Full Judgment Text
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PETITIONER:
STATE OF ORISSA & OTHERS
Vs.
RESPONDENT:
COMMISSIONER OF LAND RECORDS & STATEMENT, CUTTACK & OTHERS
DATE OF JUDGMENT: 27/08/1998
BENCH:
S.B. MAJMUDAR, M. JAGANNADHA RAO.
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
M.JAGANNADHA RAO, J.
The main point that arises for consideration in these
appeals is whether the delegate of the revisional powers of
the Board of Revenue, Orissa under an Act of 1958 can also
exercise the general powers of review conferred on the Board
under an earlier Act of 1951. Incidentally the question
arises whether the order of the delegate is to be treated as
the order of the Board or as an order of the delegate in his
own right and whether the Board can revise or review the
order of the delegate?
In both these appeals, the State of Orissa, the
officials of the Forest Department and the District
Collector of the area-concerned, are appellants. The 1st
respondent is the Commissioner of Land Records & Settlement,
Cuttack (hereinafter called the ’Commissioner’). The second
respondent is the vendee from the 3rd respondent. The 3rd
respondent is the person in whose favour entries were made
in the record of rights in the settlement of 1956 and in
whose favour the revenue authorities granted patta.
The Commissioner, to whom the revisional powers of the
Revenue Board under section 15 of the Orissa Survey and
Settlement Act, 1958 (hereinafter called the ’Act of 1958’)
were delegated, initially passed orders in favour of the
Forest Department on 28.7.1981 setting aside the entries in
the name of the 3rd respondent’s father in the record of
rights. He treated the land as Reserved Forest. But his
successor-commissioner passed the latter order dated 19.6.85
setting aside the order dated 28.7.81 of his predecessor,
while purporting to exercise powers of review of the Board
of Revenue conferred by a general Statute, namely, the
Orissa Board of Revenue Act, 1951 (hereinafter called the
1951 Act). Under the latter order dated 19.6.1985 the
Commissioner restored the name of the 3rd respondent’s
father Mayadhar Singh and refused to treat the land as
Reserve Forest.
The latter order dated 19.6.1985 of the Commissioner
passed in review was challenged in two writ petition, one in
a public interest case filed by one Bhagaban Kamil Das
(O.J.C. 3662 OF 1987) and another in O.J.C. No.1485 of 1988
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filed by the State and its officers is the forest
Department. The High Court of Orissa dismissed both writ
petitions by judgment dated 8.1.1993. A review petition
filed in another OJC No.783 of 1983 relating to grant of
transit permits was dismissed on 9.3.1994 and the Forest
Department was directed to issue transport permits in favour
of 2nd respondent, the vendee from the 3rd respondent. The
main judgment of the High Court dated 8.11.1993 and the
order dated 9.3.1994 are challenged in these appeals wherein
special leave has been granted. Pending disposal of the
appeals the orders of the High Court have been stayed by
this Court on 13.1.1995 and stay has been continued by order
dated 17.7.1995.
The subject-matter in dispute is Ac.146.41 in
Binikapadar village and the land contains tree and forest
growth and is located in Khata No.4 of 1955-56 Settlement of
Mouze Binikapadar. This land according to the State and its
Forest Department is and is deemed statutorily to be part of
the Nehala Reserved Forest under the Kalahandi Forest
Division. The appellants contend that from 1942 and at any
rate from the date when the Indian Forest Act, 1927 was
amended by Orissa Act of 1954, the land is to be deemed to
be Reserve Forest and the 1956 Record of Rights entry in
favour of Mayadhar Singh treating the land as part of the
Revenue village is illegal and without jurisdiction and the
orders passed by the Commissioner on 19.6.85 in review are
also illegal and without jurisdiction.
The case of the appellants is as follows: The village
Binikapadar was no doubt a revenue-village to start with but
by 1922, on account of tiger menace in the area, it was
abandoned. There has been no human habitation ever since.
