The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950) W.P.(C) No.27363 of 2017 Smt. Malati Siala …. Petitioner Collector, Balasore and others …. Opposite Parties -versus- Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Petitioner -
Legal Reasoning
Mr. P.R. Barik, Advocate. For Opposite Parties - Mr. V. Jena, Advocate. For O.Ps 5 & 6 Ms. Arjun Ch. Behera, Advocate. for O.P. 7 Mr. P. Satapathy, ASC. For O.P.1 CORAM: HON’BLE MR. JUSTICE A.C.BEHERA Date of Hearing :15.01.2025 :: Date of Judgment :31.01.2025 A.C. Behera, J. The petitioner has approached this Hon’ble Courts through this writ petition praying for quashing the final order dated 02.04.2014 passed in Consolidation Case No.28 of 2013 under Sections 34 & 35 of the Odisha Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (in short OCH & PFL Act, 1972) vide Annexure-1 by the Collector, Balasore. W.P.(C) No.27363 of 2017 Page 1 of 6 2. The factual backgrounds of the matter, which prompted the petitioner for filing of this writ petition is that, the petitioner purchased A0.72 ½ decimals of chaka land of Plot No.1423, chaka No.179 under Consolidation Khata No.270 in Mouza Samasundarpur under Simulia Tahasil in the district of Balasore from its recorded owners i.e. Purna Chandra Jena and Damodara Jena with consent of their other co-sharers i.e. Binod Jena and Purusottam Jena through Registered Sale Deed No.1440 dated 31.10.2008 on payment of due consideration amount, to, which, Maheswar Dalai, Narendra Prasad Dalai and Ananta Prasad Dalai challenged the same by filing a case vide Consolidation Case No.28 of 2013 before the Collector, Balasore against the petitioner of this writ petition arraying her as opposite party No.4 along with her vendors and consentors of the Sale Deed No.1440 dated 31.10.2008 under Sections 34 & 35 of the OCH & PFL Act, 1972 praying for declaring that sale deed in favour of the writ petitioner as void and to evict her (writ petitioner- purchaser) from her above purchased Chaka land, as she has purchased the same creating fragment of Chaka No.179 without being a land owner of a contiguous Chaka, because they (Maheswar Dalai, Narendra Prasad Dalai and Ananta Prasad Dalai) are the land owners of its contiguous Chaka of the sold land from Chaka No.179. 3. After hearing from both the sides, the Collector, Balasore allowed that Consolidation Case No.28 of 2013 filed by Maheswar Dalai, W.P.(C) No.27363 of 2017 Page 2 of 6 Narendra Prasad Dalai and Ananta Prasad Dalai as per its final order dated 02.04.2014 (Annexure-1) holding that, the petitioner of this writ petition (who was opposite party No.4 in Consolidation Case No.28 of 2013) has purchased the properties i.e. A0.72 ½ decimals of Chaka land of Plot No.1423, Chaka No.179 under consolidation Khata No.270 through RSD No.1440 dated 31.10.2008 in violation of Section 34 of the OCH & PFL Act, 1972, for which, the said sale deed vide R.S.D. No.1440 dated 31.10.2008 is declared as void and the purchaser i.e. opposite party No.4 of that Consolidation Case No.28 of 2013 is to be evicted from the disputed land covered under the above Sale Deed No.1440 dated 31.10.2008 and directed to the Tahasildar, Simulia to evict her (opposite party No.4 in Consolidation Case No.28 of 2013) from the disputed land forthwith. The opposite party No.4 of that Consolidation Case No.28 of 2013 challenged that final order passed on dated 02.04.2014 (Annexure-1) by the Collector, Balasore by filing this writ petition against the Collector, Balasore arraying him as opposite party No.1 along with the petitioners and opposite party Nos.1 to 3 in that Consolidation Case No.28 of 2013 as opposite party Nos.2 to 7. 4. I have already heard from the learned counsel for the petitioner, the learned Addl. Standing Counsel for the State (opposite party No.1), W.P.(C) No.27363 of 2017 Page 3 of 6 learned counsel for opposite party No.7 and learned counsel for opposite party Nos.5 & 6. 5. As per the Odisha Gazette Notification No.2910 dated 29.12.2023, Chapter-V of OCH & PFL Act, 1972 relating to Prevention of Fragmentation containing Sections-33, 34 & 35 has already been omitted from the Statute Book of The OCH & PFL Act, 1972 and a new Section as Section 36A has been inserted into the said Statute Book i.e. OCH & PFL Act, 1972 and the said newly inserted Section 36A is as follows:- “Section 36A- Any transfer or partition of agricultural land in a locality creating fragmentation made under the Principal Act before the commencement of the Odisha Consolidation of Holdings and Prevention of Fragmentation of Land (Amendment) Act, 2023, shall be treated as valid: Provided that cases where any eviction has been made by the Collector under sub-Section (2) of Section 35 of the Principal Act as omitted in this Act shall not be reopened.” Taking into account the above omissions and insertions as per Notification No.2910 dated 29.12.2023 in the Statute Book i.e. The OCH & PFL Act, 1972, it has been clarified by this Hon’ble Courts in a case between Benudhar Swain Vrs. Bahudi Jena reported in 2024 (II) OLR- 261 that, “this Section i.e. Section 36A has been introduced in the Statute as per Section 3 of the Amendment Act, 2023, which have come into force w.e.f. 29.12.2023.” It has been envisaged in Section 36A of The OCH & PFL Act, 1972 that, “any transfer or partition of agricultural land in a locality creating W.P.(C) No.27363 of 2017 Page 4 of 6 fragmentation made under the principal Act before commencement of the Amendment Act shall be treated as valid.” 6. Here in this writ at hand, when the transfer of agricultural land has been made through RSD No.1440 dated 31.10.2008 in respect of A0.72 ½ decimals out of A1.45 decimals of plot No.1423 from Chaka No.179 under Consolidation Khata No.270 in Mouza Samasundarpur before commencement of Amendment Act, 2023 i.e. before 29.12.2023, then at this juncture, in view of the above omissions of entire Chapter-V and insertion of Section 36A into the Statute Book of The OCH & PFL Act, 1972 as well as the clarifications about the same made above in the ratio of the above decision of the Hon’ble Courts in a case between Benudhar Swain Vrs. Bahudi Jena reported in 2024 (II) OLR-261, the above sale made by the opposite party Nos.5 to 7 in favour of the petitioner in this writ though R.S.D. No.1440 dated 31.10.2008 cannot be held as invalid/void. For which, in other words, it is held that, the said sale deed
Decision
No.1440 dated 31.10.2008 in favour of the writ petitioner is not void. 7. Therefore, the writ petition filed by the petitioner is allowed on contest. Accordingly, the final order dated 02.04.2014 (Annexure-1) passed in Consolidation Case No.28 of 2013 by the Collector, Balasore declaring the R.S.D. No.1440 dated 31.10.2008 as void is set aside and quashed. W.P.(C) No.27363 of 2017 Page 5 of 6 8. As such, the writ petition is disposed of finally. Orissa High Court, Cuttack. 31.01.2025//Utkalika Nayak// Junior Stenographer (A.C. Behera), Judge. Signature Not Verified Digitally Signed Signed by: UTKALIKA NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 31-Jan-2025 15:14:23 W.P.(C) No.27363 of 2017 Page 6 of 6