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PETITIONER: STATE OF ORISSA & OTHERS

       Vs.

RESPONDENT: COMMISSIONER OF LAND RECORDS & STATEMENT, CUTTACK & OTHERS

DATE OF JUDGMENT:       27/08/1998

BENCH: S.B. MAJMUDAR, M. JAGANNADHA RAO.

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T M.JAGANNADHA RAO, J.      The main  point that  arises for consideration in these appeals is  whether the delegate of the revisional powers of the Board  of Revenue,  Orissa under an Act of 1958 can also exercise the general powers of review conferred on the Board under an  earlier Act  of 1951.  Incidentally  the  question arises whether the order of the delegate is to be treated as the order of the Board or as an order of the delegate in his own right  and whether  the Board  can revise  or review the order of the delegate?      In  both  these  appeals,  the  State  of  Orissa,  the officials  of   the  Forest   Department  and  the  District Collector of  the area-concerned,  are appellants.   The 1st respondent is the Commissioner of Land Records & Settlement, Cuttack (hereinafter called the ’Commissioner’).  The second respondent is  the vendee  from the  3rd respondent. The 3rd respondent is  the person  in whose favour entries were made in the  record of  rights in  the settlement  of 1956 and in whose favour the revenue authorities granted patta.      The Commissioner,  to whom the revisional powers of the Revenue Board  under section  15 of  the Orissa  Survey  and Settlement Act,  1958 (hereinafter called the ’Act of 1958’) were delegated,  initially passed  orders in  favour of  the Forest Department  on 28.7.1981 setting aside the entries in the name  of the  3rd respondent’s  father in  the record of rights. He  treated the  land as  Reserved Forest.  But  his successor-commissioner passed the latter order dated 19.6.85 setting aside  the order  dated 28.7.81  of his predecessor, while purporting  to exercise  powers of review of the Board of Revenue  conferred by  a  general  Statute,  namely,  the Orissa Board  of Revenue  Act, 1951  (hereinafter called the 1951 Act).  Under  the  latter  order  dated  19.6.1985  the Commissioner restored  the  name  of  the  3rd  respondent’s father Mayadhar  Singh and  refused to  treat  the  land  as Reserve Forest.      The latter  order dated  19.6.1985 of  the Commissioner passed in review was challenged in two writ petition, one in a public  interest case  filed by  one  Bhagaban  Kamil  Das (O.J.C. 3662  OF 1987) and another in O.J.C. No.1485 of 1988

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filed  by   the  State   and  its  officers  is  the  forest Department. The  High Court  of Orissa  dismissed both  writ petitions by  judgment dated  8.1.1993.  A  review  petition filed in  another OJC  No.783 of  1983 relating  to grant of transit permits  was dismissed  on 9.3.1994  and the  Forest Department was directed to issue transport permits in favour of 2nd  respondent, the  vendee from the 3rd respondent. The main judgment  of the  High Court  dated 8.11.1993  and  the order dated 9.3.1994 are challenged in these appeals wherein special leave  has been  granted. Pending  disposal  of  the appeals the  orders of  the High  Court have  been stayed by this Court on 13.1.1995 and stay has been continued by order dated 17.7.1995.      The  subject-matter   in  dispute   is   Ac.146.41   in Binikapadar village  and the  land contains  tree and forest growth and is located in Khata No.4 of 1955-56 Settlement of Mouze Binikapadar.  This land according to the State and its Forest Department is and is deemed statutorily to be part of the  Nehala  Reserved  Forest  under  the  Kalahandi  Forest Division. The  appellants contend  that from 1942 and at any rate from  the date  when the  Indian Forest  Act, 1927  was amended by  Orissa Act  of 1954, the land is to be deemed to be Reserve  Forest and  the 1956  Record of  Rights entry in favour of  Mayadhar Singh  treating the  land as part of the Revenue village  is illegal and without jurisdiction and the orders passed  by the  Commissioner on 19.6.85 in review are also illegal and without jurisdiction.      The case  of the  appellants is as follows: The village Binikapadar was no doubt a revenue-village to start with but by 1922,  on account  of tiger  menace in  the area,  it was abandoned. There  has been  no human  habitation ever since. Even the 1971 Census Report and the notification (SRO 749 of 1983) dated  14.10.1983 issued under section 3 of the Orissa Gram Panchayat  Act, 1964  show that  it was  an uninhabited village (UI).  The village was described as abandoned in the Dangarla Khasra  and Zamindari  Register of  the Ex-State of Kalahandi within  Pragana Patbarka, Bhawanipatna, Sadar P.S. area, as  noted by  the Dewan  in his  letter dated 5.6.1922 (Annexure-A),  In   the  1932  Settlement  Records,  it  was recorded on 15.5.1932 that the village of Binikapadar was an ’abandoned  village’  even  by  the  date  of  the  previous settlement due  to tiger  menace. It  was also identified as being located  West of  village Dengchuan.  That it  was  so abandoned was  accepted by the Dewan in 26.8.1932 who agreed that the  village was ’lying waste’ (Annexure-B). After 1932 the then Ruler Sri P.K.Deo prepared working plans to include earlier Dengarlos  in the Reserved Forest by demarcation and survey. In  1934-35, one  such working  plan was prepared by Dr. H.F.  Mooney and  he recommended  that the  land in this village Binikapadar  consisting of Sal and bamboo be treated as Reserved  Forest. This recommendation was accepted by the Ruler. This  village was  accordingly included  in the total area of 5760 acres of the Nehala Reserved Forest. The survey of India  Maps of  the Government  of India  of 1936-37  for Kalahandi  State   (Maps  65M/2)(Annexure-C)   do  not  show Binikapadar village  at all.  By  superimposing  the  Estate plans and  these plans,  it is  clear  that  this  area  was treated as  waste and  is lying  to the  West  of  Dengchuan village. This  area included  in the reserve Forest in these plans is  none  other  than  Binikapadar  village  and  thus absorbed into  the Reserved  Forest. Dr. Mooney’s report was accepted by  the Dewan  on 5.12.1942 and by the Ex-Ruler Sri P.K.Deo  on   14.12.1942  (Order  No.3104)(Annexure-E).  Dr. Mooney prepared  further working plans in 1948. The above is the case of the appellants.

