Orissa High Court
Debendranath Sahoo And Another vs The Collector on 26 March, 2021
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
HIGH COURT OF ORISSA: CUTTACK
W.P.(C) NO. 24676 OF 2017
In the matter of an application under Articles 226 and 227 of
Constitution of India.
Debendranath Sahoo and another ...... Petitioners
-Versus-
The Collector, Cuttack and others ...... Opp. Parties
For Petitioners : M/s. Supriya Patra, K. Rout &
S. Sahoo
For Opp. Parties : M/s. Sailesh Das, B. Das,
P. Sahoo & K.P. Mohaty
(For O.Ps. 4 to 8)
Mr. Amiya Kumar Mishra
Addl. Government Advocate
(For O.Ps. 1 & 2)
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Heard and Disposed of on 26.03.2021
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA
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ORDER
K.R. MOHAPATRA, J. Heard Ms. Supriya Patra, learned counsel for the petitioners, Mr. Sailesh Das, learned counsel for the opposite 2 party Nos.4 to 8 and Mr. Amiya Kumar Mishra, learned Additional Government Advocate for the State-opposite party Nos. 1 to 2.
2. On the death of the opposite party No.3, namely, Smt. Shantilata Sahoo, her name has been deleted vide order dated 17.12.2020, as her legal heirs are already on record as opposite party Nos. 4 to 8.
3. The petitioners in this writ petition seek to challenge the order dated 05.04.2017 (Annexure-6) passed by the Collector, Cuttack in Consolidation Misc. Case No.9 of 2014 filed by the opposite party No.3 under Sections 34 and 35 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short, 'the Act').
4. The averments made in the writ petition reveal that the land in Khata No.469, Chaka No.577, Plot No.1048 to an extent of Ac.0.702 decimals in mouza - Betei in the district of Cuttack stood recorded in the name of one Laxmidhar Sahoo (for short, 'the case land'). The opposite party Nos.1 and 2 purchased an area of Ac.0.120 decimals from the case land vide Registered Sale Deed No.2568 dated 07.10.1998 from the recorded tenant, late Laxmidhar Sahoo and possession was delivered to him. After the 3 death of said Laxmidhar Sahoo, his widow, namely, Shantilata Sahoo, filed Consolidation Misc. Case No.9 of 2014 under Sections 34 and 35 of the Act alleging that the Petitioners are not the continguous Chaka owner and by alienating, i.e. Ac.0.120 decimals from Chaka No.577, a fragment has been created. The alienation is made without permission from the competent authority in contravention with Section 34 of the Act. As such, the sale in question is void in view of Section 35 of the Act. It further appears that after purchase of the case land, the opposite party Nos.1 and 2 got the case land mutated in their names and OLR Case No.120 of 2004 was filed for conversion of the land to homestead, which was allowed vide order dated 28.08.2020. Accordingly, ROR (Annexure-6) has also been issued in the name of the petitioners. The Collector, Cuttack without considering the same and only by referring to the provisions of Sections 34 and 35 Act held the transfer in favour of the petitioners vide Registered Sale Deed No.2568 dated 07.10.1998 as void vide his order dated 25.04.2019. Assailing the same, the writ petition has been filed.
5. Ms. Patra, learned counsel for the petitioners submits that the petition under Sections 34 and 35 of the Act is barred by 4 limitation as it was filed 16 years after the impugned transaction. In support of her case, Ms. Patra relied upon paragraph-30 of case of Sutar Chemical Private Ltd. and Another -v- Collector, Balasore and others, reported 2015 (I) OLR 394 and submitted that after purchase of the case land, the same has already been mutated in the name of the petitioners and the same has been converted to 'Gharabari' kissam. Thus, by the time a proceeding under Sections 34 and 35 of the Act was initiated, the land had lost its character of being an agricultural land. As such, the petition under Sections 34 and 35 of the Act is not maintainable. After purchase, the petitioners have also made improvements in the land and made it ready for construction of residential house. She, therefore, prays for setting aside the order under Annexure-6.
6. Mr. Mishra, learned Additional Government Advocate for the State submits that the impugned order is quite justified being passed in conformity with law. Admittedly, the land owner had alienated a fragment of Chaka which is prohibited under Section 34 of the Act. Hence, the Collector, Cuttack has committed no error in declaring the same to be void under Section 35(1) of the Act and the petitioners are liable to be summarily evicted. As 5 such, the impugned order under Annexure-6 needs no interference.
7. Mr. Das, learned counsel for the opposite party Nos.4 to 8 vehemently objected to the submission of Ms. Patra, learned counsel for the petitioners and submitted that para-30 of Sutar Chemical Pvt. Ltd. (supra) cannot be treated as a precedent as it has been passed in the facts and circumstances of the said case. In the case at hand, no construction has been made over the case land. Admittedly, the case land is a fragment of Chaka No. 577 and the petitioners are not the continguous Chaka owner. The ratio laid down in Sutar Chemical case (supra) is squarely applicable to the case at hand. The Collector, Cuttack has committed no error of law in holding that the transaction in question is void in the eyes of law. Hence, the impugned order under Annexure-6 needs no interference.
8. Taking into consideration the submissions made by learned counsel for the parties and on close scrutiny of the documents available on record, it appears that the land purchased by the petitioners were admittedly a fragment of Chaka No. 577. But, after purchase of the land from the recorded tenant, namely, Laxmidhar Sahoo, in the year 1998, the 6 petitioners got the land mutated in his name. Subsequently, vide order dated 20.08.2014 in OLR Case No.120 of 2004, the case land has been converted to 'Gharabari' kissam of land. As such, by the time Consolidation Misc. Case No.9 of 2014 was initiated, the land had lost it character of being a consolidable agricultural land. Neither the mutation in favour of the petitioners nor the conversion of the land to 'Gharabari' kissam has ever been challenged. Mr. Das, learned counsel for the opposite party Nos. 4 to 8 raised an objection to the effect that the petitioners have filed C.S. No. 7146 of 2014 for declaration of right, title and interest over the case land, which is at present pending before the learned Civil Judge (Senior Division), Salipur for adjudication. The petitioners filed the aforesaid suit as the opposite party Nos. 4 to 8 created disturbance in his peaceful possession over the case land. Thus, pendency of the suit for declaration of right, title and interest cannot in any way either improve the case of the opposite party Nos. 4 to 8 or affect the right of the petitioners accrued by sequence of events as discussed above and by operation of law.
9. Taking into considering the discussion made above, I feel that the benefit granted to the petitioners in the case of Sutar 7 Chemical Pvt. Ltd. (supra) should be extended to the petitioners. In that view the matter, the objection raised by Mr. Das, learned counsel for the opposite party Nos. 4 to 8 is not sustainable in the eyes of law.
10. In that view of the matter, the writ petition succeeds and the impugned order under Annexure-6 is set aside.
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K.R. Mohapatra, J.
Orissa High Court, Cuttack.
Dated the 26 th March, 2021/bct