Orissa High Court
Radha Krushna Padhy vs Additional District Magistrate on 17 March, 2025
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
AFR IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.18025 of 2008
Radha Krushna Padhy .... Petitioner
Mr. J.R. Dash, Advocate
-Versus-
Additional District Magistrate, .... Opposite Parties
Rayagada & Another
Mr. B. Nayak, AGA
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT:17.03.2025
1.
Instant writ petition is filed by the petitioner assailing the
impugned order dated 17th October, 2008 passed in
connection with OLR Revision Case No.01 of 2007 on the
grounds inter alia that the same is legally not tenable and
hence, therefore, liable to be interfered with and set aside.
2. By the impugned order in revision, the decision in OLR
Ceiling Case No.06 of 2002 and order dated 4th June, 2007 in
OLR Appeal No.01 of 2006 have been set aside. In fact, a
proceeding under Section 52 of the Orissa Land Reforms
Act, 1960 (herein after referred as to 'the OLR Act') was
initiated against the petitioner vide OLR Ceiling Case No.06
of 2002 for being in possession of ceiling surplus land out of
Ac.22.18 decimals and in that connection, notice was issued
and served on him, whereafter, he filed objection by claiming
that the family consists of six members, hence, entitled to
retain 12 standard acres of land and the case land not to have
been irrigated one and yet was declared Class II land and in
such proceeding, he was allowed to retain 15 acres of land
accepting the family consisting of five members declaring the
balance Ac.7.18 decimals of land as ceiling surplus. Against
the decision of the Revenue Officer-cum-Additional
Tahasildar, Gunupur in the ceiling proceeding, the petitioner
approached learned Sub-Collector, Gunupur in OLR Appeal
Case No.04 of 2003 and the same was disposed of by order
dated 21st June, 2003 with a remand, later to which, enquiry
was held as per the directions issued in the appeal and
ultimately, by order dated 14th September, 2004, it was held
and concluded that the petitioner has no other land at
Padampur except a pucca house and after exclusion of
Ac.4.90 decimals, thereby, declaring Ac.2.28 decimals as
ceiling surplus and confirming the draft statement. As further
made to appear, the petitioner thereafter, filed OLR Appeal
No.01 of 2005 and the same was disposed of by order dated
4th June, 2007 upholding the order of the learned court below
with a conclusion that the petitioner has five family members
and the married daughter was to be excluded from the family
as she received a separate share by way of a gift. Against the
aforesaid decision, the petitioner preferred OLR Revision
Case No. 01 of 2007 and it was disposed of on 17th October,
2008 with the decisions of lower courts below being set aside
concluding that the petitioner to be in possession of ceiling
surplus land of Ac.7.18 decimals inclusive of the land
measuring Ac.4.90 decimals gifted to the daughter in the year
1995 subsequent to the cut-off date i.e. 26th September, 1970
and as per the size of the family, the petitioner is entitled to
retain 10 standard acres i.e. 15 acres of land. The said
decision is under challenge at the behest of the petitioner.
3. Heard Mr. Dash, learned counsel for the petitioner and Mr.
Nayak, learned AGA for the State.
4. The question is, whether, the decision by order dated 17th
October, 2008 under Annexure-2 is in accordance with law?
5. Before considering the plea of the petitioner vis-à-vis
ceiling surplus land to be declared in a proceeding under
Section 52 of the OLR Act, the Court is inclined to refer to
the relevant provisions of law applicable to the case. As per
Section 52 of the OLR Act, the ceiling surplus is in respect of
future acquisitions and the provisions of the Act to apply
mutatis and mutandis, where, lands have been acquired and
held subsequent to the commencement of the Odisha Land
Reforms (Amendment) Act, 1973 by any person through
inheritance, gift, family settlement, purchase, lease or
otherwise. The definition of "ceilings area" as per Section
37-A of the OLR Act is in respect of a person to be having 10
standard acres where he has a family consisting of more than
five members, but the same shall be increased by 2 standard
acres per each member in excess of five, however, the ceiling
area shall not exceed 18 standard acres. The family, as
occurring in Section 37-A of the OLR Act, has a definition in
Section 37(b) thereof which means, an individual, the
husband or wife, as the case may be, of such individual and
their children, whether, major or minor but does not include a
major married son, who had separated by partition or
otherwise before 26th September, 1970. The principles which
is applied in the determination of ceiling area have been
prescribed in Section 39 of OLR Act, as per which,
homestead lands, or tanks with their embankments, or both,
to the extent of 03 acres in the aggregate shall not be taken
into account and in so far as, the transfer of any land by sale,
gift or otherwise or the partition by a person during period
between 26th September, 1970 and ending with the
commencement of the OLR (Amendment) Act, 1973 shall be
deemed to be void, if such person was holding the land in
excess of the ceiling area notwithstanding any law or
agreement or decree or order of any court and the lands so
transferred or partitioned shall be taken into account, as if it
had not taken effect and the Revenue Officer may, at his
discretion, ignore the selection made by the person of lands
to be retained in his possession.
