1. The question for determination by this Bench is whether a person who had not filed his return under Section 40-A of the Orissa Land Reforms Act, 1960 (hereinafter referred to as the "Act") could claim to have a right of option and choose the land to be retained by him after determination of the ceiling by the Revenue Officer in exercise of the power conferred on him by Section 42 read with Section 43 of the Act.
2. The aforesaid question along with a contention of the petitioner that the finding relating to the quantum of ceiling surplus land as determined under the provisions of the Act was untenable came up for consideration before a Division Bench of this Court. The Bench did not accept the contention of the petitioner relating to the untenability of the quanutm of the ceilign surplus land inasmuch as it did not accept the stand of the petitioner that a separate ceiling ought to have been fixed for one Gundicha who was a son of the landholder. The other contention related to the question noted above. As the proceeding had been initiated suo motu by the Revenue Officer-cum-Tahsildar, the point for examination was whether in a suo motu proceeding the landholder had the right to exercise option in respect of lands which he desired to retain.
3. On behalf of the petitioner reliance was placed on Ghanashyam Rout v. Revenue Officer (O. J. Cs 896 and 897 of 1976 disposed of on 3-5-77) in which the contention advanced on behalf of the opposite parties, that the landholder has no right to indicate his choice regading retention of the parcels of lands in excess of the ceiling area in a suo motu proceeding, was not accepted. The Bench dealing with the present case, however, felt that in view of the amendment of Section 43 by Act 44 of 1976 which inserted the words "having a right to do so" after the words "selection made by the person concerned" indicated that this right was available to the person who had filed their returns under Section 40-A of the Act. The Bench also thought that such a right is not available under any other provision of the Act. Being of this view, it felt that where a person fails to submit a return under Section 40-A of the Act, he cannot have the right for selection with regard to the specific parcels of land which he wishes to retain. As, however, a contrary stand was taken in the aforesaid decision of this Court, the Bench was of the view that it would be appropriate to refer the matter to a larger Bench for resolving the dispute. It is in these circumstances that the matter has been placed before us and we have heard Mr. Pal for the petitioner and Mr. Das, learned Additional Government Advocate for the opposite parties.
4. To answer the question at hand, it would be sufficient if we bear in mind the provisions of the Act appearing in Chapter IV, which contains Sections 37 to 52, and which deals with "Ceiling and Disposal of Surplus Land".
Section 37 has defined the expressions "person" and "family". Section 37-A deals with ceiling area and Section 37-B states that no person is entitled to hold land in excess of the ceiling area. Section 38 deals with exemption from ceiling and Section 39 with principles for determining the ceiling area. Section 40 contains prohibition of of transfer and partition of land and restriction of suits for specific performance of contract. Then comes Section 40-A whose Sub-section (1) is material for our purpose which is in the following language :--
"40-A. Submission of returns. (1) Every person holding land (which shall include lands transferred by sale, gift or otherwise or partitioned by him after the 26th day of September, 1970) either as land holder or raiyat in excess of the ceiling area at the commencement of the Orissa Land Reforms (Amendment) Act, 1973, shall, before the expiry of ninety days from such commencement, submit to the Revenue Officer, in such form and in such manner as may be prescribed, a return indicating the parcels of land which he wishes to retain and the parcels of land in excess of the ceiling area (hereinafter referred to as "surplus lands") and furnish in the said returns such other particulars as may be prescribed :
Provided that a person, who has made any transfer or effected any partition in contravention of the provisions of Sub-section (1) of Section 40, shall not have the right to indicate the parcels of land which he wishes to retain and the parcels of land in excess of the ceiling area, but shall have to file the return furnishing the particulars of all the lands held by him as aforesaid :
Provided further that where as a consequence of the amendment of this Act by the Orissa Land Reforms (Amendment) Ordinance, 1974 (Orissa Ordinance 2 of 1974), such person considers it necessary to submit a return or revised return, such return or revised return shall be submitted within thirty days from the date of publication of the said Ordinance in the Gazette."
Section 40-B has also to be noted in full. It reads :--
"40-B. Submission of returns in special cases.--
Where any person,--
(a) being liable to submit a return under Section 40A, has failed to do so within the period specified therein; or
(b) has become liable to submit a return under Section 40-A as a consequence of the amendment of this Act by the Orissa Land Reforms (Second Amendment) Act, 1975; or
(c) considers it necessary to submit a revised return as a consequence of such: amendment,
he shall submit the return or revised return, as the case may be, in accordance with the provisions of that section within thirty days from the commencement of the said Act :
Provided that persons, against whom proceedings under Section 43 have been initiated by the Revenue Officer on his own motion, shall not be bound to file any return as required by this section :
Provided further that a revised return, if filed by a person after confirmation of the draft statement in respect of his lands under Sub-section (1) of Section 44, shall not be taken into consideration."
