Braja Mohan Das v. State of Orissa, represented through Collector, Balasore
2016-12-14
BISWANATH RATH
body2016
DigiLaw.ai
JUDGMENT : Biswanath Rath, J This writ petition arises out of an order dated 27.8.2002 under Annexure-3 passed by the opposite party no.7 involving the Consolidation Revision Case No.608 of 1996. 2. Short background involved in the case is that the petitioners and opposite party nos.2, 3 and 4 belongs to one family and hails from common ancestor. Land covered under Khata No.32, Plot No.142 consisting an area of Ac.0.12 decimals with kisam Gharabari stood recorded in the name of the petitioners and the predecessors in interest of the opposite party nos.2 to 4, namely, one Baidhar Das in the Major Settlement record-of-right published in the year 1988. During consolidation proceeding objector, said Baidhar Das filed Objection Case under Section 9(3) of the Orissa Consolidation of Holdings & Prevention of Fragmentation of Land Act, 1972 (hereinafter called ‘the Act’) with prayer for partition of the lands in L.R. Plot No.31, Ac.4.66 decimals for the specific portion of land on mutual partition as per the separate possession of the recorded tenants. After undertaking field inquiry and based on report involving the inquiry, the Objection Case No.405 of 1992 was disposed of allowing partition between the parties and thereby directing record of respective lands indicated in Annexure-1 in favour of the respective parties therein. The order was passed in 1993. After a gap of 3 years, the present petitioners filed Revision Case No.608 of 1999 under Section 37(1) of the Act for correction of records on the premises that there has been no proper allotment of land in deciding Objection Case No.405 of 1992. Private opposite parties on their appearance contested the challenge of the petitioners on the premises that Objection Case No.405 of 1992 involved partition between the respective parties based on materials produced by the respective parties followed with field inquiry. Objection Case No.405 of 1992 was closed allowing partition of the disputed property between the parties. This order though was passed in the year 1993, the present petitioners remain satisfied with the order and did not challenge the order in appeal and the revision provided therein and after 3 years, the proceeding under Section 37(1) of the Act has been initiated based on no sustainable ground. For the petitioners not assailing the order in the Objection Case under Section 9(3) of the Act and the revisional court’s observations therein the revision leaves no scope for interference by this Court.
For the petitioners not assailing the order in the Objection Case under Section 9(3) of the Act and the revisional court’s observations therein the revision leaves no scope for interference by this Court. 3. Learned Additional Government Advocate appearing for the State supported the case of the private opposite parties and submitted that the revisional order is unimpeachable. 4. From the pleadings and the submissions made by the respective counsel, it appears both the contesting parties have already resolved their issues by way of partition through consolidation authority thereby and based on field inquiry. The Consolidation Officer, Basta decided Objection Case No.405 of 1992 arriving in the partition of the disputed property in between the parties. The report submitted therein had not been objected by anybody. Since, this was a proceeding under Section 9(3) of the Act, nothing prevented to the present petitioners, in the event they were aggrieved by the said order to prefer appeal and then revision provided under the Act. Having not done so, this Court observes the petitioners were estopped to initiate a proceeding under Section 37(1) of the Act. Accepting such application in the absence of challenge to the order obtaining in the process under Section 9(3) of the Act, entertaining will be amounting to defeating the purpose of the Act and opening a flood gate far rank defaulters. 5. For the reasons above and also for the reasons assigned by the revisional authority, this Court finds the impugned order under Annexure-3 remains satisfactory leaving any scope for interfering in the impugned order in exercise of power under Article 227 of the Constitution of India. Consequently, this Court finds no merit in the writ petition, which stands dismissed. No cost.