Ramakrushna Tripathy v. Sarbeswar Nayak (dead) through his legal heirs
2018-04-10
BISWANATH RATH
body2018
DigiLaw.ai
JUDGMENT : Biswanath Rath, J. This writ petition involves a challenge to the orders at Annexures-10 & 11 passed by the appellate authority as well as the revisional authority involving the proceedings under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972. 2. Short background involved in this case is that on the vesting of the land, 37 decimals of land was recorded in favour of the present petitioners and subsequently the Consolidation Settlement Record was also prepared vide Annexure-1 showing plot no.650 measuring 37 decimals also recorded in favour of the predecessors of the petitioner namely Chintamani Tiadi. Subsequently, on conclusion of the settlement proceeding, the L.R. record has been prepared showing corresponding Plot no.766 measuring 37 decimals of land but subsequently reduced to 33 decimals of land as there was acquisition of 4 decimals of land by the Irrigation Department for irrigation purpose in the meantime and as clearly appearing from the record of rights starts at page 37 to 38 of the brief. It further appears that the L.R. record was prepared in the year 1988 and after a gap of four years, the opposite parties preferred an objection case under the provisions of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 for correction of the L.R. records claiming therein that they have material to establish that the opposite parties have right to over 5 decimals of land, which has been wrongly included in the L.R. Khata No.766. Objection case was registered as Objection Case No.231 of 1990. Petitioners appearing in the proceeding under Section 9(3) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 by producing the document prepared in three stages already taken place, preparation of C.S. record as well as the L.R. record through the materials attempted to establish that there is no wrong inclusion of the land belonging to the private opposite parties herein the objector therein. The original authority deciding the objection case involving the parties concerned ultimately found that the opposite parties are in possession of two decimals of land and it is under the consideration of long possession of the private opposite parties, the original authority directed for carving out of two decimals of land from the L.R. records involving the Plot No.766. 3.
The original authority deciding the objection case involving the parties concerned ultimately found that the opposite parties are in possession of two decimals of land and it is under the consideration of long possession of the private opposite parties, the original authority directed for carving out of two decimals of land from the L.R. records involving the Plot No.766. 3. The undisputed fact remains here is that the petitioners did not challenge the order passed in objection case. It is, however, being aggrieved by the order passed in the objection case, the private opposite parties undertaken appeal proceeding, which was decided by the order vide Annexure-10 after observing that the present opposite parties are in long possession of the whole 5 decimals of land and it is, under the circumstance, the appellate authority in reversal of the order passed by the objection authority directed for recording of the whole 5 decimals of land as claimed by the opposite parties and thereby, directing the correction of the land records accordingly. 4. Being aggrieved by the order passed by the appellate authority, petitioners preferred revision before the Commissioner Consolidation being registered as Consolidation Revisions No.1024 of 1994. In deciding the revision, the revisional authority while dismissing the revision at the instance of the petitioner confirmed the order passed by the appellate authority, resulting filing of the present writ petition. 5. Challenging the orders passed by the appellate authority as well as by the revisional authority vide Annexures-10 & 11 respectively, learned counsel for the petitioners taking this Court to the preparation of the C.S. records as well as the L.R. records as at Annexurs-1 & 3 and on reiteration of the pleadings of the petitioners and their predecessors in the proceedings below contended that for the preparation of record of right ride from vesting of the property with the State since 1968 all through, the 37 decimals of land has been recorded in favour of the petitioners but except in the L.R. stage considering that the 4 decimals of land have been acquired in the meantime, the land records were prepared showing the petitioners to the owner of the 37 decimals of land.
