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2013 DIGILAW 409 (ORI)

Arjuna Chandra Jena @ Arjuna Jena v. Commissioner, Consolidation Orissa, Cuttack

2013-09-24

M.M.DAS

body2013
JUDGMENT M. M. DAS, J. The petitioners in this writ petition have sought for quashing the notice issued by the Consolidation Officer, Nimapara – opp. party no. 3 under Annexure-1 as well as the order dated 28.6.2005 passed by the Director of Consolidation, Odisha, in Revision Petition No. 4550 of 2004 which was filed under section 37 (2) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as ‘the Act’). 2. Facts leading to the present case are that Hal plot No. 388, Chaka No. 194 under Hal Khata No. 303 in mouza – Rudrapur under Balianta Police Station in the district of Khurda was under consolidation operation. The Record of Rights was finally prepared under sub-section (1) of section 22 of the Act on 30.7.1980 recording the name of Bhagabat Jena, Madabananda Jena, Bichitrananda Jena and Gokuli Jena as the raiyats over the said land. After about a quarter of a century, the opp. parties 4 and 5 filed a revision petition under section 37 (2) of the Act before the Director of Consolidation, Orissa, Cuttack which was registered as R.P. Case No. 4550 of 2004. The Director though directed issuance of notice on the said revision petition fixing 29.1.2005 for hearing on admission on merit, but the record of the revision petition shows that notice was never issued to the present petitioners, the petitioner no.1 being the son of the recorded tenant Bhagabat Jena and other petitioners, being the recorded tenants. On 28.6.2005, the Director passed the impugned order which is as follows:- “This revision has been initiated U/S. 37(2) of the O.C.H. & P.F.L. Act, 1972. Notice duly served and S.R. back. Heard. Admit. This case is for correction of records and map as per entitlement and possession in the field. It needs verification of documents along with records and field. Hence, this R.P. is remanded to the C.O. Nimapara for disposal as per law in the light of above observation. All the interested parties are to be given reasonable opportunity of being heard during adjudication of the claims of the parties”. After the aforesaid order remitting the matter back to the Consolidation Officer, Nimapara, notice under Annexurer-1 was issued to the petitioners. Only then, they could know that such a revision was filed by the opp. parties 4 and 5. 3. Mr. After the aforesaid order remitting the matter back to the Consolidation Officer, Nimapara, notice under Annexurer-1 was issued to the petitioners. Only then, they could know that such a revision was filed by the opp. parties 4 and 5. 3. Mr. R.K.Mohanty, learned senior counsel appearing for the petitioners in his usual articulation contended that the revision petition filed before the Director under section 37 (2) of the Act was not maintainable and the Director had no jurisdiction to pass the order on 28.6.2005. He further submitted that the Director could not have passed the order after about twenty five years from the date of publication of the R.O.R. and the final map under section 22 (1) of the Act. 4. In order to appreciate the above question raised by the petitioners, it would be appropriate to gather the intention of the Legislature in enacting the aforementioned Act. The Act was legislated with a strategy for increasing agricultural production and in pursuance thereof to give inducement and incentive to the cultivators, it was considered expedient to initiate legislation for consolidation of scattered holdings and re-arrange the holdings including fragmented holdings among various land owners to make them more compact and to provide against future fragmentation of holdings to help economic farming and application of improved implements and methods of farming which are necessary for development of agriculture and increased agricultural production. 5. If the scheme of the Act is examined, it would be seen that section 3 thereof provides for declaration and notification notifying an area which shall compromise of village or group of villages, brought under consolidation after which the Consolidation Officer or his subordinates or any other officer acting under his authority can enter upon and survey in connection with rectangulation or otherwise and to take levels of any land in such area, if necessary, and can clear by cutting or removing any tree, jungle, fence, standing crop or other material obstruction during such survey or taking of levels and to do all acts necessary to ascertain the suitability of the area for consolidation operations. Sub-section (2) of section 3 provides that the Consolidation Officer shall cause public notice of the notification issued under sub-section (1) to be given in the prescribed manner. Sub-section (2) of section 3 provides that the Consolidation Officer shall cause public notice of the notification issued under sub-section (1) to be given in the prescribed manner. Section 4 prescribes that upon publication of such notification in the Official Gazette, the consequences as set- forth thereafter shall subject to the provisions of the Act ensue in the consolidation area till the publication of notification under section 41 or sub-section (1) of section 5, as the case may be. Sub-section (4) of section 4 provides that all suits and proceedings for declaration of any right, title or interest over any land situate within the consolidation area in regard to which proceedings could be or ought to be started under the Act, which are pending before any civil court, whether of the first instance or appeal, reference or revision shall on an order being passed in that behalf by the court before which such suit or proceeding is pending, stand abated. Such order shall be passed only after giving opportunity of hearing to the parties concerned. However, second proviso to section 4 prescribes that if a notification is made under sub-section (1) of section 5 in respect of the said area or part thereof, every order passed by the Court under sub-section (4) of section 4 shall stand vacated. Section 12 of the Act provides an appeal against an order of the Assistant Consolidation Officer or Consolidation Officer under sections 10 or 11 which is required to be filed within thirty days from the date of such order, before the Director of Consolidation whose order shall, except as otherwise provided under the Act, be final. Section 36 of the Act provides a revision which can be initiated by the Consolidation Commissioner on an application by any person aggrieved by any decision of the Director of Consolidation, within ninety days from the date of such decision. The power of the Commissioner is prescribed under various sub-sections of section 36. Section 36 of the Act provides a revision which can be initiated by the Consolidation Commissioner on an application by any person aggrieved by any decision of the Director of Consolidation, within ninety days from the date of such decision. The power of the Commissioner is prescribed under various sub-sections of section 36. Section 37 (1) of the Act is a power with the Consolidation Commissioner to call for records and examine the same, of any case decided or proceedings taken up by any subordinate authority for the purpose of satisfying himself to the regularity