Orissa High Court
Case Details
ORISSA HIGH COURT : C U T T A C K W.P.(C) NO.7529 OF 2023 An application under Articles 226 & 227 of the Constitution of India. Surendra Nayak : Petitioner -Versus- State of Odisha & ors. : Opposite Parties For Petitioner
Legal Reasoning
Act further read together with the decision of this Court in the case of Girija Mohanty Versus Revenue Divisional Commissioner, (Central Division), Cuttack and others reported in 2009 (I) OLR- 198. Reading through para-8 Mr.Mishra, learned counsel for the Petitioner advances his contention taking support of the judgment taken note hereinabove. 5. Learned State Counsel attempted the object to the challenge to the impugned order on the premises that there is no difficulty in giving a direction to the Tahasildar, Balipatna in working out the dispute involved therein provided the proceeding is at the stage of Section 41 of the O.C.H. & P.F.L. Act. Mr.Mishra, learned counsel for the Petitioner makes a clear statement that the proceeding has already crossed Section 41 stage. This Court here takes into account the provisions at Section 37(1) of the O.C.H. & P.F.L. Act which reads as follows:- “37.Power to call for records- (1) The Consolidation Commissioner may call for and examine the records of any case decided or proceedings taken up by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings or as to the correctness, legality or propriety of any order passed by such authority in the case or proceedings and may, after allowing the parties concerned a reasonable opportunity of being heard make such order as he thinks fit.” Page 3 of 6 // 4 // Reading the provision, this Court finds, the Commissioner has to exercise his power in the requirement therein but considering that the 41 stage of the O.C.H. & P.F.L. Act already over and the dispute pointed out by the Commissioner, in the event is required for adjudication. For the opinion of this Court there may not be any difficulty in remanding the proceeding but the remand of the proceeding should have been made to the Consolidation Officer meaning thereby adjudicating the dispute in commencing the proceeding initial stage at Section 9(3) of the O.C.H. & P.F.L. Act. This Court herein also takes into account the decision taken support by Mr.Mishra, learned counsel for the Petitioner. This Court from paras-8 & 9 finds the decision of the Single Bench reads as follows:- in that such orders passed Rule 36 of the Rules framed under the Act “8. the pending prescribes proceedings under Section 41(2) of the Act shall be given effect to by the local Tahasildar. Through Section 44 of the Act vests the power with the Tahasildar as well as with other authorities under the Act, which are vested in a Civil Court relating to summoning, enforcing of attendance of witnesses, examining them on oath, affirmation or otherwise, issuing commission, compelling production of documents and admitting evidence by affidavit, but the said Section does not specifically confer the power of adjudication on the Tahasildar which is vested with the authorities under the Act, such as, Assistant Consolidation Officer, Consolidation Officer, Director of Consolidation and Commissioner, Consolidation. No inference from the said Section 44 can, therefore, be drawn that the Tahasildar has the jurisdiction to adjudicate a dispute between the parties after issuance of notification under Section 41(1) of the Act. Since it is clear from Section 41(2) of the Act that the pending proceedings on the date of issuance of the Page 4 of 6 // 5 // the Act cease the authorities under notification under Section 41 (1) shall continue and, there is nothing in Section 41 or any other provisions in the Act, which stipulates that after closure of the consolidation operation by issuance of the notification under Section 41(1), to have jurisdiction to decide a case, the only conclusion which can be drawn is that, in the event, a pending case, as in Sub- section (2) of Section 41, is remanded, the same can only be remanded to a subordinate authority under the Act and not to the local Tahasildar, who only possess the power to give effect to an order passed in a pending proceeding under Section 41 (2) and has no power to adjudicate the same. In other words, only in a case, which is pending on the date of issuance of notification under Section 41(1) of the Act, where a positive direction to correct the land record or map, finally published, is passed, such order can be given effect to, by the local Tahasildar under Rule 36 of the Rules. This Court is, therefore, of the view that the R.D.C. was in error in remitting the case to the Tahasildar instead of the Consolidation Officer, Udala, as the same is a whole remand requiring a fresh adjudication of the lis. In view of the above, the impugned order dated 9. 