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2016 DIGILAW 740 (ORI)

Pranakrushna Moharana v. Santilata Sahu

2016-09-02

BISWANATH RATH

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JUDGMENT : BISWANATH RATH, J. 1. This writ petition has been filed by the petitioner assailing the orders under Annexure-1, 2 & 4 passed by the consolidation authorities. 2. Brief fact involved in this case is that one Ratnakara Moharanafather of the petitioner and Jemi Moharana are the original owners of the plot Nos. 2850 & 2859. After death of Ratnakara Moharana, the petitioner entered into an amicable partition with Jema Moharana. Consequently, a mutual partition deed was executed amongst them. Simultaneously, after publication of the land register, following the provisions under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act hereinafter called as the Act, the petitioner filed an objection case bearing no. 2538 of 1988 before the Consolidation Officer seeking partition of the joint family property in between himself and Jemi Moharana relying upon the amicable partition deed and seeking therein to declare the plot no. 2850 measuring Acre 0.06 decimals and plot No. 2859 measuring Acre 0.07 decimals under Land Record Khata No. 476 as non-consolidable of the village. For long time neither there was any hearing of the said case nor there was any communication with regard to the developments in the objection case to the petitioner and in the meantime, after preparation of land register under Section 13 of the Act, the petitioner filed another Objection Case No. 751/210 before the Assistant Consolidation Officer under Section 15 of the Act again praying for passing an order recording the lands in his name on the basis of very same amicable partition. This matter also remained pending. Consequent upon which, the petitioner filed another Objection Case bearing No. 455 of 1992 under Section 18 of the Act challenging the preparation of Provisional Consolidation Scheme and finding the land allotted to his share being not recorded in his name. 3. Learned counsel for the petitioner contented that there was no objection even by the opposite party no. 14 in respect of the prayers made by the petitioner at different point of time. In the meantime, the petitioner filed R.P. Case No. 3826 of 1992 under Section 37 of the Act in the Court of Director, Consolidation, Orissa to revise the order of the Sub-ordinate Authorities in the matter of publication of land register. 14 in respect of the prayers made by the petitioner at different point of time. In the meantime, the petitioner filed R.P. Case No. 3826 of 1992 under Section 37 of the Act in the Court of Director, Consolidation, Orissa to revise the order of the Sub-ordinate Authorities in the matter of publication of land register. While disposing the R.P. Case, the Director by order dated 5.6.1994 directed the Consolidation Officer, Balia to decide the claim of the petitioner afresh after verifying the relevant records and effecting the partition on the basis of amicable partition deed. The Consolidation Officer instead of taking a decision on the Remand R.P. Case No. 3826 of 1992, confirmed the Provisional Consolidation Scheme and carved out Chakas in the area. As a consequence of which, Plot Nos. 2850 & 2859 of the petitioner were illegally allotted in favour of the opposite party Nos. 1 to 6. Petitioner alleged that the husband of the opposite party no. 1 remaining as a service holder in the Office of Board of Revenue, Orissa gained over the Consolidation Officer and managed to carve out the plot no. 2850 & 2859 in favour of the opposite party No. 1 and consequently, remained successful in recording plot no. 2841, 2842, 2843 & 2844 in the name of his wife Santilata Sahoo and the same are used as Bari, Coconut Garden and further same are non-consolidable in nature. In spite of petitioner’s objecting the claim of opposite party no. 1 and establishing his case for having a residential house over the plot no. 2850 and that the petitioner was using the plot no. 2859 as his Bari for which the same should be declared as non-consolidable, his objections were not taken into account while disposing the Remand R.P. Case. Being aggrieved by the order dated 23.6.1994 passed by the Consolidation Officer in the Remand Revision Petition No. 3826 of 1992, the petitioner filed the Consolidation Revision Petition No. 33 of 1994 in the Court of Deputy Director, Consolidation, Range-II, Cuttack. Apart from raising all his pleas indicated hereinabove, the petitioner also disclosed that even though the opposite party Nos. 1 & 2 had no agricultural land in