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2013 DIGILAW 392 (ORI)

UMAKANTA PANDA v. COMMNR. CONSOLIDATION

2013-09-18

R.DASH

body2013
JUDGMENT : R. Dash, J. - This writ petition is in challenge of the order of remand dated 12.4.2010 passed by the learned Commissioner, Consolidation and Settlement, Cuttack (O.P. No. 1) in R.C. No. 170 of 2009. Case of the petitioner, in short, is that O.P. Nos. 2 and 3 as petitioners before the Commissioner filed Consolidation Revision Case No. 170 of 2009 for enhancement of the area and map of Hal Plot No. 57 on the basis of Registered Partition Deed No. 6115 dated 17.11.1951. The present petitioner as opposite party before the learned Commissioner raised contention that since the final R.O.R. was published long back in 1983 and notification u/s 41 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short, the Act) was made within two years of final publication of R.O.R., the revision petition, after lapse of 27 years, was not entertainable. Yet, the learned Commissioner without proper discussion on the points raised, passed the impugned order. Another stand taken by the petitioner is that two suits, one filed by the O.P. Nos. 2 and 3 and another filed by the petitioner with respect to the same land are pending in the competent Civil Court. Therefore, during pendency of the Civil Suits, the learned Commissioner should not have entertained the revision petition. 2. The O.P. Nos. 2 and 3 in their counter have contended that since the disputed land situates within the purview of Consolidation operation, the O.Ps. have filed the Consolidation Revision before the Commissioner, O.P. No. 1, for correction of R.O.R. as well as map by way of enhancement of the area of Hal Plot No. 57 as per their entitlement. According to the O.Ps., the suits filed by the parties are for permanent injunction, during pendency of which the learned Civil Court appointed Survey knowing Commissioner for field enquiry and after such field enquiry the O.Ps. have come to know about shortage of the area in respect of Hal Plot No. 57. Hence, they have preferred the revision before the Commissioner-O.P. No. 1, after hearing the parties, has remanded the case to the Consolidation Officer, Kendrapara for disposal as per law and while passing the order of remand the learned Commissioner has elaborately discussed the points raised by the writ petitioner. Hence, they have preferred the revision before the Commissioner-O.P. No. 1, after hearing the parties, has remanded the case to the Consolidation Officer, Kendrapara for disposal as per law and while passing the order of remand the learned Commissioner has elaborately discussed the points raised by the writ petitioner. Since the Civil Court has no jurisdiction to decide the matter with regard to the enhancement of the area and map of Hap Plot No. 57, whereas the Consolidation authorities are empowered to do so, the O.P. Nos. 2 and 3 moved the Consolidation authority during pendency of the Suit. It is also contended that if any record, prepared during course of Consolidation operation, is not in conformity with fundamental judicial procedure, the revisional power can be invoked even after notification u/s 41 of the Act. 3. The disputed property is the ancestral homestead property of the parties. There was partition of the ancestral properties including the disputed property under a registered partition deed of the year 1951. Thereafter, in the year 1953 there was exchange of some lands between the two branches of the parties under a registered deed. Thereafter, in the year 1964, Ac. 0.15 of land out of their homestead land was acquired by the Revenue and Excise Department, Government of Orissa for Distributory No. 1 of Gobari Canal. From a perusal of the impugned order passed by the learned Commissioner it reveals that after a thorough scrutiny the learned Commissioner has worked out the extents of homestead land which were subjected to the aforesaid partition, exchange and acquisition and come to a conclusion that the net entitlement of the branch to which the present petitioner belongs is Ac. 0.34 but an area of Ac. 0.36 has been recorded in their names whereas as against the entitlement of Ac. 0.38, the O.Ps. have been recorded an area of Ac. 0.36. So, considering that the true picture can be ascertained only by field enquiry, the learned Commissioner passed the impugned order admitting the revision and remitting it to the Consolidation Officer, Kendrapara to verify the Hal and Sabik R.O.Rs. and maps and various documents relied on by both the parties and to conduct field enquiry to pass appropriate order in accordance with law after issuing notice to all the persons interested and giving them opportunity of being heard. 4. and maps and various documents relied on by both the parties and to conduct field enquiry to pass appropriate order in accordance with law after issuing notice to all the persons interested and giving them opportunity of being heard. 4. It is true that the revisional authority was approached about 27 years after the Consolidation R.O.R. was published in 1983 followed by notification u/s 41 of the Act published within two years of publication of the R.O.R. 5. It is well settled that the power u/s 37 of the Act is unfettered but the same must be exercised only under compelling circumstances and has to be exercised in a reasonable manner which inheres the concept that it must be done within a reasonable time. It is also well settled that even after closure of the Consolidation operation by a notification u/s 41 of the Act, power u/s 37 is available to be exercised in deserving cases. This has been decided in Gulzar Khan Vs. Commissioner of Consolidation and Others, which is relied on by the contesting O.Ps. About the long delay, it is submitted on behalf of the petitioner that in the absence of any plausible explanation