The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 02-Apr-2024 16:45:49 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.9091 of 2018 & W.P.(C) No.9093 of 2018 (In the matter of an application under Articles 226 and 227 of the Constitution of India) Rabindranath Dwibedi …. Petitioner (In both the writ petitions) -versus- Satyabhama Dei and others …. Opposite Parties (In both the writ petitions) Advocate(s) appeared in this case:- For Petitioner : Mr. B.N. Bhuyan, Advocate (In both the writ petitions) For Opposite Parties
Legal Reasoning
: Mr. U.K. Sahoo, A.S.C. Mr. S. Sourav, Advocate on behalf of Mr. S.K. Hota, Advocate for O.P. No.1 (In both the writ petitions) CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 28th March, 2024 B.P. Routray, J. 1. Heard Mr. B.N. Bhuyan, learned counsel for the Petitioner, Mr. U.K. Sahoo, learned Additional Standing Counsel for State-Opposite Party Nos.2 to 5 and Mr. S. Sourav on behalf of Mr. S.K. Hota, learned counsel for Opposite Party No.1. W.P.(C) Nos.9091 &9093 of 2018 Page 1 of 10 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 02-Apr-2024 16:45:49 2. The common impugned order dated 30.05.2017 passed in both the revisions by the Commissioner of Consolidation, Odisha, Bhubaneswar under Annexure-8 is under challenge before this Court. 3. Consolidation Revision Case Nos.561 of 2014 and 562 of 2014 were filed by the Petitioner against the order of the Deputy Director. Both the revisions before the Commissioner arose out of two appeals filed by the Petitioner. Initially, two objections were filed before the Consolidation Officer, one by the Petitioner and another by Opposite Party No.1 along with her mother. The Consolidation Officer has allowed the objection filed by Opposite Party No.1 and rejected the objection filed by the Petitioner. 4. The issue revolves around ‘void’ or ‘voidability’ of the RSD dated 28.1.1977, allegedly executed by Opposite Party No.1 and her mother in favour of the Petitioner. 5. The facts in brief are that, the Petitioner is the bother of mother of Opposite Party No.1. After death of father of Opposite Party No.1, the questioned Registered Sale Deed No.316 dated 28.1.1977 (hereinafter referred as ‘RSD’) was executed in favour of the Petitioner by Opposite Party No.1 and her mother. At the time of execution of the RSD, Opposite Party No.1 claimed to be a minor and her mother died during pendency of the revision before the Commissioner. It is the case of Opposite Party No.1 that the RSD was executed on the guise of execution of a Power of Attorney and the Petitioner by fraudulently W.P.(C) Nos.9091 &9093 of 2018 Page 2 of 10 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 02-Apr-2024 16:45:49 misrepresenting the facts has managed to execute the RSD in his favour in respect of the properties in question. 6. Mr. B.N. Bhuyan, learned counsel for the Petitioner in both the writ petition submits that, in the matter of adjudication before the consolidation authorities, they have no power to decide that the document is voidable though the consolidation authorities can declare a document void. According to Mr. Bhuyan, the power to adjudicate voidability of a document is not with the consolidation authorities and the only power remains with the civil court to declare a document voidable. 7. Per contra, Mr. S. Sourav, learned counsel for the Opposite Party
Decision
No.1 in both the writ petitions submits that, the RSD which is stated to be voidable by the Consolidation Commissioner is a document as void ab initio and the authority is in mistake held the same as voidable and therefore, the jurisdiction of the consolidation authority to ignore the RSD as void ab initio is justified. 8. The RSD in question is undoubtedly a document executed by Opposite Party No.1 and her mother in favour of the Petitioner selling out the properties mentioned therein. In order to question the nature of document as void or voidable, the decision in Dularia Devi vs. Janardan Singh and others, 1990 (Supp) SCC 216, as referred by Mr. Sourav, is taken aid of. In the said case before the Hon’ble Supreme Court, the bar under the Consolidation Act in respect of a sale deed was under question that, whether the consolidation authorities have the power to declare the same as void. By relying on the case of Gorakh W.P.(C) Nos.9091 &9093 of 2018 Page 3 of 10 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 02-Apr-2024 16:45:49 Nath Dube vs. Hari Narain Singh and others, (1973) 2 SCC 535, the Hon’ble Supreme Court have held as follows: “5. In Gorakh Nath Dube vs. Hari Narain Singh and others, (1973) 2 SCC 535, this Court held that the object of the relevant provision of the Act was to remove from the jurisdiction of any civil court or revenue court all disputes which could be decided by the competent authority under the Act during the consolidation proceedings. Questions relating to the validity of a sale deed or a gift deed and the like had to be examined in proceedings before the statutory authorities. The court, however, drew a distinction between void and voidable documents and said a voidable document was one which remained in force until set aside, and such a document could be set aside only by a competent civil court, therefore, be and a suit maintainable. On the other hand, a claim that a transaction was void was a matter which could be adjudicated upon by the consolidation courts. This is what this Court stated: (SCC p. 538, para 5) that purpose would, for “We think that a distinction can be made between cases where a document is wholly or partially invalid so that it can be disregarded by any court or authority and one where it has to be actually set aside before it can cease to have legal effect. An alienation made in excess of power to transfer would be, to the extent of the excess of power, invalid. An adjudication on the effect of such a purported alienation would be necessarily implied in the decision of a dispute involving conflicting claims to rights or interests in land which are the subject matter of consolidation proceedings. The existence and quantum of rights claimed or denied will have to be declared by the consolidation authorities which would be deemed to be invested with jurisdiction, by the necessary implication of their statutory powers to adjudicate upon such rights and interests in land, to declare such documents effective or ineffective, but, where there is W.P.