JUDGMENT 12.7.2013 – The writ petitioner herein seeks quashing of the proceeding in Consolidation Revision No.388/05, so also the order dated 7.5.2005 passed by the learned Director, Consolidation, Orissa, Cuttack-opposite party No.1. The case of the petitioner is to the effect that the case plot was jointly purchased by the petitioner and his brother opposite party No.3. During the consolidation operation in their village both of them submitted joint objection for recording their names in respect of the case land in place of their vendor. During the course of hearing in the Objection Case before the Assistant Consolidation Officer (for short ‘the ACO’), there was an amicable settlement between the two brothers by which it was agreed and settled that the entire case land should be allotted to the petitioner and their homestead land in their native village at Sahupada be allotted to opposite party No.3. Accordingly, a joint application was made before the ACO who, after an enquiry through the local Amin, directed to prepare the Record of Right exclusively in the name of the petitioner in respect of the case land. Accordingly, the R.O.R. was finally published on 22.4.1999. Opposite party No.3 allowed the order of the ACO to remain in force but about six years thereafter he made an application under Section 37 (2) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short ‘the Act’) before the Director (opposite party No.1) for separate recording of his name on the basis of the Registered Sale Deed, without disclosing the fact that previously in a proceeding before the ACO the case land had already been recorded in the name of the petitioner. As a result of such suppression of facts, the opposite party No.1, without calling for the records of the court below and without verification of records, passed the impugned order dated 7.5.2005 vide Annexure-3 to the effect that the case being for correction of record on the basis of Registered Sale Deed, the same be remanded to the Consolidation Officer, Khurda for disposal as per law. According to the petitioner, the impugned order obtained by suppression of material facts is a nullity and cannot be acted upon and that the proceeding in the Revision Case being an outcome of total non-application of judicial mind is illegal and if allowed to proceed, it will have the effect of reopening of the earlier closed proceeding which is prohibited under Section 14 of the Act. Case of opposite party No.3 is that the case land was jointly purchased by both the brothers and a joint petition was filed before the ACO to record the case land for joint recording of their names. But opposite party No.3 was never a party to any conciliation. To his knowledge there was never any conciliation. Since he is an illiterate, innocent rustic person, he was persuaded by creating an impression that his name would be recorded along with the petitioner. Thus, his endorsement was fraudulently obtained on different papers. Even now also the opposite party No.3 is in possession of half of the case land. On the maintainability of the writ petition, it is contended that since an alternative remedy under Section 37 (1) of the Act is available to the petitioner, he is not entitled to invoke the writ jurisdiction of this Court. Learned counsel for the State submits that under Section 37(2) of the Act the Director has unfettered power to pass an order like the impugned order and in absence of any patent illegality shown by the petitioner, the same cannot be quashed. It is also submitted that after the remand, the petitioner participated in the revision proceeding before the Consolidation Officer and it is only after examination of three witnesses in the said proceeding, the petitioner has come before this Court invoking the writ jurisdiction. It is not in dispute that Plot No.106 measuring Ac.0.230 under Sabik Khata No.88 of Mouza Kanpur which corresponds to Hal Plot No.142 under Hal Khata No.475 of same mouza is the case land. It is also not in dispute that the petitioner and opposite party No.3 had jointly purchased the case land vide Registered Sale Deed No.2256 dated 8.7.1996 and, thereafter, on their joint petition one objection case was initiated in the court of the ACO, Kanpur to get the plot recorded in their names. It is also not in dispute that the petitioner and opposite party No.3 had jointly purchased the case land vide Registered Sale Deed No.2256 dated 8.7.1996 and, thereafter, on their joint petition one objection case was initiated in the court of the ACO, Kanpur to get the plot recorded in their names. Annexure-2 series reflect that in the objection proceeding both the petitioner and the opposite party No.3 submitted a petition to record the case land in the name of the petitioner only stating therein that in an amicable partition between them the entire of the case plot was allotted to the petitioner and the entire of their ancestral homestead was allotted to opposite party No.3. It is also revealed that both the petitioner and the opposite party No.3 were signatories to the enquiry report submitted by the Amin and to the final order passed by the ACO to record the case land exclusively in the name of the petitioner. Opposite party No.3 took the stand that the Amin report was a created document which was never read over and explained to him and his endorsement was obtained in a fraudulent manner. Annexure-3 is the petition under Section 37 (2) of the Act filed by opposite party No.3 before the Director wherein there is no mention about the Objection Case, so also about the alleged fraud committed by the opposite party No.3. Had it been disclosed by the opposite party No.3 in his petition for revision, the learned Director could not have entertained the same inasmuch as the allegation of fraud could not have been entertained by the Consolidation authorities. The impugned order vide Annexure-3 reflects that on the assumption that the petition filed by opposite party No.3 was merely for correction of Records of Right on the basis of one Registered Sale Deed, the Director remanded the case to the Consolidation Officer, Khurda for disposal. It does not reflect that the Director, before passing the impugned order, had called for and examined the Objection Case record for the purpose of satisfying himself as to the legality or propriety of the order passed in the objection case. Therefore, this is a case in which the opposite party No.3 is found to be guilty of suppression of material facts and there is total non-application of mind on the part of the learned Director while passing the impugned order. Therefore, this is a case in which the opposite party No.3 is found to be guilty of suppression of material facts and there is total non-application of mind on the part of the learned Director while passing the impugned order. As regards the ground of availability of alternative relief, it is not disputed by the learned counsel for the petitioner that the impugned order can be challenged before the learned Consolidation Commissioner under Section 37 (1) of the Act. However, it is forcefully argued by the learned counsel that since the opposite party No.3 seeks revision of the earlier order passed in the objection case on the ground of alleged fraud having been committed, the same contention cannot be entertained by the Consolidation authorities for which pushing the parties back to the Consolidation authorities to participate in the revision case would be a futile exercise. It is well settled that the bar of alternative remedy is self impugned. If there is a good reason for entertaining the writ jurisdiction despite of availability of alternative remedy the Court can exercise its jurisdiction under Article 226 of the Constitution. This writ petition has been pending for several years for no fault of the petitioner. It would not be in the interest of justice to decline remedy to the petitioner on the ground of availability of alternative remedy. In M/s. Somani Steels Ltd. and another v. Collector of Central Excise and others, reported in 2001 AIR SCW 5069, the Hon’ble Supreme Court has observed as follows: “In our view, the ground of alternative remedy does not oust the jurisdiction of the High Court under Article 226 of the Constitution. It is a factor which has to be taken into consideration while exercising the jurisdiction under Article 226 of the Constitution by the High Court and, therefore, dismissing the writ petition after 8 years on the ground of alternative remedy would not be a proper exercise of jurisdiction.” In the aforestated premises and considering the submissions, the proceeding in Consolidation Revision No.388/05 and the order dated 7.5.2005 passed by the learned Director, Consolidation, Orissa, Cuttack are quashed. The writ petition is disposed of accordingly. Petition disposed of.