Nilamani Dibya & Ors. vs State Of Odisha & Ors.

Case of the petitioner:

Counter affidavit of Santosh Kumar Satapathy:

Hearing:

Arguments and submissions:

“3.

From the order sheet enclosed to the Additional Affidavit, it appears that the case was taken up on 25th February, 2025 and it was posted to 17th June, 2025 for hearing on admission. But, surprisingly, the case was taken up on 15th April, 2025. An office note has been made by the Court Officer of the Court of learned Member, Board of Revenue in which, it is stated that the case was rescheduled on a memo dated 18th March, 2025 filed by the Petitioners showing urgency. Accordingly, cause list was published on 11th April, 2025. Learned Advocate for Opposite Party Nos.2(a), 2(b), 2(c) and 2(e) was informed over phone by the Assistant Peshkar regarding the change in date. Although the memo for rescheduling the case is stated to have been filed on 18th March, 2025, but, office note was given by the Court Officer on 11th April, 2025. Further, no order of learned Member, Board of Revenue appears to have been passed preponing the date of hearing on admission. It further appears from the order sheet that the hearing of the revision was closed on 15th April, 2025 and the matter was reserved for orders.

4.

Hence, Mr. Mishra, learned Additional Standing Counsel prays for an adjournment to explain the same by filing an affidavit of the competent officer.

5.

Let learned Member, Board of Revenue, Odisha, Cuttack file an affidavit explaining the above. The affidavit shall be filed within a period of two weeks hence serving copy thereof on learned counsel for the Petitioners and rest of the Opposite Parties.”

“That in view of the above facts and circumstances, it is clear that:

i.

The whole proceeding of the revision case OEA (BB) RC No. 01 of 2022 (Santosh Kumar Satapathy Vs. Tahasildar, Badamba & 5 others) including the preponement of the date of listing of the case was performed as per the kind orders of Hon‟ble Member BoR (O). The „due process‟ of notifying the other side was satisfied through the phone call and most importantly, the actual appearance of the opposing counsel on that date.

ii.

Because the opposite parties‟ advocate was informed via phone and crucially, both parties appeared on the preponed date, the lack of formal written notice was cured by the appearance of the parties, demonstrating no prejudice was caused. If both parties appear and argue, it is treated as consent to the preponement.

iii.

Allowing 7 days to file written notes after a final hearing is a standard procedure to allow advocates to summarize their oral arguments. The opposite parties were given chance on six (6) different dates to file their written notes of submission. It was ensured that despite the date being advanced, both sides were given a fair opportunity to present their case, adhering to the principles of natural justice.

Above facts along with the enclosed documents are being placed for kind orders to the Under Secretary (Judl.), Board of Revenue, Odisha, for taking steps to file affidavit in compliance with the kind orders of Hon‟ble High Court in W.P.(C) No.15621 of 2025.”

Consideration of arguments and submissions:

“4[38B.Revision.—

(1)

The ^{55.The words “Board of Revenue” are substituted for the word “Board” by virtue of the Odisha Estates Abolition (Amendment) Act, 1976 (Odisha Act 16 of 1976), being published in the Extraordinary issue of the Odisha Gazette dated 27.04.1976.}[Board of Revenue] may, on its own motion or on a report from the Collector, call for and examine the record of any proceeding in which any authority subordinate to the ^{44.Provisions of Section 38-B has been inserted in the OEA Act, 1951, by virtue of the Odisha Estates Abolition (Amendment) Act, 1973, in exercise of powers conferred by Section 3 of the Odisha State Legislature (Delegation of Power) Act, 1973, vide President’s Act No.21 of 1973.}[Board of Revenue] has made any decision or passed an order under this Act (not being a decision against which an appeal has been preferred to the High Court or the District Judge under Section 22) for the purpose of satisfying itself as to the regularity of such proceeding or the correctness, legality or propriety of such decision or order and if in any case it appears to the ⁴[Board of Revenue] that any such decision or order ought to be modified, annulled, reversed or remitted, it may pass orders accordingly.