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    Sri P.N.  Misra, learned  counsel  for  the  appellants strongly relied  upon the  Orissa Amendment  to  the  Indian Forest Act,  1927 by  Orissa Act XI of 1954 by which section 20A was  inserted w.e.f. 21.5.1954. Under section 20A, it is pointed out  that apart  from giving effect to any orders of the ruler  before merger  in regard  to inclusion  of  fresh areas in  the Reserved Forest, other lands even if they were described either  as ’forest land’ or as ’waste land’ in any administration reports  or working  plans or registers, were to be  deemed to  be reserve  Forest  land.  The  appellants contend that  because of  the working  plans and the reports and the statutory ’fiction’ created by section 20 A, even if the village  was a  revenue village before 1942, it became a reserve Forest  later in  fact and in law under the Amending Act of  1954. This  fiction was also carried into the Orissa forest Act,  1972. Once  the revenue  village consisting  of forest growth  or waste  land was  deemed to  be part of the existing reserve  Forest  even  if  it  be  from  1954,  the settlement authorities  could not  have treated  this  as  a revenue village  in  1956  and  included  the  name  of  Sri Mayadhar Singh  in the  record of  rights. The village could become a  Revenue village  again only by dereservation under section 27  of the  India Forest  Act or under section 29 of the Orissa  Forest Act,  1972. In  fact, on  14.3.1959,  the Forest Department  issued notification treating this land as forest land.      The learned  counsel  for  appellants  Sri  P.N.  Misra further contended  that in  the Record of rights proceedings initiated by the Revenue Department in 1949 which culminated in 1956,  the facts  prior  to  1949  were  not  taken  into account, that facts subsequent to 1949 were inadmissible and were irrelevant,  and that no notice was given to the Forest Department when  a Gountia patta was issued on 14.10.1950 in favour of  late Mayadhar  Singh, father  of respondent No.2. Even clause  22 of  that patta shows the existence of ’teak, Sal, Bija, Sisu, Bandhan, Harida and Kusum trees’ by 1950 in the village  itself assuming  that clause  23 thereof showed the village to be a little away from the reserve forest near the village.  In view of the working plan of & reports prior to 1954,  was to  deem this land in Binikapadar also as part of the Reserve forest near the village, even if it was not a part of  the Reserve  forest earlier.  The  entries  of  the village in  the records  as ’waste land’ and the description as such  in the  working plans  and  administrative  reports prior to  merger, were  sufficient for  purposes of  section 20A. There  was no  order of dereservation after 1954. There has been  no cultivation of lands ever since 1922. The above pleas are  raised on  merits. Learned  counsel contends that the entries  of 1956  in the  record of  rights were rightly revised by  the Commissioner on 28.7.1981 in exercise of suo motu powers  under section   15  of the Settlement Act, 1958 delegated to  him. No  Plea of  unreasonable  delay  in  the exercise of suo motu revisional powers was raised before the commissioner. The latter order of the successor-Commissioner dated 19.6.1985  in favour  of restoring the entries of 1956 is without  jurisdiction for yet another reason, namely that the Commissioner  did  not  have  any  statutory  powers  of review. His findings on merits on the question of possession and incidentally  on the question of title of Mayadhar Singh and his  order for  restoration of  1956 entry  in Record of Rights are  vitiated on  account of non-consideration of the above facts.  In any  event, the entries in Record of rights are only  of presumptive value and subject to final decision by Civil  Court. Now  the suit  of the  State filed  in 1991 (T.S.76/91) is  pending in  Civil Court  and the findings in

