Orissa High Court
Case Details
AFR ORISSA HIGH COURT : C U T T A C K W.P.(C) NO.22870 OF 2010 An application under Articles 226 & 227 of the Constitution of India. Jagabandhu Rout : Petitioner -Versus- The Commissioner Consolidation,Cuttack & Ors. : Opposite Parties For Petitioner : M/s. N.K.Sahoo, Adv. For O.Ps.
Legal Reasoning
: Mr.U.K.Sahoo,ASC Mr.P.K.Routray,Adv. Mr.B.G.Mishra,Adv. Mr.A.Routray,Adv. J U D G M E N T CORAM : JUSTICE BISWANATH RATH Date of Hearing & Judgment : 03.01.2023 1. Factual matrix discloses there is no dispute that in the first round of litigation a proceeding under Section 9(3) of the O.C.H. & P.F.L. Act being disposed of, Petitioner being affected by such order carried straightway a 37(1) of the Act proceeding which is dismissed. Petitioner preferred regular Appeal under Section 12 of the Act against the 9(3) order, Appeal being dismissed on the Page 1 of 5 // 2 // ground of delay, a revision is also preferred and the revision has also been dismissed. 2. Mr.Sahoo, learned counsel for the Petitioner assailing the impugned orders on the sole premises of non-compliance of the provision at Section 10 of the O.C.H. & P.F.L. Act, taking this Court to the impugned order reading together with the provision at Section 10 including the proviso therein made an attempt to satisfy the Court that unless the original authority sets a party ex-parte, it had no right to proceed with the conciliation process involving the parties before him. In the premises of above serious lapse, Mr.Sahoo, learned counsel claims the original order suffers and as a consequence the Appeal as well as the revision order also suffer. 3. Learned counsel appearing for Opposite Party Nos.5 & 6 objecting the claim of the Mr.Sahoo, even though did not dispute the factual background taken note hereinabove however submits the Petitioner appeared pursuant to notice but did not participate in the conciliation proceeding and claims the allegation that Petitioner did not appear becomes false and contrary to the materials available on record. 4. Learned State Counsel supports the submission of learned counsel for the Opposite Party Nos. 5 & 6 and submits there has been definite compliance of provision of Section 10 of the Act and for concurrent finding of the fact involving three courts, there is no scope for entertaining such Writ Petition. 5. At this submission of learned counsel for Opposite Party Nos. 5 & 6, Mr.Sahoo, learned counsel for the Petitioner submitted even though such party has been noticed unfortunately there is no Page 2 of 5 // 3 // appearance at all by such party and the matter is decided in non- compliance of requirements vide Section 10 of the Act. 6. Considering the submission of respective counsel, this Court finds the moot question required to be decided herein is if in disposal of the proceeding of Section 9(3) of the Act there has been compliance of provision at Section 10 by the original authority or not ? This Court here finds the provision at Section 10 of the Act reads as follows:- “10. Disposal of objection by the Assistant Consolidation Officer- (1) Such objections relating to right, title and interest in land as can, in conformity with the laws in force, be disposed of by conciliating among the parties concerned, shall be disposed of by the Assistant Consolidation Officer: Provided that where any party does not appear before the Assistant Consolidation Officer on the date fixed after due service of notice in that behalf, he shall set him ex parte and proceed with the conciliation among the parties appearing before him and orders passed on such conciliation shall, subject to the orders in an appeal or revision, if any, be binding on the parties who are set ex parte. (2) All objections which cannot be disposed of by conciliation under Sub-section (1) and all other objections including those relating to valuation or the Statement of Principles or the rent or cess settled under this Act shall be the Assistant Consolidation Officer to the Consolidation Officer for disposal.” forwarded by Reading the aforesaid provision this Court finds, the original authority firstly is required to issue notice. On service of notice to the party likely to be affected and after the notice is sufficient, it has to dispose of the application by way of conciliation amongst the parties concerned. For the proviso therein, there has been power with the original authority, in the event there is failure in attending Page 3 of 5 // 4 // the proceeding and a party fails to appear on the date fixed even in spite of there is due service of notice, it has to set such party ex- parte and proceed with conciliation amongst the parties appearing before it. There is no dispute at bar that the Petitioner did not appear in spite of notice and there is conciliation involving the parties present 7. Keeping in view the legal provision, this Court now proceeds to find from the factual aspects indicated hereinabove that the Petitioner herein was noticed, he was aware of the date fixed for conciliation. It is also admitted that such party did not appear to attend the conciliation on the date fixed. In the circumstance even though there is no declaration declaring the present Petitioner ex- parte but for the conduct of the Petitioner not appearing in the conciliation proceeding on the date fixed, in spite of notice there is presumption in making such party ex-parte. Further since the proceeding under Section 9(3) has been decided entering into conciliation amongst the parties appearing before the authority, there is no avoiding of the provision of Section 10 of the Act. 8. In the circumstance this Court finds, there is no substance in the submission of Mr.Sahoo, learned counsel for the Petitioner on the aspect of non-compliance of the provision of Section 10 of the Act. Besides the findings of the original authority also being confirmed by the Appellate Court as well as Revisional Court, as a consequence, this Court does not find any infirmity in the impugned order at Annexures-6, 9 & 10. Page 4 of 5 // 5 // 9.
Decision
The Writ Petition thus stands dismissed for having no merit. No costs. (Biswanath Rath) Judge Orissa High Court, Cuttack. The 3rd January, 2023 /Swarna, Junior Stenographer Page 5 of 5