The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Dec-2023 10:22:16 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 26297 OF 2011 Nihar Ranjan Panda Petitioner Mr. Abinash Routray, Advocate …. Bhagyadhar Panda -versus- …. Opp. Party None CORAM: JUSTICE K.R. MOHAPATRA Order No. I.A. No.1817 of 2020
Decision
ORDER 01.12.2023 5. 1. This matter is taken up through hybrid mode. 2. This is an application for substitution of the sole Opposite Party, who died on 5th April, 2014 leaving behind his legal heirs. This Court vide order dated 10th May, 2020 directed 3. issuance of notice to the L.Rs of deceased Opposite Party. Accordingly, Mr. A.C. Mohapatra, learned counsel and his associates have entered appearance on behalf of the proposed L.Rs. but, none appears on behalf of the proposed L.Rs at the time of call. 4. Considering the submission of Mr. Routray, learned counsel for the Petitioner, prayer for substitution is allowed. Consolidated cause title has already been tagged to the writ petition. 5. I.A. is disposed of. (K.R. Mohapatra) Judge 6. W.P.(C) No. 26297 OF 2011 1. This writ petition has been filed assailing the order dated 30th July, 2011 (Annexure-1) passed by learned 1st Additional Page 1 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Dec-2023 10:22:16 // 2 // District Judge, Cuttack in R.F.A. Nos.83 & 84 of 2006, whereby it allowed the application filed by the original Appellant-Opposite Party under Section 10 CPC to stay further proceeding of the appeals till disposal of the Consolidation Revision No.1567 of 1999 (2616/2003). 2. Mr. Routray, learned counsel submits that the suit was filed by the Petitioner for injunction simplicitor. The suit was decreed on contest. Assailing the same, the aforesaid appeals have been filed. However, the Opposite Party (having died represented through his L.Rs) preferred the aforesaid consolidation revision challenging the right, title and interest of the Plaintiff over the suit land. During pendency of the appeals, the Opposite Party filed an application under Section 10 CPC to stay proceeding of both the appeals. Initially, the said application was rejected vide order dated 15th May, 2009. Assailing the same, the opposite Party preferred W.P.(C) No.10187 of 2009 and this Court vide order dated 31st March, 2011 set aside the said order with a direction to re-consider the application under Section 10 CPC. Accordingly, the petition under Section 10 CPC was taken up for re-consideration by learned appellate Court. 2.1. Learned appellate Court relying upon a Full Bench decision in the case of Gulzar Khan –v- Commissioner of Consolidation and others, reported in 1993 (1) OLR 194 held that “merely because of notification under Section 41 of the OCH & PFL Act, 1972 (for short the ‘Act’), approach to the Commissioner under Section 36 of the Act cannot be denied. Revisional power is an integral part of the Act.” As such, it Page 2 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Dec-2023 10:22:16 // 3 // directed to stay further proceeding of the appeals during pendency of the aforesaid consolidation revision. 3. It is his submission that Section 51 of the Act makes it abundantly clear that no Court can entertain any application or proceeding, which is capable of being adjudicated by the Consolidation Authority under the Act. In the instant case, the relief of permanent injunction cannot be granted by a Consolidation Authority, more particularly, by the Commissioner, Consolidation. Hence, Section 51 of the Act is not a bar to continue the appeals before learned appellate Court. He, further, submits that learned appellate Court being swayed away by the observation in Gulzar Khan (supra), allowed the application, which is not sustainable. Case of Gulzar Khan (supra) has not dealt with a situation of present nature. Hence, it has no application to the instant case. He, therefore, prays for setting aside the impugned order under Annexure-1. 4. 5. None appears for the Opposite Party at the time of call. Taking note of the submission made by learned counsel for the Petitioner, this Court is of the considered opinion that Section 51 of the Act stipulates that all the questions relating to right, title and interest as well as liability in the land lying in the consolidation area except those coming with the jurisdiction of the Revenue Court or authority under the local law for the time being in force shall be decided under the provision of the said Act and no Civil Court shall entertain any suit in respect of any matter, which an officer or authority empowered under the Act is competent to decide. Issue of permanent injunction cannot be decided by an officer or authority under the Act. In the case of Page 3 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Dec-2023 10:22:16 // 4 // Dharanidhar Rout –v- Babaji Charan Rout, reported in 2022 (II) CLR 877, wherein it is held as under: “8. Law is well-settled that a suit for injunction is maintainable during pendency of the consolidation proceeding. Further the provision of Section 4(4) of the Consolidation Act makes it clear that suit or proceeding for declaration of right, title and interest over the land situated within the consolidation area shall abate during pendency of the consolidation operation. Admittedly, CS No.4133 of 2014 is not for declaration of right, title or interest. It is filed for permanent injunction simplicitor. Merely because the Court has to incidentally go into the question of title while adjudicating a suit for injunction, that cannot be a ground either to stay the proceeding of the suit or abate the same during consolidation operation. It is more so because in a suit for permanent injunction no declaratory relief for right, title or interest can be granted. Moreover……” 6. Both the appeals in question arise out of a suit for permanent injunction simplicitor. Thus, there is no bar to continue with the same in view of the pendency of the consolidation proceeding. It appears that in the meantime twenty four years have already elapsed. Consolidation Revision No.1567 of 1999 (2616/2003) might have been disposed of by now. Be that as it may, the pendency of the aforesaid revision cannot be a ground to stay further proceeding in R.F.A. Nos.83 & 84 of 2006. 7. As such, the impugned order under Annexure-1 is not sustainable and is set aside. Learned appellate Court is directed to proceed with the appeals, if those are still pending. 7. With the aforesaid observation and direction, the writ petition is disposed of. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 4 of 4