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2016 DIGILAW 696 (ORI)

BHAGABAN NATH v. COLLECTOR, BHADRAK

2016-08-26

BISWANATH RATH

body2016
JUDGMENT : Biswanath Rath, J. - This writ petition has been filed assailing the order dated 30.12.2012 passed by the Collector, Bhadrak in O.C.H. & P.F.L. Act Misc. Case No.7 of 2009. 2. Facts admitted by both the sides remain that originally Chaka No.435, Plot No.1895, area Ac.1.52 decimals under Consolidation Khata No.447 of Mouza Atto was recorded in the name of Sri Mahendra Bhanja-opposite party no.2. Opposite party no.2 transferred a portion of the aforesaid land in favour of opposite party no.3 by way of Registered Sale Deed No.891 dated 2.3.1994 in respect of area A.0.36 decimals out of total patch of Ac.1.52 decimals appertaining to Chaka No.435. Further, admitted case, as reveals, is that opposite party no.3 in the meantime sold the disputed land to the present petitioners vide Registered Sale Deed No.761 dated 24.3.2000. After the aforesaid sale, the petitioners mutated the land in their favour and also obtained rent receipt on payment of rent. 3. While the matter stood thus, opposite party no.2 filed O.C.H & P.F.L. Miscellaneous Case No.7 of 2009 before the Collector to declare the Registered Sale Deed No.891 dated 2.3.1994 in favour of opposite party no.3 as void and also to evict the opposite party no.3 from the disputed land. Subsequently, the opposite party no.2 also filed an amendment application for impletion of the present petitioners as parties for the reason of execution of a further sale deed on the disputed land in favour of them by the opposite party no.3. Petitioners on their appearance filed objection stating that opposite party no.3 purchased Ac.0.36 decimals of land out of Ac.1.52 decimals of Chaka No.435 through Registered Sale Deed No.891 dated 2.3.1994. Subsequently, opposite party no.3 sold the disputed land to the petitioners through Registered Sale Deed No.761 dated 24.3.2000. It is their further case that after the aforesaid sale, the petitioners also mutated the disputed land in their favour with the knowledge of opposite party nos.2 and 3 and on payment of rent, are obtaining rent receipt all through. The petitioners further claimed that they are the contiguous land owners of the opposite party no.2's plot. Further, the petitioners also claimed that the Miscellaneous Case at the instance of the opposite party no.2 was also barred by limitation. The petitioners further claimed that they are the contiguous land owners of the opposite party no.2's plot. Further, the petitioners also claimed that the Miscellaneous Case at the instance of the opposite party no.2 was also barred by limitation. The petitioners had also an alternate case that they have possessed the property for more than 15 years and thus the opposite party no.2 lost his title as the petitioners acquired title by way of adverse possession. O.C.H. & P.F.L. Miscellaneous Case No.7 of 2009 was decided on contest whereby the Collector not only declared the sale deeds as void but also issued direction for eviction of the petitioners from the disputed land under the premises that their vendor-present opposite party no.3 had no right, title and interest over the property and further directed to hand over possession of the same. Consequent upon which, the Collector declared the mutation in favour of the subsequent purchasers i.e. opposite party nos.2 to 6 therein the present petitioners as illegal. 4. In assailing the order passed by the Collector in exercise of power under Section 35 of the O.C.H. & P.F.L. Act, 1972, as appearing at Annexure-1, the petitioners, who were the subsequent purchasers from the present opposite party no.3, took the stand that the impugned order is against law. Further, since there was no creation of fragmentation in chaka of the opposite party no.2, there was no illegality on the part of the opposite party no.2 in selling the land in favour of opposite party no.3 and the learned Collector failed to appreciate the aforesaid legal aspect, consequently passed the erroneous order. It is then contended that the sale at the instance of the opposite party no.3 since did not contravene the provision under Section 36 of the O.C.H & P.F.L. Act, the order of eviction and declaring the sale deed as void is bad. The Collector also has failed to appreciate the question raised by the petitioners with regard to long lapse of time in agitating the issue. 5. Learned counsel for the petitioners while reiterating the stand taken before the Collector cited a decision in the case of State of West Bengal v. The Dalhousie Institute Society, AIR 1970 SC 1778 , particularly referring to paragraphs-16 and 17 submitted that the question of accrual of adverse possession has not been gone into properly. 5. Learned counsel for the petitioners while reiterating the stand taken before the Collector cited a decision in the case of State of West Bengal v. The Dalhousie Institute Society, AIR 1970 SC 1778 , particularly referring to paragraphs-16 and 17 submitted that the question of accrual of adverse possession has not been gone into properly. It is thus claimed that the finding of the Collector so far it relates to limitation as well as adverse possession, is all wrong and erroneous. 