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2014 DIGILAW 457 (ORI)

Anjali Panda v. State of Orissa

2014-07-31

B.K.NAYAK

body2014
Order 31.7.2014 - Heard learned counsel for the parties. 2. Order dated 25.10.2013 passed by the Tahasildar, Tihidi in OLR Case No. 168 of 2012 imposing the restriction contained in Section 34 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (in short O.C.H. & P.F.L. Act;) after allowing the conversion of the land, has been assailed in this writ petition. 3. On the application of the petitioner under Section 8-A of the O.L.R. Act for conversion of Plot No. 1155, measuring an area Ac. 0.79 under Chaka No. 484 in Khata No. 628/189 in Mouza-Mangarajpur under Tihidi Tahasil from agricultural to homestead opposite party No. 3-Tahasildar registered OLR No. 168 of 2012. After receipt of report of the local Revenue Inspector and after service of notice as per law, the Tahasildar allowed the application for converting the disputed land from agricultural to homestead kisam and assessed Rs. 80,383.00 towards premium and other dues. The said dues having been paid, the order was passed finally on 12.11.2012 allowing the conversion with a condition that the converted land shall not be sold by creating fragmentation. The petitioner, thereafter filed an application for waiving the condition as aforesaid and by the impugned order dated 25.10.2013, the Tahasildar again stated that the condition of prohibition of sale by way of fragmentation is in accordance with the provision of Section 34 of the O.C.H. &. P.F.L. Act, 1972. Section 34 of the O.C.H. & P.F.L. Act reads as under: "34. Prevention of fragmentation - (1) - No agricultural land in a locality shall be transferred or partitioned so as to create a fragment. (2) No fragment shall be transferred except to a land-owner of a contiguous chaka : Provided that a fragment may be mortgaged or transferred in favour of the State Government, a Co-operative Society, a scheduled bank within the meaning of the Reserve Bank of India Act, 1934 (2 of 1934) or such other financial institution as may be notified by the State Government in that behalf as security for the loan advanced by such Government, society, Bank or institution, as the case may be. (3) When a person, intending to transfer a fragment, is unable to do so owing to restrictions imposed under Sub-section (2), he may apply in the prescribed manner to the Tahasildar of the locality for this purpose whereupon, the Tahasildar shall, as far as practicable within forty-five days from the receipt of the application determine the market value of the fragment and sell it through an auction among the landowners of contiguous Chakas at a value not less than the market value so determined. (3-a) Any person aggrieved by an order of the Tahasildar under Sub-section (3) may, within sixty days from the date of such order, prefer an appeal in the prescribed manner before the concerned Sub-divisional Officer, whose decision thereon shall be final. (4) When the fragment is not sold in course of the auction it may be transferred to the State Government and the State Government shall, on payment of the market value determined under Sub-section (3), purchase the same and thereupon the fragment shall vest in the State Government free from all encumbrances. (5) Nothing in Sub-sections (1) and (2) shall apply to - (a) any land which is covered under the approved Master Plan published under the Odisha Town Planning and Improvement Trust Act, 1956 or as the case may be, approved development plan published under the Odisha Development Authorities Act, 1982; or (b) a transfer of any land for such public purposes, as may be specified, from time to time, by notification in this behalf, by the State Government." It is evident that the prohibition under Section 34 of the O.C.H. & P.F.L. Act as aforesaid applies only to agricultural land. The Tahasildar having allowed the conversion of the agricultural land to homestead kisam, the land no more retains its agricultural character and, therefore, Section 34 of the O.C.H. & P.F.L. Act will have no application. The impugned conditions as such is unwarranted and illegal. 4. Accordingly, this writ petition is allowed and the impugned order dated 25.10.2013 and the condition prohibiting the sale of the land in fragments contained in order dated 12.11.2012 are quashed. Consequently, the condition with regard to prohibition of sale in fragments incorporated in the record of rights which has been issued in favour of the petitioner after conversion also stands quashed. The writ petition is accordingly disposed of. Petition disposed of.