The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 275 OF 2018 Pustam Sahu Petitioner Mr. Anurag Pati, Advocate -versus- State of Odisha and others …. Opp. Parties Mr. Swayambhu Mishra, Additional Standing Counsel (For Opp. Party Nos.1 to 5) Mr. Ramchandra Rath, Advocate (For Opp. Party Nos.6 to 10) CORAM: JUSTICE K.R. MOHAPATRA Order No. ORDER 26.04.2022 7. 1. This matter is taken up through hybrid mode. 2. The Petitioner in this writ petition seeks to assail the order dated 22nd November, 2017 (Annexure-5) passed in O.L.R. Revision Case No.01 of 2016, whereby the Additional District Magistrate, Bargarh holding that the Revenue Officer is not empowered to pass order determining the share in the land in question under Section 19(1)(c) of the Odisha Land Reforms Act, 1960 (for short ‘the Act’), allowed the revision filed by Opposite Party Nos.6 to 10. 3. Short narration of facts necessary for adjudication of the case is that an application under Section 19(1)(c) of the Act was filed by the father of Opposite Party Nos. 6 to 8 along with Opposite Party Nos. 9 and 10 for partition of the property in Chaka No.423 under Chaka Khata No.37 and Chaka No.423/487 under Chaka Khata No.213 to a total extent of Ac.18.28 decimals in Mouza Dang (for short ‘the case land’), which was registered as Mutation Case No. 13 Page 1 of 5 // 2 // of 2005. The Tahasildar, Bargarh vide his letter dated 6th October, 2005 determined the share of parties and allotted the share in their favour. Being aggrieved, the present Petitioner filed O.L.R. Appeal No.2 of 2014 before the Sub-Collector, Bargarh under Section 58 of the Act, who by his order dated 17th October, 2015 allowed the appeal and remitted the matter back to the Tahasildar, Bargarh with a direction to enquire and ascertain the share of the Petitioner, if any, from the joint family property in Chaka Khata No.37 of Mouza-Dang. Being aggrieved, the Opposite Party Nos. 6 to 10 filed O.L.R. Revision Case No.1 of 2016 under Section 59 of the Act and the impugned order under Annexure-5 has been passed. 4.
Legal Reasoning
In view of the position of law and the facts and circumstances of the case, stated above, I am not inclined to entertain the writ petition, which is accordingly dismissed being devoid of any merit.
Arguments
Mr. Pati, learned counsel for the Petitioner submits that the Sub-Collector, Bargarh has committed no error in remitting the matter back to the Tahasildar, Bargarh to determine the share of the Petitioner from the joint family property in Chaka Khata No.37 of mouza Dang. The revisional authority by misreading the provision under Section 19(1)(c) of the Act allowed the revision for which this writ petition has been filed. 5. Mr. Rath, learned counsel for the contesting Opposite Party Nos. 6 to 10 refuting such submission contends that the Tahasildar, Bargarh while entertaining the application under Section 19(1)(c) of the Act cannot decide the matter on merit by determining share of the parties. He can only allot the share between the parties on mutual agreement/consent. Thus, the revisional authority has committed no error in allowing the revision. He also draws attention of this Court to Rule-19 (7) and (8) of the Odisha Land Reforms (General) Rules, 1965 (for short ‘the Rules’), which reads as follows: Page 2 of 5 // 3 // “19.Manner in which a partition can be ordered by a Revenue Officer under Clause (c) of Sub-section (1) of Section 19- xxx xxx xxx (7) The application can be allowed only when all the co-sharer raiyats give their consent to the partition applied for. (8) If there is any difference of opinion among the co- sharer raiyats, the application for partition shall be rejected. xxx xxx xxx” 6. It is his submission that a petition under Section 19(1)(c) of the Act can be allowed only when all the co-sharer raiyats give their consent to the partition applied for and if there is any difference of opinion among the co-sharer raiyats, the application for partition shall be rejected. Thus, the Tahasildar-cum-Revenue Officer, Bargarh has no jurisdiction to determine the share of the co-sharer raiyats in an application under Section 19(1)(c) of the Act. It is his submission that a civil suit in C.S. No.72 of 2018 is pending before learned Senior Civil Judge, Bargarh for partition in which the Petitioner has been arrayed as Defendant No.1. In that view of the matter, this writ petition merits no consideration and is liable to be dismissed. 7. Section 19 of the Act provides for partition among co-sharer raiyats. Section 19 (1) of the Act reads as under: “19. Partition among co-sharer raiyats how to be effected – (1) No partition of a holding among co-sharer raiyats shall be valid unless, made by – (a) a registered instrument; or Page 3 of 5 // 4 // (b) a decree of a Court or ; or (c) an order of the Revenue Officer in the manner prescribed, on mutual agreement. xxx xxx xxx” 8. Section 19(1) of the Act provides different modes to effect partition between co-sharer raiyats. An application for effecting partition can be made under Clause (c) of Section 19(1) of the Act. The procedure to deal with application under Section 19(1)(c) of the Act has been provided under the corresponding Rule 19 of the Rules. Sub-rules (7) and (8) of Rule-19 of the Rules is relevant for discussion in the instant case. Along with other requirements of Rule- 19 of the Rules, the Revenue Officer must take into consideration the requirement of sub-rules (7) and (8) while entertaining an application under Section 19(1)(c) of the Act. Close reading of the aforesaid provisions makes it abundantly clear that the Revenue Officer does not have any jurisdiction to entertain an application under Clause (c) of Section 19(1) of the Act, unless the co-sharer raiyats give their consent to the partition applied for. 9. In the instant case, grievance of the Petitioner is with regard to allotment of share made by the Revenue Officer in the application under Section 19(1)(c) of the Act, which was not done on consent of the parties. The Sub-Collector, Bargarh, without considering the effect of law, as aforesaid, remitted the matter back to the Revenue Officer to determine the share of the co-sharer raiyats in the properties situated in mouza Dang. The Additional District Magistrate, Bargarh, while exercising power under Section 59(1) of the Act, however, got it corrected and set it right holding that the Revenue Officer, Bargarh has no power to ascertain/determine the Page 4 of 5 // 5 // share of the co-sharer raiyats unless they amicably consent to such partition. It further appears that Civil Suit No.72 of 2018 for partition of the property in question is pending before learned Senior Civil Judge, Bargarh in which the present Petitioner has been arrayed as Defendant No.1. 10.
Decision
But, in the circumstances, there shall be no order as to costs. Urgent certified copy of this order be granted on proper application. (K.R. Mohapatra) Judge ms Page 5 of 5