(C) Nos.9091 &9093 of 2018 Page 4 of 10 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 02-Apr-2024 16:45:49 a document the legal effect of which can only be taken away by setting it aside or its cancellation, it could be urged that the consolidation authorities have no power to cancel the deed, and, therefore, it must be held to be binding on them so long as it is not cancelled by a court having the power to cancel it. In the case before us, the plaintiff’s claim is that the sale of his half share by his uncle was invalid, inoperative, and void. Such a claim could be adjudicated upon by consolidation courts.” (emphasis supplied) 6. In Ningawwa v. Byrappa, AIR 1968 SC 956, this Court referred to the well established principle that a contract or other transaction induced or tendered by fraud is not void, but only voidable at the option of the party defrauded. The transaction remains valid until it was avoided. This Court then said : (SCR p. 801) “The legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof. With reference to the former, it has been held that the transaction is void, while in the case of the latter, it is merely voidable. In Foster v. Mackinon, (1869) 4 CP 704, the action was by the endorsee of a bill of exchange. The defendant pleaded fraudulent that he endorsed representation by the acceptor that he was signing a guarantee. In holding that such a plea was admissible, the court observed: the bill on a It (signature) is invalid not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the signer did not accompany the signature; in other words, that he never intended to sign, and therefore in contemplation of law never did sign, the contract to which his name is appended… The W.P.(C) Nos.9091 &9093 of 2018 Page 5 of 10 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 02-Apr-2024 16:45:49 defendant never intended to sign that contract or any such contract. He never intended to put his name to any instrument that then was or thereafter might become negotiable. He was deceived, not merely as to the legal effect, but as to the ‘actual contents’ of the instrument.” (emphasis supplied) 9. It would be profitable to refer to the decision in Gorakh Nath Dube’s case (supra) here and it is held that, where a document, the legal effect of which can be taken away by setting it aside or its cancellation, it could be urged that the consolidation authorities have no power to cancel the deed. 10. This Court in Keshab Chandra Nayak vs. Laxmidhar Nayak and others, Civil Revision No.521 of 1991, decided on 17.07.1992 (Full Bench) (AIR 1993 Ori.1) have held that, the consolidation authorities would not have any competence to take away the legal effect of the voidable transaction. The relevant observations are re- produced below. 21. Let it now be seen as to who is the competent authority to take up a matter relating to sham transaction. As per the decision in Gorakh Nath, the consolidation authorities have no power to deal with those documents, “the legal effect of which can only be taken away by setting it aside or (by) its cancellation”. A document incorporating a void transaction does not, however, require cancellation to take away the legal effect of the same in such a case, declaration of voidness is enough to protect the interest of the aggrieved person. So, in case of void transactions, the consolidation authorities shall have jurisdiction to entertain and adjudicate the grievance. If, however, the transaction be voidable, in which case to take away the legal effect of the document W.P.(C) Nos.9091 &9093 of 2018 Page 6 of 10 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 02-Apr-2024 16:45:49 cancellation would be necessary, it would not be within the competence of the consolidation authorities; but the matter shall have to be agitated before the Civil Court. 22. We, therefore, conclude by saying that the consolidation authorities would have jurisdiction in those cases where the dispute between the parties is relatable to a benami transaction, as strictly understood; and would also have jurisdiction over those sham transactions which are void. But, if the sham transactions be voidable, the consolidation authorities would have no power to deal with the same and it would be within the jurisdiction of the Civil Court to do so. xx xx xx 24. (Concurring with Hansaria, C.J.) Agreeing completely with my Lord the Chief Justice, I wish to add a few lines. The authorities under the Act are vested with the powers under Section 51(1) to decide all questions relating to right, title, interest and liability in land. In Gorakh Nath’s case (supra), the apex Court carved out the exception to that jurisdiction by saying that where a document needs actual cancellation, the power of cancellation being not vested with the consolidation authorities, a suit for such relief shall lie in the Civil Court; but no cancellation being necessary where the document is void one, the right, title, etc. in the land covered in the deed would be determinable by the consolidation authorities. This the very transaction under the void deed being nonest from the beginning, as the deed is of no consequence, the right, title, etc. are not affected by it in any manner. Hence those questions are to be decided only by the consolidation authorities. A purely benami transaction does not involve determination of the question whether the concerned deed is void or voidable, but involves the question of determination of right, title, interest and liability in the land of the claimant and of the ostensible purchaser or of persons claiming through them. Such determination has nothing to do with the validity of the deed, it being never in question. The is so since W.P.