JUDGMENT :

B.L. Hansaria, C.J. - The Bar tells us: There may be pain without injury, sorrow without tears, but not a right without remedy. This is what we have to keep in fore-front to decide the question with which this Full Bench is seized on a reference from a Division Bench, which is whether the power conferred by Section 37 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act. 1972 (hereinafter called 'the Act" ) would be available for exercise after a notification has been issued as contemplated by Section 41(1) of the Act on the subject that consolidation operations have been closed in the unit, the result of which is that the village or villages forming part of the unit cease to be under consolidation operations.

2. We may note in brief as to why the reference came to be made. This is so because the Bench hearing the aforesaid case felt after hearing the counsel for the petitioners for some time that the view taken in OJC No. 1671 of 1986 : (Govind Ch. Misra v. Kanak Prava Devi) disposed of on 6-5-1907 : 64 (1987) CLT 48: OJC No. 316 of 1985 (Krushna Priya Rath v. Consolidation Commissioner ) disposed of on 27-6-1991 ; and OJC No. 1662 of 1983 (Krushna Chandra Patra v. Harekrushna Naik) disposed of on 26-4 1990, as per which power u/s 37 of the Act can be exercised even after the notification u/s 41 has been issued, may not be correct.

3. Reference to the decisions in the aforesaid O. J. Cs. however, shows that this point had really not been directly examined, though some observations were made on the question under consideration. But then, this point had been the subject matter of a direct decision of this Court in Maguni Pradhan Vs. Commissioner of Consolidation and Others, to which one of us (Jagadeb Roy, J.) was a party, in which the question at hand was answered affirmatively. We shall advert to this decision at the appropriate place.

4. Before we proceed to examine the question referred to us, it would be apposite to observe that availability of the power u/s 37 of the Act despite a notification having been issued as contemplated by Section 41 (1) of the Act is an altogether different question form the exercise of that power. Even though a power is available, the exercise of the same may be restricted and may depend upon facts and circumstances of each case. We have mentioned this aspect at the thereshold because arguments have been advanced from the Bar that Section 37 having not mentioned, inter alia, about any period of time within which the power can be exercised the same is liable to be misused. As to this, we would state that misuse of power is altogether a different aspect ; and if it is so done, the same can be challenged in appropriate forum including this Court. It may also be stated that Section 37 power having been conferred on the Consolidation Commissioner, who is a very high revenue authority, there is a presumption that he would not misuse the same ; and if he does, as already stated, the aggrieved person would not be remedyless. That may not, however be a ground to deny the availability of the power, with which question we are concerned. In this context it would be useful to refer to Modern Fabricators, firm and Others Vs. Rajendra Harichandan and Others, in which a Bench of this Court while dealing with the power u/s 37 stated that the some has to be exercised with care, caution and circumspection and any liberal construction would take away the rigours imposed by the statute. The Bench further observed that there ought to be compeIling and/or extenuating circumstances for the exercise of this power. This decision was cited with approval by another Bench in OJC No. 2763 of 1984 ; (Lingaraj Mohanty v. Janaki Ballav Sahu) disposed of on 7-4-1992.

5. Let us now examine the point under consideration and let the provisions of the Act which are important for our purpose be first noted. These are Sections 3, 4(4), 12, 36, 37, 41 and 51 reading as below ;

"3. Declaration and not