Even the 1971 Census Report and the notification (SRO 749 of
1983) dated 14.10.1983 issued under section 3 of the Orissa
Gram Panchayat Act, 1964 show that it was an uninhabited
village (UI). The village was described as abandoned in the
Dangarla Khasra and Zamindari Register of the Ex-State of
Kalahandi within Pragana Patbarka, Bhawanipatna, Sadar P.S.
area, as noted by the Dewan in his letter dated 5.6.1922
(Annexure-A), In the 1932 Settlement Records, it was
recorded on 15.5.1932 that the village of Binikapadar was an
’abandoned village’ even by the date of the previous
settlement due to tiger menace. It was also identified as
being located West of village Dengchuan. That it was so
abandoned was accepted by the Dewan in 26.8.1932 who agreed
that the village was ’lying waste’ (Annexure-B). After 1932
the then Ruler Sri P.K.Deo prepared working plans to include
earlier Dengarlos in the Reserved Forest by demarcation and
survey. In 1934-35, one such working plan was prepared by
Dr. H.F. Mooney and he recommended that the land in this
village Binikapadar consisting of Sal and bamboo be treated
as Reserved Forest. This recommendation was accepted by the
Ruler. This village was accordingly included in the total
area of 5760 acres of the Nehala Reserved Forest. The survey
of India Maps of the Government of India of 1936-37 for
Kalahandi State (Maps 65M/2)(Annexure-C) do not show
Binikapadar village at all. By superimposing the Estate
plans and these plans, it is clear that this area was
treated as waste and is lying to the West of Dengchuan
village. This area included in the reserve Forest in these
plans is none other than Binikapadar village and thus
absorbed into the Reserved Forest. Dr. Mooney’s report was
accepted by the Dewan on 5.12.1942 and by the Ex-Ruler Sri
P.K.Deo on 14.12.1942 (Order No.3104)(Annexure-E). Dr.
Mooney prepared further working plans in 1948. The above is
the case of the appellants.
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Sri P.N. Misra, learned counsel for the appellants
strongly relied upon the Orissa Amendment to the Indian
Forest Act, 1927 by Orissa Act XI of 1954 by which section
20A was inserted w.e.f. 21.5.1954. Under section 20A, it is
pointed out that apart from giving effect to any orders of
the ruler before merger in regard to inclusion of fresh
areas in the Reserved Forest, other lands even if they were
described either as ’forest land’ or as ’waste land’ in any
administration reports or working plans or registers, were
to be deemed to be reserve Forest land. The appellants
contend that because of the working plans and the reports
and the statutory ’fiction’ created by section 20 A, even if
the village was a revenue village before 1942, it became a
reserve Forest later in fact and in law under the Amending
Act of 1954. This fiction was also carried into the Orissa
forest Act, 1972. Once the revenue village consisting of
forest growth or waste land was deemed to be part of the
existing reserve Forest even if it be from 1954, the
settlement authorities could not have treated this as a
revenue village in 1956 and included the name of Sri
Mayadhar Singh in the record of rights. The village could
become a Revenue village again only by dereservation under
section 27 of the India Forest Act or under section 29 of
the Orissa Forest Act, 1972. In fact, on 14.3.1959, the
Forest Department issued notification treating this land as
forest land.
The learned counsel for appellants Sri P.N. Misra
further contended that in the Record of rights proceedings
initiated by the Revenue Department in 1949 which culminated
in 1956, the facts prior to 1949 were not taken into
account, that facts subsequent to 1949 were inadmissible and
were irrelevant, and that no notice was given to the Forest
Department when a Gountia patta was issued on 14.10.1950 in
favour of late Mayadhar Singh, father of respondent No.2.
