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2005 DIGILAW 313 (ORI)

Kanduri Charan Nayak v. Manoj Kumar Nayak

2005-05-06

A.S.NAIDU

body2005
JUDGMENT A. S. NAIDU, J. : The order dated 16.3.2004, Annexure-1 passed by the Consolidation Commissioner, Orissa in Consolidation Revision Petition No. 222 of 2002 is assailed in this Writ Peti¬tion. 2. Bereft of unnecessary details, the short facts neces¬sary for appreciating the inter se disputes are that both the petitioner and opposite party No. 1 belong to the same family, being sons of late Gangadhar Nayak. Gajendra and Dami Dei happened to be the father and mother of Gangadhar respectively. An area of Ac.0.016 land appertaining to M.S.Plot Nos. 600 and 602 of Khata No. 518 situated in village Dharadharpur was pur¬chased in the name of Dami Dei. It is asserted that she was the absolute owner thereof. She had executed and registered a sale deed in respect of Ac 0.011 dec. of land out of the said Ac 0.016 on 28th April, 1959 in favour of petitioner Kanduri. The village Dharadharpur came within the fold of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as ‘the Act’) in consonance with a Notification issued to that effect. In the Land Register, the aforesaid Ac. 0.011 dec. of land stood recorded in the name of petitioner Kanduri. It is alleged that a joint petition was filed before the concerned Assistant Consolidation Officer, opposite party No. 2, which was registered as Objection Case No. 2648/112 of 1989 under Section 9(3) of the Act. The A.C.O., it is alleged, by consent of the parties directed to record the lands in ques¬tion jointly in the names of the petitioner and opposite party No. 1. Thereafter the petitioner filed a Revision Petition before the Director of Consolidation invoking jurisdiction of the said authority under Section 37(2) of the Act inter alia chal¬lenging the order passed by the Assistant Consolidation Officer alleging that he was not a party to the consent given before the A.C.O. and the entire proceeding was stage-managed by impersona¬tion. The said Revision Petition was numbered as 2519 of 1996. The Director allowed the Revision and remanded the case to the Consolidation Officer, Raghunathpur for fresh adjudication. The Consolidation Officer Raghunathpur after hearing the parties and basing upon the 1959 R.S.D. directed to record the disputed lands in favour of petitioner Kanduri exclusively by order dated 9th May, 2001, vide Annexure-3. The Director allowed the Revision and remanded the case to the Consolidation Officer, Raghunathpur for fresh adjudication. The Consolidation Officer Raghunathpur after hearing the parties and basing upon the 1959 R.S.D. directed to record the disputed lands in favour of petitioner Kanduri exclusively by order dated 9th May, 2001, vide Annexure-3. Being aggrieved by the order Annex¬ure-3, opposite party No. 1 preferred an appeal before the Deputy Director, Consolidation which was registered as Appeal No. 43 of 2001 which was dismissed and the order passed by the Consolida¬tion Officer was confirmed. Being aggrieved, opposite party No.1 preferred Consolidation Revision Case No.222 of 2002 before the Consolidation Commissioner which was disposed of by the impugned order Annexure-1. The Commissioner observed that the fact that the Assistant Consolidation Officer had entertained the Objection Case No.2648/112 of 1989 and had passed order under Section 9(3) of the Act was suppressed before the authorities below. He further held that as opposite party No.1 and the petitioner gave their consent and on the basis of such consent the Assistant Consolidation Officer had directed to record the disputed lands, which were homestead in nature, jointly in the names of those parties, it was no more open to petitioner Kanduri to wriggle out of such consent and the plea taken by him subsequently that he was the exclusive owner and the disputed lands should be recorded exclusively in his name could not be entertained. On the basis of such conclusion, the Commissioner set aside the order passed by the Consolidation Officer as well as that of the Deputy Director and directed to record the disputed lands as per the order passed by the Assistant Consolidation Officer under Section 9(3) of the Act in Objection Case No. 2648/112 of 1989. 3. Mr. Sarangi, learned counsel for the petitioner, force¬fully submitted that the Commissioner has acted illegally and with material irregularity in setting aside the confirming orders passed by the Consolidation Officer as well as the Deputy Director and directing to record the disputed lands exclusively in the name of opposite party No. 1. He reiterated that Dami being the exclusive owner of the disputed lands and she having alienated Ac. He reiterated that Dami being the exclusive owner of the disputed lands and she having alienated Ac. 0.011 decimals of land in favour of petitioner Kanduri by a registered sale deed and further by virtue of that sale deed the petitioner having acquired valid right, title and interest in respect of the disputed lands, the Consolidation Officer as well as the Deputy Director had rightly directed to record the said land exclusively in the name of the petitioner. According to him, the Commissioner lost sight of the said fact and, as such, the decision suffers form the vice of non-consideration of materials on record. It is further submitted that the Consolidation authorities have no jurisdiction to set aside a registered sale deed. The sale deed executed by Dami as long back as in the year 1959 still holds the field having not been set aside by appropriate civil Court and, as such, the Consolidation Officer as well the Deputy Director had rightly directed to record the disputed lands in favour of the petitioner exclusively. 