from the side of the Revision-petitioners, learned Commissioner could not have entertained the revision petition and that without assigning any reason the learned Commissioner ought not to have remanded the matter to the Consolidation Officer. On the other hand the O.Ps. place reliance on Bhagaban Jena and Others Vs. State of Orissa and Others, wherein on the ground of delay of 19 years in filing the Revision the Commissioner of Consolidation had rejected the Revision but this Court held that power u/s 37 of the Act being unfettered, learned Commissioner in the given facts and circumstances of that case ought to have condoned the delay. It is true that the learned Commissioner did not record any finding as to whether the long delay in the facts and circumstances of the case was reasonable or not. But from the discussion made by the learned Commissioner in the impugned order, it is gathered that since the registered exchange deed of the year 1953 was executed when O.P. Nos. 2 and 3 were minor, they had no knowledge about the same. In their counter affidavit O.P. Nos. But from the discussion made by the learned Commissioner in the impugned order, it is gathered that since the registered exchange deed of the year 1953 was executed when O.P. Nos. 2 and 3 were minor, they had no knowledge about the same. In their counter affidavit O.P. Nos. 2 and 3 have averred that during pendency of the Civil Suits referred to above, when a Survey Knowing Commissioner was deputed for field enquiry and during field enquiry when the documents of both the parties were verified, at that time the O.P. Nos. 2 and 3 came to know about the shortage of the area of the land recorded in their names. It is the case of O.P. Nos. 2 and 3 that immediately after such knowledge, they preferred the revision in question. It is submitted that since there was no dispute between the parties till filing of the Civil suits, O.P. Nos. 2 and 3 were under the belief that the Consolidation authorities had rightly recorded the lands of the petitioner and the O.Ps. There is nothing to disbelieve this contention of O.P. Nos. 2 and 3. Learned Commissioner has reflected the contention of O.P. Nos. 2 and 3 (petitioners before the learned Commissioner) in the impugned order but has not recorded his satisfaction as to the reasonableness of the ground extending the delay in the presentation of the revision petition. However, having thoroughly dealt with the contentions raised by both the parties, the learned Commissioner has admitted the revision and remanded the same to the Consolidation Officer for field enquiry finding that there is a strong prima facie case for enhancement of the area and map of Hal Plot No. 57. 6. It is argued by the learned counsel for the writ petitioner that since the two Suits are pending in the competent Civil Court for the self-same relief, the learned Commissioner should not have entertained the revision petition. The impugned order reflects that the Suits pending before the Civil Court are not for the self-same relief. 6. It is argued by the learned counsel for the writ petitioner that since the two Suits are pending in the competent Civil Court for the self-same relief, the learned Commissioner should not have entertained the revision petition. The impugned order reflects that the Suits pending before the Civil Court are not for the self-same relief. T.S. No. 137 of 2000 in the Court of the learned Civil Judge (Junior Division), Kendrapara is for permanent injunction against raising of any construction over a portion of the disputed land whereas T.S. No. 25 of 2002 in the same Court is with a prayer to delete from the R.O.R. the note of easementary right made in the remarks column in respect of a particular plot. Therefore, the learned Commissioner has rightly observed that pendency of the two Title Suits will not affect the adjudication of the dispute with regard to correction of area and map in respect of the disputed property. 7. In Gulzar v. Commissioner (supra) it is observed that even after closure of the consolidation operations, the Civil Court cannot decide any question covered by Subsections (1) and (2) of Section 51 of the Act. As per Subsection (2) of Section 51 of the Act, a Civil Court cannot entertain any suit or proceedings in respect of any matter which an officer or authority empowered under the Act is competent to decide. Therefore, the suit for correction of Record-of-Rights which have been published under the Act will not be maintainable in a Civil Court in view of the provisions contained in Section 51(2) of the Act. The cause of action has arisen not after the closure of the Consolidation operation but prior to such closure. In Gulzar v. Commissioner's case (supra) it is held that a forum has to be available to a person who was to be aggrieved, after Section 41 notification has been issued, with any order having been passed or anything having been done during the consolidation operations affecting his right, title and interest. The only forum available to O.P. Nos. 2 and 3 for redressal of their grievance is by way of a proceeding before the authorities under the Act. Therefore, only on the ground of long delay, O.P. Nos. 2 and 3 should not be prevented from seeking redressal by way of a revision under the Act. The only forum available to O.P. Nos. 2 and 3 for redressal of their grievance is by way of a proceeding before the authorities under the Act. Therefore, only on the ground of long delay, O.P. Nos. 2 and 3 should not be prevented from seeking redressal by way of a revision under the Act. It is well settled that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred. 8. In view of the discussion made above, the prayer made by the writ petitioner for quashing of Annexure-1 is liable to be rejected. Accordingly, the writ petition is dismissed but without any cost. Final Result : Dismissed