1998 Supreme(SC) 881

1998(7) Supreme 31
Supreme Court of India
(From Orissa High Court)
S.B. Majmudar & M. Jagannadha Rao, JJ.
State of Orissa & Ors. -Appellants
versus
Commissioner of Land Records & Statement, Cuttack & Ors. -Respondents
Civil Appeal Nos. 6335-37 of 1995
Decided on 27-8-1998
Counsel for the Parties :
For the Appearing Parties : T.L. Vishwantha Iyer, Sr. Advocate, P.N. Misra, S. Misra, A. Mohapatra, A. Kumar, Suresh C. Gupta, S.C. Paul, B.R. Kedia, Sudarsh Menon, Ms. N.D. Dhandup and Ms. K. Sarada Devi, Advocates.

Important Points
1. The Commissioner to whom powers of revision of the Board of Revenue under Sections 6D, 15, 25 and 32 of the Orissa Survey and Settlement Act, 1958 were delegated could exercise the powers of review conferred on the Board by Section 7 of the Orissa Board of Revenue Act.
2. An order of review passed by Commissioner as a delegate of the Board of Revenue in exercise of his power under Orissa Survey and Settlement Act, 1958 cannot be revised or reviewed by the Board of Revenue.

Headnote:Orissa Survey and Settlement Act, 1958 - Section 15 - Orissa Board of Revenue Act, 1951-Section 7 - Records of right-Review-Powers of Commissioner-Scope of-Commissioner has statutory power of revision-Powers of revision of Board of Revenue under Sections 6D, 15, 25 and 32 of Settlement Act were delegated to Commissioner-He could exercise powers of review conferred on the Board by Section 7 of 1951 Act-Order passed by Commissioner as delegate of Board of Revenue cannot be revised by Board in exercise of its revisional powers under Section 15 of 1958 Act or reviewed under Section 7 of 1951 Act.

       Held : Under sub-clause (a) of Section 15 of the Orissa Survey and Settlement Act, 1958, the Board of Revenue has suo motu revisional powers con­ferred on it. Similar suo motu powers of revision are found in Sections 6D, 25 and 32 of the said Act. The above revisional powers of the Board of Revenue under Sections 6D, 15, 25 and 32 have been delegated to the Commissioner, under Section 33 of the Settlement Act, 1958. Therefore, the Commissioner, could, as delegate of the Board, exercise revisional powers of the Board of Revenue falling under Section 15. (Paras 12 & 13)

       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 its under Sections 6D, 15, 25 and 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 fact of the record. Having regard to the scheme of the Act and the 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 the 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 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. Section 7 of the Orissa Board of Revenue Act, 1951 refers to the powers of review of the Board of Revenue. Thus this Act of 1951 clearly confers powers of review on the Revenue Board. Rule 5 of the Orissa 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 (x) 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. (Paras 14 & 15)

       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 Sections 6D, 15, 25 and 32? 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, became entitled to review those orders by resort to Section 7 of the 1951 Act. 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. (Paras 16 & 17)

       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. 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 and hence the Board cannot revise an order passed by the 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 nor physically available to his successor. 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 rulings in Roop Chand’s case and the case in Behari Kunj Sahakari Awas Samithi referred to above. 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 revision­al power of the Board under the Sections 6D, 15, 25 and 32 to the Commissioner by virtue of Section 33 of the 1958 Act, then the dele­gate, the Commissioner when he exercises 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 revisable on the principle that the Board cannot revise its own orders. Those orders passed by the dele­gate are also not reviewable by the Board because it was not the Board that passed the orders. (Paras 23 to 29)

       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? 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 its deci­sions can go wrong, the need for 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. (Paras 30 to 32)