High Court
Case Details
W.P.(C)NO.31773 OF 2011 16. 10.10.2013 In this writ petition the legality of the order dated 28.11.2011 passed by the learned Collector, Balasore (O.P.No.1) in Consolidation Case No.8/07 vide Annexure-10 is under challenge. 2. Facts which are not in dispute are that one Sridhar Sahoo was the recorded owner of Plot No.92 under Consolidation Khata No.291 of Mouza Sanamaitapur with an area of Ac.1.16. On 7.12.1990 he executed two registered sale deeds in favour of O.P.Nos.3 and 4. Under R.S.D. No.4172/7.12.90 eight decimals and under R.S.D. No.4173/7.12.90, 40 decimals of land out of the said plot stood alienated. Later, in the year 2002 O.P.No.4 alone executed registered sale deed No.1283/
Legal Reasoning
1.10.2002 in favour of Narana Sahoo, son of said Sridhar Sahoo, alienating half of the land which was sold by Sridhar Sahoo under the two registered sale deeds dated 7.12.1990. Though all these sale transactions created fragmentation, the provisions contained in Section 34 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short, the Consolidation Act) was not complied with. It is also not in dispute that O.P.No.3, having obtained permission from the Tahasildar, Simulia (O.P.No.5) under Section 34 (3) of the Consolidation Act vide order dated 12.10.2007, has sold the other half of the land sold under the two registered sale deeds dated 7.12.1990 to the present petitioner no.1 under registered sale deed dated 16.10.2007 vide Annexure-4. 2 It is also not in dispute that O.P.No.2, who is a son of said Narana Sahoo (and grandson of said Sridhar Sahoo), filed one Consolidation Case bearing No.8/07 for a declaration that the afore-stated deeds dated 7.12.1990 along with the sale deed dated 16.10.2007 being in contravention of Section 34 of the Consolidation Act are
Decision
void. In the said case the writ petitioners filed objection contending, inter alia, that the sale deed dated 16.10.2007 is not void inasmuch as prior permission under Section 34 (3) of the Consolidation Act was obtained by the petitioner’s vendor. In that Consolidation Case the impugned order dated 28.11.2011 has been passed by the Collector, Balasore allowing the petition and declaring the sale transactions as void. 3. Case of the petitioner, M/s. Sutar Chemical Private Limited, represented by Abhaya Sutar and Anam Sutar, is that the petitioner has got its own land measuring Ac.2.39 adjoining to the land it has purchased under Annexure-4. It is further pleaded that after the said purchase, the petitioners got the R.O.R. of the purchased land mutated in its name and their prayer for conversion of the purchased land having been allowed and fresh R.O.R. issued, recording the land under kisam ‘Karakhana’, the petitioners have developed the land and made constructions thereon for the purpose of its business. The petitioners challenge the impugned order on the following grounds: (1) Though the land was purchased in the name of a Company, in the consolidation case the Company 3 was not made a party. (2) The consolidation case, which was filed 17 years after the execution of the sale deeds dated 7.12.1990, is barred by limitation. (3) Petitioner no.1 purchased the land only after its vendor had obtained permission under Annexure-3. (4) Petitioner no.1 is owner of a ‘Chaka’ which is contiguous to the ‘Chaka’ from which it has purchased the land. 4. Counter has been filed on behalf of O.P.No.1, the Collector, Balasore, contending, inter alia, that the sale transaction under the registered sale deeds dated 7.12.1990 being void, the subsequent sale in respect of a part of the land sold under the void deeds is ipos facto void and the Tahasildar’s permission under Annexure-3 without taking into consideration the previous void sale transactions must be treated as non est. Furthermore, the mutation in the name of petitioner no.1 being solely on the basis of a void sale transaction, so also the subsequent conversion of agricultural land for non- agricultural purpose, do not validate the void sale transaction and the petitioners cannot enjoy any benefit out of the void sale transaction vide R.S.D. dated 16.10.2007. 5. In his counter O.P.No.2 also takes the stand that the initial transaction being void the subsequent transfer 4 in favour of petitioner no.1 is void. That apart, it is also contended that petitioner no.1 is not the contiguous land owner vis-à-vis the land purchased by it under the sale deed dated 16.10.2007. 6. As to the petitioners’ contention that the private limited Company was not impleaded as a party to the Consolidation Case No.8/07 in which the impugned order has been passed, it is found from Annexure-8 to the writ petition that the Company, represented by Abhaya Sutar and Anam Sutar, was one of the O.Ps. in the Consolidation Case. Therefore, this contention is without any basis. 