Decided on September 12,1978

AMINA BIBI Appellant


R.N.Misra, J. - (1.) This writ application for certiorari was filed by a mother and her son who were petitioners 1 and 2 respectively. During the pendency of the application, the mother having died, the son has become the sole petitioner. The determination of the ceiling area in a suo motu proceeding under Section 42 of the Orissa Land Reforms Act (hereinafter referred to as the 'Act') and the decision of the appellate and the revisional authorities are assailed in this application.
(2.) It is unnecessary to examine the facts of the case as having heard learned counsel for parties at length we are inclined to take the view that the appeal preferred by the petitioners before opposite party No. 2 was within the period of limitation and the same should not have been thrown out as being barred by limitation and the appellate authority was obliged to dispose of the appeal on merit. We shall presently examine the question as to whether the appeal was barred or not barred by time.
(3.) The Revenue Officer (opposite party No. 1) initiated the proceeding by his order dated 22-2-1975 and Miscellaneous Case No. 113 of 1974 (O.L.R.) was registered. On 12-1-1976, the Revenue Officer directed issue of a revised draft statement. On 19-1-1976, the draft statement was signed and published. On 20th of Feb., 1976, the Revenue Officer directed re-issue of notice as he was not satisfied that the landholder had refused to accept notice as reported and required the objection to be filed on 28-2-1976. On the footing that no objection was filed by 28-2-1976, on 29-2-1976, the Revenue Officer made an order confirming the draft statement and directed publication thereof, as provided under Section 44 (1) of the Act. On 29-3-1976, he made the following order :- "Appeal period is over. No intimation of appeal if any filed is received. Prepare and publish a copy of the confirmed statement for a period of 15 days....." and posted the matter to 26-4-1976 on which date he recorded the following order :- "Confirmed statement duly published on 7-4-76. Fifteen days, the period of publication, is over. Issue final statement. Ask R.I. to report the Government dues if any outstanding against the landholder....." He directed the matter to be called on 18-5-1976. On 8-6-1976, he directed issue of notice to the petitioners as provided under Section 45-A (2) of the Act. The said notice was served on 15-6-1976 and the appeal was tiled on 21-61976. The appellate authority came to hold:- "This appeal arises out of the order dated 29-2-76 passed by the Revenue Officer, Surada, in O.L.R. Case No. 113/ 74 confirming the draft statement under Section 44 (1) of the O.L.R. Act. The appeal was filed on 21-6-76, Thus there has been delay of 113 days in preferring the appeal. No explanation has been offered why the appeal was not filed within the prescribed period of limitation as envisaged under Section 44 (2) (a) of the O.L.R. Act. Apparently the appeal is barred by limitation." After saying so, the appellate authority casually referred to certain features relating to merit of the matter and dismissed the appeal. Petitioner's revision before the Revenue Divisional Commissioner was disposed of by saying:-- "Heard the Advocate for the petitioner on point of admission. Perused the judgment of the lower court. The appeal before the lower appellate court is barred by limitation. The learned Advocate stated that in the trial court the son of Ahmed Hussain had only appeared. Shri S.K.C. Das pleaded that under Mahammadan Law appearance of son does not amount to appearance for the mother. In any case there was adequate notice on the party and he has participated in the proceedings of the trial court. I, therefore, see no reason why the limitation should be condoned. The revision is rejected. Advocate informed.";

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