6. Sri D.Mohapatra, learned counsel appearing for the opposite party no.2 opposing the grounds raised by the petitioners submitted that following the provision contained in Section 34 of the O.C.H. & P.F.L. Act, particularly restriction on the fragmentation, alleged transfer was void and hence claimed that this view of the learned counsel has the support of a decision of this Court in the case of Jogendra Jena v. Krushna Jena, 2012 (1), OLR, 902. It is further contended by Sri Mohapatra, learned counsel for the opposite party no.2 that a Single Bench of this Court even though held that limitation of 12 years would apply in such matters but subsequently the Division Bench in the case of Sutar Chemical Pvt. Ltd. & Anr v. Collector, Balasore & Ors. and as reported in 2015 (I) OLR.CUT-646 at paragraph-23, came to hold that since no period of limitation has been prescribed in Section 35 of the Act, exercise of power by the Collector to evict the transferee from a portion of chaka in contravention of Section 34 of the Act, such power of the Collector cannot be cribbed, cabined or confined by providing a period of limitation by judicial interpretation otherwise, the legislative intention behind the act will be frustrated. Sri Mohapatra, learned counsel further claimed that in paragraph-27 of the judgment this High Court has further held that sale deed executed in contravention of Section 34 is not only void but it is invalid on nativity and no legal relation came into being from the sale deed offending the Act. Sri Mohapatra, learned counsel for the opposite party no.2 also contended that the claim of the petitioners that they are contiguous chaka holder is far from truth. There is no material establishing the said claim. Sri Mohapatra, learned counsel for the opposite party no.2 also contended that the claim of the petitioners that they are contiguous chaka holder is far from truth. There is no material establishing the said claim. On the petitioners claim on the question of fragmentation before this Court, in course of argument, learned counsel for the opposite parties contended that such question was not available in the court below and being raised for the first time in this Court, cannot be taken into account at this level. In course of argument, the petitioner has also referred to a decision reported in the case of Rama Chandra Parida and others v. Pramod Kumar Padhiary and others, 2010 (II) OLR. 486 . 7. Before proceeding to decide on other issues, it is now necessary to answer on the question of limitation, being raised by the present petitioners, this ground being a question of law can be agitated at any point of time. Consequently, this Court turns down the objection of Sri Mohapatra, learned counsel appearing for the opposite party no.2 that such ground being raised for first time in the writ petition cannot get the scope of adjudication. 8. Upon hearing the parties and in considering their rival contentions, this Court finds that Section 2(m) and Section 34 (1) and (2) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 reads as follows: 2 (m)"fragment" means a compact parcel of agricultural land held by a land-owner by himself or jointly with others comprising an area which is less than- (i) one acre in the district of Cuttack, Puri, Balasore and Ganjam and in the Anandpur subdivision in the district of Keonjhar, and (ii) two acres in the other areas of the State." "34. (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." Section 35 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 which is relevant is quoted hereunder: "35. (1) A transfer or partition in contravention of the provisions of Section 34 shall be void. (2) A person occupying or in possession of any land by virtue of a transfer or partition which is void under the provisions of this Act, may summarily evicted by the Collector." 9. Looking to the case and counter case of the respective parties, the sole question to be decided now is as to whether the sale at the instance of the opposite party no.2 remains valid in view of limitation point and also from the point of view of prohibition under Section 34 of the O.C.H. & P.F.L. Act, 1972. Undisputed fact remains that originally the entire land comprises of Ac.1.52 decimals and the land sold by petitioner no.2 to petitioner no.3 and subsequently by petitioner no.3 to the present petitioners is Ac.0.36 decimals out of the above whole patch. There is no dispute with regard to the sale of the above land by opposite party no.2 to the opposite party no.3 by virtue of sale deed bearing No.891 dated 2.3.1994 and the O.C.H. & P.F.L. Misc. Case No.7 of 2009 was filed in the year 2009 after a long lapse of time. Chapter-V of the O.C.H. & P.F.L. Act has no prescription of limitation for initiating a proceeding under Section 35 of the said Act. Be that as it may, question of limitation for initiating a proceeding under Section 35 of the Act has already stood the test of law and in deciding a case in between Sutar Chemical Private Limited and another v. Collector, Balasore and others, 2015 (I) OLR 394 , this Court has already come to hold categorically that not only there is no prescription of limitation in the particular chapter of the Act but the power of the Collector also cannot be cribbed, cabined or confined by providing a period of limitation by judicial interpretation and further in the event of any period of limitation prescribed by judicial interpretation then the legislative intention of the Act would be frustrated. Considering that, the question of limitation in initiating such proceeding having been settled by an authority of this Court, this Court now proceeds to determine the other point as to whether fragment involved in the present case become void for being affected by the provision of Section 2(M) read with Section 34 of the O.C.H. & P.F.L. Act, 1972? Looking to the admitted fact narrations made to the effect that the whole patch of land remains Ac.1.52 decimals and the land sold and under adjudication of the present dispute remains Ac.0.36 decimals of land, the provision under Section 2(M), as quoted herein above, completely indicating fragment means a compact parcel of agricultural land held by the land owner himself or jointly with others comprising area less than one acre in the undivided district of Balasore, the land presently situates in the district of Bhadrak is carved out from undivided district of Balasore, restriction in the act does not apply. From the description of the land herein above, the whole patch of land, as it is apparent, being in excess to one acre cannot come under the fold of fragment. Consequently, there will neither have any application of Section 34 nor section 35 of the O.C.H. & P.F.L. Act. Consequently, this Court holds the O.C.H. & P.F.L. Miscellaneous Case No.7 of 2009 was not maintainable and resulting the final order passed therein also becomes invalid being against law. 10. Under the circumstances, this Court while allowing the writ petition, sets aside the impugned order under Annexure-1.Parties are to bear their respective costs. Final Result : Allowed