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2017 DIGILAW 20 (ORI)

Baina Bhoi v. Dukhishyam Rout

2017-01-03

BISWANATH RATH

body2017
JUDGMENT : Biswanath Rath, J. This writ petition has been filed assailing the impugned order under Anenxure-13 passed by the Commissioner, Consolidation, Cuttack involving Revision Case No.149/2003 in exercise of power under Section 36 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (in short, “O.C.H. & P.F.L. Act”). 2. Short background involved in the matter is that as per 1910-20 revision settlement involving R.S.Plot No.1564 and C.S.Plot No.1709 under Kisam Gharabari and Kisam Ghara and Bagayat respectively recorded in the name of Radha Prasad Bhagat and others appearing to be the ancestors of O.Ps.1 & 2, as rent-free land. One Satyabadi Mohanty and others were the intermediaries whereas the great-grand father of the present petitioners, namely, Anand Bhoi was recorded as Rayat under condition of service “Kothia” towards the intermediary “MAKADAMA MANANKAR KOTHIA KARYA KARITHIBARU HETA PAIACHHI. UKTA KARYA NA KALE JAMIKU MAKADAMA RAHIT KARIPARIBE”. It is averred, during the current settlement period in the year, 1927-28, the disputed land was sub-divided in two C.S.Plots, i.e. Plot No.1709 measuring Ac.0.06 decimals and Plot No.1710 measuring Ac.0.022 decimals, totaling Ac.0.028 decimals instead of actual area of Ac.0.0034 decimals under C.S. Khata No.38 was recorded in the name of grandfather of the petitioners, Rama Bhoi under same condition of service but with an inadvertent insertion of name of one Budhia Rout son of Late Rajib Rout without having any basis at all. The intermediary leased out the disputed land through Hatapata in the year 1945 with consequential assessment of rent by the intermediary and after vesting of the estate, the father of petitioner nos.1 to 3 and petitioner no.4 on the basis of their physical possession had filed an application before the Revenue Officer, Nimapara to convert the rent from kind to cash. The application was treated under Section 4(9) of the O.L.R. Act, vide the case bearing No.446/86. After due enquiry involving the field possession verification and the documents belonging to the petitioners, by order dated 31.8.1987 the Revenue Officer, Nimapara assessed the rent in favour of the so-called petitioners involving OLR Case No.446/86. It is asserted that even though O.Ps.1 & 2 were made parties in the said proceeding under Section 4(9) of the O.L.R. Act, the order on fixation of rent was never challenged before any competent authority. Thus, it remained final. It is asserted that even though O.Ps.1 & 2 were made parties in the said proceeding under Section 4(9) of the O.L.R. Act, the order on fixation of rent was never challenged before any competent authority. Thus, it remained final. In the meantime, taking advantage of illegal entry in 1927-28 R.O.R., said Pahil Rout son of Late Budhia Rout had executed the Registered Sale Deed bearing No.94 dated 13.1.1986 in favour of O.Ps.1 & 2 in respect of the land measuring Ac.0.15 ½ decimals out of area Ac.0.31 decimals from C.S. Plot No.1709 and C.S. Plot No.1710 but in absence of giving delivery of possession. The Sale Deed appeared to be a paper transaction and was not in a position to create any right, title and interest in favour of anybody. While the matter stood thus, the Consolidation Scheme came into operation. The Land Register was prepared under Section 6 of the O.C.H. & P.F.L. Act, basing on not final settlement record in favour of the petitioners inviting objection at the instance of O.Ps.1 & 2 taking advantage of the Sale Deed dated 13.1.1986. The Objection Case was registered as 2214/145 and an application under Section 15(1) of the O.C.H. & P.F.L. Act requesting therein to record the land in their favour on a cause of action arose prior to 9(1) Publication, the Consolidation Officer passing an order directed recording the disputed land in favour of O.Ps.1 & 2 thereby allowing the Objection Case No.2214/145, vide Anenxure-8. Assailing the order in the Objection Case, father of the present petitioners filed Revision Case bearing No.1371/91, a proceeding under Section 37(1) of the O.C.H. & P.F.L. Act, which was remanded to the Consolidation Officer for disposal of the claim applying Section 11 of the O.C.H. & P.F.L. Act, vide Annexure-9. It is at this stage, the Consolidation Officer issued notice to the parties, enquired the field position and after hearing the parties, by order dated 17.12.2002 disallowed the Remand Revision Case, vide Annexure-10. Petitioner nos.1, 2 & 4 and the father of petitioner no.3 filed Appeal bearing Appeal Case No.4/2003 and the Deputy Director after hearing the case set aside the order passed in the Objection Case after observing that the Sale Deed cannot be taken into consideration and directed for recording the suit scheduled land exclusively in favour of the petitioners. Petitioner nos.1, 2 & 4 and the father of petitioner no.3 filed Appeal bearing Appeal Case No.4/2003 and the Deputy Director after hearing the case set aside the order passed in the Objection Case after observing that the Sale Deed cannot be taken into consideration and directed for recording the suit scheduled land exclusively in favour of the petitioners. O.Ps.1 & 2 challenged the order of the appellate authority, vide Anenxure-12 preferring Revision Case No.149/2003 and the Commissioner, Consolidation reversed the order of the appellate authority and thereby upheld the order passed by the Consolidation Officer. 