The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.6359 of 2018 (An application under Article 226 and 227 of the Constitution of India.) Kalandi Nayak …. Petitioner -versus- Ramakanta Nayak and Others …. Opposite Parties Advocate(s) appeared in this case:- For Petitioner
Legal Reasoning
: Mr. S.C. Acharya, Advocate For Opp. Parties : Mr. Maheswar Mohanty, Advocate CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 30th July, 2024 B.P. Routray, J. 1. Heard Mr. S.C. Acharya, learned counsel for the Petitioner and Mr. M. Mohanty, learned counsel for Opposite Parties 1, 2, 4, 5 & 7. 2. Present writ petition is filed challenging the revisional order passed under Section 37(1) of the Odisha Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (in short OCH & WP(C) No.6359 of 2018 Page 1 of 6 PFL Act) dated 1st December, 2017 of the Additional Commissioner of Consolidation, Balasore in Consolidation Revision No.378 of 2014. 3. The writ Petitioner was the revision Petitioner also. He approached the authority under Section 37 of the OCH & PFL Act with a prayer for consideration of repartition of the case land. Said prayer of the Petitioner has been rejected by the Commissioner stating that the sharing over the case land between the parties has already been decided by order dated 25th August, 1995 of the Consolidation Officer in Remand Revision Case No.235 of 1991, based on the compromise petition filed therein, and hence the revision after 18 years is not entertained. The same is challenged in present writ petition. 4. So the crux of the dispute is that, whether there was a compromise arrived between the parties earlier before the Consolidation Officer in Remand Revision Case No.235 of 1991 finally deciding the rights of the parties over the case land ? 5. Admittedly, the Petitioner was a party in Remand Revision Case No.235 of 1991, wherein compromise petition dated 25th August, 1995 has been filed. The Consolidation Officer in Order dated 25th August, WP(C) No.6359 of 2018 Page 2 of 6
Decision
1995 has stated that the case is disposed of in terms of the compromise petition and accordingly decided claims of the parties and their respective position to prepare the RoR. Consequent upon such order of the Consolidation Officer dated 25th August, 1995, the RoRs were published including the RoR in the name of present Petitioner also. 6. It is seen that the parties have initiated the case under Section 9 of the OCH & PFL Act and filed their concession in terms of the compromise petition as per the provisions under Section 10 of the Act. The order of the Consolidation Officer dated 25th August, 1995 is based on the concession of the parties arrived in the compromise petition filed by them. A copy of the compromise petition has been filed along with the counter affidavit at Annexure-B/1, which reveals that present Petitioner is a signatory to the same. Further, a petition under Annexure-C/1 reveals the request of the Petitioner to dispose of the case in the terms of compromise issuing separate RoR in his name, and of course, the RoR in the name of the Petitioner has been published under Annexure-D/1. Law is no more res integra that when the matter is decided and disposed of on concession of the parties, or compromise, by the competent authority under the OCH & PFL Act, WP(C) No.6359 of 2018 Page 3 of 6 the same cannot be re-opened under Section 37 of the Act. Once the consolidation authority has disposed of the matter on the basis of mutual consent between the parties, the parties are restrained from questioning the same under Section 37 without any allegation of fraud. In Ajaya Kumar Rath v. Bijaya Kumar Rath, 2023 (1) OLR 346, this court has observed that once a proceeding under Section 9 of the OCH & PFL Act is culminated on the basis of mutual partition the same is not questionable unless there is allegation of fraud. 7. In the case at hand, the proceeding under Section 9 was finally decided on 25th August, 1995 and the RoR was issued thereafter basing on the compromise arrived between the parties. Undisputedly, the Petitioner was a party to the said proceeding and he did not challenge such order passed by the authority or publication of the RoR in favour of respective parties for long 18 years, till he approached the revisional authority under Section 37 of the Act. Admittedly, the Petitioner did not proceed further in the higher forum questioning order dated 25th August, 1995 of the Consolidation Officer. WP(C) No.6359 of 2018 Page 4 of 6 It is here submitted on behalf of the Petitioner that on 25th August, 1995 he was absent before the Consolidation Officer and therefore, was unaware of the order passed by the Consolidation Officer. 8. It is seen from the order of the Consolidation Officer under Annexure-5 that the absence of the Petitioner before the Consolidation Officer on 25th August, 1995 has been recorded by the Consolidation Officer. But the undisputed fact remains that the Petitioner is a signatory to the compromise petition dated 25th August, 1995, presented to the authority on the same day, which is never questioned or disputed by the Petitioner. Even after filing of the compromise petition along with the counter affidavit by the Opposite Parties, the Petitioner remained silent without choosing to reply the same by way of rejoinder affidavit. The Petitioner has never pleaded fraud or fraudulent activities by any of the parties in filing the compromise petition containing his own signature. It is never the case of the Petitioner that such a compromise has been effected by playing fraud upon him or by getting his false WP(C) No.6359 of 2018 Page 5 of 6 signature on the compromise petition. Moreover, around 18 years had already elapsed from the date of publication of the RoR till filing of the revision before the Consolidation Commissioner and till such period the Petitioner did not raise any objection and therefore he cannot deny his knowledge regarding the same. So, it is satisfied from the conduct of the Petitioner that such challenge advanced by him under Section 37 of the Act before the Commissioner is after thought and to disturb certain claims of the parties. 9. In view of the clear order of the Consolidation Officer dated 25th August, 1995 and the compromise petition, which formed part of the order, no case is made out in favour of the Petitioner to disturb such finding and thus no reason is seen to interfere with the impugned order. 10. The writ petition is dismissed. (B.P. Routray) Judge M.K. Panda/Sr. Steno Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 30-Jul-2024 17:50:59 WP(C) No.6359 of 2018 Page 6 of 6