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.34678 of 2022 Pradeep Kumar Senapati and others -versus- …. Petitioners The Collector/District Magistrate, Balasore and others …. Opposite Parties Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Petitioner -
Legal Reasoning
Mr. B. Tripathy, Advocate. For Opposite Parties - Mr. Gyanalok Mohanty, Standing Counsel. For O.P. No.1 Mr. D. Mohanty, Advocate. for O.P. No.2 Mr. T.K. Nayak, Advocate. for O.P. No.3 CORAM: HON’BLE MR. JUSTICE A.C.BEHERA Date of Hearing :10.07.2025 :: Date of Judgment :23.07.2025 A.C. Behera, J. This writ petition under Articles 226 & 227 of the Constitution of India, 1950 has been filed by the petitioners praying for quashing the final order dated 14.10.2022 (Annexure-5) passed in Consolidation Case No.40 of 2018 under Sections 34 & 35 of the Odisha Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (in short OCH & PFL Act, 1972) by the Collector, Balasore (O.P. No.1). W.P.(C) No.34678 of 2022 Page 1 of 7 2. The factual backgrounds of this matter, which prompted the petitioners for filing of this writ petition is that, the petitioners purchased A0.50 decimal out of A.1.59 decimals of Plot No.108 in Chaka No.65 under Consolidation Khata No.694 in Mouza Markona under Simulia Tahasil in the district of Balasore from its recorded owner i.e. Malli Nayak (mother of O.P. No.3 i.e. Ganjendra Nayak) through Registered Sale Deed No.757 dated 08.07.2010 on payment of due consideration amount, to which, Pankaj Kumar Nayak challenged the same by filing a case vide Consolidation Case No.40 of 2018 before the Collector, Balasore (O.P. No.1) against the petitioners of this writ petition arraying them as opposite party Nos.2 to 5 and arraying Gajendra Naik as O.P. No.1 under Sections 34 & 35 of the OCH & PFL Act, 1972 praying for declaring that, the sale deed No.757 dated 08.07.2010 executed in favour of O.P. Nos. 2 to 5 as void and to evict them from the case land. 3. After hearing from both the sides, the Collector, Balasore (O.P. No.1) allowed that Consolidation Case No.40 of 2018 filed by Pankaj Kumar Nayak as per its final order dated 14.10.2022 (Annexure-5) assigning the reasons that, the sale deed No.757 dated 08.07.2010 has been executed in favour of O.P. Nos.2 to 5 creating fragmentation in contravention of Section 34 of the OCH & PFL Act, 1972, for which, the said sale deed is declared as void and Opposite Party Nos.2 to 5 are summarily evicted from the land purchased by them through RSD No.757 W.P.(C) No.34678 of 2022 Page 2 of 7 dated 08.07.2010 and a copy of that order was sent to the Tahasildar, Simulia and Sub-Registrar, Simulia by the Collector, Balasore (O.P. No.1) for implementation of that order. The opposite party Nos.2 to 5 of that Consolidation Case No.40 of 2018 challenged that final order passed on dated 14.10.2022 (Annexure- 5) by the Collector, Balasore by filing this writ petition against the Collector, Balasore arraying him as opposite party No.1 and also arraying Pankaj Kumar Nayak (petitioner in Consolidation Case No.40 of 2018) as O.P. No.2 as well as arraying Gajendra Nayak as O.P. No.3. 4. I have already heard from the learned counsel for the petitioners, learned Standing Counsel for the State (O.P. No.1), learned counsel for O.P. No.2 and learned counsel for O.P. No.3. 5. During the course of argument, Mr. D. Mohanty, learned counsel for O.P. No.2-Pankaj Kumar Nayak (petitioner in Consolidation Case No.40 of 2018) contended that, when as per the impugned final order dated 14.10.2022 passed in Consolidation Case No.40 of 2018 vide Annexure-5, the Collector, Balasore (O.P. No.1) in addition to declare the R.S.D. No.757 dated 08.07.2010 in favour of the O.P. Nos.2 to 5 as void has passed order that, the O.P. Nos.2 to 5 are summarily evicted from the land purchased by them through the R.S.D. No.757 dated 08.07.2010 and sent a copy of that order to the Tahasildar, Simulia and Sub-Registrar, Simulia for implementation of that order, then, according to him (learned W.P.