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2017 DIGILAW 796 (ORI)

Rajendra Kumar Routray v. Gourahari Pattnayak

2017-07-26

A.K.RATH

body2017
JUDGMENT : DR. A.K.RATH, J. 1. This petition challenges the order dated 11.2.2016 passed by the learned 2nd Addl. District Judge, Khurda in Civil Revision No.2 of 2015. By the said order, learned 2nd Addl. District Judge dismissed the revision and confirmed the order dated 10.9.2015 passed by the learned Civil Judge (Senior Division), Khurda in C.S. No.91 of 2005, whereby and where under the learned trial court rejected the application of the defendants under Order 7 Rule 11 CPC to reject the plaint on the ground that the suit is barred as per the provision of Sec. 51 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as “the OCH & PFL Act”). 2. Opposite parties as plaintiffs instituted the suit for declaration of right, title and interest, declaration that the mutation ROR issued by the consolidation authority is wrong, illegal and not binding on them, correction of the same and permanent injunction impleading the petitioners as defendants. Pursuant to issuance of summons, defendants entered appearance and filed a petition under Order 7 Rule 11 CPC to reject the plaint on the ground that the suit is not maintainable in view of Sec. 51 of the OCH & PFL Act. It is stated that the ROR issued by the consolidation authority can be challenged before the Consolidation Commissioner under the provisions of the OCH & PFL Act. The consolidation authority is empowered to decide the right, title and interest of the parties and correctness of the ROR. Learned trial court rejected the same. Assailing the said order, the defendants filed Civil Revision No.2 of 2015 in the court of the learned 2nd Addl. District Judge, Khurda, which was eventually dismissed. 3. Heard Mr. Ranghadhar Behera, learned counsel for the petitioners and Mr. A.C. Mohapatra, learned counsel for the opposite parties. 4. Mr. Behera, learned counsel for the petitioners, submitted that the consolidation ROR was published in the year 2003. It was open to the plaintiffs to file revision before the Consolidation Commissioner under the provision of the OCH & PFL Act. After lapse of 12 years, they instituted the suit. The suit is not maintainable in view of the embargo under Section 51 of the OCH & PFL Act. 5. Per contra Mr. It was open to the plaintiffs to file revision before the Consolidation Commissioner under the provision of the OCH & PFL Act. After lapse of 12 years, they instituted the suit. The suit is not maintainable in view of the embargo under Section 51 of the OCH & PFL Act. 5. Per contra Mr. Mohapatra, learned counsel for the opposite parties, submitted that after publication of the record of right, the suit has been filed for declaration of right, title and interest and for a declaration that the publication of record of right is illegal and not binding and permanent injunction. The prayer being composite, the civil court has jurisdiction to decide the lis. 6. Secretary of State v. Mask & Co., AIR 1940 Privy Council 105 is a locus classicus on the subject. It was held - “….It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.” 7. In Gulzar Khan v. Commissioner of Consolidation and others, 76 (1993) CLT 161, the 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 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. (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). (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). (iii) Obtaining of order from the hand(s) of consolidation authorities by playing fraud on the party who seeks to approach the Civil Court.” 8. In view of the authoritative pronouncement of the decisions cited supra, the irresistible conclusion is that the civil court has the jurisdiction to entertain the suit in spite of the bar contained in Section 51 of the OCH & PFL Act. 9. In the wake of the aforesaid, the petition sans merit is dismissed. No costs.