^{66.Sub-section (2) of Section 38-B has been substituted by virtue of the Odisha Estates Abolition (Amendment) Act, 1976, and the said sub-section (2) as inserted by virtue of the Odisha Estates Abolition (Amendment) Act, 1973, stood thus: “(2) The Board of Revenue shall not revise any decision or order under this section,— (i) after the expiry of one year from the date of such decision or order; and (ii) without giving the parties concerned an opportunity of being heard in the matter.”}[(2) The Board of Revenue shall not,—

[(i) ^{77.Clause (i) of sub-section (2) of Section 38-B of the OET Act, 1951, as inserted by virtue of the Odisha Estates Abolition (Amendment) Act, 1973, and later substituted by the Odisha Estates Abolition (Amendment) Act, 1976, has been deleted by virtue of the Odisha Estates Abolition (Amendment) Act, 1979 (Odisha Act 22 of 1979), with effect from 15.10.1979. Prior to such deletion, said clause stood thus: “Initiate any proceeding under this section after the expiry of one year from the date of such decision or order; and”}[***]

(ii)

revise any decision or order under this section without giving the parties concerned an opportunity of being heard in the matter.]”

“Further, an angle of fraud/misrepresentation of facts/ deceit cannot be ruled out altogether specifically when either there is suppression of facts by the private opposite parties or the obvious facts in the primarily relied upon documents like RSD and Civil suit decree have been overlooked by the revenue officials. Citing the legal precedent in Ram Chandra Singh Vrs. Sabitri Devi & others, Hon‟ble Supreme Court held that misrepresentation constitutes fraud and fraudulent misrepresentation leads to deceit. It will not be out of place to cite the judgement in S.P. Chengalvaraya Naidu Vs. Jagannath, (1994) 1 SCC 1 where it has been held by the Hon‟ble Apex Court as follows: „Fraud avoids all judicial acts, ecclesiastical or temporal" observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non-est in the eyes of law. Such a judgment/decree by the first court or by the highest court has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.‟ ***”

“That, the respondent being failed to record the land in his favour in spite of the repeated attempt, finally in the year 2001 by influencing the Tahasil Officials a Suo Moto Bebandobasta case was initiated vide B.B. Case No. 912 of 2001 by the Tahasildar, Badamba to settle the land in favour of the Bebandobasta holders and after verification of the land sold by the recorded tenants had been settled in favour of different persons. But the respondent though in possession of ac.0.04decimals of land influenced the Government Amin who had submitted the report that Baidyanath Satapathy is in possession of Ac0.05decimals of land on the strength of R.S.D. No. 1962 dated 03.08.1973. Hence basing on the report of the R.I. AcO.05 decimals of land has been settled illegally in his favour, which is without the knowledge of the appellant and the Hal R.O.R. has been published vide Hal Khata No. 1301/305, Hal Plot No.5962 Area: Ac.0.05decimals having Kissam: Gharabari which is purely illegal. Baidyanath actually purchased an, area of Ac.0.04 decimals of land from Bimala Dibya on the strength of Regd. Sale Deed No.l962 dated 03.08.1973.”

“We do not find any merit in this appeal. Firstly, in the present case, Patel Chikkahanumaiah had moved an application under Order 9, Rule 13, CPC for setting aside the ex-parte decree on the ground of non service of summons in which fraud was not alleged. As stated above, Patel Chikkahanumaiah had moved R.A. No.54 of 1977 in which there was no such allegation. Secondly, the present suit has been instituted to set aside the ex parte decree on the ground that the decree was obtained by fraud and misrepresentation. Fraud is to be pleaded and proved. To prove fraud, it must be proved that representation made was false to the knowledge of the party making such representation or that the party could have no reasonable belief that it was true. The level of proof required in such cases is extremely higher. An ambiguous statement cannot per se make the representor guilty of fraud. To prove a case of fraud, it must be proved that the representation made was false to the knowledge of the party making such representation. [See: Pollock & Mulla on Indian Contract & Specific Relief Acts (2001) 12th Edition page 489]. In the present case, there is no evidence of fraud. The present case is a matter of non-service of summons. In the present case, there is a bare allegation of fraud. In the case of Choksi Bhidarbhai Mathurbhai Vs. Purshottamdas Bhogilal Shah reported in AIR 1962 Gujarat 10, it has been held that where the only fraud alleged is a bare non service of summons then such a suit to set aside the decree on alleged ground of fraud was not maintainable. Lastly, no substantial question of law arises in this appeal. For the aforesaid reasons, we do not find any merit in this civil appeal and the same is accordingly dismissed, with no order as to costs.”