8.9.2006 passed in R.C. No.29 of 2006 by the R.D.C. (Central Division) Cuttack is modified to the extent that the matter shall be remitted back to the Consolidation Officer, Udala to carry out the directions given in the remand order instead of the Tahasildar, Udala. Since the matter is pending for a long period, it is directed that the Consolidation Officer, Udala-opp. party No.2 shall take all effective steps to finally dispose of the case within a period of six months from the date of communication of this order, to the said opposite party No.2.” 6. Above decision has clear support to the case of the Petitioner and nullifying the impugned order. In the circumstance this Court interferes in the impugned order dated 30.07.2021 in R.C. Case No.28 of 2020 and setting aside only the direction part involving direction to the Tahasildar, Balipatna to adjudicate in the manner prescribed therein and replace the same with a direction to the Consolidation Officer, Balipatna to conduct the field inquiry verify all the documents and take a lawful decision providing opportunity Page 5 of 6 // 6 // to the Petitioner as well as private Opposite Party involved therein treating it to be a proceeding under Section 9(3) of the Act. This Court also directs the Petitioner to appear before the Consolidation Officer and/or the Competent Authority on 29.03.2023 also with service of copy on the private Opposite Party therein for enabling him to contest the matter. 7. This Court here observes, for the gross illegality and order contrary to the provision of law challenged herein through the impugned order, decided the matter without notice to the private Opposite Party and observes, for the private Opposite Party to get the scope of contest in the adjudication process, there is no prejudice to the private Opposite Party in passing the above order. 8. With this observation, the Writ Petition succeeds to the above extent and with limited interference in the impugned order at Annexyre-2. But there is no order as to cost. (Biswanath Rath) Judge Orissa High Court, Cuttack. The 17th March, 2023/Swarna, Junior Stenographer Page 6 of 6
Arguments
: Mr.S.Mishra,Adv. For Opposite Parties : Mr.S.Ghosh, AGA J U D G M E N T CORAM : JUSTICE BISWANATH RATH Date of Hearing & Judgment : 17.03.2023 1. On consent of Parties, the matter is taken up for final hearing but at the stage of fresh admission itself. 2. This Writ Petition involves the following prayer:- “It is therefore prayed that your Lordships may graciously be pleased to admit the writ petition, issue rule NISI, calling upon the Opposite Parties to show cause as to why: (a) the Order dated 30.07.2021 passed by the learned Commissioner, Consolidation & Settlement, Odisha, Bhubaneswar in R.C. Case No.28 of 2020 vide Annexure-2 shall not be set aside/quashed; (b) Tahasildar, Balipatna the in M.C. No.1747 of 2021 vide the order dated 16.04.2022 passed by Page 1 of 6 // 2 // Annexure-3 arising out of R.C. Case No.28 of 2020 shall not be set aside/quashed. And in the event the opposite parties fail to show cause or show insufficient case, the said rule be made absolute and; a) the Order dated 30.07.2021 passed by the learned Commissioner, Consolidation & Settlement, Odisha, Bhubaneswar in R.C. Case No.28 of 2020 vide Annexure-2 shall not be set aside/quashed; b) the Tahasildar, Balipatna in M.C. No.1747 of 2021 vide Annexure-3 arising out of R.C. Case No.28 of 2020 shall not be set aside/quashed; the order dated 16.04.2022 passed by And may pass any other writ(s), order(s), direction(s), relief(s) as deemed fit and proper; And for this act of kindness, the petitioner shall in duty bound ever pray.” 3. Taking this Court to the pleadings reading together with the nature of the proceeding through the impugned order vide Annexure-2, Mr.Mishra, learned counsel for the Petitioner contends, while the proceeding under Section 37(1) of the O.C.H. & P.F.L. Act was initiated, it is either for the Revisional Authority to consider the matter with aid of the Competent Authority in the matter of any investigation and inquiry involved or in the case of the Commissioner requires for re-adjudication of the dispute involved therein, the matter has to go back to Section 9(3) stage. 4. Taking this Court to the direction in the impugned order at running page-27 of the brief in the order dated 30.07.2021, it appears, the Commissioner while disposing of the proceeding under Section 37(1) of the Act has remitted the matter to the Tahasildar, Balipatna to conclude the proceeding in the manner Page 2 of 6 // 3 // prescribed therein. Taking to the provision at Section 37(1) of the