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the review order are not binding on the Civil Court.      On the  other hand,  Sri T.L.  Viswanatha Iyer, learned senior counsel  for respondents  No.2 & 3 contended that the land was  part of  the Revenue  village of Binikapadar, that the said  character continued thereafter, that though public notice was given in 196 by the Revenue Department the Forest Department  did  not  file  objections  and  the  settlement proposals of 1956 were confirmed in favour of Mayadhar Singh on 15.10.1963.  Patta for  occupancy rights was conferred on that basis on Mayadhar Singh on 1.5.1973. The entries in the Record of  Rights of 1956 made by the revenue authorities in favour  of   Mayadhar  Singh   were  valid.  These  are  the submissions on  merits.  It  was  also  contended  that  the Commissioner wrongly interfered with the same in exercise of his revisional  powers under  section 15  of the 1958 Act on 28.7.1981. It  was contended that the successor-Commissioner was entitled  to exercise the powers of review vested in the principal i.e.  the Board of Revenue under section 7 of 1951 Act. The  Commissioner, while  exercising review powers, had considered all  the relevant facts and rightly set aside the order of  his predecessor  dated 28.7.1981.  Learned  senior counsel referred  to several provisions of the 1958 Act, the Rules &  Regulations made  thereunder as also the rules made under the  1951 Act,  in this connection. It was pointed out that in the latter order dated 19.6.85 the Commissioner held that there  was  no  proper  correlation  between  what  was declared as  Forest land  by the  Ex ruler  in 1942 and this land in  village Binikapadar.  It was  pointed out that this land was  rightly treated  as part of the revenue village in subsequent  land-ceiling   proceedings,  (which   are  still pending) and also in several orders passed by the High Court in writ  jurisdiction  while  granting  transit  permits  to respondent 2. The forest authorities were impleaded in those proceedings before  the High  Court. Again, the Civil Court, in the  pending suit of 1991 filed by the State, had, at the instance of  the  respondents,  passed  orders  on  19.12.94 vacating the  interim injunction  orders passed  earlier  in favour of  the State.  No doubt,  the High Court had granted stay in the public interest case.      In  reply,  the  appellants’  counsel  Sri  P.N.  Misra contended that the orders of the High Court granting transit permits and  the order  of  the  Civil  Court  vacating  the injunction were  based on the latter orders dated 8.11.1993. These orders  have not  reached any  finality as  the review order of  the Commissioner and the High Court judgment dated 8.11.1993 are  in question  before us now, and therefore the latter orders  of the High Court and Civil Court depend upon the result  of these  appeals. In  any event, all the orders which treated  the land  as part  of  revenue  village  were without jurisdiction  as there  was no  dereservation  order after 1954.      In view  of the  above pleas  on  facts  and  law,  the following points arise for consideration: (1) Whether  the commissioner, to whom powers of revision of the Board under sections 6D, 15, 25 and 32 of the Settlement Act, 1958  were delegated,  could  exercise  the  powers  of review conferred on the Board by section 7 of the 1951 Act? (2)  Whether  the  orders  passed  by  the  Commissioner  as delegate of  the Board  of Revenue in respect of the Board’s revisional powers under the 1958 Act could be revised by the Board in  exercise of its revisional powers under section 15 of the 1958 Act or reviewed under section 7 of the 1951 Act? (3) Assuming  that the  commissioner while  acting under the 1958 Act  could exercise  review powers  under the 1958 Act, whether it  was competent for the Commissioner in his review

