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2005 DIGILAW 197 (ORI)

Krupasindhu Sethy v. Director of Consolidation, Orissa

2005-03-18

A.S.NAIDU

body2005
JUDGMENT A. S. NAIDU, J. — As the subject matter and the point of law involved in these two cases are same, the cases were heard to¬gether and are disposed of by this common judgment. 2. The order dated 8th July, 2003 passed by the Director, Consolidation, Orissa, Cuttack in Revision Petition Nos.5992/1999 and 5490/2002 are assailed in both the writ peti¬tions. The said revisions were filed by opposite party No.2 invoking jurisdiction U/s. 37(2) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter called the Consolidation Act). The dispute arises out of two objection cases filed by opposite party No.2 before the Asst. Consolidation Officer, Puri Circle and which were registered as Objection Case Nos.1200/1992 and 1041/1992. The main grievance of the objector, opposite party No.2, was that there is discrepancy in the area of Plot No.513 and the same should be enhanced from Ac.0.10 decs to Ac.0.11 decs and that to plot No.516 from Ac.0.04 dec to Ac.0.05. The second grievance was to record the names of the present petitioners alongwith them in respect of the suit land. The objection cases were heard by Asst. Consolidation Officer and basing upon an unregistered memorandum of partition (Kachha Farda). The Asst. Consolidation Officer rejected the claim of opposite party No.2 by his order dated 20.2.1993, vide Annexure-2. Inter alia, challenging the said order, opposite party No.2 preferred the revision before the Director, Consolidation, Orissa, Cuttack in the year 1999 i.e. after lapse of almost six years. The Director in the impugned order took exception of the fact that Asst.Consolidation Officer had relied upon an unregistered Kachha Farda. The Director, further held that the Asst. Consolidation Officer acted illegally and with material irregularity in disposing of the objection cases in the absence of one of the members of the family being Kancha¬nabala. It was further held that the Asst. Consolidation Officer had no power to decide a dispute and the order cannot be sus¬tained. With the aforesaid observation the Deputy Director al¬lowed Revision Petition No.5922/99 and partly allowed Revision Petition No.5490/2002. 3. Mr. Mohanty, learned counsel appearing for the peti¬tioners forcefully contended that the Director, Consolidation has acted illegally and with material irregularity in entertaining the Revision Petitions after lapse of more than six years. It is further submitted that the order passed by Asst. Consolidation Officer is assailable U/s.12 of the Consolidation Act. 3. Mr. Mohanty, learned counsel appearing for the peti¬tioners forcefully contended that the Director, Consolidation has acted illegally and with material irregularity in entertaining the Revision Petitions after lapse of more than six years. It is further submitted that the order passed by Asst. Consolidation Officer is assailable U/s.12 of the Consolidation Act. Opposite Party No.2 having failed to file an appeal, the Director should have dismissed the revisions in limine. Mr. Swain, learned coun¬sel appearing for opposite party No.2, at the other hand, submit¬ted that the Director of Consolidation has exercised his power in accordance with law, inasmuch as Section-37(i) of the Consolida¬tion Act confers jurisdiction upon the Director to call for the documents from any of its Subordinate Officers and pass necessary orders and/or rectify the irregularities committed by him. Ac¬cording to Mr. Swain, the Asst. Consolidation Officer acted illegally in disposing of the objection cases on the basis of an unregistered Kachha Farda and the decision being palpably ille¬gal, the Director rightly entertained the revisions and rectified the error committed by the Asst. Consolidation Officer. The deci¬sion of the Director is thus just, proper and in consonance with law and the present writ petitions are to be dismissed. 4. I have heard learned counsel for the parties at length. Perused the materials available. It appears that the parties are not in agreement and in fact they are disputing the contentions raised by either party. Law is well settled that the Asst. Con¬solidation Officer can exercise his power U/s.9 of the Consolida¬tion Act only if the parties agree and that too on conciliation. He had no jurisdiction to decide a dispute. In view of the afore¬said clear position of law, as the parties did not agree with each other, it was incumbent upon the Asst. Consolidation Officer to refer the dispute to the Court of Consolidation Officer for decision. The Asst. Consolidation Officer acted illegally and with material irregularity in not referring the matter to the Asst. Consolidation Officer for adjudication. Admittedly the Asst. Consolidation Officer has no power to adjudicate any dis¬pute. On this simple ground the orders passed by the Asst. Con¬solidation Officer cannot be sustained. 5. Further, opposite party No.2 admittedly did not prefer any appeal. The Revision also was preferred at a belated stage. The Director, after arriving at a conclusion that the Asst. Admittedly the Asst. Consolidation Officer has no power to adjudicate any dis¬pute. On this simple ground the orders passed by the Asst. Con¬solidation Officer cannot be sustained. 5. Further, opposite party No.2 admittedly did not prefer any appeal. The Revision also was preferred at a belated stage. The Director, after arriving at a conclusion that the Asst. Consoli¬dation Officer had no jurisdiction to decide the dispute as there was no final adjudication of the inter se disputes, acted ille¬gally and with material irregularity in deciding the dispute himself. The power to decide right, title and interest vests upon the Consolidation Officer. Such rights has to be discharged by following a procedure and on the basis of evidence both oral and documentary adduced in course of a proceeding. In the present case, no evidence has been adduced. Last but not the least, there was no adjudication of the dispute specially in view of the fact that the Asst. Consolidation Officer lacks jurisdiction to adju¬dicate any dispute. In view of the aforesaid clear position, the Director after arriving at a conclusion that the Asst. Consolida¬tion Officer has acted illegally and in excess of his jurisdic¬tion, should have referred the matter to the Consolidation Offi¬cer for adjudication instead of deciding the same in the absence of any evidence. 6. In the aforesaid scenario, this Court has no hesitation to quash the impugned order, Annexure-8 and I direct accordingly. 7. Consequently, these writ petitions are allowed, the order passed by the Director, Consolidation in Revision Petition Nos.5992/1999 and 5490/2002 are set aside and the Objection Case Nos.1200/1992 and 1041/1992 of the Court of Asst. Consolidation Officer, Puri Circle Camp, Parahat are remanded back to the Court of concerned Consolidation Officer with a direction that the Consolidation Officer shall decide the dispute raised in the said objection cases confining to the relief sought in the said cases, after giving opportunity to the parties for adducing evidence if they so desired and strictly in accordance with law. The entire exercise shall be completed as expeditiously as possible. Parties shall bear their own cost. Petitions allowed.