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2019 DIGILAW 563 (ORI)

Nikunja Kishore Rajguru v. Nityananda Barik

2019-09-05

KRUSHNA RAM MOHAPATRA

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JUDGMENT : Krushna Ram Mohapatra, J. 1. Order dated 27.09.2007 (Annexure-3) passed by the Collector, Jagatsinghpur in Consolidation Misc. Case No. 2 of 2007 rejecting an application filed by the present petitioners under Section 34 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short "The Act") is under challenge in this writ application. 2. Learned counsel for the petitioners submits that the petitioners are the owners of Chaka Nos. 27 & 29 which are contiguous to Chaka No. 28 to an extent of Ac. 0.97 dec, mouza Lathanga in the district of Jagatsinghpur (for short 'the case land'). It is his contention that the owner of Chaka No. 28 (opposite party no. 6) namely, Radhanath Rajguru sold the entire Chaka to opposite party nos. 1 to 5 by virtue of Regd. Sale Deed dated 7.7.2007. Such a sale is hit by Section 34(2) of the Act and is void ab initio for the reason that a fragment has been sold to a stranger, not contiguous chaka owner, namely, the petitioners. Secondly, no permission from the concerned Consolidation Officer was taken prior to such sale. 3. In support of his contention he relied upon a case law of this Court in the case of Smt. Binapani Seth and another v. Sr. Bijay Kumar Sahoo and others, reported in 1997 (II) OLR 399 , wherein it is held as follows: "6. Admittedly, the parcels of land sold separately and collectively measure less than one acre, which is the minimum area prescribed for the district of Cuttack. Therefore, there was clear contravention of Section 34. Consequences of transfer contrary to provision of Section 34 are contained in sub-Section (1) of Section 35. It clearly lays down that such a transfer is void. Even if it is accepted, as pleaded by learned counsel for the petitioners, that person includes a family, that is really of academic interest, because the total area of land sold by the two sale-deeds was less than one acre. Therefore, the Collector was justified in his conclusion that the transactions were void. The object of stringency underlying Section 34 is clearly in line with the spirit of enacting the Act. It aims to provide for consolidation of holdings and prevention of fragmentation of land for development of agriculture in the State. Therefore, the Collector was justified in his conclusion that the transactions were void. The object of stringency underlying Section 34 is clearly in line with the spirit of enacting the Act. It aims to provide for consolidation of holdings and prevention of fragmentation of land for development of agriculture in the State. Basic object is to give inducement and incentive to the cultivators, by consolidation of scattered holdings and rearrangement of holdings including fragmented holdings among various land owners so that the holdings become' compact and future fragmentation of holdings is prevented. 7. Coming to the question of locus standi to contiguous Chaka. owners, it has to be noticed that only when a person intends to transfer a fragment and is unable to do so in view of the restriction imposed under Sub-Section (2) of Section 34, he has to apply in the prescribed manner to the Tahasildar of the locality, who is required to determine the market value of, fragment and sell it through an auction among the land owners of contiguous Chakas at a value not less than the market value so determined. The land owners of the continuous Chakas come into picture when a person intends to transfer a fragment, and is unable to do so in view of the restrictions imposed and applies to Tahasildar for permission. If there is no intention to transfer a fragment, obviously, the land owners of contiguous Chakas would not come into picture." 4. He also relied upon a case law of this Court in the case of Padmalabha Swain (since dead) after him, Dhirendra Kumar Swain and others, reported in 1994 (II) OLR 53 , wherein at paragraph 6, it has been held as follows: "6. As regards the contention that the lands purchased under the sale deeds are homestead lands we find that the opposite party no. 11 even in his own revision before the Commissioner had stated such fact. Section 4(2) only prohibits transfer of agricultural lands and specifically excludes lands covered under the explanation to Section 2(f) which provision includes homestead land. Hence, if the lands involved in the present case are homestead lands, the objection of the petitioners or that of the opposite party no. 11 under Section 4(2) would have no force. Section 4(2) only prohibits transfer of agricultural lands and specifically excludes lands covered under the explanation to Section 2(f) which provision includes homestead land. Hence, if the lands involved in the present case are homestead lands, the objection of the petitioners or that of the opposite party no. 11 under Section 4(2) would have no force. Admittedly, the Commissioner has not addressed himself to the question the case having been disposed of merely on the basis of the decision of the Allahabad High Court. Since the question involves an investigation of facts, we think it proper, while setting aside the order of the Commissioner in Annexure-2, to remit the case to him to determine whether the lands are homestead lands. Since the case is going back we also think, in the facts and circumstances of the case, it to be in furtherance of justice that the Commissioner should also determine as to whether the transfers by Susila were made after publication of the notification under Section 13(1) of the Act. Once such facts are determined the Commissioner shall thereafter decide the matter in accordance with law as discussed above." 5. However, the Collector, Jagatsinghpur-opposite party no. 7 without taking into consideration the object and intent of the Act and the purport of Section 34 of the Act proceeded on a footing that since the entire chaka has been sold, the sale is not hit by Section 34(2) of the Act, which is illegal and not sustainable in law. Accordingly, he prayed for setting aside Annexure-3. 