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2021 DIGILAW 205 (ORI)

Satyabhama Sahoo v. Commissioner, Consolidation

2021-04-26

K.R.MOHAPATRA

body2021
JUDGMENT K.R. Mohapatra, J. - Heard Mr. Susanta Kumar Dash, learned counsel for the petitioner and Mr. Sarojananda Mishra, learned Additional Government Advocate for the State-opposite party Nos 1 to 3. 2. The petitioner in this writ petition seeks to assail the order dated 17.01.2001 (Annexure-3) passed by the Commissioner, Consolidation & Settlement, Bhubaneswar in Consolidation Revision Case No.74 of 1997, whereby he dismissed the revision filed by the petitioner under Section 36 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short 'the Act') holding it to be not maintainable in view of publication of notification under Section 5(1) of the Act. Aforesaid Revision Case was filed assailing the order dated 20.02.1997 (Annexure-2) passed by Deputy Director, Consolidation, Bhubaneswar in Appeal Case No. 262 of 1996 filed under Section 12 of the Act assailing the order dated 19.11.1996 (Annexure-1) passed by the Consolidation Officer, Banpur under Section 11 of the Act in Objection Case No. 1577/215. 3. The averments made in the writ petition reveal that the Mouza-Nachuni was published under Section 3(1) of the Act and consolidation operation started in the said village. In due process, land register under Section 9(1) of the Act was published and the land owners filed their respective objections. When the village was proceeding under Section 13 of the Act, notification under Section 5(1) of the Act was published on 31.03.1998 in the village notifying closure of the consolidation operation. By that time, the Deputy Director, Consolidation, Bhubaneswar had disposed of Consolidation Appeal Case No.262 of 1996 vide his order dated 20.02.1997 filed under Section 12 of the Act. Assailing the same, the petitioner along with one Banchhanidhi Sahu filed Consolidation Revision Case No.74 of 1997 under Section 36 of the Act, which was disposed of vide order dated 17.01.2001 holding that the revision is not maintainable in view of publication of village under Section 5(1) of the Act. The relevant portion of the impugned order under Annexure-3 is reproduced hereunder: "4. The consolidation revision case is considered on the point of maintainability. Evidence shows that village Nachuni, P.S. No.367 where the disputed land lies has been notified u/s 5(1) of the Act and maps and records relating to that village have been finally published u/s 22(2) of the Act as required u/s 13(4) of the said Act on 23.4.98. The consolidation revision case is considered on the point of maintainability. Evidence shows that village Nachuni, P.S. No.367 where the disputed land lies has been notified u/s 5(1) of the Act and maps and records relating to that village have been finally published u/s 22(2) of the Act as required u/s 13(4) of the said Act on 23.4.98. Once such a notification has been issued the Commissioner, Consolidation as the revisional authority ceases jurisdiction to proceed further in the present case. Hence, the revision petition is liable to be dismissed for lack of jurisdiction." 4. Mr. Dash, learned counsel for the petitioner relying upon the observation made in the impugned order submitted that by the time notification under Section 5(1) of the Act was made, R.O.R. under Section 22(1) of the Act had already published in respect of the said village. Thus, notification under Section 5(1) of the Act becomes redundant and the revision is maintainable. In support of his case, he relied upon the decision of this Court in the case of Govinda Chandra Tripathy and others -v- The State of Orissa and Others, 1989 1 OrissaLR 367, wherein it has been held at paragraphs-6 and 7 as follows: "7. A combined reading of ail the aforesaid provisions would unequivocally indicate that a power of cancellation conferred on the State Government under section 5(1) of the Act can be exercised only before the publication of final map and record-of-rights under section 22 and not after that. The aforesaid conclusion is strengthened from a combined reading of sub-sections (1) and (2) of section 5 of the Act itself, which is extracted hereunder:- "5.(1) It shall be lawful for the State Government at any time to cancel, by publication of an order to that effect in the Official Gazette, the notification made under sub-section (1) of section 3 in respect of the whole or any part of the area specified therein, (2) Where a notification has been cancelled in respect of any area under sub-section (1), such area shall cease to be under consolidation operation with effect from the date of the cancellation." Sub-section (2) of section 5, extracted above, clearly indicates that on issuance of a notification under sub-section (1) cancelling a notification under section 3(1), the area shall be ceased to be under consolidation operation. In view of the object of the Act which is to provide for consolidation of holdings and prevention of fragmentation of land for development of agriculture in the State, it would be wholly unjust to hold that the State Government can cancel a notification in exercise of powers under section 5(1) even where, long-drawn procedure and process has been followed and the rights of the parties have been crystalised by final publication of map and record-of-rights and parties have possessed their respective Chakas of land and have even exercised their right over the land by selling portion thereof. Such a construction would permit an arbitrary power to the State Government and permitting such cancellation would amount to gross abuse of power as well as colossal loss to the public exchequer. Though there is no guideline in section 5(1) as to the reasons for cancellation, yet the reasons must be lawful and cannot be whimsical or fanciful. Similarly, though the plain, ordinary meaning of the expression "at any time" used in section 5(1) does not put any embargo on