6. In so far as the case at hand is concerned, the petitioner
claims that his family consists of six members, hence,
retention of land would be more, the fact, which has not been
taken judicial notice of by the Court in revision. It is pleaded
that the land measuring Ac.4.90 decimals since was gifted to
the daughter of the petitioner at the time of her marriage, the
same was to be excluded, while determining the ceiling area.
The conclusion of the revisional authority is that the
petitioner is possessed of the Ac.22.18 decimals of the land
while considering his family size, he would be entitled to 10
standard acres i.e. Ac.15.00 decimals and to an extent of
Ac.7.18 decimals which becomes Ac.4.78 standard acres
should have been vested to the Government as ceiling surplus
land and accordingly, set aside the order in OLR Ceiling
Case No.06 of 2002. As earlier stated, according to Section
37(b) of the OLR Act, a family is comprised of husband or
wife of such individual and their children whether a major or
minor and excludes a major married son only if he had
separated by partition or otherwise before the cut-off date. In
the case at hand, the petitioner is said to have a family
comprised of six members and for the alleged gift in favour
of the daughter in 1995, the claim is that it cannot be
excluded from the family so defined.
7. Before proceeding further, it is necessary to elaborately
state the facts of the case. In fact, a ceiling proceeding was
initiated against the petitioner vide OLR Ceiling Case No.361
of 1975, however, the same was closed on 22nd February,
1977 by the order of learned Revenue Officer-cum-
Additional Tahasildar, Gunupur. In fact, a revision under
Section 59(2) of the OLR Act was filed by the Collector,
Rayagada vide OLR Revision Case No.35 of 2004, however,
the reopening of the ceiling proceeding for further enquiry
was declined by order dated 12th July 2010. In the meantime,
Ac.4.90 decimals of land under Indupur Mouza was gifted to
the married daughter, namely, Jagnyseni Choudhury by the
petitioner through an unregistered deed on 5th September,
1995. The petitioner also sold Ac.1.00 decimals of land to
one Pano Sahu vide RSD No.796 dated 25th June, 2001 in
respect of Plot No.9/156 corresponding to Khata No.29/21.
Thereafter, the suo motu ceiling proceeding was initiated in
2002 by the Revenue Officer-cum-Additional Tahasildar,
Gunupur under Section 52 of the OLR Act, which ultimately
led to the passing of order dated 21st March, 2003 declaring
Ac.7.18 decimals of land as ceiling surplus, which as earlier
stated, was challenged in OLR Appeal Case No.04 of 2003.
The said appeal was disposed of by order dated 21 st June,
2003 with the remand of the matter carrying directions to
enquire into the genealogy of the petitioner and any such
landholding situate in village Padmapur being possessed by
him; and to consult the OLR Committee as required under
the Act. After such remand, the Revenue Officer-cum-
Additional Tahasildar, Gunupur while disposing of OLR
Ceiling Case No.06 of 2002 declared Ac. 2.28 decimals of
land as ceiling surplus vide Annexure-1 excluding the land
gifted in favour of the daughter of the petitioner in 1995 after
complying with the directions issued in OLR Appeal Case
No.04 of 2003. Again, an appeal was preferred under Section
58 of the OLR Act in the year 2005 during the pendency of
OLR Revision Case No.35 of 2004. On 4th June, 2007, OLR
Appeal Case No. 01 of 2005 was disposed of against which
OLR Revision Case No.01 of 2007 was filed. The revision
was disposed of vide Annexure-2 declaring Ac.7.18 decimals
of land as the ceiling surplus with the order in OLR Ceiling
Case No. 06 of 2002 dated 14th September, 2004 being set
aside along with the decision in OLR Appeal Case No.01 of
2005. The legality and judicial propriety of the aforesaid
order dated 17th October, 2008 is in question at the instance
of the petitioner on the following grounds, such as, the family
is entitled to 12 standard acres of land including his daughter
as a member of the family and that apart, the case land could
not have been categorized under Class-II, as it had no
provision of irrigation supply despite a project in place.