(C) Nos.9091 &9093 of 2018 Page 7 of 10 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 02-Apr-2024 16:45:49 decision in Ramachandra’s case (supra) dealing with benami transactions has to be read in that context, so that the question of consolidation authorities having or not having jurisdiction to deal with benami transactions would be confined only to sham transactions and not purely benami transactions which are always within the cognizance of those authorities. As has been correctly explained by the Hon’ble Chief Justice, a sham transaction may involve the determination of the question of it being void or voidable. The test to apply as to when the Civil Court or the consolidation authorities would have jurisdiction in respect of the transaction is as has been explained in Ramachandra’s case (supra). It must, however, be clarified that in that case while dealing with the procedure for determination of the deed being void or voidable, it was rather broadly stated that, as is the case with the consolidation authorities, so also with the courts, there may be occasions necessitating a primary investigation to determine the fact, though it must be held that the question has to be ordinarily resolved upon the pleadings of the parties. While this may be true of the consolidation authorities, so far as civil courts are concerned, the primary investigation must be in consistence with the procedure of Order 14, Rule 2 of the Code of Civil Procedure, according to jurisdiction of the Court (and the question whether the transaction is void or voidable relates to jurisdiction of the Court) can be tried first, if the same can be resolved as a pure question of law, which would be so if no evidence is required to be taken to decide that issue. To put it differently, an issue relating to the jurisdiction of the Court also cannot be taken up as a preliminary issue, if to decide the same evidence would be required to be taken.” issue relating to which an 11. Coming to the facts of the case at hand, it is seen that in the RSD, Opposite Party No.1 and her mother have executed the sale in favour of the Petitioner. According to the pleadings of Opposite Party No.1, as seen from the copy of the revision petition filed by her before the Commissioner (Annexure-5), it is stated that the mother of W.P.(C) Nos.9091 &9093 of 2018 Page 8 of 10 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 02-Apr-2024 16:45:49 Opposite Party No.1 is a rustic Pardanasin illiterate lady and Opposite Party No.1 is a minor daughter and being so they were not in a position to look after their properties. Taking advantage of such position and his relationship with Opposite Party No.1 and her mother, the Petitioner requested for execution of power of attorney for smooth management of the property and in that context he took Opposite Party No.1 and her mother to the Office of Sub-Registrar for registration of power of attorney. But behind back of Opposite Party No.1 and her mother, the Petitioner managed to execute the registered sale deed. This being the pleading of Opposite Party No.1 and her mother and keeping in view the nature of the RSD as a document of sale, in the opinion of this Court, the same cannot be treated as a document void ab initio. The further fact remains that, though the document was admittedly registered in the year 1977, but no objection was raised by Opposite Party No.1 to the same, who alleges to be aged about 16 years on that date of execution though according to the Petitioner she was major about 19 years, till the consolidation operation was initiated and the authorities proceeded in the matter in 1999. For the first time, the objection was raised by Opposite Party No.1 taking aid of Section 37 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act (OCH & PFL Act) to prefer the revision before the Commissioner. Therefore, in the circumstances, it is held that the RSD in question is a document of voidable nature. 12. As per the law settled above, in the case of Keshab Chandra Nayak (supra), the consolidation authorities have no jurisdiction to W.P.(C) Nos.9091 &9093 of 2018 Page 9 of 10 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 02-Apr-2024 16:45:49 declare a document voidable or to decide the voidability of a document to take away its legal effect. 13. Undoubtedly, the Commissioner of Consolidation has held in the impugned order that the RSD in question is a voidable document. But holding so, the Commissioner has nullified the legal effect of the RSD to deprive the Petitioner from the benefits arising out of the same. Such finding of the Commissioner to debar the Petitioner as the lawful purchaser of such properties mentioned in the RSD cannot be allowed to sustain in view of the principles of law propounded above. 14. Resultantly, such finding of the Commissioner given in the impugned order to nullify the legal effect of the RSD is liable to be set aside. Accordingly, the impugned order of the Commissioner dated 30.05.2017 under Annexure-8 is set aside and the writ petitions are allowed. (B.P. Routray) Judge B.K. Barik/Secretary W.P.(C) Nos.9091 &9093 of 2018 Page 10 of 10