the power of the State Government as to when that power can be exercised, yet, the said provision has to be construed by taking recourse to the several provisions contained in the Act as well as sub-section (2) of section 5 itself. A literal construction of the expression "at any time" would lead to absurdity and would frustrate the entire object of the Act and make the statute meaningless and ineffective. It is a well-settled principle of construction that in construing the provisions of a statute. Courts should be slow to adopt a construction which tends to make any part of the statute meaningless or ineffective and an attempt must always be made so as to reconcile the relevant provisions as to advance the remedy intended by the statute. If the expression "at any time" used in section 5(1) is construed to mean as if there is no limitation on the power of the State Government and the State Government can exercise the power even after final publication of the map and the record-of-rights under section 22, then it would make nugatory the whole purpose and object of the Act and also the rights of the parties finalised under section 22 of the Act. Such a construction would create havoc and would be repugnant to the very object of the statute. Such a construction would create havoc and would be repugnant to the very object of the statute. In that view of the matter, we would hold that the power of cancellation by the State Government under section 5(1) of the Act can be exercised at any time before finalisation of the rights of the parties under section 22. In other words, such a notification of cancellation under section 5(1) can be lawfully issued by the State Government before publication of final map and record-of-rights under section 22(1) of the Act. In this view of the matter, the impugned notification issued by the State Government under section 5(1) of the Act much after the publication of final map and record-of-rights under section 22(1) and distribution of Chakas to the parties concerned, must be held to be without jurisdiction and cannot be sustained. Accordingly the said notification of the State Government as also Annexures-2 and 3 are hereby quashed and the writ application is accordingly allowed, but in the circumstances, without any order as to costs." 5. He also relied upon the decision of this Court in the case of Trailokya Nath Nayak and Others -v- State of Orissa and Others, 2015 1 OrissaLR 370, wherein it has been held at paragraph-5 as follows: "5. A division Bench of this Court in the case of Govinda Chandra Tripathy and others v. The State of Orissa and others;, 1989 1 OrissaLR 367 have already held that the power of cancellation concerned on the State Government under Section 5(1) of the Consolidation Act can be exercised only before the publication of final map and record of rights under Section 22 of the Act and not after that. Neither the State Counsel nor the counsel for the intervenors dispute that final record of rights and map for the disputed village have already been published under Section 22 of the Act much prior to the impugned notification. Therefore, in view of the law laid down by the division Bench of this Court as referred to above, the impugned notification under Annexure-1 is quashed." 6. He further relied upon the decision of this Court in the case of Pradeep Kumar Behera and others-v-Commissioner of Land Records & Settlement, Orissa & others,2015 1 CLR 816 in which this Court at paragraphs-24 and 25 held as follows: "24. He further relied upon the decision of this Court in the case of Pradeep Kumar Behera and others-v-Commissioner of Land Records & Settlement, Orissa & others,2015 1 CLR 816 in which this Court at paragraphs-24 and 25 held as follows: "24. The publication of cancellation order under Section 5(1) must be held to have the effect of obliterating and setting at naught all decisions of the consolidation authorities with regard to right, title and interest in land for the reason that for want of notification under Section 3(1) of the Act, the authorities under the Consolidation Act cannot continue to exercise the power and jurisdiction under the Act within the consolidation area. Section 3(1) notification is the starting point that entitles the authorities under the Act to exercise the power and jurisdiction in respect of the area brought under consolidation. Once the Section 3(1) notification is cancelled, the authorities under the Act become disentitled to exercise their power in respect of the de-notified area. 25. The matter can be looked into from another angle. As has been seen earlier, upon issuance of notification under Section 3(1) of the Consolidation Act, the authorities under the Act become entitled to exercise power to decide the question of right, title and interest in land within the area covered under the said notification and if any suit relating to right, title and interest in respect of any such land is pending before the civil court on the date of such notification, on order being passed to that effect, such suits abate and thereafter the question of right, title and interest in respect of the land in question is to be decided by the authorities under the Consolidation Act. We have seen earlier that as per clause (b) of the second proviso to sub-section (4) of Section 4 of the Act, on the issue of cancellation notification under Section 5(1) of the Act the suit which got abated because of notification issued under Section 3(1) of the Consolidation Act, shall be proceeded and disposed of by the civil court, as if it had never abated. In case we hold that by publication of R.O.R. under Section 13(1) of the Act prior to publication of Order under Section 5(1) has the effect of attaching finality to decisions on questions relating to right, title and interest in land covered under the R.O.R., the law enacted in the second proviso to Section 4(4) of the Act would create an anomalous and incongruous position, meaning