Kailasam, J. - (1.) This appeal is by the State of Orissa represented by the Secretary, Revenue Department, against the judgment of a Bench of the Orissa High Court on a certificate of fitness granted by it.
(2.) The respondent herein is a land-holder whose ceiling surplus was determined by the Revenue Officer under S. 43 of the Orissa Land Reforms Act, 1960, as amended by Act 13 of 1965 and subsequently by Act 29 of 1976. The Revenue Officer rejected the plea of the respondent that there was a partition between him and his sons and determined the surplus extent as 12.08 standard acres. The respondent preferred an appeal before the Sub-Divisional Officer and the Sub-Divisional Officer confirmed the order of the Revenue Officer and dismissed the appeal. Against the order of the appellate authority the respondent filed a revision before the Additional District Magistrate, Ganjam. The Additional District Magistrate held that the appellate orders under S. 44 were final and that no revision lay to him. The respondent thereupon filed a petition under Articles 226 and 227 of the Constitution challenging the order of the Additional District Magistrate rejecting the revision petition. A Bench of the Orissa High Court by an order dated 15th July, 1976, allowed the writ petition holding that the Additional District Magistrate had powers to revise the order of the appellate authority passed under S. 44 by virtue of the powers conferred on him under S. 59 of the Act. The High Court came to the conclusion that a revision was entertainable under S. 59 by the Additional District Magistrate even before the amendment introduced by Orissa Act 29 of 1976, the details of which will be referred to later.
(3.) The only question that arises in this appeal is whether an order passed by the appellate authority under S. 44 which has become final under S. 44 (2) is capable of revision by the Collector under S. 59 before the amendment of the Act in 1976. S. 44 runs as follows:- "44. (1) On the termination of the proceedings under S. 48, the Revenue Officer shall by order confirm the draft statement with such alterations or amendments as may have been made therein under the said section. (2) An appeal against the order of the Revenue Officer under sub-s. (1) confirming the statement if presented within thirty days from the date of the order shall lie to the prescribed authority and subject to the results of such appeal, if any, the orders of the Revenue Officer shall be final." Under S. 44 (1) the Revenue Officer confirms the draft statement and under S. 44 (2) an appeal lies to the prescribed authority against the order under sub-s. (1) and subject to results of such appeal, if any, order of the Revenue Officer shall be final. S. 58 provides a right of appeal to any person aggrieved by an order passed under any of the sections enumerated in sub-s. (1). As the decision in this case will depend upon the construction that is put upon S. 59 we extract S. 59 (1) and (2) in full. "59. Revision: (1) The Collector may revise any order passed in appeal by any officer below the rank of a Collector under this Act and the Board of Revenue may revise any order passed by the Collector under this Act and the period of limitation for such revision shall be as may be prescribed. (2) For the purposes of sub-s. (1) the Collector or the Board of Revenue as the case may be may suo motu or on application of either party or any interested person call for and examine the record of any matter in respect of any proceedings under this Act as to the regularity of such proceedings or the correctness, legality or propriety of any decision or order passed thereon and if in any case it appears that any such decision or order shall be modified, annulled, reversed or remitted for reconsideration, the Collector or Board of Revenue as the case may be, may consider accordingly." Sub-section (1) provides that the Collector may revise any order passed in appeal by any officer below the rank of a Collector under this Act. It also empowers the Board of Revenue to revise an order passed by the Collector under the Act. Sub-section (2) enables the Collector or the Board of Revenue suo motu or on the application of the party concerned call for and examine the record in respect of any proceedings under the Act and modify, annual, reverse or remit for reconsideration such a decision to the lower authority. The section as it stands does not put any restriction on the power of revision by the Collector or the Board of Revenue for it states that the Collector or the Board of Revenue may revise any order passed under this Act which would include an order passed under S. 44 (2). Again sub-s. (2) of S. 59 provides that the Collector or the Board of Revenue may examine the record of any matter in respect of any proceedings under the Act which would include the procedings under S. 44 (2).;