Even clause 22 of that patta shows the existence of ’teak,
Sal, Bija, Sisu, Bandhan, Harida and Kusum trees’ by 1950 in
the village itself assuming that clause 23 thereof showed
the village to be a little away from the reserve forest near
the village. In view of the working plan of & reports prior
to 1954, was to deem this land in Binikapadar also as part
of the Reserve forest near the village, even if it was not a
part of the Reserve forest earlier. The entries of the
village in the records as ’waste land’ and the description
as such in the working plans and administrative reports
prior to merger, were sufficient for purposes of section
20A. There was no order of dereservation after 1954. There
has been no cultivation of lands ever since 1922. The above
pleas are raised on merits. Learned counsel contends that
the entries of 1956 in the record of rights were rightly
revised by the Commissioner on 28.7.1981 in exercise of suo
motu powers under section 15 of the Settlement Act, 1958
delegated to him. No Plea of unreasonable delay in the
exercise of suo motu revisional powers was raised before the
commissioner. The latter order of the successor-Commissioner
dated 19.6.1985 in favour of restoring the entries of 1956
is without jurisdiction for yet another reason, namely that
the Commissioner did not have any statutory powers of
review. His findings on merits on the question of possession
and incidentally on the question of title of Mayadhar Singh
and his order for restoration of 1956 entry in Record of
Rights are vitiated on account of non-consideration of the
above facts. In any event, the entries in Record of rights
are only of presumptive value and subject to final decision
by Civil Court. Now the suit of the State filed in 1991
(T.S.76/91) is pending in Civil Court and the findings in
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the review order are not binding on the Civil Court.
On the other hand, Sri T.L. Viswanatha Iyer, learned
senior counsel for respondents No.2 & 3 contended that the
land was part of the Revenue village of Binikapadar, that
the said character continued thereafter, that though public
notice was given in 196 by the Revenue Department the Forest
Department did not file objections and the settlement
proposals of 1956 were confirmed in favour of Mayadhar Singh
on 15.10.1963. Patta for occupancy rights was conferred on
that basis on Mayadhar Singh on 1.5.1973. The entries in the
Record of Rights of 1956 made by the revenue authorities in
favour of Mayadhar Singh were valid. These are the
submissions on merits. It was also contended that the
Commissioner wrongly interfered with the same in exercise of
his revisional powers under section 15 of the 1958 Act on
28.7.1981. It was contended that the successor-Commissioner
was entitled to exercise the powers of review vested in the
principal i.e. the Board of Revenue under section 7 of 1951
Act. The Commissioner, while exercising review powers, had
considered all the relevant facts and rightly set aside the
order of his predecessor dated 28.7.1981. Learned senior
counsel referred to several provisions of the 1958 Act, the
Rules & Regulations made thereunder as also the rules made
under the 1951 Act, in this connection. It was pointed out
that in the latter order dated 19.6.85 the Commissioner held
that there was no proper correlation between what was
declared as Forest land by the Ex ruler in 1942 and this
land in village Binikapadar. It was pointed out that this
land was rightly treated as part of the revenue village in
subsequent land-ceiling proceedings, (which are still
pending) and also in several orders passed by the High Court
in writ jurisdiction while granting transit permits to
respondent 2. The forest authorities were impleaded in those
proceedings before the High Court. Again, the Civil Court,
in the pending suit of 1991 filed by the State, had, at the
instance of the respondents, passed orders on 19.12.94
vacating the interim injunction orders passed earlier in
favour of the State. No doubt, the High Court had granted
stay in the public interest case.
In reply, the appellants’ counsel Sri P.N. Misra
contended that the orders of the High Court granting transit
permits and the order of the Civil Court vacating the
injunction were based on the latter orders dated 8.11.1993.
These orders have not reached any finality as the review
order of the Commissioner and the High Court judgment dated
8.11.1993 are in question before us now, and therefore the
latter orders of the High Court and Civil Court depend upon
the result of these appeals. In any event, all the orders
which treated the land as part of revenue village were
without jurisdiction as there was no dereservation order
after 1954.
In view of the above pleas on facts and law, the
following points arise for consideration:
(1) Whether the commissioner, to whom powers of revision of
the Board under sections 6D, 15, 25 and 32 of the Settlement
Act, 1958 were delegated, could exercise the powers of
review conferred on the Board by section 7 of the 1951 Act?
(2) Whether the orders passed by the Commissioner as
delegate of the Board of Revenue in respect of the Board’s
revisional powers under the 1958 Act could be revised by the
Board in exercise of its revisional powers under section 15
of the 1958 Act or reviewed under section 7 of the 1951 Act?