of the proceedings or as to the correctness , legality or propriety of any order passed by such authority in the case or proceedings and such order as the Commissioner may think fit may be passed after allowing the parties concerned a reasonable opportunity of being herd. Sub-section (2) of the said section 37 provides that the power under sub-section (1) may be exercised by the Director of Consolidation in respect of the authorities subordinate to him. 6. For the purpose of deciding the issue involved in the present case, it would be appropriate to refer to section 21 of the Act which provides that before publication of the R.O.R. under section 22, the Director of Consolidation shall confirm the provisional consolidation scheme after the disposal of all objections and appeals relating to the unit with such modifications as he considers necessary in the interest of proper consolidation or for giving effect to the final order, if any, passed under section 15. Under sub-section (2) thereof, the provisional consolidation scheme so confirmed is required to be published in the unit and except as otherwise provided under the Act shall be final. 7. The question, therefore, arises as to whether a revision under section 37 (2) of the Act can be filed against a finally published R.O.R. under section 22 of the Act which was confirmed by the Director under section 2 1 (1) of the Act. 8. The two questions raised by Mr. 7. The question, therefore, arises as to whether a revision under section 37 (2) of the Act can be filed against a finally published R.O.R. under section 22 of the Act which was confirmed by the Director under section 2 1 (1) of the Act. 8. The two questions raised by Mr. Mohanty on behalf of the petitioners are that (i) the Director while deciding the R.P. Case No. 4550 of 2004 has never issued notice to the petitioners and, therefore, the said order passed on 28.6.2005 is in gross violation of the principles of natural justice, and (ii) the Director has no jurisdiction under section 37 (2) of the Act to pass any order for revising the finally published R.O.R. under section 22 of the Act. The further contention raised by Mr. Mohanty was that such revision having been filed after about quarter of a century, the same should have been rejected in limine . 9. With regard to the first question raised, it is clear that the impugned order dated 28.6.2005 passed by the Director as quoted in paragraph-4 of the writ petition has been passed without affording due opportunity of hearing to the petitioners. On that ground alone, the said order is liable to be quashed. But, however, to bring a finality to the litigation, this Court considering the provision under section 21 of the Act finds that the R.O.R. published under section 22 thereof is only after confirmation made by the Director under section 21 (1) of the Act. Hence, exercising revisional power by the Director over the R.O.R. which was confirmed by him under section 21 (1) of the Act tantamounts to sitting in judgment over his own order which he was not authorized to do. 10. It is an admitted case that after initiation of the consolidation proceeding in the concerned mouza and publication of land register under section 3 (1) of the Act and issuance of notification by publishing the same at conspicuous places of the village for a period of not less than fifteen days and preparation of land register showing particulars of lands, interest therein, rent and cess settled therefor and such other details as prescribed, neither objection was filed by the opp. parties 4 and 5 as per the provision of section 9(3) of the Act which provides that any person interested may within thirty days of the date of publication of the notice under sub-section (1) of the said section can file objection before the Assistant Consolidation Officer with regard to the correctness of the entries in the records nor the opp. parties 4 and 5 preferred any appeal under section 12 of the Act before the Director of Consolidation . However, they allowed the R.O.R. to stand for about twenty five years and suddenly filed an application for revision under section 37 (2) of the Act. The impugned order passed by the Director by which the matter was remitted back to the Consolidation Officer, Nimapara, therefore, suffers from violation of principles of natural justice and the same was without jurisdiction as the R.O.R. published under section 22(1) of the Act was confirmed by the same Director. By remitting the matter back, the Director has also given a go-by to the bar created under section 14 of the Act which provides that no question in respect of right, title and interest in the land can be raised which could have been raised by them under section 9 of the Act. The above interpretation of the provisions of the Act is made keeping in view the well settled position of law that the object and reasons of the Act are to be taken into consideration in interpreting its provision and it is incumbent on the Court to make an effort while interpreting a Statute to protect and advance the object and purpose of the enactment. Any technical or narrow interpretation of the provision would defeat the legislative intent for which the same was legislated. It is also a rule of interpretation that efforts should be made in construing the different provisions so that each provision may have effective meaning and harmonious construction should be given to all the provisions in an enactment. It is also settled law that literal meaning of the Statute must be adhered to when there is no ambiguity in ascertaining the legislative intention for which the broad features of the Act should be looked into. 11. It is also settled law that literal meaning of the Statute must be adhered to when there is no ambiguity in ascertaining the legislative intention for which the broad features of the Act should be looked into. 11. In view of the aforesaid discussions and in view of the legislative intent of enacting the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 and further keeping in mind the provision that the consolidation of holdings is to be made within a time frame for achieving its object of increase in agricultural produce by enabling the farmers to adopt modern techniques of mechanized farming on consolidating small patches of land to one or two chakas inasmuch as the intent of the Act to attach finality to the decision without any delay, this Court also finds that the opp. parties 4 and 5 could not have filed the revision under section 37 (2) of the Act before the Director of Consolidation after quarter of a centaury from the date when the R.O.R. was published under section 22 (1) of the Act. 12. In agreement, therefore, with the contentions raised by Mr. Mohanty, this Court comes to the conclusion that the order passed by the Director in R.P. Case No. 4550 of 2004 on 28.6.2005 remitting the matter back to the Consolidation Officer is not only vitiated in law for violation of principles of natural justice but also the same is unsustainable. The said order is, therefore, quashed. As a consequence, the Consolidation Officer, Nimapara is not required to proceed with the matter any further pursuant to the aforesaid order passed by the Director of Consolidation. 13. In the result, the writ petition is allowed, but in the circumstances, without any cost.