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2016 DIGILAW 95 (ORI)

Raghunatha Sahu v. Babaji Charan Sahu

2016-02-02

BISWANATH RATH

body2016
ORDER 02.02.2016Heard Sri Mishra, learned counsel for the petitioners. This matter arises out of impugned order refusing to grant stay of a suit for injunction pending disposal of the Revision Case No. 485 of 2014 before the Commissioner of Consolidation. Considering the application of the petitioner, the trial Court taking into certain decision of this Court refused to entertain the application thereby rejected the application for stay of the suit. There is no denial to the fact that the suit was involved with only injunction and there is no involvement of right, title and interest of the suit property. In similar circumstance, this Court even in a Division Bench decision considering the conflicting decision of this very Court on the self same issue decided holding that the suit for injunction is not a bar in pendency of a proceeding under the Orissa Consolidation of Holdings and Prevention of Fragmentation Act, 1972. Learned counsel for the petitioner while arguing the matter relied upon a decision rendered in the case of Netrananda Behera v. Khetrabasi Behera, 2010 (II) OLR 379 and contended that the case of the petitioner is squarely covered by the decision and , therefore, the trial Court judgment should be interfered with. Heard the submissions of learned counsel for the petitioner. In deciding a case in between Sundari Devi and others v. State of Orissa, 74 (1992) CLT 164, this Court observed that there is no bar, for a suit for permanent injunction applying Section 4(4) of Orissa Consolidation of Holding and prevention of Fragmentation of Land Act 1972 (for short “the Act”). In deciding the matter involved in the case between Biswanath Jena v. Ramesh Chandra Jena and others. 74 (1992) C.L.T. 214, a Division Bench of this Court made it clear that reliefs involving suit for which the Consolidation Authority has no power not to abate by Section 4(4) of the Act. This Court again in the case of Rahas Bewa v. Kanduri Charan Sutar and others, 54 (1982) C.L.T. 143 in a Division Bench in paragraph-4 of the Judgment held as follows:- We may advert to Section 15 of the Orissa Land Reforms Act, Sub-Section (7) thereof clothed the Revenue Officer with jurisdiction to pass interim orders relating to appointment of receiver. Jurisdiction to pass orders of injunction had not been vested. Jurisdiction to pass orders of injunction had not been vested. When dispute arose as to whether the Revenue Officer could restrain one party from interfering with the possession of the other, and whether a relief for such purpose would be barred by Section 67 of the Land Reforms Act, the Legislature advisedly amended subSection. (7) by incorporating therein words “restraining the landlord from interfering with the tenant’s cultivation of the land or for such other purposes.” Mrs. Padhi for the opposite parties does not contend that even in the absence of the power to grant injunction, the Consolidation Officer would have a right to pass an order of that type. It becomes difficult for us, therefore, to accept the submission that a suit for permanent injunction pending at common law would stand abated as a result of the notification under the Orissa Act 21 of 1972 even though the relief of injunction is not available under the Act. What would really be necessary to meet a situation of this type is to clearly authorize the Consolidation Officer by law to grant in appropriate cases the relief of injunction and where such relief is granted, it must also be declared to be a decree for the purposes of execution. The proceedings under the special Act are temporary in nature though the effect of several orders made therein are of permanent bearing. The consolidation process being temporary, an order of permanent injunction granted by the authorities under the Act, unless declared expressly to have the effect of decree would not be available to be executed. For instance, Order 21, Rule 32 of C.P.C. makes provision for execution of decrees for injunction. Orders of the consolidation authorities should be deemed to be decrees so as to take advantage of the machinery of a permanent system for enforcing decrees for injunction. For instance, Order 21, Rule 32 of C.P.C. makes provision for execution of decrees for injunction. Orders of the consolidation authorities should be deemed to be decrees so as to take advantage of the machinery of a permanent system for enforcing decrees for injunction. Until all that has been done, merely by construction of the scheme under the Orissa Act 21 of 1972, it becomes difficult to hold that the remedy at common law of permanent injunction is no more available either in the Civil Court or before the authorities under the Act, once there is a notification under Section 3 of the Act.” The Division Bench has made it clear that in view of no scope for grant of injunction by the authority under Orissa Consolidation of Holding and Preventions of Fragmentation of Land Act 1972, the suit for injunction cannot abate. This is the view of this Court in the case of Raghunath Sahu and another v. Sarat Nayak and others as reported in 1987 (1) OLR 144. In view of consistent view of this Court in the Single Bench as well as in the Division Bench of this Court, this Court finds that the suit of this particular nature shall not abate or stayed on application of provision under Section 4(4) of the Act 1972 and thus does not find any infirmity in this impugned order. Consequently, the Civil Miscellaneous Petition stand dismissed for having no merit. CMP dismissed.