“26.

*** This Court in the case of Pushpam Pharmaceuticals Co. Vrs. CCE, 1995 Supp (3) SCC 462 while dealing with the meaning of the expression “suppression of facts” in the proviso to Section 11-A of the Act (Central Excise Act, 1944) held that the term must be construed strictly, it does not mean any omission and the act must be deliberate and wilful to evade payment of duty. The Court further held:

„In taxation, it [„suppression of facts‟] can have only one meaning that the correct information was not disclosed deliberately to escape payment of duty. Where facts are known to both the parties the omission by one to do what he might have done and not that he must have done, does not render it suppression.”

“*** the contracts of insurance including the contract of life assurance are contracts uberrima fides and every fact of material (sic. material fact) must be disclosed, otherwise, there is good ground for rescission of the contract. The duty to disclose material facts continues right up to the conclusion of the contract and also implies any material alteration in the character of the risk which may take place between the proposal and its acceptance. If there are any misstatements or suppression of material facts, the policy can be called into question. For determination of the question whether there has been suppression of any material facts it may be necessary to also examine whether the suppression relates to a fact which is in the exclusive knowledge of the person intending to take the policy and it could not be ascertained by reasonable enquiry by a prudent person.”

“By filing Letter No.2775 of 26.08.1991 along with the Review Petition and contending that the other letter, namely, Letter No.2776 of the even date, was never written or issued by the respondent, the appellant, in fact, raised the plea before the Commission that its judgment dated 16.11.1993, which was based on Letter No. 2776, was obtained by the respondent by practising fraud not only on the appellant but on the Commission too as Letter No.2776 dated 26.08.1991 was forged by the respondent for the purpose of this case. This plea could not have been legally ignored by the Commission which needs to be reminded that the Authorities, be they Constitutional, Statutory or Administrative, (and particularly those who have to decide a lis) possess the power to recall their judgments or orders if they are obtained by fraud as „fraud‟ and „Justice‟ never dwell together (fraus et jus nunquam cohabitant). It has been repeatedly said that fraud and deceit defend or excuse no man (fraus et dolus nemini patrocinari debent).”

“29.

Presently, we shall refer as to how this Court has dealt with concept of fraud. In S.B. Noronah Vrs. Prem Kumari Khanna, (1980) 1 SCC 52 = AIR 1980 SC 193 while dealing with the concept of estoppel and fraud a two-Judge Bench has stated that:

„20. It is an old maxim that estoppels are odious, although considerable inroad into this maxim has been made by modern law. Even so, „a judgment obtained by fraud or collusion, even, it seems, a judgment of the House of Lords, may be treated as a nullity‟. (See Halsbury‟s Laws of England, Vol. 16, 4th Edn., para 1553.) The point is that the sanction granted under Section 21, if it has been procured by fraud or collusion, cannot withstand invalidity because, otherwise, high public policy will be given as hostage to successful collusion.‟

30.

In S.P. Chengalvaraya Naidu Vrs. Jagannath, (1994) 1 SCC 1 this Court commenced the verdict with the following words:

„1. „Fraud avoids all judicial acts, ecclesiastical or temporal‟ observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eye of the law. Such a judgment/decree— by the first court or by the highest court— has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.‟

In the said case it was clearly stated that the courts of law are meant for imparting justice between the parties and one who comes to the court, must come with clean hands.

31.

A person whose case is based on falsehood has no right to approach the court. A litigant who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If a vital document is withheld in order to gain advantage on the other side he would be guilty of playing fraud on court as well as on the opposite party.

32.