Learned counsel for the petitioners on the premises of materials available on record and raising of no objection by the opposite parties herein at all the three stages of the proceeding contended that they were estopped from raising objection to the objection case initiated in the year 1992. It is under the circumstance, learned counsel for the petitioners contended that the order of the appellate authority remaining contrary to the materials available on record becomes bad and further, the revisional order having also made wrong assessment involving the document available, the revisional order cannot be sustained. 6. Shri Mishra, learned counsel for the contesting opposite parties on reiteration of the facts pleaded before the objection authority by his parties and the observations as well as the findings of the appellate authority as well as the revisional authority submitted that for the revisional authority’s findings based on the materials available on record, there appears, there is no infirmity in either of the orders requiring no interference of this Court in the impugned orders at Annexures-10 & 11. It is in this circumstance, learned counsel for the private opposite parties prayed this Court for dismissal of the writ petition. 7. Shri A.K. Mishra, learned State Counsel taking this Court to the observations and findings of the appellate authority as well as the revisional authority and supporting the stand taken by Shri Mishra, learned counsel for the contesting private opposite parties submitted that there is no infirmity in either of the impugned orders requiring no interference of this Court. 8. Considering the rival contentions of the parties, this Court finds, from the pleadings involving the objection case, the discussions made therein on the claim of the petitioners appears to be on basis of the recordings involving the L.R. plot no.766 and the C.S. Plot no.650. It is at this stage of the matter, on perusal of the documents involving C.S. No.650 as well as L.R. plot No.766, this Court finds, both the land records were prepared showing that the petitioners were the owner of the disputed property initially though recording 37 decimals of land in favour of the petitioners but subsequently reduced to 33 decimals of land taking into consideration the fact of acquisition of 4 decimals of land by the Irrigation Department in the meantime. This being the position involving the records prepared at stage. 9.
This being the position involving the records prepared at stage. 9. Now coming back to the provisions contained in the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972, this Court finds from the several stages involved in preparing of the land records, once a consolidation operation takes effect, the process starts through Section 6 in the matter of preparation of map, land register and determination of valuation and share involving joint holdings, on preparation of notice for preparation of map, land register and etc. by way of publication of notification under Sub-section (1) of Section 3, the Director Consolidation is to issue notification constituting under and initiating preparation of maps, land register in respect of each unit, which shall be published at a conspicuous place of the village for a period of not less than fifteen days. Section 6 also envisages, upon publication of such notification it will be open to the parties to raise objection before a determination is made in exercise of power under Section 6 as well as 7 of the Act. There is also a further provision in the Act itself for notification of draft publication and again inviting objection. Section 10 when envisages disposal of the objection case by the Assistant Consolidation Officer. Section 11 provides disposal of the objection case by the Consolidation Officer. There is also provision for appeal when anybody aggrieves under Section 12. From the entire history of the case, it appears, the opposite parties never raised any objection involving preparation of consolidation records. 10. Under the circumstance, this Court finds, filing of objection without raising objection case under Section 9(3) after the final publication of the Consolidation record becomes redundant. It is at this stage, this Court also further looking to the records produced during the objection proceeding finds, there is no stray of material establishing preparation of record involving 5 decimals of land in favour of the opposite parties. This Court finds surprise with the discussion in the revision regarding availability of some records, which was not available during the original stage even hearing of the objection case.
This Court finds surprise with the discussion in the revision regarding availability of some records, which was not available during the original stage even hearing of the objection case. It at this stage of the matter, this Court takes into consideration a decision of this Court in the case of Sandhu Trailers versus Orissa Small Industries Corporation Ltd. and another as reported in 2004 (II) OLR 28 where this Court in categoric term held that once the property vested with the State and the records are prepared in consonance of the OEA Act settling the land in favour of the tenant after vesting the consolidation authority, the consolidation authority is bound by such orders. For the materials available establishing the case in favour of the petitioners and also having a support of the decision cited supra to the case of the petitioners, this Court finds, the findings and the observations of the appellate authority as well as the revisional authority are not sustainable in the eye of law. As there is no challenge to the decision of the original authority directing carving out two decimals of land in favour of the opposite parties, this Court confirms the order passed by the original authority involving Objection Case No.231 of 1990. As a result, this Court interfering in the impugned orders at Annexures-10 & 11, sets aside both the orders and confirms the order vide Annexure-9. 11. The writ petition succeeds. No cost.