The Revenue Officer possesses the power of restitution of property distributed as ancillary to an order to the finding that the distribution of the land as a nullity is in furtherance of Art. 300a of the Constitution.

S. C. MOHAPATRA, J.

( 1 ) THIS is a second round of the petitioners to approach this Court in an application under Arts. 226 and 227 of the Constitution of India.

( 2 ) PETITIONERS, who are mother and son, are landholders. Under the Orissa Land Reforms Act, 1960 (hereinafter referred to as The Act') challenging the order in the ceiling surplus proceeding the petitioners approached this Court. During the pendency of the writ application, status quo was directed to be maintained. Ultimately the order was quashed and the Revenue Officer was directed to proceed afresh from the stage of draft publication under S. 43 of the Act - See ILR (1979) 1 Cuttack 22, (Arda Murari v. State of Orissa ). After remand, the Revenue Officer found that there was no surplus land beyond the ceiling area and accordingly, the proceeding was dropped. However, before the order of this Court directing to maintain the status quo, the Revenue Officer wrongly found surplus land measuring 7. 799 acres equivalent to 4. 311 standard acres which was distributed. On the finalisation of the proceeding after remand, petitioners approached the Revenue Officer and the District Collector to redeliver the lands distributed to opp. party Nos. 3 to 10. The District Collector and the Revenue Officer issued notice to the persons to whom the land was distributed under S. 51 of the Act. However, they were helpless in the matter in the absence of any specific provision under the Act for restitution and in view of a circular of the Board of Revenue Communicated in memo No. 6433/lr. dated 10-9-1979. Hence of a writ in the nature of mandamus for restitution for their property.

( 3 ) ONLY those ceiling surplus lands which vest in the State Government under S. 45 can be distributed. Where there is no ceiling surplus land, the Revenue Officer has no jurisdiction to distribute and settle any land. It has been held in ILR (1977) 2 Cuttack 334 (Naresh Chandra Tripathy v. Revenue Officer-cum- Additional Tahasildar, Angul) as follows :". . . . . . . . . . ON the date the lands are said to have been distributed, petitioner was still the owner and there had been no extinguishment of his title; there had been no vesting of the property in Government and the Revenue Officer; therefore, had no jurisdiction at all to proceed to settle the property in terms of S. 51 of the Act. . . . . . . . . . . "

( 4 ) MR. B. B. Ratho, the learned counsel for the petitioners submitted that the distribution and settlement of the lands being a nullity, the persons to whom the same have been distributed do not acquire any interest in such lands and the wrong committed by the Revenue Officer is to be set right by him. Mr. Ratho relied upon the principle of restitution and cited the decision of this Court reported in, (1983) 56 Cut LT 463 (Sankarsan Misra v. State of Orissa) where it has been held :". . . . . . . . . . IF possession has been taken, on the success of the landholder, the property has to be restored. If either distribution of the property of delivery of possession thereof has been made, restitution has to be made. . . . . . . . "

( 5 ) THE learned Additional Government Advocate on the other hand relied upon an unreported decision of this Court in O. J. C. No. 867 of 1976 decided on 21-9-1978 (Parsuram Sahu v. Revenue Officer, Naupada) and submitted that the right having been created in favour of third parties on distribution and settlement, there is no scope for restitution. It is submitted that the Board of Revenue relying on the aforesaid decision of this Court has issued a circular that where the land has been distributed, the matter is not to be reopened.

( 6 ) THE unreported decision of this Court was dealing with a matter relating to ceiling surplus proceeding. It was not a case of restitution. In the interest of justice and in the peculiar circumstances of that case, it was held;". . . . . . . . . . IN case the lands have already been settled with third parties, who have not been implead