(3) Assuming that the commissioner while acting under the
1958 Act could exercise review powers under the 1958 Act,
whether it was competent for the Commissioner in his review
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orders dated 19.6.85 to go into factual issues concerning
title and possession in respect of which findings had
already been given in the earlier revisional orders of his
predecessor on 18.7.81?
(4) Whether the matters concerning title and possession as
recorded in the Record of Rights entries of 1956-57 can all
be left open for decision by the Civil Court in civil suit
T.S.76/91 now pending?
Points 1 & 2:
We shall initially refer to the relevant provisions of
the 1958 And 1951 Acts.
The 1958 Act:
Under sub-clause (a) of section 15 of the Orissa Survey
& Settlement Act, 1958, the Board of Revenue has suo motu
revisional powers conferred on it. That section reads:
"S.15:Revision by Board of Revenue:
The Board of Revenue may, in any
case, direct-
(a) of its own motion the revision
of any record-or-rights, or nay
portion of a record-of-rights, at
any time after the date of final
publication under section 12-B but
not so to affect any order passed
by a Civil Court under section 42.
(b)................................
...................................
...................................
...............
Provided that no such direction
shall be made until reasonable
opportunity has been given to the
parties concerned to appear and be
heard in the matter."
similar suo motu powers of revision are found in
section 6D, 25, and 32 of the said Act.
There is no dispute that by Notification of the
Government of Orissa (Revenue Department) dated 16.10.71 and
17.2.1972, the above revisional powers of the Board of
Revenue under section 6D, 15, 25 and 32 have been delegated
to the Commissioner, under section 33 of the Settlement Act,
1958. That section reads as follows:
"S.33:Delegation of Powers: The
Government may by notification.
delegate the powers of the Board of
Revenue to an Officer not below the
rank of Revenue Divisional
Commissioner."
Therefore, the Commissioner could, as delegate of the
Board, exercise revisional powers of the Board of Revenue
falling under section 15.
So far as the powers of review are concerned, it is
admitted that in the Settlement Act, 1958, there is no
provision vesting power of review on the Board of Revenue in
respect of orders passed by it under section 6D, 15, 25, &
32 of that Act. It is true in the Rules, namely Rule 43,
there is provision for review of orders passed by ’officers’
on ground of mistake or error apparent on the face of the
record. Having regard to the scheme of the Act and Rules and
the hierarchy of officers, it must be held that the word
’officer’ in Rule 43 cannot include the Board. In fact
section 32 confers powers of revision on the Board against
order of any ’officer’. Thus, ’officers’ referred to in Rule
43 are those subordinate to the Board of Revenue. Again, it
is also true Rule 3 which deals with ’conduct of proceedings
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under the Act’, states that proceedings conducted by every
’officer’, shall be summary and shall be governed, so far as
may be practicable, by the provisions of the Civil Procedure
Code. But even this Rule refers only to ’officers’ and not
to the Board of Revenue. Thus these provisions are not
helpful to conclude that the Board has review powers under
the 1958 Act/Rules.
The 1951 Act:
We have then to see if the 1951 Act confers such a
power of review on the Board or its delegate. Now section 7
of the Orissa Board of Revenue Act, 1951 refers to the
powers of review of the Board of Revenue, and reads as
follows:
"S. 7: Power of Board to review any
order: (1) The Board may review on
its own motion or on the
application of any person aggrieved
by any order of the Board, review
any order passed by itself and pass
such order in reference thereto as
it thinks fit."
Thus this Act of 1951 clearly confers powers of review
on the Revenue Board. Rule 5 of the Orissa Board of Revenue
rules, 1959 states that while hearing matters under the
provisions of Rules 3 and 4, the Board shall be deemed to be
a Court and it shall give its decision in the form of a
judgment signed and sealed by the Member. Sub-Clause (xi) of
rule 9 permits the Board of Revenue to exercise the
functions relating to the ’conducting Survey and Settlement
and consolidation of Holdings operations’. The Regulations,
which are called the Board of Revenue Orissa Regulations,
1963 refer to the procedure relating to presentation of
review applications. Thus the Board of Revenue has powers of
review under the 1951 Act.