Section 41 states as to whose responsibility, it is to submit returns. We are vitally concerned with Section 42 and it is in the following language :--
"42. Failure to submit return to entail forfeiture of claim.--
If any person required to submit a return under Section 40-A or Section 40-B fails to do so or submits a return which he knows or has reasons to believe to be false in respect of all or any of the material particulars, the Revenue Officer may obtain the necessary information through such agency as he may consider proper and shall thereafter proceed to prepare and publish the statement contemplated under Section 43 :
Provided that the amount payable for the lands declared to be his surplus lands in accordance with the provisions of Section 44 shall be fifty per centum of the amount which he would have been entitled to, had he submitted a correct return under Section 40-A or Section 40-B."
Then comes Section 43 which reads as under :--
"43. Preparation and publication of draft statement showing ceiling and surplus lands.--
(1) The Revenue Officer on receipt of the return under Sub-section (1) of Section 40-A or under Section 40-B after considering all relevant materials available to him and the selection made by the person concerned having a right to do so under the said subsection of the lands to be retained by him and after consulting the local committee, if any, shall record his findings in a draft statement showing --
(a) the total area of land held by the person as a land holder or as a raiyat and the class to which each plot of the land belongs;
(b) the surplus area;
(c) the specific parcels of land to be retained by the person and the total area thereon;
(d) the specific parcels comprising the surplus lands under Clause (b);
(e) lands if any exempted under Section 39;
(f) such other particulars as may be prescribed.
Provided that no part of the lands held by a company or any other corporate body of which the person concerned may be a member or shareholder shall be shown as suprlus lands in respect of such person.
(2) Subject to the rules made in that behalf, the draft statement under Sub-section (1) shall be published inviting objections from persons interested and the Revenue Officer after hearing the objections, if any, received within thirty days of such publication and making such enquiries as he deems necessary, and after consulting the local committee, if any, may, by order recording his reasons in writing, alter or amend all or any of the particulars specified in the draft statement;
Provided that in cases where a revised return is due to be submitted under Sub-section (2) of Section 40-A, or under Section 40-B, the Revenue Officer shall prepare the draft statement under Sub-section (1) after consideration of such return, if any."
The subject-matter of Section 44 is "Final Statement of Ceiling and Surplus Lands". Section 44-A is not material for our purpose. Section 45 states that with effect from the date on which the statement becomes final under Section 44(3), the interest of the person to whom the surplus lands relate and of all landholders medifately or immediately under whom the surplus lands were being held shall stand extinguished and the said lands shall vest absolutely in the government free from all encumbrances. Section 45-A is concerned with delivery of possession of the surplus lands. The remaining sections of Chapter IV are not material to answer the question at hand.
5. The aforesaid fasciculus of sections shows that a duty is cast on every holding land either as landholder or raiyat in excess of the ceilign area to submit returns. This is enjoined by Section 40-A. Section 42 states that if any person is required to submit a return under Section 40-A, or for that matter Section 40-B, fails to do so, the Revenue Officer may obtain the necessary information through such agency as he may consider proper, who shall thereafter proceed to prepare and publish the statement contemplated by Section 43. It may be noted that one of the findings which a Revenue Officer is required to record under Section 43 concerns specific parcels of alnd to be retained by a person and the total area thereof. Reference may be made at this stage to Form No. 13 (prescribed by the Rules) in which the draft statement referred in Section 43(1) has to be prepared in which, among other particulars, mention has to be made about the lands to be retained within the ceiling limit, particulars whereof are to be given under columns 45 to 50 of this Form.
6. It may be pointed out here that Section 40A, as it finds place in the statute book now, had been inserted in the Act by the Orissa Land Reforms (Amendment) Act, 1974 (Orissa Act 9 of 1974). The same amendment had inserted the words "having a right to do so" after the words "selection made by the person concerned" in Section 43 of the Act. (In the referring order, it has been inadvertently mentioned that these words had been inserted in the Act by Act 44 of 1976). We have referred to this aspect of the matter because, as we would point out later, the right conferred on a landholder or a raiyat to indicate the parcels of land which he wishes to retain has been taken away by the first proviso to Section 40-A, which had also been inserted in the Act by the amendment carried into effect in 1974, and so the insertion of the words "having a righ to do so" in Section 43(1) of the Act must be read together with Section 40-A.