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orders dated  19.6.85 to  go into  factual issues concerning title and  possession  in  respect  of  which  findings  had already been  given in  the earlier revisional orders of his predecessor on 18.7.81? (4) Whether  the matters  concerning title and possession as recorded in  the Record of Rights entries of 1956-57 can all be left  open for  decision by the Civil Court in civil suit T.S.76/91 now pending? Points 1 & 2:      We shall  initially refer to the relevant provisions of the 1958 And 1951 Acts. The 1958 Act:      Under sub-clause (a) of section 15 of the Orissa Survey & Settlement  Act, 1958,  the Board  of Revenue has suo motu revisional powers conferred on it. That section reads:      "S.15:Revision by Board of Revenue:      The Board  of Revenue  may, in  any      case, direct-      (a) of  its own motion the revision      of  any  record-or-rights,  or  nay      portion of  a record-of-rights,  at      any time  after the  date of  final      publication under  section 12-B but      not so  to affect  any order passed      by a Civil Court under section 42.      (b)................................      ...................................      ...................................      ...............      Provided  that  no  such  direction      shall  be   made  until  reasonable      opportunity has  been given  to the      parties concerned  to appear and be      heard in the matter."      similar suo  motu  powers  of  revision  are  found  in section 6D, 25, and 32 of the said Act.      There  is  no  dispute  that  by  Notification  of  the Government of Orissa (Revenue Department) dated 16.10.71 and 17.2.1972, the  above revisional  powers  of  the  Board  of Revenue under  section 6D, 15, 25 and 32 have been delegated to the Commissioner, under section 33 of the Settlement Act, 1958. That section reads as follows:      "S.33:Delegation  of   Powers:  The      Government  may   by  notification.      delegate the powers of the Board of      Revenue to an Officer not below the      rank    of    Revenue    Divisional      Commissioner."      Therefore, the  Commissioner could,  as delegate of the Board, exercise  revisional powers  of the  Board of Revenue falling under section 15.      So far  as the  powers of  review are  concerned, it is admitted that  in the  Settlement Act,  1958,  there  is  no provision vesting power of review on the Board of Revenue in respect of  orders passed  by it under section 6D, 15, 25, & 32 of  that Act.  It is  true in  the Rules, namely Rule 43, there is provision for review of orders passed by ’officers’ on ground  of mistake  or error  apparent on the face of the record. Having regard to the scheme of the Act and Rules and the hierarchy  of officers,  it must  be held  that the word ’officer’ in  Rule 43  cannot include  the  Board.  In  fact section 32  confers powers  of revision on the Board against order of any ’officer’. Thus, ’officers’ referred to in Rule 43 are  those subordinate to the Board of Revenue. Again, it is also true Rule 3 which deals with ’conduct of proceedings