Whether Board can resort to section 7 of 1951 to review
its revisional order passed under the 1958 Act?
It is, at the outset, important to note that there is
no power in the said 1951 Act enabling delegation of the
power of review vested in the Board of Revenue to any other
authority. Nor is there, as stated earlier, any express
provision of review by the Board of Revenue in the
Settlement Act, 1958.
Question arises whether, in such a situation, the Board
can resort to its powers of review under section 7 of 1951
Act for reviewing orders passed under the 1958 Act in
revision under section 6D, 15, 25 and 32?
For deciding the above issue, it is necessary notice
that the 1951 Act is a general statute dealing with powers
of Board of revenue and not a special statute dealing with
land and rights annexed thereto. The Board of Revenue Act,
1951 is an act intended to constitute a Board of Revenue for
the State of Orissa. The Act repeals earlier statutes of
different States operating in various parts of Orissa, -
namely, the Bihar and Orissa Board of Revenue Act, 1913, the
Madras Board of Revenue Act, 1894, the Madras Board of
Revenue Regulation, 1803 and the Orissa Revenue
Commissioners’ (Regulation of functions) Act, 1948. Learned
senior counsel for the respondents Sri T.L.Viswanatha Iyer
has taken us through the above four statutes and pointed out
that these Acts related only to the constitution of the
Boards of Revenue or creation of posts of commissioners,
Northern Division and Commissioner of Excise or Food
commissioner and that they do not deal with any rights
relating to land. Thus in 1951 a new Revenue Board has been
created for Orissa. Section 3 of the 1951 Act deals with
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’construction of references to former Boards’, Section 4
refers to the duties of the Board, Section 8 deals with the
administrative functions of the Board and section 10 with
the ’jurisdiction of the Board’. Section 10 states that the
Board of Revenue for Orissa, as constituted under section 2
shall have, in respect of the territories for the time being
included in the State of Orissa, all such original,
appellate and other jurisdictions as under the law in force
immediately before the date of commencement of the 1951 Act
- [as amended by the Orissa Board of Revenue (Amendment)
Act, 18 of 1957] - is exercisable in respect of the said
territories or any part thereof by the Revenue Commissioner,
Orissa and the Commissioner, Northern Division - functioning
as a Board of Revenue. The reference to the "laws in force’
is mere] reference to the four statutes referred to above
which were repealed under the 1951 Act and which dealt with
Board of Revenue or Officers of equal rank. A look at these
four statutes would show that those statutes did not relate
to the rights of the agriculturists, or of landlords and
tenants nor to record of rights, nor survey or settlement.
Those matters were governed naturally by the special revenue
statutes even before 1951, in the various territorial
regions of the State of Orissa.
The State legislature wanted to consolidate the laws
relating to survey, settlement and record of rights and for
that purpose passed the Settlement Act, 1958. by that Act,
several earlier statutes which occupied the field of survey,
settlement and record of rights - namely, the Bengal Survey
Act, 1875, the Madras Survey and Boundaries Act, 1923, the
Madras Estates Land Act, 1908, the Orissa Tenancy Act, 1913
(ch. XI & XII), the CP Settlement Act, 1929, the CP Tenancy
Act, 1898, the CP Tenancy Act, 1920, the CP Land Revenue
Act, 1881, the CP Land Revenue Act, 1917 and the Bihar and
Orissa Municipal Survey Act, 1920 (to the extent mentioned
in the schedule of the 1958 Act) - were all repealed. Now
under those statutes, the concerned Board of Revenue or
Commissioner (Northern Division) etc. were exercising
revisional powers before 1958. Those powers were transferred
to the newly constituted Board of Revenue under the 1951
Act. Under the 1958 Act, so far as revisional powers of the
Board were concerned, they were incorporated in sections 6D,
15, 25 and 32 of the 1958 Act.
Between 1951 and 1958, the revisional powers exercised
by the Board under various statutes were certainly
reviewable by the Board under section 7 of the 1951 Act.