7. Before we analyse the aforesaid provisions to answer the question at hand, we may state that as we are concerned with a provision which may be treated in penal in nature, the same has to be so construed that if there is a reasonable interpretation which will avoid the penalty, that interpretation ought to be adopted, as stated in paragraph 21 of Commr. of Income-tax v. T. V. Sundaram Iyanger & Sons, AIR 1976 SC 255. Even if the statute at hand may not be regarded as penal in nature, as is this expression ordinarily understood in legal parlance, the same being exproprietary in nature, we are of the view that it should be interpreted in the same way as a penal statute is required to be construed.
8. There is no doubt that when a return is voluntarily submitted either under Section 40-A or Section 40-B of the Act, the returnee has a right to indicate the parcels of land which he wishes to retain. The proviso to Section 40-A(1) has, however, created an embargo in this regard by stating that a person, who has made a transfer or effected any partition in contravention of the provision of Section 40(1) of the Act, shall not have the right to indicate the parcels of land which he wishes to retain. No other provision of law has so been brought to our notice creating such a prohibition. It is, therefore, clear that the Legislature had only one circumstance in mind under which the right to indicate the parcels of land which the returnee wishes to retain is not to be made available to a returnee. Question is, can the scope of this embargo be expanded by the court? Seized as we are with a provision which is penal is nature, we are of the view that we should construe the provision of law in such a way which would avoid the expansion of the penal consequence.
9. Another section which throws light on the controversy at hand is Section 42 of the Act which dealt with the consequences of failure to submit return. A reading of this section shows that where any person who is required to submit a return under Section 40-A or Section 40-B and fails to do so, it is open to the Revenue Officer to obtain necessary information through such agency as he may consider proper and thereafter proceed to prepare and publish the statement contemplated under Section 43. The proviso to this section is also mateiral inasmuch as it deals with another consequence of failure to submit return and the same is that the amount which becomes payable for the surplus land shall be fifty per cent of the amount which the returnee would have been otherwise entitled to. Here we find another consequence of failure to submit a return. No other provision in the entire Act has been brought to our notice or has come to our notice which has spelt out any other consequence of failure to submit return.
10. The aforesaid being the position emanating from the analysis of the different provisions of law, we are of the view that a valuable right like that of indicating the parcels of land which a person wishes to retain conferred by Section 40-A may not be taken away in those cases where the person concerned has either failed to submit a reutrn or submits a return which he knows or has reason to believe to be false in respect of all or any of the material particulars about which Section 42 of the Act speaks. In our considered opinion, any other view would cause undue hardship on the landholder, which we have to avoid.
11. At this stage, we may say a few words about the specific reason which led the Devision Bench, which had dealt with the case earlier, to differ from the view expressed by this Court in the case of Ghanshyam Rout (supra). The same was, as already noted, teh insertion of the words "having a right to do so" after the words "selection made by the person concerned" in Section 43(1) of the Act. According to us, the insertion of the afore-noted words in Section 43(1) does not in any way militate against the view we have taken on the relevant provisions of the law inasmuch as these words might have been inserted only to refer to the person in whose name the proceeding has been initiated. May it be pointed out here that these words, which were inserted in Section 43 (1) of the Act by the Amendment Act 9 of 1974 by which amendment also Section 40-A as finding place presently in the statute book was inserted, have to be read along with Section 40-A(1), the purport of whose first proviso has been noted by us. As already stated, we would not be justified in enlarging the ambit and scope of the aforesaid proviso by laying down any other condition creating an embargo spelt out by this proviso.
12. The conclusion reached by us receives support from the fact that even while taking suo motu action under the provision of Section 42 of the Act, the Revenue Officer is required to mention in the draft statement to be published by him as contemplated by Section 43 of the Act, the particulars of lands to be retained within the ceiling limit. Now these particulars cannot find place in the statement in a meaningful way unless the person concerned assists by furnishing these particulars.
13. It would also be appropriate in this connection to refer to the circular of the State Government bearing No. 46458-Re. 256/76-R, dated 17-6-1976 on the subject of "Review of cases in which selection of land to be retained within the ceiling has not been made by the surplus land owner." Paragraph 3 of the circular is material for our purpose and it reads as below :--
"According to the first proviso to Section 40-A(1) of the Act, the right to indicate the parcels of land to be retained within the ceiling is denied to a land owner only if he has transferred or partitioned any land in violation of provisions of Sub-section (1) of Section 40. In the other cases the option of selecting the lands to be retained within the ceiling rests with him."