the area but they have only a Coconut Garden adjoining to plot no. 2850. Apart from raising all his pleas indicated hereinabove, the petitioner also disclosed that even though the opposite party Nos. 1 & 2 had no agricultural land in the area but they have only a Coconut Garden adjoining to plot no. 2850. It is further contended that the Consolidation Officer should have also taken into consideration the objection case filed under Sections 9, 15 & 18 of the Act while disposing the Remand R.P. Case. In the meantime, the petitioner filed an appeal before the Deputy Director, Consolidation. The appeal was registered as Appeal Case No. 33/94. This appeal was dismissed by judgment dated 29.10.1994 after observing that in view of the observations made by the Consolidation Officer in respect of Plot Nos. 2850 & 2859, there was no necessity to interfere in the orders passed by the Consolidation Officer. Consequently, the petitioner challenged the order passed by the Consolidation Officer as well as the Appellate Authority by filing a revision under Section 36 of the Act registered as Revision Case No. 6 of 1995 in the Court of Commissioner, Consolidation, Orissa. The petitioner made a specific allegation against the Consolidation Officer for creating false and fabricated documents, which necessitated to have a spot inquiry in presence of the parties in order to ascertain the actual nature of the disputed lands. On 26.6.1995 the opposite party Nos. 3 to 6 & 10 filed an application before the Commissioner indicating therein that the plot Nos. 2850 & 2859 are not agricultural lands and they further indicated therein that a residential house of the petitioner is also situated over the plot No. 2850 and the petitioner is using the plot no. 2859 as a Bari. The Commissioner finally disposed of the Revision by a judgment dated 20.09.1995 after observing that the petitioner has never prayed for declaring the plot nos. 2850 & 2859 as non-consolidable land before publication of Provisional Consolidation Scheme and hence, such a prayer cannot be accepted at the revisional stage. The Revisional Authority also observed that there is no scope for disbelieving the report of the Consolidation Officer as it was conducted in presence of the land owners. 4. 2850 & 2859 as non-consolidable land before publication of Provisional Consolidation Scheme and hence, such a prayer cannot be accepted at the revisional stage. The Revisional Authority also observed that there is no scope for disbelieving the report of the Consolidation Officer as it was conducted in presence of the land owners. 4. In assailing the impugned orders, Sri Mohanty, learned counsel for the petitioner submitted that though initially the disputed land was recorded as “Sarada Jala Dophasali-2” in the settlement of the year 1930 but the nature of the land got changed in the meantime due to existence of a house of the petitioner over it. Petitioner thus claimed that the disputed land, under no circumstances, could have been treated as agricultural land. For the serious allegation against the opposite party no. 2 to the effect that the husband of the opposite party no. 1 being an employee under the office of the Board of Revenue, Orissa having a hand in managing the report and thereby the Commissioner should have made an independent inquiry and reached at a lawful conclusion. 5. The opposite party Nos. 3 to 6 & 10 have specifically stated that the petitioner had a residential house over the plot no. 2850 and he also used the plot no. 2859 as Bari and in absence of any specific allegation against the petitioner regarding threatening the opposite party Nos. 3 to 6 & 10 to file such application in the Revisional Authority, the observation of the Revisional Authority refusing to consider the application at the instance of the opposite party Nos. 3 to 6 & 10 is unsupportable. In view of the petitioner’s filing objection case again and again that too in every stage of the consolidation proceeding, the observation of the Revisional Authority that such prayer of the petitioner to declare the land as non-consolidable in the Revision application is also unsupportable. 6. In opposing all the claims of the petitioner, learned State Counsel submitted that in view of the observations made by the Revisional Authority, there is no scope for interference in the revisional order by this Court in exercise of power under Article 227 of the Constitution of India and thus, opposed to interfere in the revisional order. 