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under the  Act’, states  that proceedings conducted by every ’officer’, shall be summary and shall be governed, so far as may be practicable, by the provisions of the Civil Procedure Code. But  even this  Rule refers only to ’officers’ and not to the  Board of  Revenue. Thus  these  provisions  are  not helpful to  conclude that  the Board has review powers under the 1958 Act/Rules. The 1951 Act:      We have  then to  see if  the 1951  Act confers  such a power of  review on the Board or its delegate. Now section 7 of the  Orissa Board  of Revenue  Act, 1951  refers  to  the powers of  review of  the Board  of Revenue,  and  reads  as follows:      "S. 7: Power of Board to review any      order: (1)  The Board may review on      its   own    motion   or   on   the      application of any person aggrieved      by any  order of  the Board, review      any order passed by itself and pass      such order  in reference thereto as      it thinks fit."      Thus this  Act of 1951 clearly confers powers of review on the  Revenue Board. Rule 5 of the Orissa Board of Revenue rules, 1959  states that  while hearing  matters  under  the provisions of Rules 3 and 4, the Board shall be deemed to be a Court  and it  shall give  its decision  in the  form of a judgment signed and sealed by the Member. Sub-Clause (xi) of rule  9  permits  the  Board  of  Revenue  to  exercise  the functions relating  to the ’conducting Survey and Settlement and consolidation  of Holdings operations’. The Regulations, which are  called the  Board of  Revenue Orissa Regulations, 1963 refer  to the  procedure relating  to  presentation  of review applications. Thus the Board of Revenue has powers of review under the 1951 Act.      Whether Board can resort to section 7 of 1951 to review its revisional order passed under the 1958 Act?      It is,  at the  outset, important to note that there is no power  in the  said 1951  Act enabling  delegation of the power of  review vested in the Board of Revenue to any other authority. Nor  is there,  as stated  earlier,  any  express provision  of   review  by  the  Board  of  Revenue  in  the Settlement Act, 1958.      Question arises whether, in such a situation, the Board can resort  to its  powers of review under section 7 of 1951 Act for  reviewing orders  passed  under  the  1958  Act  in revision under section 6D, 15, 25 and 32?      For deciding  the above  issue, it  is necessary notice that the  1951 Act  is a general statute dealing with powers of Board  of revenue  and not a special statute dealing with land and  rights annexed  thereto. The Board of Revenue Act, 1951 is an act intended to constitute a Board of Revenue for the State  of Orissa.  The Act  repeals earlier  statutes of different States  operating in  various parts  of Orissa,  - namely, the Bihar and Orissa Board of Revenue Act, 1913, the Madras Board  of Revenue  Act, 1894,  the  Madras  Board  of Revenue   Regulation,    1803   and   the   Orissa   Revenue Commissioners’ (Regulation  of functions) Act, 1948. Learned senior counsel  for the  respondents Sri T.L.Viswanatha Iyer has taken us through the above four statutes and pointed out that these  Acts related  only to  the constitution  of  the Boards of  Revenue or  creation of  posts of  commissioners, Northern  Division   and  Commissioner  of  Excise  or  Food commissioner and  that they  do not  deal  with  any  rights relating to  land. Thus in 1951 a new Revenue Board has been created for  Orissa. Section  3 of  the 1951  Act deals with

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’construction of  references to  former Boards’,  Section  4 refers to  the duties of the Board, Section 8 deals with the administrative functions  of the  Board and  section 10 with the ’jurisdiction  of the Board’. Section 10 states that the Board of  Revenue for Orissa, as constituted under section 2 shall have, in respect of the territories for the time being included  in   the  State  of  Orissa,  all  such  original, appellate and  other jurisdictions as under the law in force immediately before  the date of commencement of the 1951 Act - [as  amended by  the Orissa  Board of  Revenue (Amendment) Act, 18  of 1957]  - is  exercisable in  respect of the said territories or any part thereof by the Revenue Commissioner, Orissa and the Commissioner, Northern Division - functioning as a  Board of Revenue. The reference to the "laws in force’ is mere]  reference to  the four  statutes referred to above which were  repealed under the 1951 Act and which dealt with Board of  Revenue or Officers of equal rank. A look at these four statutes  would show that those statutes did not relate to the  rights of  the agriculturists,  or of  landlords and tenants nor  to record  of rights, nor survey or settlement. Those matters were governed naturally by the special revenue statutes  even  before  1951,  in  the  various  territorial regions of the State of Orissa.      The State  legislature wanted  to consolidate  the laws relating to  survey, settlement and record of rights and for that purpose  passed the  Settlement Act, 1958. by that Act, several earlier statutes which occupied the field of survey, settlement and  record of rights - namely, the Bengal Survey Act, 1875,  the Madras  Survey and Boundaries Act, 1923, the Madras Estates  Land Act, 1908, the Orissa Tenancy Act, 1913 (ch. XI  & XII), the CP Settlement Act, 1929, the CP Tenancy Act, 1898,  the CP  Tenancy Act,  1920, the  CP Land Revenue Act, 1881,  the CP  Land Revenue Act, 1917 and the Bihar and Orissa Municipal  Survey Act,  1920 (to the extent mentioned in the  schedule of  the 1958  Act) - were all repealed. Now under those  statutes, the  concerned Board  of  Revenue  or Commissioner  (Northern   Division)  etc.   were  exercising revisional powers before 1958. Those powers were transferred to the  newly constituted  Board of  Revenue under  the 1951 Act. Under  the 1958 Act, so far as revisional powers of the Board were concerned, they were incorporated in sections 6D, 15, 25 and 32 of the 1958 Act.      Between 1951  and 1958, the revisional powers exercised by  the   Board  under   various  statutes   were  certainly reviewable by  the Board  under section  7 of  the 1951 Act. Likewise, after  1958, the  Board -  if it passed any orders under sections  6D, 15,  25 and  32 of  the 1958 Act - those orders became  reviewable by resort to section 7 of the 1951 Act. That is how the Revenue Board, when it exercised powers of revision  under the  1958 Act,  became entitled to review those orders by resort to section 7 of the 1951 Act.      Learned senior  counsel for  the respondent,  Sri  T.L. Vishwanatha Iyer  argued that  the same  conclusion  can  be reached by  the application of another well-known principle, namely, that if a Court is constituted by law and matters go before it  under a  special law,  then that  Court can  also exercise various other general powers attached to that Court by other  statutes. In  National  Sewing  Thread  Co.  Ltd., Chidambaram vs.  James Chadwick  & Bros.  Ltd. [AIR  1953 SC 357] it  was held by this Court that once a matter under the Trade Marks  Act, 1940,  comes before  the High  Court,  the powers available  to the High Court under Letters Patent can also be  exercised by  the High  Court to  correct errors in orders passed  by learned  single Judges  of that Court. The same principle,  it  is  contended,  will  apply  to  quasi-