A perusal of this circular shows that it came to the notice of the Government that where ceiling proceedings were finalised without the land owner getting the benefit of selecting the parcels of land to be retained within his ceiling, even homestead lands were declared to be surplus as a consequence of which such lands came to vest with the Government. The circular noted that cases of this nature obviously created a good deal of hardship. It was, therefore, decided by the Government that where ceiling surplus lands vest in the Government without the land owner getting the benefit of selecting the lands to be retained by him or making a convenient selection advantageous to him and where he approaches the Revenue Officer for the relief, the cases may be reviewed by the latter under Section 60 of the Act. The circular further stated that on the selection specified by the landowner, the Revenue Officer might allow the selected area to be retained within the ceiling on the surrender of an equivalent area of land by him in favour of the Government. The aforesaid view taken by the Government in the matter clearly shows that, according to it, the denial of option of selecting the land to be retained by a landowner, is confined to that case only where he has transferred or partitioned any land in violation of the provision of Section 40(1) of the Act; and in other cases, the option rests with the landowner. This circular of the Government was noted approvingly by this Court in Natesh Chandra Tripathy v. Revenue Officer, ILR (1977) 2 Cut 334 : (AIR 1978 NOC 86) and Padma-nabh Nayak v. State of Orissa, (O. J. C. Nos. 436-438 of 1983, disposed of on 10-1-1990).
14. For the reasons aforesaid, we are of the opinion that the view taken by this Court in Ghanashyam Rout was correct and the same does not merit any interference. This is our answer to the question referred to this Bench. As the Division Bench had, however, desired that the entire case may be disposed of by this Bench, we may advert to the questions regarding the stage at which the person concerned has to exercise his option and whether the option was exercised in the present case at the appropriate stage. In this context, Mr. Pal contends that when a suo motu proceeding is initiated by the Revenue Officer, the landowner may take a stand that there is no surplus land in which contingency the question of exercising option to retain any particular parcels of land within the ceiling surplus would not arise. The counsel is no doubt correct to some extent, but then it would be open to the land owner, according to us, to raise an alternate plea even before the Revenue Officer when he hears objection against the draft statement as required by Section 43(2) of the Act, that even if there be any surplus land, he may be given the option of retaining or selecting the lands within the ceiling. In any case, if the land owner is to prefer an appeal against the confirmation of the draft statement by the Revenue Officer with any alteration or amendment, we are of the view that at the appellate stage the option in question ought to be spelt out. If the land owner fails even at that stage to indicate his option, we have no manner of doubt in our mind that if any further revision is preferred, the option has to be made known at the stage of the revision. We have taken this view bearing in mind what has been stated in Section 44(3) of the Act according to which a draft statement becomes final as confirmed or modified in appeal or revision whereafter only surplus land vests in the Government as provided in Section 45 of the Act. This concession given to a landholder or a raiyat would not, however, apply in those cases where the suprlus land has been distributed to third parties following vesting of the land in the Government. This contingency may arise inter alia in those cases where there is delay in filing of appeal or revision, because of which distribution of excess land might have been ordered by the Revenue Officer.
15. In so far as the question of option is concerned, the revisional authority observed as below in the present case :--
".....In the instant case opportunity was provided to the landholder who was present on the date of pronouncement of the orders by the Revenue Officer and had signed the same in the order sheet which contains the surplus land that would vest in Government and the land within the ceiling limit that would be retained by the landholder. In spite of this opportunity, the landholder has not exercised his right to specify and make option for the parcels of land he desires to retain. Besides, I find that the landholder had not raised any objection before the appellate court about exercise of option for retaining choiced land."
From the above it seems that the revisional authority took the stand that as the landholder had not exercised his right of option either before the Revenue Officer or before the appellate Court, he could not do so before it. We are, however, of the view that it was open to the petitioner to exercise his right of option even at the revisional stage.
16. In the result, the petition is disposed of by stating that it is open to a landholder or a raiyat even in a suo motu proceeding to indicate the parcels of land which he wishes to retain, and this right could be exercised even at the revisional stage where the surplus land has not been distributed to third parties in the interregnum. As in the present case the right to choose land was not really made available to the petitioner, though he wanted to exercise the same before the revisional authority, we would accord such an opportunity to him even now. The option shall be exercised by him within a period of one month from today if the surplus land has not been distributed in the meantime to third parties. In the facts and circumstances of the case, we, however, make no order as to costs.
D.P. Mohapatra, J.
17. I agree.
A.K. Padhi, J.
18. I agree.