In Shrisht Dhawan Vrs. Shaw Bros., (1992) 1 SCC 534 = AIR 1992 SC 1555 it has been opined that the fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It has been defined as an act of trickery or deceit. The aforesaid principle has been reiterated in Roshan Deen Vrs. Preeti Lal, (2002) 1 SCC 100 = AIR 2002 SC 33, Ram Preeti Yadav Vrs. U.P. Board of High School and Intermediate Education, (2003) 8 SCC 311 and Ram Chandra Singh Vrs. Savitri Devi, (2003) 8 SCC 319.

33.

In State of A.P. Vrs. T. Suryachandra Rao, (2005) 6 SCC 149 after referring to the earlier decision this Court observed as follows:

„16. In Lazarus Estates Ltd. Vrs. Beasley, (1956) 1 QB 702 = (1956) 2 WLR 502 = (1956) 1 All ER 341 Lord Denning observed at QB p. 712:

„… No judgment of a court, no order of a minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.‟

In the same judgment Lord Parker, L.J. observed that fraud ‘vitiates all transactions known to the law of however high a degree of solemnity’ (Lazarus case, (1956) 1 QB 702 = (1956) 2 WLR 502 = (1956) 1 All ER 341, QB p. 722).‟

34.

Yet in another decision Hamza Haji Vrs. State of Kerala, (2006) 7 SCC 416 = AIR 2006 SC 3028 it has been held that no court will allow itself to be used as an instrument of fraud and no court, by way of rule of evidence and procedure, can allow its eyes to be closed to the fact it is being used as an instrument of fraud. The basic principle is that a party who secures the judgment by taking recourse to fraud should not be enabled to enjoy the fruits thereof.

***

38.

All these reasonings are absolutely non-plausible and common sense does not even remotely give consent to them. It is fraudulent all the way. The whole thing was buttressed on the edifice of fraud and it needs no special emphasis to state that what is pyramided on fraud is bound to decay. In this regard we may profitably quote a statement by a great thinker: „Fraud generally lights a candle for justice to get a look at it; and rogue‟s pen indicts the warrant for his own arrest.‟ ***”

“For that the order passed by the learned Tahasildar, is contrary to law as Judgement passed in T.S.No.10 of 1974 in respect to the landed property settled illegally in favour of Baidyanath Satapathy has not been dealt with, hence the settlement is infructuous as it goes against the decision of the Civil Court.”

“This Case involves in the decree in Title Suit No.10/74 and Civil Suit No.19/2014 and CMA No.03/2017 in the Civil Judge, (Junior Division), Badamba.

The petitioner submits that this CMA No.05/17 is only intended to set aside an order of injunction in the C.S No.19/14 and not the right, title, interest and possession declared in C.S. No.10/1974. He further submitted that the present proceeding relates to correction of record where entitlement of such prayer is available in the decree passed in C.S. No.10/1974 which is not ever challenged or a question of title and possession is under any dispute pending before any court and prayed for correction of R.O.R as per the decree passed in T.S No.10/74.

The learned advocate for the O.P. submits that the matter in issue being sub judice in court of Civil Judge (Junior Division), Badamba in CMA No.03/2017 as well as Execution Case No.02/2016, the Case should not be entertained. The decree passed in Title Suit No.10/74 is barred by limitation since this case has been filed after 45 years. He has also relied on the recording of the Hal settlement authority. He has further submitted that they are in exclusive possession over the land and the order in B.B Case No.912/2001 has also not been set side and this court has no jurisdiction to set aside his own order and prayed to dismiss the case.

Under the above premises, I am of the opinion that the case land involves civil litigations and sub judice in the Civil Court vide CMA No.05/2017 in Court of Civil Judge (Junior Division), Badamba. It is a fact that a compromise petition filed in Civil Suit No.10/1974 which corroborates that Ac.0.006.Ω out of Plot No.5962 has been left to be used as passage from danda to his own' plot but this court has limited jurisdiction to decide to fact in issue while the matter is sub judice in the court of law. So the fate of the case depends upon outcome of the decree the come out CMA No.03/2017 in the Court of Civil Judge (Junior Division), Badamba.

So, I am inclined to close the Case till disposal of the CMA.”

“The plaintiff files a petition under Order 23, Rule 1(3) of the Code of Civil Procedure supported by an affidavit with a prayer to withdraw the suit on the ground stated therein. Copy served. Heard the learned counsel for the plaintiff. The plaintiff does not want to proceed in this case further more as the plaint wrongly filed this Court.