Likewise, after 1958, the Board - if it passed any orders
under sections 6D, 15, 25 and 32 of the 1958 Act - those
orders became reviewable by resort to section 7 of the 1951
Act. That is how the Revenue Board, when it exercised powers
of revision under the 1958 Act, became entitled to review
those orders by resort to section 7 of the 1951 Act.
Learned senior counsel for the respondent, Sri T.L.
Vishwanatha Iyer argued that the same conclusion can be
reached by the application of another well-known principle,
namely, that if a Court is constituted by law and matters go
before it under a special law, then that Court can also
exercise various other general powers attached to that Court
by other statutes. In National Sewing Thread Co. Ltd.,
Chidambaram vs. James Chadwick & Bros. Ltd. [AIR 1953 SC
357] it was held by this Court that once a matter under the
Trade Marks Act, 1940, comes before the High Court, the
powers available to the High Court under Letters Patent can
also be exercised by the High Court to correct errors in
orders passed by learned single Judges of that Court. The
same principle, it is contended, will apply to quasi-
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judicial tribunals also. Once the revision goes to the Board
under section 15 of the 1958 Act, the Board can, it is
contended, exercise its review powers under the 1951 Act.
This submission, in our view, is correct and is required to
be accepted as an additional ground to support the review
powers of the Board.
Thus, the Board would be certainly entitled to exercise
review powers under section 7 of the 1951 Act in respect of
orders passed in its revisional jurisdiction under sections
6D, 15, 25, and 32 of the 1958 Act. To this extent we
approve the judgment of the Orissa High Court in Ramakanta
alias Ramesh Chandra Jagdebrai & Another vs. Gaji Pratap
Singh & Others [1974 (40) Cuttack Law Times 917].
Can the Board revise orders passed by its delegate, the
Commissioner?
We have to note that the Commissioner when he exercises
power of the Board delegated to him under section 33 of the
Settlement Act, 1958, the order passed by him is to be
treated as an order of the Board of Revenue and not as that
of the Commissioner in his capacity as Commissioner. This
position is clear from two rulings of this Court to which we
shall presently refer. The first of the said rulings is the
one decided by the constitution Bench of this Court in Roop
Chand vs. State of Punjab [1963 Suppl. (1) SCR 539]. In that
case, it was held by the majority that where the State
Government had, under section 41(1) of the East Punjab
Holdings (Consolidation and Prevention of Fragmentation)
Act, 1948, delegated its appellate powers vested in it under
section 21(4) to an ’officer’, an order passed by such an
officer was an order passed by the State Government itself
and "not an order passed by any officer under this Act"
within section 42 and was not revisable by the State
Government. It was pointed out that for the purpose of
exercise of powers of revision by the State under section 42
of that Act, the order sought to be revised must be an order
passed by an officer in his own right and not as a delegate
of the State. The State Government was, therefore, not
entitled under section 42 to call for the records of the
case which was disposed of by an officer acting as its
delegate.
A like question came up for consideration before a
Bench of this court in Behari Kuni Sahari Awas Samiti &
Another vs. State of U.P. & Others [1997 (7) SCC 37] to
which one of us (Majmudar,J.) was a party. In that case the
Custodian General under the Administration of Evacuee
Property Act, 1950 acting under section 55 could delegate
his powers to the Deputy or Assistant Custodian General. The
Custodian passed an order on 11.11.1982 and submitted the
same for approval of the Assistant Custodian - the delegated
authority. The latter approved the same. Against the said
order of approval passed by the delegate, the State of U.P.
filed a revision under section 27 of the Act before the
custodian General. The Custodian General held that he could
not pass any order as the impugned order was one passed by
his delegate. The High Court disagreed with that view and
remanded the case to the Custodian General. This Court
allowed the appeals and held the Custodian General was
right in holding that the revision to him under section 27
was incompetent. It was held that if a revision were to be
entertained, it would tantamount to exercising a power of
review which did not flow from section 27. In that case,
this Court followed Roop Chand vs. State of Punjab (supra).
The basis of the above cases is that the order of the
delegate is to be treated, for all intents and purposes, as
an order of the principal itself here, the Board of Revenue
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and hence the Board cannot revise an order passed by the
delegate, the Commissioner.