7. As to the contention that the Consolidation Case filed 17 years after execution of the sale deeds dated 7.12.1990 is barred by limitation, it is argued on behalf of O.P.No.2 that the application filed by O.P.No.2 which was registered as Consolidation Case No.8 of 2007 was merely an intimation to the learned Collector to take action under Section 35 (2) of the Consolidation Act and that there being no limitation against the Collector’s action under Section 35 (2) of the Consolidation Act, the impugned order passed by the learned Collector for eviction cannot be challenged on the ground of limitation. Section 35 of the Consolidation Act lays down that a transfer or partition in contravention of the provisions of Section 34 of the said Act is void and a person occupying or in possession of any land by virtue of a transfer or partition which is void under the provisions of the said Act may 5 summarily be evicted by the Collector. The Statute has not prescribed any time limit within which the Collector must take action under Section 35 (2) of the Act. In this case, when it was brought to the notice of the Collector that a piece of land was transferred in contravention of Section 34 of the Consolidation Act and, on being satisfied that the transfer was in contravention of the provisions of the Act, the Collector has passed the impugned order. Therefore, the impugned order cannot be assailed on the ground of limitation. 8. The contention that the petitioner no.1 is the owner of a Chaka which is contiguous to the Chaka from which it has purchased the land was not accepted by the learned Collector. In the impugned order the learned Collector has held that Chaka No.9 is not contiguous to Chaka No.48. But, according to the present petitioners the land constituting Chaka No.47, recorded in the name of Sutar Chemical Private Limited (Annexure-5), is contiguous to Chaka No.48 of which the transferred land forms a part. O.P.No.2 has annexed a Xerox copy of Consolidation map (Annexure-A/2) which reflects that Chaka Nos.47 and 48 are contiguous to each other. Despite of this, it cannot be said that the land transferred to the petitioner-Company is contiguous to the land constituting Chaka No.47. Because, there are no materials showing that the 48 decimals of land purchased by O.P.Nos.3 and 4 under the two sale deeds dated 7.12.1990 was partitioned between them and in the said 6 partition a specific portion of their purchased land was allotted to the share of petitioner no.1’s vendor and that specific portion is contiguous to the petitioner no.1’s land under Chaka No.47 so as to get amalgamated with Chaka No.47 to constitute one patch of land. O.P.Nos.3 and 4 jointly purchased 48 decimals of land from Sridhar Sahoo under two registered sale deeds. Subsequently, O.P.No.4 alone executed a sale deed alienating half of the land jointly purchased by O.P.Nos.3 and 4. In the absence of any materials it cannot be said that the piece of land which is sold by O.P.No.3 to the petitioner-Company with the boundary description made in the sale deed dated 16.10.2007 was the land which was available to O.P.No.3. Consequently, it is not possible on the part of anyone to arrive at a conclusion that O.P.No.3 was entitled to alienate a specific portion of the land out of the 48 decimals of land jointly purchased by O.P.Nos.3 and 4. Copy of the order passed by the Tahasildar, Simulia according permission to O.P.No.3 under Section 34 (3) of the Consolidation Act vide Annexure-3 reflects that under a notion that the entire 48 decimals of land was sold by Sridhar Sahoo to only Debabrata Patra-O.P.No.3, the learned Tahasildar has arrived at a conclusion that the land proposed to be sold by O.P.No.3 is contiguous to Chaka No.47. Under such circumstances, one cannot arrive at a definite conclusion that the proposed transfer was intended to be made in favour of a land owner of a contiguous Chaka. 7 9. Even assuming that the land alienated by O.P.No.3 is contiguous to the Chaka owned by the petitioner-Company, let it be examined as to whether the sale transaction under the registered sale deed dated 16.10.2007 is valid. There is no dispute that the alienations made in favour of O.P.Nos.3 and 4 under the two registered sale deeds dated 7.12.1990 being in contravention of the provisions of Section 34 (1) of the Consolidation Act is void. Under such void transactions neither O.P.No.3 nor O.P.No.4 acquired any title. Therefore, O.P.No.3 could not have made any application under Section 34 (3) of the Consolidation Act seeking permission from the Tahasildar. The Tahasildar, while granting permission under Section 34 (3) of the Consolidation Act, had not taken into consideration the fact that the sale transaction in favour of O.P.Nos.3 and 4 was void. Therefore, the learned Collector has rightly held that the initial transaction being void, the subsequent transfer in favour of the petitioner-Company is void. 10. In view of the analysis made above, the impugned order cannot be said to be illegal and it is not liable to be quashed on the grounds raised by the writ petitioner. Accordingly, the writ petition is dismissed. …………………… R. Dash,J. 8