Perused the petition as well as case record. Taking into consideration of submission of the learned counsel for the plaintiff, I am to view the plaintiff is permitted to withdraw the suit with liberty to file the fresh suit in the self-same subject matter.”

“4.

There is no dispute that the impugned order under Annexure-7 has been passed in exercise of the power conferred under Section 38-B of the O.E.A. Act which was about fifteen years after the passing of the order by Tahasildar, Bhubaneswar in the vesting case. The section clearly states that for the purpose of satisfying itself regarding the regularity of any proceeding in which any subordinate authority has made any decision or passed an order under the O.E.A. Act and also for verifying the correctness, legality or propriety of the decision taken by such subordinate authority, the Board of Revenue can call for and examine the record of such proceeding on its own motion or on a report submitted by the Collector. If the revisional authority feels that any decision or order passed by the subordinate authority needs to be modified, annulled or remitted, it may pass the order accordingly which can be done only after giving opportunity of hearing to the concerned parties.

In the case of: Sri Laxman Kanda Vs. State of Odisha, 1991 (II) OLR 50 which was relied upon by the learned counsel for the petitioners, taking into account the fact that the petitioner in that case was a tribal and he was in possession of the land since 1945 and since 1965 his sons were in possession of the land, it was held that ordinarily a person who has continued in possession for such length of time is not to be disturbed even if he is not a tribal and that more weightage is to be attached when the person concerned is one such. The initiation of the proceeding by the Revenue Divisional Commissioner under section 12(3) of the Odisha Prevention of Land Encroachment Act, 1972 against the petitioners in the year 1983 was held to be erroneous in law and accordingly quashed.

In the case of Mst. Surya Rana Vs. State of Odisha, 1996 (I) OLR 180 it is held that the legality of the order passed by the Revenue Divisional Commissioner in exercise of the power conferred under Rule 38-A(2)(bb) read with Rule 38-A(10)(bb) of the Odisha Land Reforms (General) Rules, 1965 framed under the Orissa Land Reforms Act, 1960 has to be tested on touchstone of reasonableness of time. Even though no period of limitation is prescribed, power has to be exercised in a reasonable manner which inheres the concept that it must be done within a reasonable time. Absence of a provision prescribing a period of limitation is an assurance to exercise the power with caution or circumspection to effectuate the purpose of the Act, or to prevent miscarriage of justice or misuse or abuse of the power by lower authorities. It is true that when benefit has been obtained by fraud, it does not lie in the mouth of the party to the fraud to plead limitation to get away with the order. Lapse of time is no excuse to refrain the authority exercising statutory powers to unravel fraud and set the matter right.

In the case of Labanyabati Devi Vs. Member, Board of Revenue, 76 (1993) CLT 937, it is held that since the learned Member, Board of Revenue exercised his suo motu jurisdiction under Section 59(2) of the Odisha Land Reforms Act, 1960 after a lapse of twelve years, it was held to be a case of unreasonable delay and accordingly, the order passed by learned Member was quashed.

A Division Bench of this Court in the case of Nityananda Satpathy Vs. Member, Board of Revenue, 1996 (II) OLR 262 held that the power of the Board of Revenue under Section 38-B of the O.E.A. Act to revise a decision or order of any authority subordinate to it, has to be exercised in a reasonable manner within a reasonable time and no hard and fast rule can be laid down as to what should be the reasonable time as each case has to be decided on facts and circumstances peculiar to it. In that case since the power under Section 38-B was exercised more than a quarter of century, it was held that during such long years, the lands might have suffered transfer from one hand to another creating new rights and liabilities amongst themselves and unsettling a settled position in abject disregard of consequences cannot be countenanced and accordingly, the entire proceeding before the Member, Board of Revenue was quashed on the ground that the revisional authority failed to exercise the power in a reasonable manner within a reasonable time. The decision rendered by this Court in Nityananda Satpathy‟s case was set aside on some other grounds by the Hon‟ble Supreme Court in Civil Appeal No.7670 of 1997 decided on 31.07.2003 which is reported in (2003) 7 Supreme Court Cases 146 [State of Odisha Vrs. Nityananda Satpathy].