Can the Board review an order passed by its delegate,
the Commissioner?
It may be argued that if the order of the delegate is
tantamount to the order of the principal, then the principal
can review such an order of the delegate. This appears to be
plausible at first blush but is. in our opinion, not correct
because of the intervention of another fundamental principle
relating to ’review’ of orders. The important principle that
has to be kept in mind here is that a review application is
to be made only to the same Judge or if he is not physically
available to his successor.
The decision of the Privy council in Maharajah Maheshur
Singh vs. The Government of India [7 M.I.A. 283 (PC)] = [3
Sutherland Weekly Reporter, p.45] (p.c. decisions to which
reference was made by learned senior counsel Sri T.L.
Vishwanatha Iyer is very apt in this connection. Adverting
to the basic concept of review, it was observed by the Privy
Council (p.47):
"It must be borne in mind that a
review is perfectly distinct from
an appeal; that is quite clear,
from all these Regulations that the
primary purpose of granting a
review was re-consideration of the
same Judge, as contra-distinguished
to an appeal which is a hearing
before another tribunal."
Their lordships added:
"We do not say that might not be
cases in which a review might take
place before another and a
different Judge; because dealt or
some other unexpected and
unavoidable cause might prevent the
Judge who made the decisions from
reviewing it: but we do say that
such exceptions are allowable only
ex necessitate. We do say that in
all practicable cases, the same
Judge ought to review..."
It is, therefore, clear that the same Judge who
disposes of a matter, if available, must "review" the
earlier order passed by him inasmuch as he is best suited to
remove any mistake or error apparent on the face of his own
order. Again he alone will be able to remember what was
earlier argued before him or what was not argued. In our
opinion, the above principle is equally applicable in
respect of orders of review passed by quasi-judicial
authorities.
In the light of the above, it is therefore clear that
the Board of Revenue which never heard the case cannot
review the order of the Commissioner, its delegate, passed
under section 15 of the 1958 Act. In fact, if it does so,
that will amount to the exercise of an indirect power of
revision by the Board which is not permissible in the light
of the ruling sin Roop Chand’s case and case in Behari Kunj
Sahakari Awas Samithi referred to above.
Before we go into the question of review powers of the
delegate, we shall summarise the result of the above
discussion. Firstly if the Board has passed an order in
revision under sections 60. 15, 25 and 32 of the Settlement
Act, 1958 it can resort to section 7 of the 1951 Act to
review its own order. If the Government has delegated the
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revisional power of the Board under the sections 6D, 15, 25
and 32 to the Commissioner by vi of section 33 of the 1958
Act, then the delegate, the commissioner when he exercises
those powers of the Board and passes orders, those powers of
the Board and passes orders, those orders will have to be
treated as orders of the Board of Revenue and will not be
revisiable on the principle that the Board cannot revise its
won orders. Those orders passed by the delegate are also no
reviewable by the Board because it was not the Board that
passed the orders.
Can the delegate, the Commissioner, exercise the review
powers of the Board under the Act of 1951. in respect of
orders passed in revision under the 1958 Act?
This is the crucial question. We have noticed that the
Board of Revenue, if it has itself passed orders in exercise
of its revisional jurisdiction under the 1958 Act, it can
review those orders by resort to section 7 of the 1951 Act.
Can this power be denied to the delegate?
It may be noticed that if the delegate, the
Commissioner is to be denied such a facility to correct
obvious errors in the orders passed by him under sections
6D, 15, 25 and 32 of the 1958 Act as delegate of the Board’s
revisional powers, a serious anomaly can arise.
Now it is well settled that the principal does not lose
his powers merely because those powers have been delegated
to another body. Take a case where in respect one piece of
land, the Board itself exercises revisional jurisdiction
under the 1958 Act. Take another case of the very adjacent
land where the Board’s delegate, commissioner exercises
revisional jurisdiction of the Board. If the appellants’
contention is to be accepted then a review will lie only in
the former case and not in the latter. This will be
anamolous and may even give scope for a plea of
discrimination. Further if a superior authority is enabled
to correct its obvious mistakes on the premise that
sometimes it decisions can go wrong, the need fro denying
the same facility of correction -to an officer immediately
below in the hierarchy does not appear to be logical. We,
therefore, hold that the Commissioner while exercising
revisional powers of the Board under the 1958 Act is also
certainly clothed with the review powers of the Board under
section 7 of the 1951 Act. In other words, when the delegate
personifies his principal and his orders are to be treated
as orders of his principal, all other powers attributable to
the personality which he personifies, will be exercisable by
him.
