Decided on November 02,1978



R.N.Misra, J. - (1.) Both the applications seek to quash proceedings taken under the Orissa Land Reforms Act for determination of ceiling surplus lands. Arda Juria died around 1961 leaving behind his widow (petitioner 5n O.J.C. No. 459 of 1978) and a son (petitioner in O.J.C. No. 458 of 1978) and a total area of about seventeen acres of land. After the mother and son lived together for some time, disputes arose between the mother and her daughter-in-law and petitioners maintain that on 10th of March, 1968 they effected an amicable partition in terms of Annexure 1. A suo motu proceeding was initiated under Section 42 of the Orissa Land Reforms Act (hereinafter referred to as the 'Act') for determining ceiling surplus lands and the draft statement was published on 30-11-1974. Petitioners maintain relying upon the order-sheet (Annexure-6) that by 31-12-1974, service return of the notice of publication of the draft statement had not been received. The Revenue Officer, therefore, ordered:- "..... It will be expedient if the notice would be issued on him through the P. S. ...... Invite objection from the O.P. giving 30 days' time, stating that the draft statement was published on 5-1-75, Put up on 4-2-75." On 4-2-1975, the Revenue Officer recorded the following order :- "The notice on the O.P. was issued on 15-1-75. No objection was received during the stipulated period. Therefore, the draft statement published earlier Is confirmed with the alteration regarding the number of family members. In the draft statement mother of the O.P. was included as a member of his family. But according to the recent clarification from the Board of Revenue, she should not be Included. Therefore, the total number of family members of the O.P. is 3. There is no alteration in the land schedule. Publish the confirmed draft statement tomorrow in the office notice beard for 30 days." Petitioners allege In their respective writ applications that by 4-2-1975, the notice of publication of the draft statement had not been served and without satisfying himself about such service, the Revenue Officer confirmed the draft statement. The fact of publication of the confirmed statement together with a certified copy of such statement as required under Rule 32(9) of the Orissa Land Reforms (General) Rules (hereinafter called the 'Rules') had not been sent to Murari in whose name the confirmed statement was ordered to be published. Having come to know about the development in the matter on 24-9-1975, petitioner in each of the cases applied for review, On 1-12-1975, the applications for review were rejected and appeal carried by each of the petitioners was dismissed on the ground of limitation such appeals having been filed beyond thirty days from the date of the original adverse order.
(2.) It Is contended on behalf of each of the petitioners that 9) in the absence of the statutory notice of publication of draft statement and in the further absence of compliance of Rule 32 (3) of the Rules, the entire proceedings are vitiated; (ii) certain alienations made prior to 1970 have not been taken note of and the ceiling area was determined taking such lands into consideration as belonging to Murari; (iii) partition having taken place prior to the relevant date, it was not open to the Revenue Officer to determine the ceiling area taking the entire extent into account; and (iv) the determination of classification of lands is erroneous and if opportunity had been given to the petitioners or at least to Murari, he would have been able to satisfy the Revenue Officer that the basis of classification was wrong and, therefore, the result was vitiated.
(3.) A counter-affidavit has been filed on behalf of the opposite parties by the Superintendent of Land Records of the Collectorate. It has been pleaded that the claim of partition advanced in the writ petition was not placed before the Revenue Officer. In fact, no objection was filed to the draft statement. In paragraph 9 of the counter-affidavit, it has been averred that Murari was aware of the proceeding as he had filed a petition on 31-12-1973 and had furnished a list of the members of the family on 4-7-1974 for the purposes of disposal of the proceeding. Notice of publication of the draft statement is claimed to have been served on 15-1-1975. In para 16 of the counter-affidavit, it has been asserted that before notice in the present proceeding and the order of stay were communicated from this court, the surplus lands on the basis of the impugned orders had been already distributed to some people whose names have not been disclosed,;

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