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2017 DIGILAW 336 (ORI)

Ghanashyam Meher v. State of Orissa

2017-03-29

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. Plaintiff no.2 is the appellant against a confirming judgment. 2. The case of the plaintiffs is that their house situate at the Basti site of village Remanda. The village came under the purview of consolidation operation. Pursuant to the notification issued under Sec.3 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act (hereinafter referred to as ‘OCH & PFL Act’), the land register of the village has been prepared under the said Act without showing the fractions of the Basti plot over which the villagers have got their respective house, trees, wells, etc. Being affected by the non-preparation of a detailed land register in respect of their houses standing in the Basti site over H.S. Plot No.3851 corresponding to consolidation plot no. 5522, they instituted T.S. No.106/147 of 1977-80 in the court of the learned Munsif, Bargarh. The suit was abated. The land register published under Sec.9 of the OCH & PFL Act is incomplete and irregular. The Consolidation authorities have prepared the land register violating the mandatory provisions of the OCH & PFL Act. With this factual scenario, they filed the suit seeking for declaration that the entire land register of village Remanda is incomplete and illegal and also for restraining the defendants from proceeding with the consolidation operation till publication of a correct land register in accordance with law. 3. Pursuant to issuance of summons, the defendants entered appearance and filed written statement denying the assertions made in the plaint. The case of the defendants is that the entire Basti site of village Remanda belongs to the State Government and the same has been shown in the village map along with the bifurcating lanes. The plaintiffs having failed to raise any objection under the provisions of the OCH & PFL Act in proper forum, the suit is not maintainable. 4. On the interse pleadings of the parties, learned trial court struck the following issues: “1. Whether the consolidation authority required by law prepared land register in respect of Basti plot and the plaintiff being affected from preparation of the same ? 2. Has the jurisdiction to try the suit ? 3. Whether there is any cause of action ? 4. Whether the plaintiff is entitled to the relief claimed ?” 5. Whether the consolidation authority required by law prepared land register in respect of Basti plot and the plaintiff being affected from preparation of the same ? 2. Has the jurisdiction to try the suit ? 3. Whether there is any cause of action ? 4. Whether the plaintiff is entitled to the relief claimed ?” 5. To substantiate the case, the plaintiffs had examined two witnesses and on their behalf six documents had been exhibited. Neither any witness was examined by the defendants nor any document had been exhibited. 6. Learned trial court came to hold that the land register had been published under Sec.9(1) of the OCH & PFL Act. The same could have been decided by the Consolidation authorities. The plaintiffs have not filed any objection before the A.C.O or C.O. at appropriate stage. If at all, they were aggrieved by the wrong recording of the consolidation plots, they could have taken recourse to the provisions of the OCH & PFL Act. It further held that the plaintiffs have not filed the suit in the representative capacity under Order 1 Rule 8 C.P.C. The plaintiffs have failed to establish by cogent evidence that the Consolidation authorities have not prepared the land register in respect of the Basti plot in accordance with the provisions of the OCH & PFL Act and Rules framed thereunder. Accordingly, the issue no.1 answered in negative against the plaintiffs. With regard to the jurisdiction of the civil court, learned trial court held that civil court has jurisdiction to try the suit and answered issue no.2 in affirmative in favour of the plaintiffs. Held so, learned trial court dismissed the suit. The plaintiff no.2 unsuccessfully challenged the judgment and decree of the learned trial court before the learned Sub-Judge, Bargarh in T.A. No. 1 of 1986, which was eventually dismissed. 7. The second appeal was admitted by a Bench of this Court on the following substantial questions of law. “1. Whether in view of the finding of the lower appellate court that Ext.6 is incomplete, is he justified in saying that the said exhibit is not illegal particularly when the same does not contain detailed particulars with regard to the right and interest of the private individuals.” 2. “1. Whether in view of the finding of the lower appellate court that Ext.6 is incomplete, is he justified in saying that the said exhibit is not illegal particularly when the same does not contain detailed particulars with regard to the right and interest of the private individuals.” 2. Whether a suit for declaration that the land register prepared by the consolidation authorities as illegal and permanent injunction restraining the consolidation authorities from proceeding with the consolidation operation is maintainable, in view of the bar contained in Section 51 of the Orissa Consolidation of Holdings and Prevention of Fragmentation Act, 1972 ?” 8. Heard Mr. Budhiram Das, learned counsel on behalf of Mr. N.C. Pati, learned counsel for the appellant and Mr. P.C. Panda, learned Additional Government Advocate, for the respondent no.1. 9. Mr. Das, learned counsel for the appellant submitted that the land register in the village was not prepared by the Consolidation authorities in accordance with the provisions of the OCH & PFL Act and Rules framed thereunder. In view of the same, the plaintiffs have filed the suit in the civil court. The civil court has jurisdiction to entertain the suit. To buttress his submission, he placed reliance on the Full Bench decision of this Court in the case of Gulzar Khan vs. Commissioner of Consolidation and others, 1993 (II) OLR-194. 