PRAFULLA KUMAR ROUTRAY v. COMMISSIONER OF CONSOLIDATION
1996-11-22
P.K.MISRA, PRADIPTA RAY
body1996
DigiLaw.ai
JUDGMENT : 1. The writ petitioners have claimed that they were the permanent lessees under the ex-Proprietor and as such they were entitled to be recognised as tenants under the State Government on and from the vesting of the Estate under the provisions of Orissa Estates Abolition Act. It has been alleged that the opp. party No. 3 on the basis of an illegal vesting order was making attempts to dispossess the petitioners from the disputed lands. The petitioners thereafter filed Title Suit Nos. 212 and 213 of 1977 in the Court of Second Munsif. Cuttack for declaration of their title and permanent injunction. By judgment and decree dated August 5, 1989 the learned Munsif declared the vesting order as invalid and restrained the opp. party No. 3 from coming to the disputed lands. After ' such decree consolidation under the provisions of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act. 1972 (hereinafter referred to as the 'Consolidation Act') was started in the locality. The petitioners made a prayer before the Consolidation Officer, Niali Camp (0. P. No. 2) for recording their names on the basis of their possession and also on the basis of the title as declared by the competent Civil Court. The said claim of the petitioners was registered as Objection Case No. 1559/92 u/s 9 (3) of the Consolidation Act. In the said proceedings the petitioners filed a petition to amend their original objection petition to include an alternative plea of acquisition of title by adverse possession. By order dated October 10. 1995 the Consolidation Officer rejected the said petition for amendment holding inter alia that the said claim of acquisition of title by adverse possession is a different claim from the original claim put forward in the petition. Being aggrieved by the said order the petitioners filed a Revision Petition u/s 37 (1) of the Consolidation Act. By judgment and order dated January 22, 1996 the Commissioner, Consolidation of Orissa dismissed the said' revision petition on the ground of maintainability and directed the Consolidation Officer, Niali to proceed with and dispose of the objection petition case, Against the aforesaid order of revisional authority and the order passed by the Consolidation Officer refusing amendment the writ petitioners have filed the present writ application. 2.
2. By order dated February 23, 1996 it was directed to issue notice of this writ petition to the opp. party No. 3. The counsel for the State accepted notice on behalf of the opp. party Nos. 1 and 2. The interim order was also issued staying further proceedings in the objection case pending before the Consolidation Officer, Niali. In spite of service opp. party Mo. 3 has not appeared. 3. It appears from the impugned order passed by the revisional authority, that the revision application was dismissed on the ground that a petition u/s 37 (1) of the Consolidation Act challenging an interlocutory order passed by the Consolidation Officer is not maintainable. 4. Under the provisions of the Consolidation Act, two different nature of revision powers have been conferred upon the Consolidation Commissioner. Power of revision u/s 36 is exercisable against any decision of the Director of Consolidation, who is the appellate authority in respect of an order passed by the Assistant Consolidation Officer or the Consolidation Officer u/s 10 or 11 of the Act. Sections. 10 and 11 of the Act speak of final orders passed by the Assistant Consolidation Officer or the Consolidation Officer. No appeal has been provided for against an interlocutory order passed by the Consolidation Officer or the Assistant Consolidation Officer. As the power exercisable under Sec, 36 is available only against the orders passed by the Director of Consolidation, there cannot be any revision tinder Section 3d against any interlocutory order passed by the Consolidation Officer or the Assistant Consolidation Officer. 5. Section 37 (1) of the Consolidation Act is reproduced below: "The Consolidation Commissioner may call for and examine the records of any case decided or proceedings taken up by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings or as to the correctness, legality or propriety of any order passed by such authority in the case or proceedings and may, after allowing the parties concerned a reasonable opportunity of being heard, make such order as he thinks fit." From the language of Section 37 it is clear that the Consolidation Commissioner has been given a much wider power including the power to determine the correctness, legality or propriety of "any order passed by any subordinate authority" in any case or proceeding under the Consolidation Act.
The word "any order" is wide enough to include inter-locutorv/interim order passed by such subordinate authorities under the Consolidation Act. Accordingly, we are of the view that the Consolidation Commissioner committed error in failing to appreciate the scope of Section 37 of the Consolidation Act and 1n dismissing the revision. 6. The writ petitioners filed their objection u/s 9 (3) of the Consolidation Act claiming title to the disputed land on the basis of an alleged permanent lease under the ex-proprietor and continuous possession. Title to the property can be acquired through adverse possession for prescribed period. The claim by way of adverse possession in the facts and circumstances of the case cannot be said to be a plea which is a destructive of the original case. Amendment does not mean acceptance of the case. The Consolidation authorities have been conferred power to determine the questions relating to right, title, interest and liability in respect of the land lying under the consolidation area. Thus, we do not find any justification for rejecting the petitioner's application for amendment seeking to introduce an alternative plea of acquisition of title by adverse possession. The Consolidation Officer committed error in rejecting the petitioners application for amendment. 7. For the foregoing reasons, we set aside the impugned order passed by the revision authority (Annexure-4) and also order passed by the Consolidation Officer, Niali (Annexure-3). The petitioner's application for amendment of his objection is allowed. The Consolidation Officer, Niali is directed to dispose of the petitioner's amended objection within a period of three months from the date of communication of this order. 8. The writ application is thus allowed. Let this order be communicated to the opposite parties immediately. Requisites for communication of the order are to be filed within 7 days, in default, the order need not be communicated by the office. P.K. Mishra, J. 9. I agree. Final Result : Allowed