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judicial tribunals also. Once the revision goes to the Board under section  15 of  the 1958  Act, the  Board can,  it  is contended, exercise  its review  powers under  the 1951 Act. This submission,  in our view, is correct and is required to be accepted  as an  additional ground  to support the review powers of the Board.      Thus, the Board would be certainly entitled to exercise review powers  under section 7 of the 1951 Act in respect of orders passed  in its revisional jurisdiction under sections 6D, 15,  25, and  32 of  the 1958  Act. To  this  extent  we approve the  judgment of  the Orissa High Court in Ramakanta alias Ramesh  Chandra Jagdebrai  & Another  vs. Gaji  Pratap Singh & Others [1974 (40) Cuttack Law Times 917].      Can the Board revise orders passed by its delegate, the Commissioner?      We have to note that the Commissioner when he exercises power of  the Board delegated to him under section 33 of the Settlement Act,  1958, the  order passed  by him  is  to  be treated as  an order of the Board of Revenue and not as that of the  Commissioner in  his capacity  as Commissioner. This position is clear from two rulings of this Court to which we shall presently  refer. The first of the said rulings is the one decided  by the constitution Bench of this Court in Roop Chand vs. State of Punjab [1963 Suppl. (1) SCR 539]. In that case, it  was held  by the  majority that  where  the  State Government had,  under section  41(1)  of  the  East  Punjab Holdings (Consolidation  and  Prevention  of  Fragmentation) Act, 1948, delegated its appellate powers vested in it under section 21(4)  to   an ’officer’, an order passed by such an officer was  an order  passed by the State Government itself and "not  an order  passed by  any officer  under this  Act" within section  42  and  was  not  revisable  by  the  State Government. It  was pointed  out that  for  the  purpose  of exercise of powers of revision by the State under section 42 of that Act, the order sought to be revised must be an order passed by  an officer in his own right and not as a delegate of the  State. The  State  Government  was,  therefore,  not entitled under  section 42  to call  for the  records of the case which  was disposed  of by  an officer  acting  as  its delegate.      A like  question came  up for  consideration  before  a Bench of  this court  in Behari  Kuni Sahari  Awas Samiti  & Another vs.  State of  U.P. &  Others [1997  (7) SCC  37] to which one  of us (Majmudar,J.) was a party. In that case the Custodian  General   under  the  Administration  of  Evacuee Property Act,  1950 acting  under section  55 could delegate his powers to the Deputy or Assistant Custodian General. The Custodian passed  an order  on 11.11.1982  and submitted the same for approval of the Assistant Custodian - the delegated authority. The  latter approved  the same.  Against the said order of  approval passed by the delegate, the State of U.P. filed a  revision under  section 27  of the  Act before  the custodian General.  The Custodian General held that he could not pass  any order  as the impugned order was one passed by his delegate.  The High  Court disagreed  with that view and remanded the  case to  the  Custodian  General.  This  Court allowed the  appeals and  held the   Custodian  General  was right in  holding that  the revision to him under section 27 was incompetent.  It was  held that if a revision were to be entertained, it  would tantamount  to exercising  a power of review which  did not  flow from  section 27.  In that case, this Court followed Roop Chand vs. State of Punjab (supra).      The basis  of the  above cases is that the order of the delegate is  to be treated, for all intents and purposes, as an order  of the principal itself here, the Board of Revenue