In the case of State of Odisha Vs. Brundaban Sharma, 1995 Supp.(3) SCC 249, a question arose before the Hon‟ble Apex Court as to whether Board of Revenue was justified in exercising its jurisdiction under Section 38-B of the O.E.A. Act after a lapse of twenty seven years. The Hon‟ble Court held that when the revisional power was conferred to effectuate a purpose, it is to be exercised in a reasonable manner which inheres the concept of its exercise within a reasonable time. Absence of limitation is an assurance to exercise the power with caution or circumspection to effectuate the purpose of the Act or to prevent miscarriage of justice or violation of the provisions of the Act or misuse or abuse of the power by the lower authorities or fraud or suppression. Length of time depends on the factual scenario in a given case. It was further held that it cannot be said that the Board of Revenue exercised the power under Section 38-B after an unreasonable lapse of time, though from the date of grant of patta by the Tehsildar was of twenty seven years. In the case of Ibrahimpatnam Taluk Vyavasaya Coolie Sangham Vs. K. Suresh Reddy and others reported in (2003) 7 Supreme Court Cases 667, the Hon‟ble Apex Court had the occasion to consider Section 50-B(IV) of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950, which provides that the Collector might suo motu at any point of time, call for and examine the record relating to any certificate issued or proceedings taken by the Tahasildar under the section for the purpose of satisfying himself as to the legality or propriety of such certificate or as to the regularity of such proceedings and pass such order in relation as he may think fit. Exercise of suo motu power at any time only means that no specific period such as days, months or years are not prescribed reckoning from a particular date but that does not mean that at any time should be unguided and arbitrary. In this view, at any time must be understood as within a reasonable time depending on the facts and circumstances of each case in the absence of prescribed period of limitation.

In the case of Santoshkumar Shivgonda Patil and others Vs. Balasaheb Tukarm Shevale and others reported in (2009) 9 Supreme Court Cases 352, the Hon‟ble Apex Court held that it seems to be fairly settled that if a statute does not prescribe the time-limit for exercise of revisional power, it does not mean that such power can be exercised at any time; rather it should be exercised within a reasonable time. It is so because the law does not expect settled things to be unsettled after a long lapse of time. Where the legislature does not provide for any length of time within which the power of revision is to be exercised by the authority, suo motu or otherwise, it is plain that an exercise of such power within reasonable time is inherent therein.

Thus the legal principle which is set out from the above citations is that even though no period has been prescribed for exercising the power under Section 38-B of the O.E.A. Act, the revisional authority has to exercise the same within a reasonable time and that to in a reasonable manner. It depends upon the facts and circumstances of each case as to what would be the reasonable time. There cannot be any hard and fast rule for that. However, when fraud has been committed in obtaining an order or the decision of the subordinate authority is based on forged documents or there is suppression of material facts or there is violation of the provision of the Act, the revisional authority would be fully justified in exercising its power under Section 38-B at any point of time in order to prevent miscarriage of justice or misuse or abuse of the power committed by the subordinate authority in granting relief to any party.”

“7.