8. As per Section 2(5) of the OLR Act, ceiling area means to
the extent of land, which a raiyat or land-holder shall be
entitled to hold under Section 37-A. The classes of land
stands defined in Section 2(5-A) and considering the same
and in the context of land ceiling under the OLR Act, 10
standard acre is equivalent to 10 acres of Class-I land; 15
acres of Class-II land; 30 acres of Class-III land; and 45 acres
of Class-IV land. In fact, the definition of standard acre as
per Section 2(30) means the unit of measurement of land
equivalent to one acre of Class-I; one and one-half acres of
Class-II land; three acres of Class-III; or four and one-half
acres of Class-IV. According to the OLR Act, a family in
view of Section 37(b) is in relation to an individual either
husband or wife as the case may be of such individual and
their children whether major or minor but does not include a
major married son, who, as such, had separated by partition
or otherwise before 26th September, 1970. Under the OLR
Act, a married daughter is generally considered part of the
husband's family for land ceiling purposes and not her
parents. While the OLR Act does not explicitly exclude
married daughters from their parents family, but the law is
well settled that for land ceiling proceedings, they are not
considered as a part of the family defined under Section
37(b). In this connection, it would be profitable to refer to a
decision of the Court in Anusuya Rath and another Vrs.
State of Orissa and another AIR 1989 Ori 11 and therein,
the earlier decisions in Maharani Bewa Vrs State of Orissa
through the Sub-Divisional Officer, Athmallik and others
(1985) 60 CLT 55 and Srimati Dei Vrs. Revenue Officer-
cum-Tahasildar, Dharamgarh and others decided in OJC
No.2553 of 1981 and disposed of on 5th July, 1983 were held
to be not laying down the correct proposition of law. It has
been concluded therein that the concept of family as per the
OLR Act carries an artificial definition. It is further observed
that the definition as such does not cause obstruction or
occasions in conflict for taking a view upon a sincere reading
of the scheme of the law and the policy decision of the Govt.
and even applying the principles underlying Article 14 of the
Constitution of India, when the Legislature specifically
intended to exclude a major married son, who had separated
by partition or otherwise before the appointed date, there
would be no justification for not giving the same privilege or
benefit to a married daughter, who by virtue of her marriage
stands at a more distant place than a separated son on
partition from the joint family and at last, concluded that a
harmonious construction being the essence of the rule of
interpretation, a daughter, who is already married by the
appointed date would not come under the definition of
"family". When such is the legal position, the contention of
Mr. Dash, learned counsel for the petitioner that to consider
the family as per the definition of Section 37(b) of the OLR
Act, the married daughter of the petitioner is to be included,
is entirely misconceived. In other words, the family of the
petitioner would be entitled to 15 acres of Class-II lands in
case the same has been rightly categorized with an inquiry
held by the Revenue Officer-cum-Additional Tahasildar,
Gunupur since such a conclusion has been reached at or
otherwise, it could be more in the eventuality, the land falls
in the category of Class-III. A Class-II land is a land which is
irrigated but has no more than one crop grown in any year
within a period of three years before commencement of the
OLR (Amendment) Act, 1973 or can be grown in a year. As
to Class-III land, it includes such land other than the irrigated
land in which paddy was grown within the aforesaid period
or can be grown in a year. In the present case, the land in
possession of the petitioner is found to be Class-II land
assured of irrigation. Apart from the above and as previously
discussed, in view of Section 37-A, the ceiling area in respect
of a person shall be ten standard acres provided, where the
family is consisting of more than five members, the ceiling
area to be increased by two standard acres for each member
in excess of five. In the case herein, the family of the
petitioner consisted of five members, since as of the
appointed date, his daughter had already married and hence,
she cannot be held as a member of the family in the context
of the OLR Act.
9. The next question is, whether, the land gifted in favour of
the married daughter was to be considered as a part of the
ceiling surplus? In this regard, one more decision of this
Court in Kashinath Panda and others Vrs. State of Orissa
and others 84 (1997) CLT 676 needs a reference. After
considering the relevant provisions of the OLR Act, this
Court in the aforesaid decision concluded that the cut-off date
i.e. 26th September, 1970 is relevant for the purpose of
determining ceiling area of a person at the time of
commencement of the OLR (Amendment) Act, 1973 and if a
person holds property in excess of the ceiling area,
the same has to be determined irrespective of the date of
initiation or conclusion of the ceiling proceeding but when a
person becomes liable to be proceeded under Chapter-IV
because of subsequent acquisition of property or events
contemplated in Section 52 and the cut-off date cannot be
considered to be 26th September, 1970 but should be taken to
be the date of which land held by him exceeds the ceiling
area. After a threadbare analysis as to the scheme of the OLR
Act, this Court, in the above decision, reached at a conclusion
that if a person subsequently becomes liable to be proceeded
by virtue of the events contemplated in Section 52, the
relevant date for considering, whether, he was or his family
members were major, married and separated and for
considering the validity of transfers effected by him, would
be the date on which he becomes so liable which means the
date of subsequent acquisitions or the deemed date of
subsequent acquisitions as contemplated in Explanations I, II
and III thereof and evidently, such date which may be
compendiously described as the relevant date or the cut-off
date is to vary from case to case depending upon the facts
and circumstances of each case. The initial ceiling
proceeding was closed in the year, 1977 and the same
attained finality upon disposal of OLR Revision Case No.35
of 2004. The suo motu proceeding under the OLR Act was
initiated in 2002 and by then, the petitioner had already
disposed of Ac.4.9 decimals of land in favour of the married
daughter in 1995 and therefore, in view of the provisions of
the Act and for the purpose of the proceeding under Section
52, he is to be so held liable on account of acquisitions or
deemed date of subsequent acquisitions. On a sincere reading
of the law in place, irrespective of the reasons for the suo
motu ceiling proceeding against the petitioner, according to
the Court, for all intents and purposes, the cut-off date shall
have to be held from the date of such subsequent acquisitions
and obviously the same is to exclude the transfer of Ac.4.90
decimals of land in favour of the petitioner's daughter in
1995 and hence, is not referable to the cut-off date i.e. 26th
September, 1970.
