Choudhury Balaram Dash v. The Commissioner, Consolidation, Orissa
2004-08-18
A.S.NAIDU
body2004
DigiLaw.ai
JUDGMENT A. S. NAIDU, J. — This writ application has been filed, inter alia, praying to quash the order dated 30.11.1984 (Annexure-8) passed by the Deputy Director, Consolidation, Range-IV, Cuttack in Appeal Case No. 34 of 1983, arising out of Objection Case No. 1096 of 1981 on the file of the Consolidation Officer, Cuttack Sadar. The said order was confirmed by the Commissioner of Consolidation, Orissa, Cuttack by his order dated 3.7.1996 (Annexure-9) in Consolidation R.C.No. 396 of 1985. 2. Bereft of all unnecessary details, the short facts necessary for appreciating the contentions raised in this writ petition are that the lands measuring Ac. 143.85 decimals situat¬ed in village Bhingarpur was a part of the Estate of Choudhury Dinakrushna Das, the ancestor of the petitioner. Ch. Dinakrushna Das left behind his four sons out of whom only the petitioner survives. In consonance with the provisions of the Orissa Estates Abolition Act, the intermediary estate of Ch. Dinakrushna Das vested with the State Government in the year 1985. It is averred by the petitioner that he being in exclusive Khas possession of Ac. 19.32 decimals appertaining to Hal Plot No. 1148 out of the intermediary estate, filed an application under Sections 6 and 7 of the Orissa Estates Abolition Act for settlement of the said lands in his favour. The said case was registered as O.E.A. Lease Case No. 3048 of 1976 before the Tahasildar, Sadar, Cuttack. After following all the paraphernalia, the Tahasildar by his order dated 27.1.1978 settled an area of Ac. 12.50 decimals appertaining to Hal Khata No. 439, Plot No. 1148 situated in village Kurnuti, in favour of the petitioner. It is further averred that in consonance with the said settlement, the peti¬tioner was in possession of the said lands as exclusive owner thereof. While the matter stood thus, the mouza in which the lands were situated, were brought within the purview of Orissa Consoli¬dation of Holdings and Prevention of Fragmentation of Land Act. After issuance of the Notification to that effect, land registers were prepared in the name of the petitioner. Aggrieved such recording, Opp. Parties 3 to 33 filed an objection before the Consolidation Officer claiming that the lands were donated by the co-sharers of the petitioner in favour of Bhudan Samiti which in turn has allotted different parcels of land in favour of the Opp. Parties.
Aggrieved such recording, Opp. Parties 3 to 33 filed an objection before the Consolidation Officer claiming that the lands were donated by the co-sharers of the petitioner in favour of Bhudan Samiti which in turn has allotted different parcels of land in favour of the Opp. Parties. The said contention was strongly repudiated by the petitioner. The Consolidation Officer after being satisfied rejected the objection of the opposite parties and directed to record the lands in favour of the petitioner. The order passed by the Consolidation Officer was challenged by Opp. Parties 3 to 33 before the Deputy Director. The contention of the petitioner all through was that no document was produced in support of the contention raised by the opp. parties that any portion of the land settled in favour of the petitioner was at any point of time donated to Bhudan Samiti. It is also further asserted that except the petitioner no other co-sharer had any right, title and inter¬est to donate any land in favour of Bhudan Samiti and that too, without permission of the petitioner. According to the petition¬er, the entire claim made by opp. parties 3 to 33 was not tenable in law and the Consolidation Officer has rightly rejected the said application. 3. The Deputy Director, however, without properly appreciating the submissions made by the petitioner, allowed the appeal filed by Opp. Parties 3 to 33 and directed to delete the name of the petitioner and record the lands in favour of the said Opp. Parties. The revision filed by the petitioner was also dismissed by the Commissioner of Consolidation. The above orders, as stated earlier, are impugned in this writ petition. 4. Mr. Panigrahi, learned Senor Advocate appearing for the petitioner, reiterated the stand taken by the petitioner and submitted that no iota of evidence, either oral or documentary, was produced before the authorities to reveal that at any point of time any portion of the disputed land was donated to Bhudan Samiti. It is also contended forcefully that though the authorities called upon the opp. parties to produce the document by which the lands were said to have been donated in favour of Bhudan Samiti by any of the co-sharers of the petitioner, the same was not produced. The authorities therefore acted illegally in not drawing any adverse inference. Mr.
