The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK O.J.C. No.13450 OF 2000 Manguli Pradhan and others …. Petitioner(s) Mr.A.C.Swain,Adv. -versus- Director Consolidation Orissa, Cuttack and others ….
Legal Reasoning
Opposite Party(s) Mr.U.K.Sahoo,ASC Mr.S.Swain,Adv. CORAM: JUSTICE BISWANATH RATH Order No. 13. 1. 2.
Decision
ORDER 10.01.2023 I.A. No.01 of 2023 This I.A. has been filed for substitution of Petitioner No.1. Considering the submission made, prayer for substitution stands allowed and the legal heirs of the deceased Petitioner be impleaded as newly added Petitioners. The consolidated cause title of the Writ Petition filed in Court be kept on record. 3. I.A. stands disposed of. (Biswanath Rath) Judge Page 1 of 5 // 2 // ORDER 10.01.2023 O.J.C. No.13450 of 2000 Order No. 14. 1. It is brought to the notice of the Court that in the meantime Petitioner Nos. 3(b), 3(d) and 5 have all died. This Court finds, all the Petitioners were fighting the litigation all through unitedly. Therefore, there is substantial representation. Non-substitution of the parties indicated herein is required as serving Petitioners can very well pursue the continuance of the proceeding. 2. 3. Heard learned counsel for the Parties. This Writ Petition is taken up based on a remand order of the Division Court which in entertainment of the W.A. No.188 of 2018 was pleased to pass as followings:- the “1.The challenge in the present appeal is to order dated 19th March, 2018 passed by the learned Single Judge in OJC No.13450 of 2000. While allowing the writ petition impugned order dated 7th and setting aside November, 2000 of the Director of Consolidation, Odisha, Cuttack in Consolidation Revision Case No.2722 of 1998, the learned Single Judge observed that since the land in question was homestead land, the Director of Consolidation lacked the jurisdiction to decide the matter in exercise of power under Section 37(2) of the Orissa Consolidation of Holding and Prevention of Fragmentation of Land Act, 1972 (‘the Act’). 2. On coming to a conclusion that the homestead land was outside the purview of the Act, the learned Single Judge perhaps did not notice the amendments notified on 16th March, 1989. By virtue of the said amendments, according to the counsel for the Appellant, it was possible for the Director of Consolidation, Odisha, Cuttack to effect changes in the R.O.R., even to homestead land, a point which is disputed vehemently by the counsel appearing for Respondent No.1. Page 2 of 5 // 3 // to 3. It is apparent on the face of the impugned order dated 19th of March, 2018 that the attention of the learned Single Judge perhaps not drawn the above Amendment Act. Consequently, without expressing any view on either of the contentions of the parties on the amended provisions, as recorded above, this Court while setting aside the impugned order of the learned Single Judge dated 19th March, 2018 restores the OJC No.13450 of 2000 to the file of the learned Single Judge for being considered afresh in the light of the above amendment provisions. The writ petition will be listed before the Roster Bench of the learned Single Judge on 10th of January, 2023, on which date both parties will appear. Considering that this is an old matter, the learned Single Judge is required to proceed with the matter and dispose of the same as expeditiously as possible and preferably within a period of six months thereafter. 4.The writ appeal is, accordingly, disposed of. The interim order passed by this Court on 18th June, 2018 will continue during pendency of the writ petition before the learned Single Judge.” 4. At the outset, this Court observes, even though learned counsel for the Petitioners attempted to establish through amendments notified on 16.03.1989 however present case is not only argued on a different point but also without any reference to the notification dated 16.03.1989 and thus the case is decided afresh on the question raised herein below. “Since the proceeding in the authority below is undertaken in exercise of power by the competent authority under the provision of Section 37(2) of O.C.H. & P.F.L. Act, 1972 and for no order of subordinate authority involved, if there can be an exercise under the provision of Section 37(2) of the O.C.H. & P.F.L. Act? This Court finds the provision at Section 37(2) of the O.C.H. & P.F.L Act reads as follows:- “37. Power to call for records- (2) The power under Sub-section (1) may be exercised by the Director of Page 3 of 5 // 4 // Consolidation in respect of authorities subordinate to him.” 5. The Revision under Section 37(2) of the Act aimed in recording of classification of land as private road instead of homestead since case land is being used as a road by both the parties to their homestead land i.e. Plot No.78 and 77. 6. Looking to the nature of challenge, this Court here finds, question here required to be decided if the nature of request is permissible to be agitated in a 37(2) proceeding and further looking to the aim and object behind the Act, if the consolidation authority has the authority to decide on the conversion land involved. Keeping in view the claim and counter claim of the parties in the authority below, this Court here finds, the statement of objects and reasons behind the Orissa Consolidation of Holding and Prevention of Fragmentation of Land Act, 1972 reads as follows:- “Statement of Objects and Reasons- In the context of strategy for increasing agricultural production in the country and in pursuance thereof to give inducement and incentive to the cultivators, it is considered expedient to initiate legislation for consolidation of scattered holdings and re-arrange the including fragmented holdings among various holdings landowners to make them more compact and to provide against future fragmentation of holdings. This will help in economic farming and application of improved implements and methods of farming which are necessary for development of agriculture and increased agricultural production.” 7. This Court here also finds, the Act, 1972 is an act to provide for Consolidation of Holding and Prevention of Fragmentation of Land for development of agriculture in the State of Orissa. 8. This Court going back to the claim and rival claim of Parties finds, when Opposite Parties as the Petitioners in Section 37(2) proceeding claims, let there be change in the kissam of land as private Page 4 of 5 // 5 // land instead of homestead since case land is being used as a road and Opposite Parties therein, the Petitioners herein oppose the claim of the Petitioners therein saying that they uses the disputed land as homestead in kissam. In the above background looking here the purpose behind the Act, this Court finds, there is no wrong order passed by any authority subordinate to the Director requiring to exercise the power under Section 37(2) of the Act. Further for the scope under the Act and prayer since involved an easementary right even if a consolidation proceeding is concluded, the matter should have been decided by common civil forum and not by forum under the provision of O.C.H. & P.F.L Act. 9. In the circumstance this Court finds, the impugned order is without jurisdiction which is interfered with the impugned order at Annexure-1, sets aside the same and parties are relegated to resolve the dispute, if any, through common civil forum. 10. The Writ Petition succeeds but no order as to cost. Swarna (Biswanath Rath) Judge Page 5 of 5