The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.26014 of 2022 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950) Raghunath Muduli and others …. Petitioners -versus- Kausalya Behera and others …. Opposite Parties Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Petitioners - Mr. Ranjan Kumar Nayak, Advocate.
Legal Reasoning
For Opposite Parties - Mr. V. Jena, Advocate. For O.Ps 1 & 2 Mr. G. Mohanty, SC. For O.P.3 CORAM: HON’BLE MR. JUSTICE A.C.BEHERA Date of Hearing :16.01.2025 :: Date of Judgment :31.01.2025 A.C. Behera, J. This writ petition has been filed by the petitioners praying for quashing the final order dated 22.07.2022 passed in Consolidation Case No.62 of 2018 by the Collector, Balasore (opposite party No.3) vide Annexure-1. 2. The factual backgrounds of this matter, which prompted the petitioners for filing of this writ petition is that, the opposite party Nos.1 & 2 of this writ petition being the petitioners filed Consolidation Case No.62 of 2018 under Sections 34 & 35 of The OCH & PFL Act, 1972 W.P.(C) No.26014 of 2022 Page 1 of 7 against the petitioners in this writ petition arraying them as opposite parties praying for declaring the R.S.D. Nos.1105 & 3477 dated 05.03.1984 and 04.07.1984 respectively as void on the ground that, the said sale deeds were executed for transferring the part Chaka lands creating fragments of the Chaka without due permission under Section 34 of The OCH & PFL Act, 1972. The properties involved in the above two sale deeds covered under part of Chaka No.85 and part of Plot No.408 under Consolidation Khata No.123 in Mouza Naharpada under Simulia Tahasil in the district of Balasore are the case land. According to the petitioners in Consolidation Case No.62 of 2018, Gopa Muduli was their common ancestor. He (Gopa Muduli) died leaving behind his wife Sukuri Muduli and one daughter Anusaya. Sukuri Muduli died leaving behind Anusaya as her successor. The petitioners along with one Kabita are the daughters of the said Anusaya and accordingly, they (petitioners) are the successors of Sukuri Muduli. Jagabandhu Muduli was the common ancestor of the opposite parties. The said Jagabandhu Muduli died leaving behind the opposite parties as his successor. The properties under Consolidation Khata No.123 Chaka No.85 was recorded in the name of Sukuri Muduli. W.P.(C) No.26014 of 2022 Page 2 of 7 After the death of Sukuri Muduli, the case lands devolved upon the petitioners. But, the opposite party Nos.1 to 3 had managed to execute and register the R.S.D. Nos.1105 & 3477 dated 05.03.1984 and 04.07.1984 respectively in their favour from Sukuri Muduli in respect of part of Chaka No.85 making fragment of the said Chaka without obtaining due permission from the competent authority i.e. from the Tahasildar, Simulia under Section 34 of The OCH & PFL Act, 1972. As the above registered sale deeds vide R.S.D. Nos.1105 & 3477 dated 05.03.1984 and 04.07.1984 respectively have been created violating the mandatory provision of section 34 of The OCH & PFL Act, 1972 making fragment to the Chaka No.85 without obtaining permission from the competent authority under Section 34 of the OCH & PFL Act, 1972, for which, the said sale deeds are illegal and void. Therefore, the petitioners filed consolidation Case No.62 of 2018 before opposite party No.3 (Collector, Balasore) praying for declaring the above two sale deeds executed by the recorded tenant Sukuri Muduli in favour of the opposite parties as void. 3. After hearing from both the sides and on perusal of the contents of the above two sale deeds along with letter Nos.3324 & 260 dated 10.09.2019 & 18.02.2022 respectively of the Sub-Registrar, Soro, the Collector, Balasore held as per its final order passed on dated 22.07.2022 (Annexure-1) in Consolidation Case No.62 of 2018 that, the above two W.P.(C) No.26014 of 2022 Page 3 of 7 sale deeds have been executed without any permission under Section 34 of The OCH & PFL Act, 1972 from the Tahasildar, Simulia, for which, the Collector, Balasore declared the sale deeds vide R.S.D. Nos.1105 & 3477 dated 05.03.1984 and 04.07.1984 respectively executed in respect of part of Chaka No.85 in Mouza Naharpada under Simulia Tahasil by Sukuri Muduli in favour of the opposite parties of that Consolidation No.62 of 2018 as void. Because, the said sale deeds have been executed in contravention of Section 34 of the OCH & PFL Act, 1972 making fragment of the Chaka No.85 and directed Tahasildar, Simulia and Sub- Registrar, Soro for implementation of said final order by sending the copies of the same to the said Tahasildar, Simulia and Sub-Registrar, Soro. 4. On being aggrieved with the said final order dated 22.07.2022 (Annexure-1) passed by the Collector, Balasore in Consolidation Case No.62 of 2018, the purchaser of the sale deed No.1105 dated 05.03.1984 and sale deed No.3477 dated 04.07.1984 i.e. opposite party Nos.1 to 5 in Consolidation Case No.62 of 2018 challenged the same by filing this writ petition being the petitioners praying for quashing the same arraying the petitioners in Consolidation Case No.62 of 2018 and Collector, Balasore as opposite party Nos.1 to 3. 5. I have already heard from the learned counsel for the petitioners and learned Standing Counsel for the opposite parties. W.P.(C) No.26014 of 2022 Page 4 of 7 6. As per the Odisha Gazette Notification No.2910 dated 29.12.2023, Chapter-V of The 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 of The 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 fragmentation made under the principal Act before commencement of the Amendment Act shall be treated as valid.” W.P.(C) No.26014 of 2022 Page 5 of 7 7. Here in this writ at hand, when the transfer of agricultural land has been made through R.S.D. Nos.1105 & 3477 dated 05.03.1984 and 04.07.1984 respectively in respect of part of Chaka No.85 under Consolidation Khata No.123 in Mouza Naharpada under Simulia Tahasil before commencement of amendment Act, 2023 i.e. before 29.12.2023, then at this juncture, in view of the above omission of entire Chapter-V and insertion of Section 36A into the Statute Book of The OCH & PFL Act, 1972 as well as the clarification about the same made 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 sales made by Sukuri Muduli in respect of part of Chaka No.85 under Consolidation Khata No.123 in Mouza Naharpada in favour of the petitioners in this writ though R.S.D. Nos.1105 & 3477 dated 05.03.1984 and 04.07.1984 respectively even making fragments to the Chaka No.85 under Consolidation Khata No.123 cannot be held as invalid/void under law. For which, in other words, it is held that, the said sale deeds vide R.S.D. Nos.1105 & 3477 dated 05.03.1984 and 04.07.1984 respectively in
Decision
favour of the writ petitioners are not void, but valid under law. 8. Therefore, the writ petition filed by the petitioners is allowed on contest. W.P.(C) No.26014 of 2022 Page 6 of 7 Accordingly, the final order dated 22.07.2022 (Annexure-1) passed in Consolidation Case No.62 of 2018 by the Collector, Balasore (opposite party No.3) declaring the registered sale deeds vide R.S.D. Nos.1105 & 3477 dated 05.03.1984 and 04.07.1984 respectively as void is set aside and quashed. 9. 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.26014 of 2022 Page 7 of 7