It is also contended forcefully that though the authorities called upon the opp. parties to produce the document by which the lands were said to have been donated in favour of Bhudan Samiti by any of the co-sharers of the petitioner, the same was not produced. The authorities therefore acted illegally in not drawing any adverse inference. Mr. Panigrahi also contended that the lands have been settled in favour of the petitioner by the authorities under the O.E.A. Act and the con¬solidation authorities are bound by the order passed by any authority in consonance with any of the State Acts. Therefore, the order settling the land in favour of the petitioner in O.E.A. lease Case No. 3048 of 1976 is binding upon the authorities and the Deputy Director as well as the Commissioner acted illegally with material irregularity and contrary to law in rejecting the order passed by the Consolidation Officer that too in absence of any documentary evidence with regard to the alleged donation. 5. Learned counsel for the opp. parties, at the other hand, submitted that the Deputy Director as well as the Commis¬sioner had taken into consideration all the facts and circum¬stances. Added to that the petitioner had, in fact, admitted that one of the co-sharers had donated the land in favour of Bhudan Samiti. It is also submitted that in view of such facts, the contentions raised in the writ petition are not tenable and it is a fit case where the writ petition should be dismissed in limine. 6. Heard learned counsel for both the parties at length, perused the materials with due diligence and considered the submissions meticulously. Admittedly, the lands in dispute were part of an intermediary estate which vested with the State Gov¬ernment free from all encumbrances in consonance with the O.E.A. Act. Law is well settled that consequent upon such vesting right, title and interest of an intermediary vests with the State Government and he is stripped of such rights. The O.E.A. Act is a full-fledged Act. It provides modalities for acquiring fresh title in respect of the lands situated in the intermediary estate after vesting. If any portion of the intermediary estate was, in fact, donated to Bhudan Samiti prior to vesting, consequent upon vesting, such rights abolished. Admittedly no claim petition was filed by the Bhusan Samiti. Opp.
The O.E.A. Act is a full-fledged Act. It provides modalities for acquiring fresh title in respect of the lands situated in the intermediary estate after vesting. If any portion of the intermediary estate was, in fact, donated to Bhudan Samiti prior to vesting, consequent upon vesting, such rights abolished. Admittedly no claim petition was filed by the Bhusan Samiti. Opp. Parties 3 to 33 claim to have acquired title through Bhusan Samiti. But then whether the Bhusan Samiti was competent to settle any right upon Opp. Parties 3 to 33 and if it lost its title, if any, in conso¬nance with the O.E.A. Act is a question which needs to be deter¬mined. That apart, no document is produced either before the consolidation authorities or before this Court by virtue of which Bhudan Samiti asserted to have acquired any title over the lands in question. The order sheet reveals that the consolidation authorities called for such document, but the same was not pro¬duced by the Opp. Parties and with an erroneous presumption, the appealed revision were disposed of without drawing an adverse inference. 7. Admittedly, after vesting, the lands have been settled in favour of the petitioner under the O.E.A. Act and the record of rights were prepared in his favour. The order settling the land in favour of the petitioner under the O.E.A. Act has not been challenged by the Opp. Parties and the same has attained finality. The order being a valid one, under the provisions of the Orissa Consolidation of Holdings and Prevention of Fragmenta¬tion of Land Act, the consolidation authorities are bound by the said order. Law is well settled that the authorities cannot traverse beyond the order passed by any of the authorities under any of the State laws. (See 74 (1992) CLT 454). This aspect of law was not kept in mind by the Commissioner. That apart, after vesting of the estate, none of the intermediaries had any right, title or interest to donate any portion of the intermediary estate in favour of Bhudan Samiti. Admittedly, after vesting, the State became the paramount owner and the intermediary lost all his rights and any document said to have been executed by any of the co-sharers was ab initio void. It is reiterated that no such document was produced before the Consolidation Authorities or before this Court. 8.
Admittedly, after vesting, the State became the paramount owner and the intermediary lost all his rights and any document said to have been executed by any of the co-sharers was ab initio void. It is reiterated that no such document was produced before the Consolidation Authorities or before this Court. 8. In the aforesaid scenario, I feel, the order passed by the Commissioner of Consolidation cannot be sustained specially in view of the fact that the authorities have not taken pain to delve into the controversy as to whether any document was execut¬ed donating lands to Bhudan Samiti and if so, who had donated it and if donated, whether such person had any authority to do so without taking consent of other co-sharers and without having any title over the lands after vesting and the consequence of vesting under the O.E.A. Act upon such alleged donation vis-a-vis the order of settling the land in favour of the petitioner after vesting in O.E.A. Lease Case No. 3048 of 1976. All these disputed questions require adjudication by a fact finding authority, as the same cannot be effectually adjudicated under writ jurisdic¬tion. I have, therefore, no hesitation to quash the order passed by the Commissioner and remand the matter to the said Court once again. 9. Accordingly the writ application is allowed. The order dated 3.7.1996 (Annexure-9) is quashed and the matter is remanded to the Commissioner with the direction that the Commissioner shall call upon the opp. parties who are claiming title by virtue of the document said to have been executed by one of the co-sharers in favour of the Bhudan Samiti and the document executed by the Bhudan Samiti in their favour. It is made clear that if such documents are not produced within the time stipulated by the Commissioner it would be open to the Commissioner to draw adverse inference and/or arrive at his conclusion in consonance with law and dispose of the matter as expeditiously as possible. Application allowed.