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2019 DIGILAW 582 (ORI)

Himansu Kumar Behera v. Collector, Jagatsinghpur

2019-09-16

BISWANATH RATH

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JUDGMENT : Biswanath Rath, J. This Writ Petition involves a challenge to the order vide Annexure-2 and thereby seeking a direction to declare the sale deed vide Annexure1(series) not to be void. 2. Short background involved in the case is that the dispute involved herein arises out of a proceeding initiated under the provisions of Section 35 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 hereinafter in short be called as the Act, 1972 by the contiguous land owner challenging two of the sell deeds involved therein at the instance of the opposite party no.1 therein in favour of the opposite party nos.2 & 3 therein. The dispute was registered Consolidation Misc. Case No.3/03. The allegation involving the Consolidation Misc. Case No.3/03 is that for the sell involved therein in contravention with the provision at Section 2 (m)(i) of the Act, 1972 a declaration was sought for through the Collector to declare the sale deeds as void. The contesting opposite parties therein in the proceeding contended that there involves two sells. First sell was made in the year 1997 comprising the area measuring Ac.1.02 decimals and the second sale was made in the year 2001 comprising of area measuring Ac.0.84decimals of land involving common parties. On the premises that the whole land comprised remaining more than one acre and therefore, the sale transactions were valid, a request was made to the Collector undertaking the proceeding U/s.35 of the Act for dismissal of the proceeding initiated by the contiguous land owner. Considering the submissions of the parties the Collector, Jagatsinghpur allowed the Consolidation Proceeding initiated U/s.34 of the Act, 1972 holding thereby both the sell deeds invalid. Being aggrieved by such order present Writ Petition is filed before this Court. 3. Challenging the impugned order learned counsel for the petitioners i.e. the purchasers advancing his argument that the whole land of the vendor appearing to be Ac.1.86 decimals and at the first sale of the land involved in the year 1997 for an area of Ac.1.02dec. Being aggrieved by such order present Writ Petition is filed before this Court. 3. Challenging the impugned order learned counsel for the petitioners i.e. the purchasers advancing his argument that the whole land of the vendor appearing to be Ac.1.86 decimals and at the first sale of the land involved in the year 1997 for an area of Ac.1.02dec. did not attract the provision of Section 2(m)(i) of the Act, 1972 and it is in the premises same has the protection of the provision at Section 2(m)(i) of the Act, 1972, Learned counsel for the petitioner contended that the Collector in exercise of power under the Act, 1972 failed to appreciate the intention of the legislature under the provision at Section 2(m)(i) of the Act, 1972 and ultimately failed in exercise its power U/s.35 of the Act, 1972. 4. Learned counsel for the contesting opposite party, on the other hand, contended that even though there is no dispute that originally the whole patch of land was more than one acre but however contended that in the interest of justice at least the second sell could have been declared to be void for being in contravention with the provision at Section 2(m)(i) of the Act, 1972. Learned counsel for the contesting opposite party however taking this Court to the observation of the Collector involving a proceeding U/s.35 of the Act, 1972 contended that for the clear findings made therein, there is right consideration of the issue involved by the Collector requiring no interference in the impugned order. 5. Sri Ghosh, learned Additional Standing Counsel justifying the order passed in the proceeding taking this Court to the provision at Section 2(m) of the Act, 1972 contended that the District involved herein is not coming within the purview of Section 2(m)(i) and the restriction U/s.2(m)(ii) has clear application to the case for the land involved within two acres. It is, in the circumstance learned Additional Standing Counsel submitted that even though the provision at Section 2(m)(i) has no application to the case at hand but keeping in view the restriction involving the provision at Section 2(m)(ii) of the Act, 1972 the impugned order cannot be held to be wrong otherwise. 6. Considering the rival contentions of the parties, this Court finds, there is no dispute that the whole patch of land belonging to the vendor owner remaining Acre1.86decimals. 6. Considering the rival contentions of the parties, this Court finds, there is no dispute that the whole patch of land belonging to the vendor owner remaining Acre1.86decimals. Looking to the definition of Section 2(m)(i) this Court finds, the provision at Section 2(m) is incorporated in the Act in the year 1972. There is no dispute that the District of Cuttack was not bifurcated at that point of time and there was no existence of the district Jagatsinghpur in the year 1972. In the circumstance, this Court observes, for the existing situation in the year 1972 Cuttack remained undivided district inclusive of Jagatsinghpur District, the whole District was incorporated in the definition at Section 2(m)(i) & (ii) of the Act, 1972 and therefore, this Court is of the opinion that Jagatsinghpur which has been carved out from the original District Cuttack will get the benefit of provision at Section 2(m)(i) of the Act, 1972 until unless the State applies its mind and makes appropriate amendment keeping the bifurcation of the districts in view. It is in the circumstances, this Court finds, the provision at Section 2(m)(i) has no application to the case at hand. Now proceeding to decide the merit involving the impugned order, this Court finds, there is no dispute that the whole patch of land remains Ac.1.86decimals originally. There was no restriction in sell of Ac.1.02 decimals of land by the vendor in the first instance in the year 1997. Therefore the first sell taking place in the year 1997 for the whole land remaining more than one acre is not coming within the restriction of Section 2(m)(i). Thus the first sell deed remains valid. It is for the first sell, there remained 84 decimals of land with the vendor and for the first sell involved in the year 1997 the opposite party nos.2 & 3 already became the owner of the part of the land already sold. There appears, there is no difficulty in the sell of 84 decimals of land as the sell involved in favour of the purchaser of the land measuring Ac.1.02 decimals in the first instance, who are already the contiguous land owners. In the circumstance, this Court finds, the second sell gets protection by the Section 2(m)(i) of the Act, 1972. There appears, there is no difficulty in the sell of 84 decimals of land as the sell involved in favour of the purchaser of the land measuring Ac.1.02 decimals in the first instance, who are already the contiguous land owners. In the circumstance, this Court finds, the second sell gets protection by the Section 2(m)(i) of the Act, 1972. Hence, this Court finds no force in the contentions raised by the contesting opposite parties in the proceeding U/s.35 of the Act, 1972. For the observations made hereinabove, this Court finds, there is no proper consideration of the proceeding attracting both the sell involving the case at hand by the Collector. In the result, this Court interfering in the order vide Annexure-2 sets aside the same and thereby declares both the sell deeds as valid. 7. The Writ Petition succeeds. However, there is no order as to cost.