3. Assailing the impugned order under Annexure-13, learned counsel for the petitioners contended that the Commissioner decided the matter observing that the Settlement Record of Rights can be challenged within one year before the Board of Revenue and within three years before the Civil Court but however, making an observation that there is no evidence on record to show that the 1927 Settlement R.O.R. having not been challenged within time and the challenge was barred by limitation, reading of the revisional order demonstrates confusing observations. Learned counsel for the petitioners also raised objection on the finding of the Commissioner in respect of the entries made in 1910-11 and then in 1927-28 as well as on the orders passed by the Revenue Officer in the O.L.R. proceeding and alleged that there is great amount of discrepancy in the findings of the Commissioner as well as the Consolidation Officer, particularly looking to the Issue No.2, 4 & 5. There is also serious material irregularity by the Commissioner. There has been no appropriate consideration on the aspect of physical possession of the petitioners over the disputed land as per 1910-11 entry. The revisional authority also failed in appreciating the inclusion of the name of Budhia Rout in the Record of Rights prepared in 1927-28 was based on no foundation at all. The order passed by the Revenue Officer under Section 4(9) of the O.L.R. Act could not have been ignored by the Consolidation Authority as the order of the Revenue Officer has a binding effect on the Consolidation Authority. There is also no consideration of the legal effect of the sale deed involved therein. The order passed by the Revenue Officer under Section 4(9) of the O.L.R. Act could not have been ignored by the Consolidation Authority as the order of the Revenue Officer has a binding effect on the Consolidation Authority. There is also no consideration of the legal effect of the sale deed involved therein. It is under these premises, learned counsel for the petitioners contended that the revisional order becomes bad and by setting aside the revisional order, the order passed by the appellate authority should be restored. 4. While opposing the contentions raised by the petitioners, Sri Gaya, learned counsel appearing for O.Ps.1 & 2, submitted that for the existence of the sale deed and prior to that for the entry of the name of Budhia Rout in the Record of Rights during 1927-28 Settlement, the entry as well as the sale deed being a registered sale deed has a binding effect. It is urged by Sri Gaya that so long as the entry of Budhia Rout in the Record of Rights 1927-28 as well as the sale deed in favour of O.Ps.1 & 2 are not declared as invalid, the same have a binding effect on all the authorities and under the circumstance, it is claimed that neither the Consolidation Officer nor the revisional authority did wrong in passing the orders vide Annexures-8 & 13 respectively. Therefore, it is claimed that there is no infirmity in the impugned order leaving any scope for this Court to interfere with the order passed by the revisional authority in exercise of power under Article 227 of the Constitution of India. The position of bindingness of a document not per se void on the Consolidation Authority has been taken care of by this Court in the case of Pagal Das & others vrs. Upendra Dutta & others reported in 1989 (II) OLR-347, wherein a single Bench of this Court has held that there cannot be disregard of a document unless it is invalid, inoperative and void. The submission of the learned counsel for O.Ps.1 & 2 also gets the support of the aforesaid decision. 5. Sri Mishra, learned Additional Government Advocate appearing for O.Ps.3 to 5, supported the submissions and the objections raised by the learned counsel for O.Ps.1 & 2 and prayed for dismissal of the writ petition. 6. The submission of the learned counsel for O.Ps.1 & 2 also gets the support of the aforesaid decision. 5. Sri Mishra, learned Additional Government Advocate appearing for O.Ps.3 to 5, supported the submissions and the objections raised by the learned counsel for O.Ps.1 & 2 and prayed for dismissal of the writ petition. 6. Considering the rival contentions of the parties, this Court finds, there is no dispute involving the history concerning the disputed land up to the registered sale deed. There is also no dispute that the entry of the names of the vendors in the 1927-28 R.O.R. has never been challenged. This Court also observes, the registered sale deed at the instance of the L.Rs. of Budhia Rout involving O.Ps.1 & 2 was also never the subject matter in any of the proceedings. The order passed by the Revenue Officer in the O.L.R. Proceeding has also never been challenged by any concern. It is for the first time, litigation was cropped up resulting an order in a proceeding at the instance of the present O.P.1 bearing Objection Case No.2214/145 decided on 13.1.1986 giving therein a cause of action to the petitioners to file a revision under Section 37(1) of the O.C.H. & P.F.L. Act, which Revision was allowed by an order of remand to the Consolidation Officer, Nimapara to decide the matter under Section 11 of the Act. The order of remand was also never challenged by any concern. 7. Perusal of the order passed by the Consolidation Officer, it is observed that the proceeding in the Remand Revision Case No.1371/1991 was conducted not only involving both the parties in contest but was also decided not only framing the issues as much as possible but also taking into consideration the materials available therein and the submissions raised by both the contestants. Looking to the findings of the appellate authority, this Court observed, the appellate authority has not made any endeavour to reverse the findings of the original authority and the order of the higher authority without disturbing the findings of the original authority is not sustainable in the eye of law. Further for the view taken by the appellate authority involving the O.L.R. Case and the registered sale deed, this Court also finds, the view of the appellate authority on both the aforesaid aspects remained contrary to law. Further for the view taken by the appellate authority involving the O.L.R. Case and the registered sale deed, this Court also finds, the view of the appellate authority on both the aforesaid aspects remained contrary to law. Law is fairly well settled that not only the orders of the revenue authority have a binding force on the Consolidation Authority but law is also settled to the effect that unless a document is per se void, the same cannot be ignored by the Consolidation Authorities nor can be interfered with by the Consolidation Authorities for having no such jurisdiction in it. Under the circumstance, this Court observes, the order passed by the appellate authority is not sustainable in the eye of law. 8. Coming to the scan of the order of the revisional authority, taking into consideration the rival contentions of the parties as well as the issues and the observations of the original authority and of this Court made herein above, this Court finds, the revisional authority did no wrong in allowing the Revision and upholding the order of the Consolidation Authorities. Under the circumstance, this Court finds, there is no scope for interfering with the impugned order in exercise of power under Article 227 of the Constitution of India. The writ petition stands dismissed. No cost.