7. On the other hand, Mr. S.K. Ray, learned counsel for the opposite party Nos. 1 & 2 and Mr. 7. On the other hand, Mr. S.K. Ray, learned counsel for the opposite party Nos. 1 & 2 and Mr. Maheswar Mohanty, learned counsel for the opposite party Nos. 3, 4, 5, 6, 8, 9, 10 & 11 in their opposition submitted that each of the allegation made by the petitioner remained unsupportable due to non-availability of materials to support the same. Sri Ray, further, submitted that in view of the inquiry being conducted by the Consolidation Officer in presence of the petitioner, allegation against the Consolidation Officer remained unfounded. Sri Ray also submitted that the application at the instance of the opposite party Nos. 3 to 6 & 10 being filed at the revisional stage and for not being considered either by the Original Authority or by the Appellate Authority, could not have been taken into account by the Revisional Authority, consequently, learned counsel for the above opposite parties prayed for rejection of the writ petition. 8. From perusal of the pleadings available through the different stages of the proceedings, this Court finds there is no dispute that the L.R. Khata No. 476 containing 29 plots with an area of A.C. 3.0 decimals were recorded in favour of both the parties including the disputed plot nos. 2850 & 2859 and these two plots were previously recorded in favour of the father of the petitioner and Jemi Moharana the other co-sharer of his father and the plot nos. 2850 & 2859 are recorded as “Sarada Jala Do-Phasali-2.” The record also discloses that there has been amicable partition between the petitioner and the other co-sharer indicated hereinabove allotting the plot no. 2850 & 2859 in favour of the petitioner. Further, from the specific pleadings of the petitioner all through and the objections of the opposite parties no. 3 to 6 & 10 in the revisional forum as well as by way of an application before the Revisional Authority, makes it clear that the petitioner upon allotment of these two plots in his favour was not only staying over the plot by constructing a house but was also utilized the other plot as Bari. There is no dispute that the petitioner was allthrough trying to record these two patches of lands as non-consolidable. There is no dispute that the petitioner was allthrough trying to record these two patches of lands as non-consolidable. At the first instance the petitioner filed an Objection Case No. 2538 of 1988, which being disallowed, the petitioner preferred Appeal No. 70 of 1989 under Section 12 of the Act, which was also dismissed. The decision on the Objection Case No. 751/210 filed under Section 15(1) remained unclear. So far as the Objection Case No. 455/1992 at the instance of the petitioner is concerned as born out from the records was disallowed for having a bar in the Statute. Further considering the Revision at the instance of the petitioner vide Revision Case No. 3826/1992 filed under Section 37(1) of the Act, this matter was found to have been remanded to the Consolidation Authority for re-disposal after having a report on the spot inquiry. An inquiry was also conducted following the remand order by the Revisional Authority. The fresh order passed by the Consolidation Commissioner has a clear indication of conducting an inquiry in presence of the petitioner and others and the report was prepared taking into consideration the objections raised by all concerned at the time of inquiry. 9. From perusal of the order passed by the appellate authority this Court finds there is a clear observation by the Appellate Authority in paragraph-6 of the Annexure-2 categorically indicating that the Consolidation Officer made the field inquiry following the remand order on 11.3.1994 in presence of the villagers and especially the petitioner being present during such inquiry. This Court also nowhere finds any objection to the report at the instance of the petitioner in the original stage. Further, so far the application of opposite party Nos. 3 to 6 & 10 disclosing that the petitioner was residing over the plot by constructing a house and using the adjoining plot as Bari, this position having not been disclosed during the spot inquiry by the Consolidation Officer and having been raised for the first time in the Revision stage could not have been taken care of in Revision stage. 10. 10. Under the circumstances, and for the observations made by the Consolidation Officer as well as the Appellate Authority being confirmed by the Revisional Authority, this Court finds no scope to interfere in the impugned orders in exercise of power under Article 227 of the Constitution of India, consequently, while declining to interfere in the impugned orders, this Court dismisses the writ petition. Parties to bear their own cost.