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2018 DIGILAW 786 (ORI)

Rabindra Sahu v. State of Odisha

2018-09-07

S.K.MISHRA

body2018
JUDGMENT S.K. MISHRA, J. - These writ petitions are interlinked and the points involved being common, are disposed of by this common judgment. 02. The petitioners in all these writ petitions have assailed the Notification No.5678 dated 19.02.2016 issued by the Government of Odisha, Revenue and Disaster Management Department, under Sub- Section (1) of Section 41 of the Odisha Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as “the OCH & PFL Act” for brevity), whereby the Consolidation Operation has been closed in respect of the area mentioned in the Schedule-‘A’ given therein under Annexure- 1. 03. It appears from the averments made in the writ petitions that the petitioners, in all these writ petitions, are the residents of village Dhankauda, Dandeipali, Bohidarnuapali, Khirapali, Gengutipali, Sarnkarma and Khadual in the district of Sambalpur. The lands in questions of the aforesaid villages are coming under the Sambalpur Municipal Corporation. The Government of Odisha, Department of Housing and Urban Development considering the objections and suggestions received as called for in the Extraordinary issue of the Odisha Gazette No.2221, dated the 16th November, 2013, issued Notification dated 21st November, 2014 specifying the aforesaid villages along with other some villages with boundaries thereof as a larger urban area under Annexure-5. It is also apparent from the records that the Deputy Director, Consolidation of Holdings, Sambalpur has submitted the proposal for issuance of Notification under Section 41(1) of the OCH and PFL Act to the Deputy Secretary, Consolidation, Board of Revenue, Odisha, Cuttack vide letter No.543/CH., dated 11.12.2015 under Annexure-2. The Government of Odisha, Revenue and Disaster management Department issued the Notification No.5678 dated 19.02.2016 notifying that the consolidation Operation has been closed in respect of the area mentioned in the Schedule-“A” given therein, wherein the villages of the petitioners are found place, in exercise of power conferred under Sub-Section (1) of Section 41 of the OCH and PFL Act. Challenging the said Notification No.5678 dated 19.02.2016 under Anexure-1, the petitioners have filed these writ petitions. 04. Mr. Challenging the said Notification No.5678 dated 19.02.2016 under Anexure-1, the petitioners have filed these writ petitions. 04. Mr. Kousik Anand Guru, learned counsel for the petitioners argued that a Notification under Section 32 of the Orissa Town Planning and Improvement Trust Act, 1956 was issued by the Sambalpur Regional Improvement Trust, notifying for the General Public that a Master Plan for Sambalpur comprising Sambalpur Municipal area and the revenue villages as scheduled therein has been duly prepared and published under Section 31 (1) of the Orissa Town Planning and Improvement Trust Act, 1956 inviting objections and suggestions vide Notification No.961-STPU, dated the 1st July, 1972 of the defunct Sambalpur Special Planning Authority at Town Planning Unit, Sambalpur and Published in the Orissa Gazette in Notification No.207-C.A.D, Part-VII-P-1357, dated the 14th July, 1972 and after considering the objections and suggestions received from the public, the Government of Housing and Urban Development, Orissa have approved the Master Plan under Section 32 of the Orissa Town Planning and Improvement Trust Act, 1956, vide G.O. No.48168-TP-MP-12/83-HUD., dated the 10th November, 1983 under Annexure-8. The said Notification was issued in respect of 22 villages wherein the villages of the petitioners are found place. That apart, the Notification under Section 22 of the OCH & PFL Act i.e. with regard to final publication of map and the record-of- rights was made on 31.03.1984. The 1st contention of Mr. Guru, learned counsel for the petitioners is that Notification under Section 41(1) of the OCH and PFL Act has been issued on 19.02.2016, after 30 years of final publication of ROR. So, it is contended that the delay in issuing Notification under Section 41(1) of the OCH and PFL Act itself vitiates the provisions under Section 5 of the OCH and PFL Act. 05. Mr. Guru, learned counsel for the petitioner relied upon the reported case of Govinda Chandra Tripathy and others vs. the State of Orissa, represented through Secretary to Government of Orissa, Revenue Department and others, 1989 (1) OLR 367, wherein the Division Bench of this Court has held that Notification of cancellation can be issued by the State Government under Section 5(1) of the OCH and PFL Act before publication of final map and record-of-rights under Section 22(1) of the OCH and PFL Act. 06. 