no attempt has yet been taken by the Revenue authority to take possession of the same from him as per law. From the facts narrated above, it would be clear that the ceiling surplus land-holder has not given his option to retain the land of his choice. Since the proceeding was initiated by the Revenue authority after the petitioner purchased the land, the Revenue officer should have included the disputed land within the ceiling limits area of the land- holder. In support of his contention, he cited an unreported decision of this Court in OJC No.542 of 1979 (Samanta Narayan Srichandan Mohapatra vrs. Tahasildar, Banki and others disposed of on 4.7.1985) wherein it is held that while calculating the ceiling surplus land, the transferred land by the ceiling surplus land-holder after 26.9.1970 i.e. the cut off date, is to be retained in his retention area and for balance land he is to exercise his choice. In view of the said decision, the orders of the Revenue authorities are liable to be set aside. 2 4. Learned Standing Counsel for opposite parties 1 to5 submitted that since the land was transferred after the cut off date, the Revenue authorities rightly rejected the plea of the petitioner. Therefore, the impugned orders need not be interfered with. 5. Notice was issued to the ceiling surplus land-holder, opposite party no.6. The service return has been received after valid service as it appears from the office note dated 3.11.2009. But the said opposite party no.6 has chosen not to appear in the present writ petition. 6. From the above description of facts, it appears that the ceiling proceeding was initiated by the Revenue authority in the year 1999. The land-holder did not exercise his option as provided under Section 40-A of the Act Further, the ceiling surplus land, as directed by the Revenue authorities, was also not taken into possession physically though the order was passed to that effect. The land-holder also did not participate in the ceiling proceeding. Therefore, the Revenue authorities suo motu carved out the area as ceiling surplus area. It is to be considered, in the present case, whether the petitioner was a bona fide purchaser and whether the decision of the Revenue authorities was justified in the facts and circumstances of the case when the petitioner suo motu appeared before the Revenue authorities and filed his application to include the disputed land within the ceiling limits of the land-holder. 7. No doubt, the Act came into force on 26.9.1970 i.e. the cut off date, and by that date, the land-holder was in possession of more than the ceiling area. Therefore, the excess area is to be vested with the Government after initiation of the ceiling proceeding. 8. The land-holder was debarred from alienating/transferring the land after the said cut off date and his ceiling area is to be determined taking into consideration the cut off date. The Act also provides that the land-holder has to exercise his option to retain the land of his choice. Therefore, the land- holder is duty bound to appear before the Revenue authorities in the ceiling proceeding for exercising his option to retain the land of his choice. Simultaneously, the Revenue authorities have to consider that the land- holder has not taken any benefit out of the transferred land even after the cut off date, if he has alienated or transferred the land. In case the transferred land is not included within the retention area of the land-holder, the land-holder will take benefit of his own wrong and the land-holder should not be entitled to double benefits. 9. In the case of Sahadev Nayak and after him Gundicha Nayak v. State of Orissa and others reported in 1990(II) OLR 199 (F.B), the Full Bench of this Court has held that a person who has not filed his return under Section 40-A of the Orissa Land Reforms Act, 1960 can claim to have a right of option and choose the land to be retained by him after determination of the ceiling by Revenue Officer in exercise of power conferred under Section 43 of the Act. Thus, the option can be exercised not only in suo motu proceeding but also at any stage in view of the Circular of the State Government bearing No.46458-Re. 256/76-R dated 17.6.1976. In the said circular, it is also clarified on the subject of review of cases in which selection of land to be retained within the ceiling has not been made by the surplus land owner. Paragraph-3 of the said Circular reads as follows: 3 “According to the first Proviso to Sec.40-A(1) of the Act, the right to indicate the parcels of land to be retained within the ceiling is denied to a land-owner only if he has transferred or partitioned any land in violation of provisions of Sub-sec.(1) of Sec.40. In the other cases, the option of selecting the lands to be retained within the ceiling rests with him.” (Emphasis supplied) 10. In the case of Nares Chandra Tripathy v. Revenue Officer-cum-Additional Tahasildar, Angul and others reported in Vol. XLIV (1977) CLT 449, this Court has held that the jurisdiction of a revisional authority is not fettered by any limitation. In fact, as has been universally accepted, a revision as provided under the Statute is wide in its amplitude and the revisional authority has full power to pass appropriate order for ends of justice. The State Government itself in realization of the fact that the administration of the Land Reforms Act was not being done properly has issued a Circular, reference to which has already been made, that at any stage and even after the land is vested in Government, the land-holder is entitled to exercise his option on condition of substituting lands. 11. In view of the aforesaid decisions, it can be summed up that even after the land is vested in Government, the land-holder is entitled to exercise his option on condition of substituting the lands. Therefore, the land-holder is entitled to exercise the said option regarding exchange of land as the Government circular has stated that in case land- holder transferred the land after the cut off date, he is not entitled to retain the land of his choice/option excluding the said transferred land from the ceiling area. 12. The aforesaid view has been fortified by a Division Bench of this Court in OJC No.542 of 1979 disposed of on 4.7.1985 (Samanta Narayan Srichandan Mahapatra v. Tahasildar, Banki and others). In paragraph-4 thereof, it is indicated as follows: “4………..Section 40-A clearly provides that the land-holder has got a right to indicate the parcels of land which he wishes to retain and the parcels of land in excess of the ceiling and furnish the same in the return. We find that the rejection of the claim of the petitioner that he has got the right of selection of the lands within the ceiling limit apart from the lands he has sold away after the appointed date is not justified and is contrary to the provision of law.” 13. Therefore, in the present case, the decision of the Revenue authorities, excluding the land from the retention area of the ceiling surplus land-holder, is bad and liable to be set aside. 14. Hence, this Court sets aside the impugned orders of the Revenue authorities and remits the matter back to the Tahasildar, Baliguda to consider the case of the petitioner afresh in the light of the decision made in the above paragraphs. The writ petition is accordingly allowed. Writ petition allowed. 4