(C) No.34678 of 2022 Page 3 of 7 counsel for O.P. No.2), the O.P. Nos.2 to 5 have already been evicted summarily from the land purchased by them through the R.S.D. No.757 dated 08.07.2010, therefore, in view of the proviso of Section 36A of the OCH & PFL Act, 1972, the said order of eviction passed by the Collector, Balasore (O.P. No.1) in Consolidation Case No.40 of 2018 shall not be reopened. So, the question of interfering with the impugned order dated 14.10.2022 passed in Consolidation Case No.40 of 2018 by the Collector, Balasore through this writ petition filed by the O.P. Nos.2 to 5 of that Consolidation Case No.40 of 2018 does not arise. 6. 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.” 7. When, it appears from the impugned order dated 14.10.2022 passed in Consolidation Case No.40 of 2018 by the Collector, Balasore (O.P. No.1) that, such impugned order regarding the declaration of R.S.D. W.P.(C) No.34678 of 2022 Page 4 of 7 No.757 dated 08.07.2010 as void and summarily eviction of purchasers of the sale deed i.e. O.P. Nos.2 to 5 in Consolidation Case No.40 of 2018 (petitioners in this writ petition) was sent to the Tahasildar, Simulia and Sub-Registrar, Simulia by the Collector, Balasore (O.P. No.1) for implementation of that order and when there is no material in the record to show about the implementation of the said impugned order dated 14.10.2022 passed in Consolidation Case No.40 of 2018 about the physical eviction of the purchasers i.e. the petitioners of this writ petition from the case land, then at this juncture, it cannot be held that, the petitioners in this writ petition have already been evicted from the case land and this writ petition filed by them (petitioners in this writ petition and O.P. Nos.2 to 5 in Consolidation Case No.40 of 2018) challenging the impugned order dated 14.10.2022 passed in Consolidation Case No.40 of 2018 (Annexure-5) by the Collector, Balasore is not maintainable under law. For which, the aforesaid contentions made by the learned counsel for O.P. No.2 concerning the non-maintainability of this writ petition on the ground of eviction of the petitioners of this writ petition from the case land cannot be acceptable under law. Because, there is no material in the record for the reasons assigned above about their eviction. 8. 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 Court in a case between W.P.(C) No.34678 of 2022 Page 5 of 7 Benudhar Swain Vrs. Bahudi Jena reported in 2024 (II) OLR-261 at para 12 that, “Section 36A has been introduced/incorporated in the Statute Book as per Section 3 of the Amendment Act, 2023 omitting Sections 33, 34 & 35 of The OCH & PFL Act, 1972 from the Statute Book, then, it would not be permissible to hold any transfer in contravention of Section 34 of The OCH & PFL Act, 1972 (which has already been omitted) as void.” 9. Here in this writ at hand, when the transfer of agricultural land has been made through RSD No.757 dated 08.07.2010 in respect of A0.50 decimals out of A1.59 decimals of plot No.108 from Chaka No.65 under Consolidation Khata No.694 in Mouza Markona, 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 this Court in a case between Benudhar Swain Vrs. Bahudi Jena reported in 2024 (II) OLR-261, the above sale made by the mother of opposite party No.3 i.e. Malli Nayak in favour of the petitioners in this writ petition though R.S.D. No.757 dated 08.07.2010 cannot be held as invalid/void. For which, in other words, it is held that, the said sale deed No.757
Decision
dated 08.07.2010 in favour of the writ petitioners is not void. W.P.(C) No.34678 of 2022 Page 6 of 7 10. Therefore, the writ petition filed by the petitioners is allowed on contest. The final order dated 14.10.2022 (Annexure-5) passed in Consolidation Case No.40 of 2018 by the Collector, Balasore declaring the R.S.D. No.757 dated 08.07.2010 as void is quashed and set aside. 11. As such, the writ petition is disposed of finally. Orissa High Court, Cuttack. 23.07.2025//Utkalika Nayak// Junior Stenographer (A.C. Behera), Judge. Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India. Date: 24-Jul-2025 16:04:27 W.P.(C) No.34678 of 2022 Page 7 of 7