06. Learned counsel for the petitioners also argued that the revenue authorities have the right of conversion of agriculture land into homestead under the provisions of Orissa Land Reforms Act, as a result of which most of the lands available in the 22 villages are no more agriculture land. It will not be in the interest of achieving aim and objectives of the OLR Act. Admittedly, it is for the purpose of development of agriculture by preventing fragmentation and permitting consolidation. He also submitted that the consolidation authority has allowed fragmentation of land in certain cases. He relied upon the reported case of Sundarmani Bewa vs. Dasarath Parida, 1988 (I) OLR 334, wherein at paragraph-4, the purpose of consolidation has been defined and according to Mr. Guru, the learned counsel for the petitioners, the said purpose has been frustrated because of fragmentation of land. 07. The next important argument of Mr. Guru, learned counsel for the petitioners was with regard to Section 38 of the OCH and PFL Act which provides power of Board of Revenue. The Board of Revenue having general superintendence over all consolidation proceedings can exercise powers conferred upon him. In this case, the Commissioner, Consolidation, Board of Revenue, Orissa, with respect to the district of Sambalpur has already passed an order on 12.08.1987 in Case No.1287 of 1985 under Annexure-9 observing therein that the village Khirapalli, which is the village of some petitioners of the aforesaid writ petitions, has come within the Master Plan area of Sambalpur Town and has been notified under Section 32 by the Housing and Urban Development Department and has been published by the Sambalpur Improvement Trust vide Notification Order 2240/SPTT dated 18.06.1984, hence, consolidation will cease to operate in that area. Admittedly, this order has been passed keeping in view the amendment of Section 34 by insertion to Sub-Section (5) of Section 34 of the OCH and PFL Act. It is argued that since the power of Board of Revenue under Section 38 of the OCH and PFL Act is of superintendence over the consolidation proceedings, the Notification under Section 41 of the OCH and PFL Act is of no effective value. It is argued that since the power of Board of Revenue under Section 38 of the OCH and PFL Act is of superintendence over the consolidation proceedings, the Notification under Section 41 of the OCH and PFL Act is of no effective value. He also relied upon the case of M/s Modern Fabricators, Firm vs. Rajendra Harichandan & others, 1992 (I) OLR 322, wherein the Division Bench of this Court has held that in exercise of power under Section 38 of the OCH & PFL Act, any administrative order may be passed by the member of Board of Revenue though he may not set aside the order of consolidation officer. Another aspect, which was argued by the learned counsel for the petitioners that in the meantime for development of railway track and the road connecting Sambalpur with Rourkela, process has been started and the lands belonging to different persons, compensation and rehabilitation scheme have been extended to the land oustees as per the previous major settlement and it has not been done as per record-of- rights in accordance with the notification published under Section 22 of the OCH and PFL Act in the year, 1984. 08. The learned counsel for the petitioners also relied upon the case of ESI Corporation vs. C.C. Santha Kumar, (2007) 1 SCC 584 , wherein the expression “reasonable time” is explained. Similarly in the case of Baldevdas Shivlal and Anr. –vrs.- Filmistan Distributors (India): AIR 1970 SC 406 , the Hon’ble Supreme Court has observed that the expression “case” is not limited in its import to the entirety of the matter in dispute in an action. Mr. Guru, learned counsel for the petitioners also relying on Sections 30 and 32 of the Orissa Town Planning and Improvement Trust Action Act, 1956 submitted that in the year, 1972 the declaration of Master Plan for Sambalpur comprising Sambalpur Municipal area and the revenue villages including the aforesaid 22 villages was made, as would be apparent from Annexure-3 to the writ applications. Similarly, in Annexure-8, the Notification under Section 32 of the said Act was issued. 