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2014 DIGILAW 359 (ORI)

Surendranath Biswal v. State of Orissa

2014-06-18

I.MAHANTY

body2014
JUDGMENT INDRAJIT MAHANTY, J. 1. In the present writ application, the petitioner-Surendranath Biswal has sought to challenge the order dated 25.08.1997 passed by the Commissioner, Consolidation, Orissa, Cuttack (O.P.2) allowing Consolidation R.C. No. 78 of 1995 and setting aside the order dated 9.12.1994 passed by the appellate authority (Deputy Director Consolidation, Kendrapara) in Appeal Case No. 70 of 1994 directing to record the disputed land in favour of the petitioner as well as the opposite parties jointly each having 1/5th interest after verification of R.S.D. No. 6137 dated 31.12.1984 and sabik-hal records/maps etc. 2. The genealogy of the parties in the present case is noted as hereunder:- Banchhanidhi Gobinda Bata Narahari = Chanda (Wife) Duryodhan Surendra (Petitioner) (O.P. No.6) Jutiram Arjuna Murari (O.P.5) (O.P.7) (O.P.8) In the light of the genealogy as noted hereinabove, it appears that Banchhanidhi is the common ancestor of the parties. He had three sons, namely, Govinda, Bata and Narahari. It further appears that while Gobinda had five sons, namely, Jutiram (O.P.5), Arjuna (O.P.7), Murari (O.P.8), Duryodhan (O.P.6) and Surendra (Petitioner), his other two brothers, namely, Bata and Narahari were childless. 3. It is stated on behalf of the petitioner that since both Bata and Narahari (brothers of Gobinda) were childless, Bata adopted Duryodhan (son of Gobinda) and Narahari, who married to Chanda (wife) had adopted the petitioner-Surendra (son of Gobinda) in the year 1954. Learned counsel for the petitioner further contends that the adoption of the petitioner has been accepted by Chanda (adopted mother) during the settlement operation in the year 1965-66 while the Yadast was published which would be evident from Annexure-1. It is further submitted that there was an amicable partition between three brothers, namely, Gobinda, Bata and Narahari and all of them had possessed 1/3rd share of their ancestral property. The petitioner further stated that on 31.7.1978 (RSD No. 6001 dated 31.7.1978), a portion of the ancestral property was sold by registered sale-deed in favour of one Ratnakar Sahu and the said sale-deed had been signed by Gobinda (natural father of the petitioner), Duryodhan as son of Bata (O.P.6) and the petitioner as son of Narahari. It is also the admitted fact that the petitioner’s adoption by Narahari had came to be accepted and had been acted upon. It is also the admitted fact that the petitioner’s adoption by Narahari had came to be accepted and had been acted upon. The petitioner also placed reliance on the voter’s list published in the year 1984 where the petitioner’s name had been recorded as the son of Narahari while Duryodhan’s name had been recorded as the son of Batakrushna. 4. Admittedly, in the present case, the consolidation proceeding had commenced on 20.3.91 and the suit unit Bagadia was finally published under Section 22(2) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (in short the Act, 1972) on 12.2.1992 declaring that the petitioner had 1/3rd interest in the suit land. It appears that the private opposite parties thereafter initiated RP Case No. 656 of 1991 purportedly under Section 37(2) of the Act, 1972 before the Consolidation Officer, Marshaghai. So, therefore, after final publication of the map and record-of-rights, the opposite parties moved before the Consolidation Officer. The issue before the Consolidation Officer was, as to whether such an objection could be entertained by him at such stage. The Consolidation Officer in his order dated 15.3.1994 came to dismiss the said RP case purportedly under Section 37(2) of the Act, 1972, inter alia, on the ground that it was not possible for him to consider the claim of the objectors at such a belated stage i.e. after final publication of the map & record-of-rights under Section 22(2) of the Act, 1972. Admittedly, the opposite parties who initiated the R.P. Case purportedly under Section 37(2) of the Act, 1972 raised a question of adoption of the present petitioner-Surendranath Biswal by Narahari Biswal for the first time in such proceeding. It would be relevant to note herein that under the Act, 1972, Section 20 provides for an appeal against the order of a Consolidation Officer within 30 days from the date of the order under Section 19 by way of filing of an appeal before the Director of Consolidation. Admittedly, the opposite parties did not file any appeal under Section 20 of the Act, 1972 as provided for after the publication of the Provisional Consolidation Scheme under Section 18 nor did they file any objection pursuant to such publication for consideration. Admittedly, the opposite parties did not file any appeal under Section 20 of the Act, 1972 as provided for after the publication of the Provisional Consolidation Scheme under Section 18 nor did they file any objection pursuant to such publication for consideration. Consequently, the Provisional Consolidation Scheme was confirmed under Section 21 of the Act, 1972 and thereafter, the final publication of the final map and record-of-rights came to be issued under Section 22(2) of the Act, 1972 on 12.2.1992. 