The definition of "family" under Section 37(b) of the Orissa Land Reforms Act, 1960, is restricted and does not include brothers, and the power to revise under Section 59(2) of the Act must be exercised within a reasonable time.

JUDGMENT :

A.K. Padhi, J. - Challenging the order of the Member, Board of Revenue, Orissa, Cuttack exercising his jurisdiction u/s 39(2) of the Orissa Land Reforms Act, I960 hereinafter referred to as 'the Act'), the petitioners have filed this writ application.

2. In the writ application, it has been averred that a suo matu proceeding was initiated against the two brothers Bamadev Satpathy and Durga Charan Satpathy sons of late Bholanath Satpathy. By the time of initiation of the proceeding the father of the petitioners was dead. Both the petitioners had filed written statements taking the stand that both the brothers were separated from each other in mess and property since 30 years and they do not constitute one family. The further stand of the petitioners was that they did not have property beyond the ceiling unit permitted under the Act.

3. After considering the written statements of the petitioners in O. L. R. Case No. 608 of 1975 by order dated 29-11-1975 the competent authority held that the land holders did trot possess land more than the ceiling area and, therefore, dropped the proceeding. Against this order dated 29-11 1975 no appeal was filed.

4. On being moved by the Collector, Cuttack u/s 59(2) of the Act against the order passed in O. L. R. Case No. 608 of 1975 dated 29-11-1975 the Member, Board of Revenue exercised his suo mutu jurisdiction and initiated suo motu Revision u/s 59 (2) of the Act which was registered as O. L. R. Revision No. 47 of 1987. The petitioners objected to the initiation of the revision. The learned Member, Board of Revenue had set aside the order dated 29-11-1975 passed in O. L. R. Case No. 608 of 1975 on the grounds that no spot enquiry was conducted and there is no finding that Bamadev Satapathy and Durga Charan Satapathy, both the brothers were living in separate mess and were cultivating their lands separately prior to 1970. He came to the further conclusion that:

"......So all the lands claiming to be held individually by the two brothers of the family should have been deemed to have been held by the family. Once one individul becomes a member of the family, according to the definition u/s 37(b), the land held by him individually or jointly with other members of the same family shall be deemed to have been held by the family and surplus lands, are to be determined accordingly......".

The learned Member, Board of Revenue came to the further conclusion that no enquiry had been made regarding the transactions which were made after 26-9-1970 by the land-holders. After giving the above findings he set aside the order passed in 0. L. R. Case No. 608 of 1975 and remitted the matter of fresh enquiry and disposal in accordance with law. This order passed by opp party No. 1 is challenged in this writ application.

5. The learned counsel for the petitioners submits that the two brothers cannot constitute "a family" as they do not come within the restricted definition of "family" as given in Section 37-B of the Act. The second limb of the contention is that though no time-limit has been prescribed u/s 59(2) of the Act to invoke the jurisdiction as has been decided in various decisions of this Court the same is to be exercised within a reasonable time. The order which was sought to be revised u/s 59 (2) of the Act was passed on 29-11-1975 and the learned Member, Board of Revenue invoked the suo motu jurisdiction in the year 1987. Therefore, this delay in exercising jurisdiction u/s 59(2) of the Act after about lapse of 12 years cannot be said to be within reasonable time. We find much force in both the contentions of learned counsel.

6. Regarding the first contention, that two brothers do not come within the restricted definition of family, in Jaga ' Jagannath Nayak and Ors. v. State of Orissa and Anr. 50(1980) CLT 132 it has been held that while determining the ceiling area and surplus lands of one of the brothers, the property held by 2 others could not be taken into account. The brothers cannot be trea