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and hence  the Board  cannot revise  an order  passed by the delegate, the Commissioner.      Can the  Board review  an order passed by its delegate, the Commissioner?      It may  be argued  that if the order of the delegate is tantamount to the order of the principal, then the principal can review such an order of the delegate. This appears to be plausible at first blush but is. in our opinion, not correct because of the intervention of another fundamental principle relating to ’review’ of orders. The important principle that has to  be kept in mind here is that a review application is to be made only to the same Judge or if he is not physically available to his successor.      The decision of the Privy council in Maharajah Maheshur Singh vs.  The Government  of India [7 M.I.A. 283 (PC)] = [3 Sutherland Weekly  Reporter, p.45]  (p.c. decisions to which reference was  made  by  learned  senior  counsel  Sri  T.L. Vishwanatha Iyer  is very  apt in this connection. Adverting to the basic concept of review, it was observed by the Privy Council (p.47):      "It must  be borne  in mind  that a      review is  perfectly distinct  from      an appeal;  that  is  quite  clear,      from all these Regulations that the      primary  purpose   of  granting   a      review was  re-consideration of the      same Judge, as contra-distinguished      to an  appeal which  is  a  hearing      before another tribunal." Their lordships added:      "We do  not say  that might  not be      cases in  which a review might take      place   before    another   and   a      different Judge;  because dealt  or      some    other     unexpected    and      unavoidable cause might prevent the      Judge who  made the  decisions from      reviewing it:  but we  do say  that      such exceptions  are allowable only      ex necessitate.  We do  say that in      all  practicable  cases,  the  same      Judge ought to review..."      It  is,  therefore,  clear  that  the  same  Judge  who disposes of  a  matter,  if  available,  must  "review"  the earlier order passed by him inasmuch as he is best suited to remove any  mistake or error apparent on the face of his own order. Again  he alone  will be  able to  remember what  was earlier argued  before him  or what  was not  argued. In our opinion,  the  above  principle  is  equally  applicable  in respect  of   orders  of  review  passed  by  quasi-judicial authorities.      In the  light of  the above, it is therefore clear that the Board  of Revenue  which never  heard  the  case  cannot review the  order of  the Commissioner, its delegate, passed under section  15 of  the 1958  Act. In fact, if it does so, that will  amount to  the exercise  of an  indirect power of revision by  the Board which is not permissible in the light of the  ruling sin Roop Chand’s case and case in Behari Kunj Sahakari Awas Samithi referred to above.      Before we  go into the question of review powers of the delegate,  we  shall  summarise  the  result  of  the  above discussion. Firstly  if the  Board has  passed an  order  in revision under  sections 60. 15, 25 and 32 of the Settlement Act, 1958  it can  resort to  section 7  of the  1951 Act to review its  own order.  If the  Government has delegated the

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revisional power  of the Board under the sections 6D, 15, 25 and 32 to the Commissioner by vi** of section 33 of the 1958 Act, then  the delegate,  the commissioner when he exercises those powers of the Board and passes orders, those powers of the Board  and passes  orders, those  orders will have to be treated as  orders of  the Board  of Revenue and will not be revisiable on the principle that the Board cannot revise its won orders.  Those orders passed by the delegate are also no reviewable by  the Board  because it  was not the Board that passed the orders.      Can the delegate, the Commissioner, exercise the review powers of  the Board  under the  Act of  1951. in respect of orders passed in revision under the 1958 Act?      This is  the crucial question. We have noticed that the Board of Revenue, if it has itself passed orders in exercise of its  revisional jurisdiction  under the  1958 Act, it can review those  orders by resort to section 7 of the 1951 Act. Can this power be denied to the delegate?      It  may   be  noticed   that  if   the  delegate,   the Commissioner is  to be  denied such  a facility  to  correct obvious errors  in the  orders passed  by him under sections 6D, 15, 25 and 32 of the 1958 Act as delegate of the Board’s revisional powers, a serious anomaly can arise.      Now it is well settled that the principal does not lose his powers  merely because  those powers have been delegated to another  body. Take a case where in respect  one piece of land, the  Board itself  exercises  revisional  jurisdiction under the  1958 Act.  Take another case of the very adjacent land where  the  Board’s  delegate,  commissioner  exercises revisional jurisdiction  of the  Board. If  the  appellants’ contention is  to be accepted then a review will lie only in the former  case  and  not  in  the  latter.  This  will  be anamolous  and   may  even   give  scope   for  a   plea  of discrimination. Further  if a  superior authority is enabled to  correct   its  obvious  mistakes  on  the  premise  that sometimes it  decisions can  go wrong,  the need fro denying the same  facility of  correction -to an officer immediately below in  the hierarchy  does not  appear to be logical. We, therefore,  hold  that  the  Commissioner  while  exercising revisional powers  of the  Board under  the 1958 Act is also certainly clothed  with the review powers of the Board under section 7 of the 1951 Act. In other words, when the delegate personifies his  principal and  his orders are to be treated as orders of his principal, all other powers attributable to the personality which he personifies, will be exercisable by him.      Thus the  appeals cannot  be allowed on the ground that the commissioner could not have exercised powers of review. points 1  and 2  are decided  against the  appellants and in favour of the respondents Nos. 2 and 3. Points 3 and 4:      The first question here is as to the scope of the power of review of the Board under section 7 of the 1951 Act.      The Board  of Revenue  while reviewing  earlier  orders passed in exercise of jurisdiction under sections 6d, 15, 25 and 32 is certainly not acting as an appellate authority but is acting  only as  a revisional  authority. It is true that section 7  of the  1951 Act which is the source of the power of review  states that the Board may ’review’ its orders and ’pass such orders in reference thereto as it thinks fit’. We are aware  that this  Court has  held, while  explaining the words ’as it thinks fit’, that those words are to be given a wide meaning.  But in  the context  of  review  jurisdiction these words  cannot, in  our opinion, be treated as equal to an appellate  or even  revisional jurisdiction. Particularly