4. The aforesaid submission of Mr. Sarangi is strongly repudiated by Mr. J. R. Dash, learned counsel for opposite party No. 1. According to Mr. Dash, the petitioner is estopped form raising the aforesaid contention as he had appeared before the Assistant Consolidation Officer at the very initial stage of consolidation operation and in consonance with the consent given by him the Assistant Consolidation Officer had passed order to record the lands in question jointly in the name of the petition¬er and opposite party No. 1. Such order of the Assistant Consoli¬dation Officer under Section 9(3) of the Act having not been challenged for a period of six years, the same attained finality and the Commissioner has rightly set aside the orders passed by the Consolidation Officer and the Deputy Director. 5. In reply to the submission of Mr. Dash, Mr. Sarangi submitted that the order passed by the Assistant Consolidation Officer in Objection Case No. 2648/112 of 1989 was varied by the Director of Consolidation in Revision Case No. 2519 of 1996 by order dated 29.7.1997. Thus the said order is no more in existence. Mr. 5. In reply to the submission of Mr. Dash, Mr. Sarangi submitted that the order passed by the Assistant Consolidation Officer in Objection Case No. 2648/112 of 1989 was varied by the Director of Consolidation in Revision Case No. 2519 of 1996 by order dated 29.7.1997. Thus the said order is no more in existence. Mr. Sarangi further submitted that the submission on behalf of opposite party No. 1 that petitioner Kanduri had appeared before the Assistant Consolidation Officer and had given his consent for recording the disputed lands jointly in his name and in the name of opposite party No. 1 is factually not correct. In fact the petitioner at no point of time had appeared before the Assistant Consolidation Commissioner and if at all any order was passed by the said authority to that effect, that was managed to be done at the behest opposite party No. 1 by practising fraud and impersonation. 6. I have heard learned counsel for the parties at length and have meticulously perused the documents annexed to the Writ Petition. The only question that needs determination in this case is as to whether the consent order passed by the Assistant Con¬solidation Officer under Section 9(3) of the Act had in fact been varied by the Director of Consolidation in Revision Case No. 2519 of 1996 or not. If in fact the said order was assailed before the Director under Section 37(2) of the Act and the Director had been pleased to set aside the said order and remitted the matter back to the Consolidation Officer, Raghunathpur, then the entire basis on which the order impugned was passed falls. If on the other hand the order passed by the Assistant Consolidation Officer under Section 9(3) of the Act in the Objection Case No. 2648/112 of 1989 has not been assailed before the Director and has not been varied or annulled, the impugned order cannot be interfered with. In view of the aforesaid facts, this Court vide order dated 8.4.2005 directed learned counsel for the petitioner to produce the certified copies of the Objection Case filed before the Assistant Consolidation Officer and the order passed by the Director in revision. Learned counsel for the petitioner submit¬ted that as the records are not readily available it was not possible to obtain the certified copies for production before this Court. 7. Learned counsel for the petitioner submit¬ted that as the records are not readily available it was not possible to obtain the certified copies for production before this Court. 7. In view of the aforesaid submissions, this Court feels that ends of justice and equity will be better served if the matter is remitted back to the Commissioner with specific direc¬tion to call for the records of Objection Case No. 2648/112 of 1989 as well as the order passed by the A.C.O. under Section 9(3) and the records of Revision Case No. 2519 of 1996 and the order passed by the Director therein under Section 37(2); peruse the same and ascertain as to whether the order passed by the Assist¬ant Consolidation Officer had at any time been varied or set aside. If it is found by the Commissioner that in fact the order of the Assistant Consolidation Officer is no longer in existence, having been set aside by the Director and the matter had been remitted back to the Consolidation Officer, Opposite party No. 1 will have absolutely no case. On the other hand if the order passed by the Assistant Consolidation Officer has not been varied or set aside by the Director in revision, the conclusion arrived at by the Commissioner shall be sustained. As the matter is pending since long, to shorten the span of the litigation, I direct the Commissioner to dispose of the Revision as expedi¬tiously as possible. With the aforesaid observation/direction the Writ Petition is disposed of. Petition disposed of.