10. Per contra, Mr. Panda, learned Additional Government Advocate for the respondent no.1 submitted that the jurisdiction of the civil court is ousted. Any person aggrieved by the entry made in the land register can file an objection under Sec.9 of the OCH & PFL Act. 11. Before adverting to the contentions raised by the counsel for both parties, it will necessary to set out the provisions of the OCH & PFL Act. Sub-sec.(4) of Sec.4 and Sec.51 of the OCH & PFL Act are quoted hereunder. “(4) Every suit and proceedings for declaration of any right or interest in any land situate within the consolidation area in regard to which proceedings could be or ought to be started under this Act, which is pending before any Civil Court, whether of the first instance or appeal reference or revision shall, on an order being passed in that behalf by the Court before which such suit or proceeding is pending stand abated. xxx xxx xxx 51. xxx xxx xxx 51. Bar of jurisdiction of Civil Courts—Notwithstanding anything contained in any other law for the time being in force, but subject to the provisions contained in Clause (3) of Sec.4 and Sub-sec.(1) of Sec.7: (1) all questions relating to right, title, interest and liability in land lying in the consolidation area, except those coming within the jurisdiction of Revenue Courts or authorities under any local law for the time being in force, shall be decided under the provisions of this Act by the appropriate authority during the consolidation operations; and (2) no Civil Court shall entertain any suit or proceedings in respect of any matter which an officer or authority empowered under this Act is competent to decide.” 12. The OCH & PFL Act is a special statue. The OCH & PFL Act was enacted for consolidation of scattered holdings and rearrange the holdings including fragmented holdings among various landowners to make them more compact and to provide against future fragmentation of holdings. The consolidation operation starts when a notification under Sec.3 is issued and the same is closed by Sec.41 notification. During consolidation operation, the consolidation authorities discharged various functions. 13. A hierarchy of forum is provided for redressal of grievance. When consolidation operation in an area starts, the suits pending before the civil court stand abated. In view of the embargo under sub-sec.(2) of Sec.51 of the OCH & PFL Act, the jurisdiction of the civil court is ousted when the consolidation operation of the area is in operation. All questions relating to right, title, interest and liability in land lying in the consolidation area, except those coming within the jurisdiction or Revenue Courts or authorities under any local law for the time being in force, shall be decided under the provisions of the OCH & PFL Act by the appropriate authority during the consolidation operations. No Civil Court shall entertain any suit or proceeding in respect of any matter which an officer or authority empowered under the OCH & PFL Act is competent to decide. The civil court lacks jurisdiction to entertain the suit for a declaration that the land register prepared under Sec.9 of the OCH & PFL Act is incomplete and illegal. Furthermore, a statutory functionary cannot be prohibited to discharge its statutory function. Thus the substantial questions of law enumerated above are answered accordingly. 14. The civil court lacks jurisdiction to entertain the suit for a declaration that the land register prepared under Sec.9 of the OCH & PFL Act is incomplete and illegal. Furthermore, a statutory functionary cannot be prohibited to discharge its statutory function. Thus the substantial questions of law enumerated above are answered accordingly. 14. Reliance placed on the Full Bench decision of this Court in the case of Gulzar Khan (supra) is totally misplaced. In the said case, question arose whether the power conferred by Sec.37 of the OCH & PFL Act would be available for exercise after a notification has been issued as contemplated by Sec.41(1) of the OCH & PFL Act on the subject that consolidation operations have been closed in the unit, the result of which is that the village or villages forming part of the unit cease to be under consolidation operations. The Full Bench of this Court summarised the following principles. “36. We may conclude our views relating to Civil Court’s jurisdiction by stating that the same would be available after closure of consolidation operations only in any one of the following circumstances; (i) The cause of action accruing after the closure of the consolidation operations, a/a Suba Singh. (ii) If the consolidation authorities had taken the decision without complying with the provisions of the Act or had not acted in conformity with the fundamental principle of judicial procedure (which would take within its fold the case of violation of natural justice), vide principle No.(ii) of Magulu. (iii) Obtaining of order from the hands of consolidation authorities by playing fraud on the party who seeks to approach the Civil Court, as per Karbalai Begum’s case.” It was further held that the power under Sec.37 of the OCH & PFL Act being unfettered shall be available only under compelling circumstances. Despite closure of the consolidation operation which would be result of the notification under Sec.41 of the OCH & PFL Act, power under Sec.37 would be available; whether in a particular case the same would be exercised shall have to be decided by the Consolidation Commissioner depending upon the facts and circumstances of that case. But in the instant case, suit was instituted when consolidation operation was in progress. 15. In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. No costs.