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when  we  are  dealing  with  review  of  orders  passed  in revisional jurisdiction, it is obvious that the review power should be  something less  than the revisional jurisdiction. We have  noticed that under Rule 43 of  the Rules made under the 1958  Act, the  ’officers’ who  are conferred  powers of review can exercise them only in case of ’mistakes or errors apparent on  the face  of the  record’.  In  our  considered opinion, the  Board’s review  powers under  the 1951 Act are also intended for correction of ’mistakes or errors apparent on the  face of the record’. On that basis the powers of the Board’s delegate,  namely the Commissioner, while exercising review powers  of Board  under the 1951 Act, must be held to be equally  circumscribed. We  disagree  in  part  with  the decision of  the Orissa High Court in Ramakanta (supra) when it stated  that the power of revision under section 7 of the 1951 Act is wider than Order 47 Rule 1 CPC.      Proceeding on  the above  basis, we  come to  the  last point. The  question  is  whether  the  Commissioner,  while passing his orders of review on 19.6.85, exceeded his powers of review?      On this  aspect we  have heard  learned counsel on both sides elaborately.  Most of  the contentions  on merits have already been  set out  at the beginning of this judgment. It is common ground before us that the suit T.S. No.76/91 filed by the  State, which is now pending, is not a suit merely to set aside  the entries  in the record of rights. The suit by the State  is based on title and is not barred by sub-clause (2) of section 29 of the 1958 Act nor by any other provision of the  Act or  Rules. In  such a  situation,  the  question arises whether  this Court  should express  its views on the merits of  the contentions  raised before  us, -  even in  a prima facie  fashion. Any  opinion that  we might express is likely to  seriously prejudice the case of the appellants or the case  of the respondents in the suit. After considerable deliberation we  have decided that we should not go into the merits of  the contentions  of the parties on title and also on possession. We therefore leave open the finding given and the observations  made by  the commissioner  in his  initial order dated  28.7.1981 and  also in  his review  order dated 19.6.1985. We  also leave  open the questions decided by the civil Court  in the  pending suit  T.S. 76/91  in accordance with law on the basis  of such evidence that may be produced by the  respective parties  uninfluenced by the observations of the  High Court  in the impugned judgment and also of the Commissioner in  the revisional  and review order. We direct accordingly.      In the  meantime, that is, pending suit, the status quo on the  spot will  be maintained  by  both  parties  and  we further direct  that the  tree and forest growth in the land which is  the subject matter of suit shall not be interfered with by either of permitting the cutting of the trees or the removal of  the forest  produce  and  there  is  equally  no question of  transport thereof.  The above restraint on both parties shall  be in  force pending  disposal of  the  suit. points 3  and 4  are disposed of accordingly. The suit shall be decided by the trial Court expeditiously and at any rate, on or before 31.3.1999.      In the  result, these  appeals are  disposed of  in the light of the above directions. There shall be no order as to costs.