10. Mr. Dash, learned counsel for the petitioner relied on a
decision of this Court in Premananda Moher Vrs.
Revenue Officer-cum-Additional Tahasildar, Bargarh
and others AIR 1982 Ori 77, wherein, it has been held that
a cardinal principle of administration of justice is that justice
must not only be done but seem manifestly to have been done
while considering a challenge to the classification of land in a
proceeding under Section 43 of the OLR Act, which
necessitated a spot verification with notice to the land-holder
and for receiving evidence in that regard. In the instant case,
it is claimed that there has been no such inquiry held before
the land of the petitioner being categorized as Class-II. But,
from the impugned order under Annexure-1, it has been so
held in the presence of the petitioner. What was the evidence
received during such inquiry has not been discussed upon
perusal of the impugned order i.e. Annexure-1. The land has
been considered to be irrigated land defined in Section 2(13)
of the OLR Act assured of irrigation from an irrigation
project constructed or maintained or improved or controlled
by the Central Government or State Government or a Body
Corporate and includes land, which is assured of irrigation
from any private source by means of lift irrigation from any
perennial water source operated by diesel or electric power
but does not include continually waterlogged lands or
sandcast lands. As per the aforesaid definition, a land which
assured of irrigation is considered to be an irrigated land. In
such view of the matter and for the reason that the Court does
not have the comfort of looking at the evidence received
during the inquiry held by the Revenue Officer-cum-
Additional Tahasildar, Gunupur vis-à-vis classification of
land, it has to be held that the petitioner would be entitled to
either fifteen acres as applicable to Class-II land as has been
held against him or thirty acres as Class-III land in case, the
same is found to be a non-irrigated one. Since, it has been
claimed by the petitioner that the case land, despite an
irrigation project was unable to bear crops twice a year, yet,
could not have been held as Class-II land in absence of
proper field inquiry. Considering the above claim of the
petitioner, it has to be held that such classification of land as
Class-II must receive evidence upon an inquiry to
substantiate the same. Having said that, the Court, hence,
concludes that if proper inquiry has been held at the time of
classification of the case land, the petitioner's claim is to fall
flat or in case, no inquiry or field visit has been made before
such classification, it would require reconsideration. Such a
finding can be reached upon perusal of the evidence received
on classification of the land of the petitioner after initiation of
the proceeding under Section 52 of the OLR Act, which in
the humble view of the Court, may be gone through by the
Revenue Officer-cum-Additional Tahasildar, Gunupur. With
the aforesaid discussion and at the cost of the repetition, the
Court holds that the cut-off date shall be from the date of
subsequent acquisitions or deemed acquisitions in view of
Explanations I, II, III of Section 52 as the case may be and
not from 26th September, 1970 and the gifted land, hence,
shall have to be excluded and in so far as the daughter of the
petitioner is concerned, she is not to be treated as a member
of the family after her marriage prior to the appointed date, at
last, leaving the decision for considering the evidence
received during the field inquiry with respect to the
classification of the land, which is being questioned by the
petitioner.
11. Hence, it is ordered.
12. In the result, the writ petition stands disposed of with a
direction to opposite party No.1 to determine the ceiling area
to be surplus upon considering the evidence received during
field inquiry vis-à-vis classification of the land and thereafter,
to pass necessary order in connection with OLR Ceiling Case
No. 06 of 2002 keeping in view observations made
hereinabove and discussions held in the light of the settled
position of law. As a necessary corollary, the impugned order
dated 17th October, 2008 passed in connection with OLR
Revision Case No.01 of 2007 is hereby set aside with the
directions as aforesaid. It is further directed that the above
exercise shall be accomplished followed by an order at the
earliest, preferably within a period of six weeks from the date
of receipt of a copy of this judgment.
(R.K. Pattanaik)
Judge
Balaram/Rojina
Designation: Junior Stenographer