Thus the appeals cannot be allowed on the ground that
the commissioner could not have exercised powers of review.
points 1 and 2 are decided against the appellants and in
favour of the respondents Nos. 2 and 3.
Points 3 and 4:
The first question here is as to the scope of the power
of review of the Board under section 7 of the 1951 Act.
The Board of Revenue while reviewing earlier orders
passed in exercise of jurisdiction under sections 6d, 15, 25
and 32 is certainly not acting as an appellate authority but
is acting only as a revisional authority. It is true that
section 7 of the 1951 Act which is the source of the power
of review states that the Board may ’review’ its orders and
’pass such orders in reference thereto as it thinks fit’. We
are aware that this Court has held, while explaining the
words ’as it thinks fit’, that those words are to be given a
wide meaning. But in the context of review jurisdiction
these words cannot, in our opinion, be treated as equal to
an appellate or even revisional jurisdiction. Particularly
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when we are dealing with review of orders passed in
revisional jurisdiction, it is obvious that the review power
should be something less than the revisional jurisdiction.
We have noticed that under Rule 43 of the Rules made under
the 1958 Act, the ’officers’ who are conferred powers of
review can exercise them only in case of ’mistakes or errors
apparent on the face of the record’. In our considered
opinion, the Board’s review powers under the 1951 Act are
also intended for correction of ’mistakes or errors apparent
on the face of the record’. On that basis the powers of the
Board’s delegate, namely the Commissioner, while exercising
review powers of Board under the 1951 Act, must be held to
be equally circumscribed. We disagree in part with the
decision of the Orissa High Court in Ramakanta (supra) when
it stated that the power of revision under section 7 of the
1951 Act is wider than Order 47 Rule 1 CPC.
Proceeding on the above basis, we come to the last
point. The question is whether the Commissioner, while
passing his orders of review on 19.6.85, exceeded his powers
of review?
On this aspect we have heard learned counsel on both
sides elaborately. Most of the contentions on merits have
already been set out at the beginning of this judgment. It
is common ground before us that the suit T.S. No.76/91 filed
by the State, which is now pending, is not a suit merely to
set aside the entries in the record of rights. The suit by
the State is based on title and is not barred by sub-clause
(2) of section 29 of the 1958 Act nor by any other provision
of the Act or Rules. In such a situation, the question
arises whether this Court should express its views on the
merits of the contentions raised before us, - even in a
prima facie fashion. Any opinion that we might express is
likely to seriously prejudice the case of the appellants or
the case of the respondents in the suit. After considerable
deliberation we have decided that we should not go into the
merits of the contentions of the parties on title and also
on possession. We therefore leave open the finding given and
the observations made by the commissioner in his initial
order dated 28.7.1981 and also in his review order dated
19.6.1985. We also leave open the questions decided by the
civil Court in the pending suit T.S. 76/91 in accordance
with law on the basis of such evidence that may be produced
by the respective parties uninfluenced by the observations
of the High Court in the impugned judgment and also of the
Commissioner in the revisional and review order. We direct
accordingly.
In the meantime, that is, pending suit, the status quo
on the spot will be maintained by both parties and we
further direct that the tree and forest growth in the land
which is the subject matter of suit shall not be interfered
with by either of permitting the cutting of the trees or the
removal of the forest produce and there is equally no
question of transport thereof. The above restraint on both
parties shall be in force pending disposal of the suit.
points 3 and 4 are disposed of accordingly. The suit shall
be decided by the trial Court expeditiously and at any rate,
on or before 31.3.1999.
In the result, these appeals are disposed of in the
light of the above directions. There shall be no order as to
costs.