JUDGMENT
S.C. Mohapatra, J.
1. These two applications uner Article 226 of the Constitution arise out of a ceiling surplus proceeding under the Orissa Land Reforms Act.
2. Petitioners are sons of Ibrahim. A suo motu proceeding was initiated against Ibrahim for determination of ceiling surplus land. Ibrahim pointed out that there was partition among him and his sons. Accepting the partition, Tahasildar dropped the proceeding. When petitioners came to know that notice has been served on their father Ibrahim to surrender the ceiling surplus lands on 31-12-1989, they made enquiry to find out that Tahasildar reopened the proceeding and without notice to petitioners, has finalised the proceeding disbelieving the Partition of 1954 on the ground that the deed is not registered
and in 1954 petitioners were minors. Accordingly, prayer has been made to quash the order dated 17-10-1976 in Annexure-3 series and notice dated 31-12-1988 (Annexure-4).
3. Mr. D.P. Sahu, learned Counsel appearing for petitioners submitted that proceeding could not have been reopened behind the petitioners without notice to them in absence of power of review and factually also Tahasildar was not correct to disbelieve the petitioners. Mr. Sahu has relied upon the subsequent mutation of lands in names of the petitioners accepting the partition. Mr. Sahu further submitted that in case a proceeding was finalised in the year 1976, there was no acceptable reason why twelve years after, Ibrahim was called upon to surrender the surplus land which leads to an inference that the statutory function by the Tahasildar are colourable in character. Apparent Negligence of the Tahasildar itself creates doubt about the official act being performed in regular course.
4. Mr. P.K. Rout, learned Additional Standing Counsel on the other hand submitted that order of the Tahasildar dated 11-11-1974 (Annexure-1) is a nullity since Tahasildar while accepting the partition did not consider whether the sons were major and married separated as such before 26-9-1970. Since dropping of the proceeding was not justified the proceeding was continued and notice was given to Ibrahim who participated in the enquiry and brought to notice of the Tahasildar about the partition which has been considered and disbelieved, Ibrahim not having challenged the order, it has become final and is not open to be challenged by petitioners long 13 years after.
5. On perusal of the orders we are inclined to hold that neither the earlier order (Annexure-1) nor the later orders (Annexure-3 series) confirm to requirement of law. If the proceeding was initiated against Ibrahim in his individual capacity, the same cannot bind petitioners who claim to have interest on the land. If the proceeding is initiated against Ibrahim as head of the family as defined under Section-37(b) of the Act, the status of the sons for exclusion from the definition of family was required to be considered. Whether in 1954 partition was required to be registered is a question which arises for consideration. Tahasildar has not also taken into consideration that there is no bar in law for partition between minors. Contention of Mr. Sahu that Tahasildar had no power of review and reply of Mr. Rout that the earlier order is a nullity requires consideration.
6. It is surprising that public officers like Tahasildars and higher officers like Collector, Land Reforms Commissioner and Board of Revenue-in-Charge of administration of Orissa Land Reforms Act remained silent for about 12 years to give effect to the order of determination of ceiling surplus lands to distribute the same since notice was issued only in December, 1988 for surrender of the surplus lands. Where the executive administration remains inactive for 12 years granting immunity to negligent officers frustrating the benevolent object of distributing surplus lands to landless persons, and orders have been passed without keeping the statutory provisions in mind, and no action was taken to get the interim order of stay granted on a prima facie case being made out by petitioners, vacated by the opposite parties, grievance in public platforms of interference with executive administration by judicial action can only be stated to be a cover and protection from comments against administrative deficiencies. We hope that executive Government shall take note of the same and deal with the delinquencies appropriately.
7. In view of the aforesaid reasons, we quash Annexure-3 series and direct Tahasildar (opposite party No. 1) to make a fresh enquiry and dispose of the proceeding after giving opportunity to petitioners of being heard in the matter. Petitioners are given liberty to raise all available objections in the proceeding which shall be considered in accordance with law. To expedite finalisation, we direct petitioners to appear before the Tahasildar (opposite party No. 1) on 1st December, 1992, on which day Tahsildar shall fix a date of enquiry to dispose of the proceeding latest by end of March, 1993. We make it clear that we express no opinion on merits and exercise of power under Section 59 of the Act which is not raised before us.
8. In result, both the writ applications are allowed to the extent indicated. Annexure 3 series in both the writ applications are quashed. No costs.
Requisites for issue of writs to opposite party No. 1 only shall be filed on or before 30-9-1992.
A.K. Padhi, J.
9. I agree.