09. However, at the time of argument, the learned counsel for the petitioners did not place much reliance on the amendment and insertion in Sub-Section (5) of Section 34 of the OCH and PFL Act. 10. On the other hand, on this account, the learned Additional Standing Counsel Mr. 09. However, at the time of argument, the learned counsel for the petitioners did not place much reliance on the amendment and insertion in Sub-Section (5) of Section 34 of the OCH and PFL Act. 10. On the other hand, on this account, the learned Additional Standing Counsel Mr. S. Dash has relied upon the case of Gulzar Khan vs. Commissioner of Consolidation and others: 1993 (II) OLR 194, wherein full Bench of this Court has answered the reference and held that after the Notification under Section 41 of the OCH and PFL Act, remedy under Section 37 of the OCH and PFL Act would be available, it cannot be spelt out and has to depend on probability of situation arising and whether in a particular case the same would be available, it has to be decided by the Consolidation Commissioner depending on facts and circumstances of the case. If it is personal grievance of any of the parties, he/she may get his/ her dispute settle by preferring revision before the concerned Commissioner having jurisdiction to decide the same. Further, in reply to the argument advanced by the learned counsel for the petitioners, Mr. S. Dash, the learned Addl. Standing Counsel would argue that even when a single case is pending between two different parties and any appeal or revision is pending before the appellate or revisional authority, then it would not be proper to issue notification under Section 41 of the OCH and PFL Act. This is the reason for delay in conversion of agriculture land to homestead under Section 8-A of the Orissa Land Reforms Act, 1960 and it will have no effect on the case as the consolidation authority has no jurisdiction over the same and he is bound by the OLR Courts. But, most important aspect, which advanced by Mr. S. Dash, learned Additional Standing Counsel was that if Notification under Section 41 of the OCH and PFL Act, which is challenged in this case, is quashed, then the entire proceeding of the OCH and PFL Act will relegate to Section 22 stage and it will not serve any purpose. So, if the notification itself is quashed, no useful purpose would be served. So, if the notification itself is quashed, no useful purpose would be served. Herculean efforts were undertaken in preparing the consolidation records and if in a single order entire proceeding is quashed, it will not end the litigation and cause insurmountable difficulties to people, who have already got their dispute settled before the consolidation authorities. 11. As has been observed by the Division Bench of this Court in the case of Govinda Chandra Tripathy (supra) relied upon by the learned counsel for the petitioners that notification of cancellation can be issued by the State Government under Section 5(1) of the OCH and PFL Act before publication of final map and record-of-rights under Section 22(1) of the OCH and PFL Act, on the other hand, the Full Bench of this Court in the case of Gulzar Khan (supra) relied upon by the learned Additional Standing Counsel that a forum has to be available to be a person who was to be aggrieved, after Section 41 notification has been issued, with any order having been passed or anything having been done during the consolidation operations affecting his right, title and interest. It is also observed that there cannot be a right without any remedy and according to them, the remedy can be made available principally by Section 37 of the OCH and PFL Act. That apart, it is well settled position of law that when the statutory forum is created by law for redressal of grievances, the writ petition should not be entertained ignoring statutory dispensation subject to certain exceptions. Nonentertainment of petitions under the writ jurisdiction by the High Courts where efficacious or alternative remedy is available, is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 of the Constitution of India despite existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or if there is sufficient grounds to invoke the extraordinary jurisdiction under Article 226 of the Constitution of India. 12. 12. In that view of the matter, this Court is of the opinion that the aforesaid reported cases relied upon by the learned counsel for the petitioners are not applicable to the cases at hand. Hence, the aforesaid writ petitions are dismissed being devoid of merit. Interim orders passed earlier in all the aforesaid writ petitions stand vacated. Petitions dismissed.