thereby, that the consolidation authorities will continue to have power and jurisdiction to hear appeal or revision under Sections, 12, 36 and 37 of the Act and at the same time, the civil court will also continue to proceed with the suit, which had earlier abated but revived due to publication of cancellation order under Section 5(1) of the Act and decide the question of right, title and interest in respect of the very same land, resulting in conflicting decision by two forums. It can never be assumed that legislature intended to create such anomalous situation, which would have the effect of leading to inconsistent decisions being passed by two forums in respect of the same subject matter. It is a salutary principle of interpretation of statute that the provision of an Act should be read harmoniously so as to avoid anomaly and conflict. Hence, in view of the provisions of the Consolidation Act and OSS Act as discussed above, it must be held that the Consolidation Commissioner or Director of Consolidation has no authority to examine in exercise of revisional power under Section 37 of the Consolidation Act, the correctness of R.O.R. published under Section 13(1) of the Act and preceded by publication of cancellation order under Section 5(1) of the Act. In view of the deeming provision of Section 13(4) of the Consolidation Act an R.O.R. published under Section 13(1) before publication of cancellation notification under Section 5(1) shall have all the consequences attached to the R.O.R. as if it is one published under the OSS Act and, therefore, correctness thereof can be examined by the Settlement Commissioner under Section 15(b) of the said Act. By exercising power under Section 15 of the OSS Act, the Settlement Commissioner does not decide right and title in the land." 7. Distinguishing the case law in Pradeep Kumar Behera (supra) Mr. By exercising power under Section 15 of the OSS Act, the Settlement Commissioner does not decide right and title in the land." 7. Distinguishing the case law in Pradeep Kumar Behera (supra) Mr. Dash contended that since the R.O.R in the instant case had already been published by the time notification under Section 5(1) of the Act was issued, a revision under Section 36 of the Act is maintainable and the impugned order is thus not sustainable in the eyes of law. He, therefore, prays for setting aside the impugned order under Annexure-3 and to remit the matter back to the Commissioner, Consolidation & Settlement, Bhubaneswar for fresh adjudication in accordance with law. 8. Mr. Mishra, learned Additional Government Advocate for the State, on instruction, submits that R.O.R. under Section 22(1) of the Act was never published in village- Nachuni. After preparation of R.O.R. under Section 13(1) of the Act, notification under Section 5(1) of the Act was made in the village on 31.03.1998 and accordingly, R.O.Rs. so prepared are deemed to have been published and distributed in the village on 23.04.1998. Thus, in view of Section 13(4) of the Act, the R.O.Rs. are deemed to have been published under Section 12-B of the Orissa Survey and Settlement Act, 1958. Thus, the observation of the Commissioner, Consolidation & Settlement, Bhubaneswar to the effect that the village was published under Section 22(2) of the Act is an error of record and not correct. As such, the conclusion of the Commissioner, Consolidation & Settlement, Bhubaneswar to the effect that the revision under Section 36 of the Act is not maintainable, is correct and warrants no interference. 9. Heard learned counsel for the parties and perused the materials available on record. 10. The Commissioner in the impugned order under Annexure-3 has held that the village has been finally published under Section 22(2) of the Act as required under Section 13(4) of the said Act on 23.04.1998. The same appears to be confusing. It appears that the Commissioner intended to say that the village was finally published in terms of Section 13(1) of the Act on 23.04.1998. There is also no material on record to come to a conclusion that the village was, in fact, published under Section 22 of the Act. The same appears to be confusing. It appears that the Commissioner intended to say that the village was finally published in terms of Section 13(1) of the Act on 23.04.1998. There is also no material on record to come to a conclusion that the village was, in fact, published under Section 22 of the Act. In that view of the matter, the ratio decided in the case of Trailokya Nath Nayak (supra) as well as Govinda Chandra Tripathy and others (supra) are not applicable to the case at hand. 11. In view of the ratio decided in the case of Pradeep Kumar Behera and others (supra), it can be said that after publication of the village under Section 5(1) of the Act, the consolidation operation is set at naught and the Consolidation Authorities have no jurisdiction to thereafter proceed with the matter. 11.1 After issuance of notification under Section 5(1) of the Act, the map and R.O.R. prepared under Section 13(1) of the Act shall for all intents and purposes be deemed to have been published under Section 12-B of the Orissa Survey & Settlement Act, 1958. In view of the ratio decided in the case of Pradeep Kumar Behera and others (supra), any order passed by the Consolidation Authorities, which culminates in preparation of the R.O.R under Section 13(1) of the Act, is not open to be challenged under the provisions of the Act. The only remedy available is to assail the said R.O.R. by way of filing a suit or an application under Section 15(b) of the Orissa Survey & Settlement Act, 1958. As such, I find no infirmity in the impugned order under Annexure-3. Accordingly, this writ petition being devoid of any merit stands dismissed. 12. It is open to the petitioner to work out her remedy available under law. 13. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No.4587 dated 25th March, 2020 as modified by Court's Notice No.4798 dated 15th April, 2021.