5. This order of the Consolidation Officer came to be challenged by the opposite parties before the Deputy Director of Consolidation in Appeal Case No. 70 of 1994, purportedly under Section 12 of the Act, 1972. For better appreciation, Section 12 of the Act, 1972 is quoted herein-below: “12. Appeal – Any person aggrieved by an order of the Assistant Consolidation Officer or the Consolidation Officer under Section 10 or 11 may, within thirty days from the date of the order file an appeal in the prescribed manner before the Director of Consolidation whose decision shall, except as otherwise provided by or under this Act, be final.” The relevant Sections 10 & 11 of the said appeal clause are also quoted herein-below: 10. Disposal of objection by the Assistant Consolidation Officer – (1) Such objections relating to right, title and interest in land as can, in conformity with the laws in force, be disposed of by conciliating among the parties concerned, shall be disposed of by the Assistant Consolidation Officer: Provided that where any party does not appear before the Assistant Consolidation Officer on the date fixed after due service of notice in that behalf, he shall set him ex parte and proceed with the conciliation among the parties appearing before him and orders passed on such conciliation shall, subject to the orders in an appeal or revision, if any, be binding on the parties who are set ex parte. (2) All objections which cannot be disposed of by conciliation under Sub-section (1) and all other objections including those relating to valuation or the Statement of Principles or the rent or cess settled under this Act shall be forwarded by the Assistant Consolidation Officer to the Consolidation Officer for disposal.” 11. (2) All objections which cannot be disposed of by conciliation under Sub-section (1) and all other objections including those relating to valuation or the Statement of Principles or the rent or cess settled under this Act shall be forwarded by the Assistant Consolidation Officer to the Consolidation Officer for disposal.” 11. Disposal of objection by the Consolidation Officer – (1) The Consolidation Officer shall dispose of objections forwarded to him under Sub-section (2) of Section 10 after giving the parties concerned a reasonable opportunity of being heard and after such local inspection as he deems necessary: Provided that in disposing of objections relating to valuation and the Statements of Principles, he shall consult the Consolidation Committee. (2) For the purpose of disposing of objections, the Consolidation Officer shall hold his sittings at the headquarters of the Grama Panchayat constituted under the Orissa Grama Panchayat Act, 1964 (Orissa Act 1 of 1965) within whose jurisdiction the land is situated.” 6. In the present case, the nature of the objection filed by the opposite parties does not fall within the category of either Sections 10 or 11 as noted hereinabove nor the same was after the initial publication of records and issue of extracts and notices as contemplated under Sections 8 and 9 of the Act, 1972 and consequently, no objection thereto have been filed. 7. In any event the Deputy Director of Consolidation, Kendrapara dismissed Appeal Case No. 70 of 1994 with categoric finding of fact in favour of the present petitioner and his adoption by Narahari. The said appellate order would also indicate that, the respondent therein i.e. the present writ-petitioner had also raised the contention that since the record-of-rights had been finally published and the consolidation operation was over, if the appellants therein (present opposite parties) have any claim, ought to have filed a civil suit and no objection on the consolidation proceeding ought to have been entertained. Although such objections were recorded by the lower appellate authority, on consideration of the documentary evidence produced by the writ petitioner, came to hold that the writ petitioner-Surendranath Biswal was the adopted son of Narahari Biswal and that, the hal record and record-of-rights had been prepared in that manner and the consolidation authorities had rightly decided the issue which did not require any interference by this Court. 8. 