Section 38-B of the Act provides that the Board of Revenue may, on its own motion or on a report from the Collector call for and examine the record of any proceeding in which any authority subordinate to it has made any decision or passed an order under this Act for the purpose of satisfying itself as to the regularity of such proceeding or the correctness, legality or propriety of such decision or order. Admittedly, fixation of fair rent under Section 8(1) of the Act is an administrative order and the same is not amenable to the jurisdiction of the Member, Board of Revenue under Section 38-B of the Act. The said view has been taken in the cases of Chandra Sekhar Rath Vs. Collector, Dhenkanal, reported in 1988 (II) OLR 572 and State of Orissa Vs. Baidyanath Jena, reported in 2013 (II) OLR 780. But, when the OEA Collector usurps jurisdiction conferred on him under Section 8(1) of the Act and passes an order, the same shall be treated to be a proceeding under the Act and Section 38-B of the Act would be attracted. The Board of Revenue in exercise of power conferred by Section 38-B of the Act can test the veracity of the same. Thus, exercise of power under Section 38-B depends upon the facts and circumstances of each case and the nature of the order passed under Section 8(1) of the Act. Accordingly, initiation of the proceeding under Section 38-B of the Act cannot be said to be wholly without jurisdiction at the threshold. The conclusion with regard to jurisdiction can be arrived at after assessment of the facts involved and the nature of the order passed in each case. Further, there is no dispute to the settled law that when the land is settled under the lease principles as per the Government instruction extending the time to make an application for settlement of the land already vested in Government, the same cannot be treated to be a settlement under the Act. (See 1988 (I) OLR 520). Thus, Section 38-B of the Act cannot have any application since the settlement in question was not under the provisions of the said Act. (See 63 (1987) CLT 526). The petitioners claim that the balance Ac.1.31 decimal of land out of the case land was settled in their favour by way of lease in O.E.A. Case No. 2045 of 1970 by order dated 16.04.1973 (Annexure-7). Perusal of Annexure-7 reveals that the said proceeding was initiated pursuant to an application under Sections 6, 7 and 8(3) of the Act by the petitioners. Though Mr. Mohanty, learned Senior Advocate submitted that the said application was filed by the petitioners in terms of provisions made in G.O. No. 14399/R dated 02.03.1964, no material is available on record in support of the same. On the other hand, order sheet under Annexure-7 reveals a different state of affairs. Nomenclature of an application, of course, is not material for consideration. It is the subject matter of the petition and prayer made therein are the guiding factor for consideration of an application. In the facts and circumstances and more particularly in absence of sufficient material on record to reach at a conclusion, the Member Board of Revenue, before whom the revision is pending should examine the matter in detail.

8.

Mr. Mohanty, learned Senior Advocate for the petitioners vehemently argued that initiation of the proceeding under Section 38-B of the Act suffers from delay and latches. He submitted that no period of limitation has been provided for initiation of a proceeding under Section 38-B of the Act. However, it should be within a reasonable time and period of 40 years and 37 years cannot, at all, by no stretch of imagination, be said to be a reasonable period under Section 38-B of the Act. He verily relied upon the decision of this Court in the case of Nityananda Satpathy Vs. Member, Board of Revenue, reported in 1996 (II) OLR 262, wherein it has been held that no time limit is fixed to initiate a proceeding under Section 38-B of the Act, but the power should be exercised in a reasonable manner within a reasonable time which depends on facts and circumstances of each case. It should not be done arbitrarily. Similar view has also been taken in the decision in the cases of Labanybati Devi Vs. Member, Board of Revenue, reported in 1993 (II) OLR 365 and Smt. Parbati Mohapatra Vs. State of Odisha, reported in 2014 (I) OLR 825. He also relied upon the decision in the case of Chennai Metropolitan Water Supply and Sewerage Board Vs. T.T. Murali Babu, AIR 2014 SC 1141, wherein the Hon‟ble Supreme Court at paragraph-16 held as follows:

„16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the Court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the Court. Delay reflects inactivity and inaction on the part of a litigant— a litigant who has forgotten the basic norms, namely, “procrastination is the greatest thief of time” and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis. In the case at hand, though there has been four years' delay in approaching the court, yet the writ court chose not to address the same. It is the duty of the court to scrutinize whether such enormous delay is to be ignored without any justification. That apart, in the present case, such belated approach gains more significance as the respondent-employee being absolutely careless to his duty and nurturing a lackadaisical attitude to the responsibility had remained unauthorisedly absent on the pretext of some kind of ill health. We repeat at the cost of repetition that remaining innocuously oblivious to such delay does not foster the cause of justice. On the contrary, it brings in injustice, for it is likely to affect others. Such delay may have impact on others' ripened rights and may unnecessarily drag others into litigation which in acceptable realm of probability, may have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons - who compete with „Kumbhakarna‟ or for that matter „Rip Van Winkle‟. In our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold.‟

9.

He also relied upon the decision in the case of Jt. Collector, Ranga Reddy Dist. Vs. D. Narsing Rao, 2015 SC 1021, wherein the Hon‟ble Supreme Court at paragraph-24 held as follows:

„24. To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third party rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority.‟

Conclusion: