PETITIONER:
STATE OF ORISSA AND ORS.
Vs.
RESPONDENT:
ARAKHITA BISOI
DATE OF JUDGMENT14/04/1977
BENCH:
KAILASAM, P.S.
BEG, M. HAMEEDULLAH (CJ)
GUPTA, A.C.
CITATION:
1977 AIR 1194 1977 SCR (3) 556
1977 SCC (3) 242
ACT
Orissa Land Reforms Act, 1960 as amended by Act 13 of
1965 and Act 29 of 1976--Revisional powers u/s 59--Whether
an order passed by the appellate authority u/s 44 of the Act
which has become final u/s 44(2) is capable of revision by
the Collector u/s 59 before the amendment Act 29 of
1976--Construction of S. 59.
HEADNOTE
Under Section 43 of the Orissa Land Reforms Act, the
Revenue Officer determines the ceiling surplus and on the
termination of the proceedings thereunder, the Revenue
Officer u/s 44(1) confirms the draft statement; u/s 44(2) an
appeal lies to the prescribed authority against the order
under sub-section (1) and subject to results of such appeal,
if any, order of the Revenue Officer shall be final. Sec-
tion 58 provides a right of appeal to any person aggrieved
by an order passed under any of the Sections enumerated in
subsection (1). Sub-section (1) of S. 59 provides that the
Collector may revise any order passed in appeal by any
officer below the rank of a Collector under this Act.
Section 59(1) also empowers the Board of Revenue to revise
any order passed by the Collector. Sub-section (2) enables
the Collector or the Board of Revenue sue 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.
In the proceedings u/s 38 of the Act the plea of the
respondent landlord that there was a partition between him
and his sons was rejected by the Revenue Officer who deter-
mined the surplus extent as 12.08 standard acres. The appeal
preferred before the Sub-Divisional Officer having failed,
the respondent filed a revision before the Additional
District Magistrate. The Additional Magistrate held that
the appellate orders u/s 44 are final and that no revision
lay to him. The writ petition filed against this order
filed by the respondent was allowed by the Orissa High Court
by its order dated 15-7-1976 holding that the Additional
Magistrate had powers to revise an order of the appellate
authority passed u/s 44 by virtue of the powers conferred on
him under s. 59of the Act.
Dismissing the appeal by certificate, the Court,
HELD: (i) The language of S. 59(1) of the Orissa Land
Reforms Act is wide enough to enable the Collector to revise
any order including an appellate order under S. 44 of the
Act. [561 B]
(ii) In applying the rule of harmonious construction
with a view to give effect to the intention of the legisla-
ture the court will not be justified in putting a construc-
tion which would restrict the revisionary jurisdiction of
the Collector and the Board of Revenue. [560E]
In the instant case, the Act is of expropratory nature
and the determination of the excess lands is done by the
Revenue Officer. The legislature intended that any error or
irregularity should be rectified by higher authorities like
the Collector and the Board of Revenue. [560E]
J. K. Cotton Spinning & Weaving Mills Co. Ltd. v. State
of U.P. & Ors. [1961] 3 S.C.R. 185 held not applicable.
The Bengal Immunity Company Ltd. v. The State of Bihar &
Ors. [1955] 2 S.C-R.. 603 referred to.
(iii) It cannot be said that there is any conflict
between S. 44(1) and 8. 58 inasmuch as S. 44(1) provides
that the order of the Revenue Officer shall be final, sub-
ject to the result of appeal u/s 44(2), while no such final-
ity
557
is mentioned in the case of an appeal u/s 58. The provision
as to finality u/s 44(2) is provided for so that in the
absence of the aggrieved party proceeding further in the
matter, the consequences of the vesting of surplus lands u/s
45, the preparation of the Compensation Assessment Roll, the
settlement of surplus lands etc. can be proceeded with. [559
D-F]
(iv) The amendment to 8. 44(3) by the Amendment Act of
1975 making it clear that a right to revision is provided
for orders passed u/s 44(2) does not make any difference.
The amendment could not mean that S. 44(2) as it originally
stood did not provide for power of revision to the Collec-
tor’ u/s 59. [560 A-B]
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 903 of
1976.
Appeal from the Judgment and Order dated the 15-7-1976
of the Orissa High Court in OJ.C No. 698 of 1976.
G. Rath, Advocate General, Orissa, R.K. Mehta for the
Appellants.
Vepa Parthasarthy and C.S. Rao for Respondents.
The Judgment of the Court was delivered by
KAILASAM, J.--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 cer-
tificate of fitness granted by it.
The respondent herein is a land-holder whose ceiling
surplus was determined by the Revenue Officer under section
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, Gan-
jam. The Additional District Magistrate held that the
appellate orders trader section 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 Magis-
trate had powers to revise the order of the appellate au-
thority passed under section 44 by virtue of the powers
conferred on him under section 59 of the Act. The High
Court came to this conclusion that a revision was entertain-
able tinder section 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.
The only question that arises in this appeal is whether
an order passed by the appellate authority under section 44
which has become
9--502 SCI/77
558
final under section 44(2) is capable of revision by the
Collector under section 59 before the amendment of the Act
in 1976. Section 44 runs as follows :--
"44. (1) On the termination of the
proceedings under Section 43, 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-section (1 ) con-
firming 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 section 44(1) the Revenue Officer confirms the draft
statement and under section 44(2) an appeal lies to the
prescribed authority against the order under sub-section (1)
and subject to results of such appeal, if any, order of the
Revenue Officer shall be final. Section 58 provides a right
of appeal to any person aggrieved by an order passed under
any of the sections enumerated in sub-section. (1). As the
decision in this case will depend upon the construction
that-is put upon section 59 we extract section 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-section
(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 if 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 con-
cerned 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 if stands does not put any re-
striction 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
559
include an order passed under section 44(2). Again sub-
section (2) of section 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 proceedings under section 44(2).
The submission of the learned counsel for the appellant
is that the power of revision under section 59 is restricted
to an appeal that is disposed of under section 58 and is not
available against an order passed under section 44(2). The
learned counsel very strongly relied on the wording of
section 44(2) which provides that the order of the Revenue
Officer shall be final subject to the result of an appeal
provided under section 44(2) and therefore submits that no
other relief is available to the aggrieved party. The
learned counsel in contrast referred us to section 58 where
the order of the lower authority is not stated to be final
subject to the result of the appeal, As no finality is
provided for orders passed on appeal under section 58, the
submission was that a revision under section 59 is available
for those orders but orders passed under section 44(2) are
final and they are not subject to revision under section 59.
There is no doubt that section 44(1) provides that the
order of the Revenue Officer shall be final subject to the
result of an appeal under section 44(2) while no such final-
ity is mentioned in the case of an appeal under section 58.
But this cannot conclude the matter for the powers of revi-
sion conferred under section 59 are very wide and empowers
the Collector or the Board of Revenue to revise any order
passed under this Act and sub-section (2) empowers the
Collector and the Board of Revenue to set aside any irregu-
larity in respect of any proceedings under this Act. As the
power of revision is not restricted we are unable to accept
the contention of the learned counsel that because of the
wording of section 44(2) providing. that the order of the
Revenue Officer subject to the result of the appeal
would .be final, bars the revisionary jurisdiction of the
Collector and the Board of Revenue as provided under section
59. We do not find any conflict between the two sections
and the provision as to finality under section 44(2) is
provided for so that in the absence of the aggrieved party
proceeding further in the matter the consequences of the
vesting of surplus lands under section 45, the preparation
of the Compensation Assessment Roll, the settlement of
surplus lands etc. can be proceeded with.
The learned counsel drew our attention to the amendment
to the Orissa Act by Act 29 of 1976. The Orissa Land
Reforms (2nd Amendment) Act’, 1975, and submitted that the
amendments introduced to section 44, 45 and 59 would make it
dear that the legislature understood that the sections as
they stood before the amendment did not enable the Collector
to exercise revisional jurisdiction over orders passed by
the appellate authority under section 44(2) of the Act. By
the amending Act. section 44, sub-sections (2) and (3) are
amended. Sub-section (2) of section 44 as it originally
stood provided that subject to the result of such appeal, if
any, the orders of the Revenue Officer shall be final and
sub-section (3) provided that the draft statement as con-
firmed or as modified in appeal shall be final and con-
560
clusive. By the amendment sub-section (2) is recast and
sub-section (3) provides that the draft statement as con-
firmed or as modified in appeal on revision shall be final
and conclusive. The amendment specifically provides for a
revision. The amended sub-section (1) of section 59 pro-
vides that on an application by party aggrieved by any order
passed in an appeal under any provision of this Act filed
within the prescribed period, the prescribed authority may
revise such order. Though the amendment to section 44(3)
makes it clear that a right to revision is provided for
orders passed under section 44(2), we do not think that this
could mean that section 44(2) as it originally stood did not
provide for power of revision to the Collector under section
59. In our opinion, amendment does not make any difference.
The learned counsel for the appellant submitted that
section 44(3) is in the nature of a special provision and
should be construed as an exception to section 59 on the
principle of harmonious construction. In support of this
plea the learned counsel referred to the decision in The
J.K. Cotton Spinning & Weaving Mills Co. Ltd. v. State of
U.P. & Ors. (1). In construing the provisions of clause
5(a) and clause 23 of the G.O. concerned, this Court held
that the rule of harmonious construction should be applied
and in applying the rule the court will have to remember
that to harmonise is not to destroy and that in interpreting
the statutes the court always presumes that the legislature
inserted every part thereof for a purpose and the legisla-
tive intention is that every part of the statute should have
effect, and a construction which defeats the intention of
the rule-making authority must be avoided. This decision
does not help the appellant for in our view in applying the
rule of harmonious construction with a view to give effect
to the intention o(the legislature the court will not be
justified in putting a construction which would restrict the
revisionary jurisdiction of the Collector and the Board of
Revenue. It may be noted that the Act is of exproprietory
nature and the determination of the excess lands is done by
the Revenue Officer and on appeal by the Revenue Divisional
Officer. In such circumstances, it is only 13roper to
presume that the legislature i,tended that any error or
irregularity should. be rectified by higher authorities like
the Collector and the Board of Revenue. In our view it will
be in conformity with the intention of the legislature to
hold that section 59 confers a power of revision of an order
passed under section 44(2) of the Act. The learned counsel
next referred to a decision of this Court in The Bengal
Immunity Company Limited v. The State of Bihar and
Others.(2) The rule of construction is stated at p. 791 in
the following terms by Venkatarama Ayyar ,J. speaking for
the Court :--
"It is a cardinal rule of construction
that when there are in a Statute two provi-
sions which are in conflict with each other
such that both of them cannot ’stand, they
should, if possible. be so interpreted that
effect can be given to both, and that a con-
struction which renders either of them inoper-
ative and useless should not be adopted except
in the last resort. This is what is known as
the rule of harmonious construction. One
application of this rule is that when there
561
is a law generally dealing with a subject and
another dealing particularly with one of the
topics comprised therein, the general law is
to be construed as yielding to the special in
respect of the matters comprised therein."
Construing section 59 as conferring a power of revision
against an order passed under section 44(2) is not in any
way contrary to the principle laid down in the above deci-
sion.
We agree with the view taken by the Orissa High Court
that the language of section 59(1) is wide enough to enable
the Collector to revise any order including an appellate
order under section 44 of the Act. In the result the appeal
is dismissed with costs.
S.R. Appeal dismissed.
562