6. Learned counsel for the opposite party nos. 1 to 5 on the other hand submits that since entire chaka no. 28 has been sold to them, after publication of notification of Section 41 of the Act, no permission as contemplated under Section 4(2) of the Act is required and the prohibition under Section 34(2) of the Act is not applicable As such, the Collector has committed no error in rejecting the application i.e. Consolidation Misc. Case No. 2 of 2007. Thus, he prayed for dismissal of the writ application. 7. Section 2(e) of the Act defines 'Chak' as under:- "2. (e) "Chak" means a compact parcel of land allotted to a land owner on consolidation," 8. Further, 'Fragment' has been defined under Section 2(m) of the Act which is as follows- "2. Case No. 2 of 2007. Thus, he prayed for dismissal of the writ application. 7. Section 2(e) of the Act defines 'Chak' as under:- "2. (e) "Chak" means a compact parcel of land allotted to a land owner on consolidation," 8. Further, 'Fragment' has been defined under Section 2(m) of the Act which is as follows- "2. (m) "fragment" means a compact parcel of agricultural land held by a land owner by himself or jointly with others comprising an area which is less than- (i) one acre in the district of Cuttack, Puri, Balasore and Ganjam and in the Anandpur subdivision in the district of Keonjhar, and (ii) two acres in the other areas of the State." 9. Section 34 of the Act deals with prevention of fragmentation of Chaka. It reads as follows- "34. Prevention of fragmentation - (1) No agricultural land in a locality shall be transferred or partitioned so as to create a fragment. (2) No fragment shall be transferred except to a land owner or a contiguous Chaka: Provided that a fragment may be mortgaged or transferred in favour of the State Government, a Co-operative Society, a scheduled bank within the meaning of the Reserve Bank of India Act 1934 (2) of 1934) or such other financial institution as may be notified by the State Government in that behalf of security for the loan advanced by such Government. Society, Bank or institution, as the case may be. (3) When a person, intending to transfer a fragment, is unable to do so owing to restrictions imposed under Sub-Section (2), he may apply in the prescribed manner to the Tahasildar of the locality for this purpose whereupon the Tahasildar shall, as far as practicable within forty-five days from the receipt of the application determine the market value of the fragment and sell it through an auction. among the land owners of contiguous Chakas at a value not less than the market value so determined." 10. Section 34(1) provides that no agricultural land in a locality shall be transferred or partitioned so as to create fragment. Thus, it necessarily means that no fragmentation of a chaka in contravention of Section 2(m) of the Act is permissible. Further, Section 34(2) provides that no fragment shall be transferred except to a land owner of a contiguous Chaka. Section 34(1) provides that no agricultural land in a locality shall be transferred or partitioned so as to create fragment. Thus, it necessarily means that no fragmentation of a chaka in contravention of Section 2(m) of the Act is permissible. Further, Section 34(2) provides that no fragment shall be transferred except to a land owner of a contiguous Chaka. In order to interpret the word 'fragment', the Court can refer to the 'Statement of Objects and Reasons' of the Act for the purpose of ascertaining the circumstances, which led to the legislation in order to find out what was the mischief, which the legislature aimed at. ( AIR 1963 SC 1356 may be referred to). The same reads as follows;- "Statement of Objects and Reasons- In the context of strategy for increasing agricultural production in the country and in pursuance thereof to give inducement and incentive to the cultivators, it is considered expedient to initiate legislation for consolidation of scattered holdings and re-arrange the holdings including fragmented holdings among various landowners to make them more compact and to provide against future fragmentation of holdings. This will help in economic farming and application of improved implements and methods of farming which are necessary for development of agriculture and increased agricultural production. The present bill seeks to achieve this object." 11. On a conspectus of the Statement of Objects and Reasons together with Section 2(e), Section 2(m) and 34(1) & (2) of the Act makes it abundantly clear that the object behind introduction of Section 34 to the Act is not to create a 'fragment of chaka' in contravention of Section 2(m). Section 2(m) though refers to a compact parcel of land, it cannot be equated with 'Chak' as defined under Section 2(e) of the Act. Thus, the word 'fragment' necessarily means a 'fragment of Chak' or 'a division of Chak', which is less than one acre in the district of Cuttack, Puri, Balasore and Ganjam and in Anandapur Sub-division of Keonjhar district and less than two acres in rest of the areas of Odisha. Further, Section 34(2) provides that a fragment of the chaka can be sold to a contiguous land owner. A 'Chak' may be a compact parcel of land less than one acre/two acres. Further, Section 34(2) provides that a fragment of the chaka can be sold to a contiguous land owner. A 'Chak' may be a compact parcel of land less than one acre/two acres. But, it cannot be inferred that wherever a 'Chak' is less than one acre/two acres depending upon the locality, where it situates, the compact parcel of land would be called a 'fragment'. 12. In the case at hand, admittedly the entire chaka i.e. Chaka No. 28 to an extent of Ac. 0.97 dec. has been sold to opposite party nos. 1 to 5, not contiguous chaka owner. As discussed earlier, even though land in question i.e. Chaka No. 28 to an extent of Ac. 0.97 dec. is less than one acre, it cannot be treated to be a fragment. Since the entire chak has been sold to opposite party nos. 1 to 5, it can be safely said that no fragment is sold which does not contravene Section 34(2) of the Act. As notification under Section 41 of the Act had already been made in respect of the case village prior to the impugned sale, restriction of Section 4(2) of the Act is not applicable to the case at hand. 13. As such, the ratio decided in the case law cited by the learned counsel for the petitioners is not applicable to the case at hand In that view of the matter, I am in complete agreement with the view taken by the Collector, Jagatsinghpur-opposite party no. 7. 14. Thus, the writ application being devoid of any merit stands dismissed.