8. The opposite parties preferred Consolidation Revision Case No. 78 of 1995 before the court of the Commissioner Consolidation and the revisional authority vide order dated 25th August 1997 allowed the revision setting aside the order passed in appeal and directing recording of the disputed land in favour of the petitioner as well as the private opposite parties jointly each having 1/5th interest. 9. Although various contentions have been advanced by the learned counsel for the respective parties both in support and in challenge to the order passed by the revisional authority, yet, it would be clear that from the aforesaid facts that the opposite parties had not filed any objection either at the stage where notices were issued under Sections 8 and 9 of the Act, 1972 nor after publication of Provisional Consolidation Scheme under Section 18 thereof. The procedure in the statute would indicate that after Section 18 stage, the Director of Consolidation passed an order of confirmation of Provisional Consolidation Scheme under Section 21 and it is only thereafter, under Section 22, the preparation and publication of final map and record-of-rights is directed. It is only at such stage i.e. Section 22(2), which is prior to final publication of map and record-of-rights, the present opposite parties for the first time raised an objection before the Consolidation Officer. On perusal of the scheme of the statute, it is clear that the statute does not conceive of entertaining any objection at such a stage and this court is of the considered view that the order under Annexure-1 passed by the Consolidation Officer is absolutely in order and appropriate. Although the opposite parties filed an appeal and even though the appellate authority entertained the appeal under Section 12 of the Act, 1972, this Court is of the considered view that the appeal itself was not maintainable since the order impugned was not objectionable, which ought to have been raised after publication either under Section 8 or 9 of the statute but, came to be raised only after Section 22 stage. Insofar as the revisional authority is concerned, the power of the revisional authority under Section 37 of the Act, 1972 in the present case ought not to have been exercised since the Director of Consolidation had already confirmed Provisional Consolidation Scheme and the objectors (opposite parties herein) had never raised any objection at the appropriate stage as contemplated under the Act, 1972. Apart from the reasons noted hereinabove, the real issue raised with a prayer for declaration to the effect that the petitioner-Surendranath Biswal is not to be recognized as the adopted son of Narahari Biswal but to recognize him as the son of Govinda Biswal. This issue regarding competence or otherwise of the consolidation authorities to deal with such a declaration, is no more res integra. The said issue has been decided by this Court in the judgment rendered by a Division Bench in the case of Panchei Bewa vs. Iswar Ch. Sahoo and Others, 1996 (1) OLR 17. By referring the earlier judgments of this Court, the Division Bench observed that while the consolidation authorities exercised special jurisdiction conferred upon them by the statute and were competent to adjudicate upon the question of right, title and interest in the land, yet, the question of status of a person does not relate to any right or interest in land and consequently, the consolidation authorities had no jurisdiction to decide the question of adoption. On the similar issue, the petitioner has placed reliance on the judgment of this Court in the case of Pranabandhu @ Panu Ojha vs. Bhikari Moharana @ Ojha, 57 (1984) CLT 65. Reliance was also placed on the judgment of this Court in the case of Krushna Chandra Nayak @ Mohanty and others vs. Nishamani Bewa, 61 (1986) CLT 564 wherein it is observed that where the question of status is involved in the suit, Consolidation authorities could not have granted the relief claimed since the authorities under the Act, have no jurisdiction to decide the status. 10. 10. In view of the aforesaid facts, this Court directs quashing of the impugned order dated 25th August, 1997 passed by the Commissioner, Consolidation, Orissa, Cuttack in Consolidation R.C. No. 78 of 1995 under Annexure-4 as well as the order dated 9.12.1994 passed by the lower appellate court (Deputy Director, Consolidation, Kendrapara) in Appeal Case No. 70 of 1994 under Annexure-3 holding that the said orders were passed without necessary judicial competence and confirms the order passed by the Consolidation Officer under Annexure-1. 11. Accordingly, the writ application is allowed with the aforesaid observations and directions. Liberty is granted to the parties to approach the Civil court concerned, if they so inclined.