Orissa High Court
Bhaskar Swain And Sanatan Khatei And ... vs Commissioner Of Consolidation And Ors. on 15 May, 1992
Equivalent citations: 1993(I)OLR153
JUDGMENT L. Rath, J.
1. The important question relating to the interpretation of Section 51 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as 'the Consolidation Act') that falls to be decided in these casses is : whether the consolidation authorities can re-open and decide questions relating to right, title, interest and liability in land lying within the consolidation area when decision regarding such issues have already been reached by competent Revenue Courts or authorities under any local law prior to the commencement of consolidation operation in the area. Both the cases have similar set of facts giving rise to identical questions and hence are disposed of by this common judgment. The facts leading to the filing of the present applications invoking the certio rati jurisdiction may be stated. Opp. party No. 4 in both the cases is the same person She filed two objection in the Consolidation proceedings respectively registered as Objection Case No. 783 of 1975 and Objection Case No. 777 of 1969 objecting to the preparation of the record-of-rights Under Section 9(1) of the Consolidation Act in fovour of the petitioners in the respective cases pleading that the disputed lands had vested as estates under the Orissa Estates Abolition Act, 1951 (hereinafter referred to as the O. E. A. Act') and had been settled with her as intermediary in khas possession Under Section 7 of that Act, rent roll had been issued in her favour and she has been paying rent and obtaining receipts therefor. She pleaded that the petitioners had surrendered their rights in the lands and were not in khas possession of the lands on the date of vesting and that the settlement with her had not been chalenged by them at any time. Nor objections were accepted with the Consolidation Officer holding as being bound by the decision of the O. E. A. Collector and he accordingly directed the preparation of the land register in the name of the opp. party No. 4. Both the petitioners preferred appeals before the Deputy Director of Consolidation who reversed the decisions of the Consolidation Officer being of the view that the provisions of the proviso to Section 8-A(2) of the O. E. A. Act had not been complied with ; that even though proclamation of public notice might have been made, yet the petitioners had no knowledge of it ; and that the kind rent paid by the petitioners having been converted to cash rent Under Section 4(9) of of the Orissa Land Reforms Act, 1960 (hereinafter referred to as the O.L.R. Act) in O.L.R, Case No. 290/72-73, it is binding on the consolidation authorities. The opp. party No. 4 carried two revisions before the Commissioner of Consolidation (opp. party No. 1) respectively registered as Revision Case Nos. 1145/81 and 1146/81. The revisional authority set aside the orders of the appellate authority and confirmed that of the Consolidation Officer. Objection Case No. 777/69 gave rise to Revision Case No. 1145/81 the order in which is impugned in OJC No. 672/85 and Objection Case No. 783/75 gave rise to Revision Case No. 1146/81, the decision of which is impugned in OJC No. 671/85.
2. Before proceeding further, certain admitted features of the case may be noticed. The lands admittedly vested, under the provisions of the O. E. A. Act and thereafter were settled with the opp party No. 4 under the provisions of Section 7 of that Act on 2-7-11)80 in Nijdakhal Case No. 591 of 1958-59. The petitioners never challenged the statement with the opp. party No. 4 before the forum available under the O. E. A. Act. It is the finding of the Consolidation Officer that the petitioners did not raise any objection to the settlement even though in some of the rigours of the proclamation issued under that Act. This finding was also confirmed by the Commissioner holding "that there was substantial compliance as the notices were widly published and affixed in presence of the villagers and two of the opposite parties (Bansidhar Khatei petitioner No. 6 in OJC No. 672/85 and Bhim Khatei, the father of Kalu Khatei petitioner No. 3 in OJC No. 672/85). The decision Under Section 4(9) of the O.L.R. Act in OLR Case No. 296/72-73 was admittedly without notice to the opp. party No. 4 even though by such time she had already been settled with the lands. The petitioners were admittedly occupancy tenants on the lands as per the record-of-rights finally prepared and published under Section 116 of the Orissa Tenancy Act on 30-12-1927 showing the land to have been recorded as Sthitiban Sabat Nijyot with Dharyajema and local cases shown as "Dhulibhag Maya Sesh" and the predecessors-in-interest of the petitioners show"' in Column 4 of the record-of-rights as tenants. Though a lot of arguments were advanced by Mr. Mohapatra appearing for the opp. party No. 4 contesting the Sthitiban status of the petitioners as per the record-of-rights, yet he ultimately fairly conceded that the petitioners were the occupancy tenants of the lands but contended that they had surrendered their holdings long prior to the vesting and that on the basis of the khas possession of the opp. party No. 4 as the intermediary, the settlement had been made with her.
3. Mr. Pal, the learned counsel appearing for the petitioners, has assailed the revisional orders urging that the Commissioner completely misdirected himself, on a wrong understanding of the record-of-rights, by holding the petitioners not to have been ever the occupancy tenants on the lands, and not being raiyats on the lands under the OLR Act, to have had no competence to file application Under Section 4(9) of that Act to got the kind rent converted to cash rent. It is the submission of Mr. Pal that since the petitioners were admittedly occupancy tenants upon the lands and it is their case that they had continued as such' tenants at the time of vesting and even thereafter and they were paying rent to the State Government, they had become the occupancy tenants and raiyats under the State which fact was also accepted by allowing the the kind rent to be converted to cash rent and hence their status as occupancy tenants could never be affected by a proceeding under the O. E. A. Act merely setting the lands' with the opp. party No. 4 as the intermediary. The O'. E. A. Collector had no jurisdiction to settle tenanted lands with the intermediary and that even if the petitioners bad not contested the proceeding before the O. E. A. Collector, yet it was open for them to' assail the same and perfect their rights before the consolidation authorities. For the purpose, reliance has been placed on the Full Bench decision, of this Court in 50(1980) CLT 393 (Krupasindhu Misra v. Gobinda Chandra Misra). Mr. Mohapatra appearing for the opp. party No. 4, on the other hand, while-conceding that the petitioners were in fact occupancy tenants on the lands and that the finding of the Consolidation Commissioner to the contrary is erroneous to that extent, yet has argued that the petitioners had never continued as occupancy tenants on the Vands at the time of vesting having long back surrendered the same and that though the settlement Under Section 7 is challengeable by an occuparicy tenant before the Civil Court as an act without jurisdiction and in spite of the fact that the occupancy tenant might not have appeared before the estate abolition authorities despite notice, yet such a right cannot be exercised before the consolidation authorities in view of the bar Under Section 51(1) of the Consolidation Act
4. The submissions of Mr. Pal may be summed up in this manner. The O. E. A. Act was an enactment for abolition of right, title and interest in land of intermediaries but left a tenant's right unaffected. The authorities under 'the O. E. A. Act were never concerned with determination of tenancy rights and that any determination reached by them in that regard was not binding on the tenants. The question was directely answered in favour of the proposition in the Full Bench decision, 50 (1980) CLT 393 {supra) in para 12 where disagreeing with the Division Bench decision in 39 (1973) CLT 975 (V. Krishna . Rao Dora and Ors. v. Kotini Sitaram Dora and Ors.) the Court held, following AIR 1962 SC 1992 (Kumar Bimal Chandra Sinha (deceased) and after him, his legal representatives and Ors. v. State of Orissa and Ors.) that interest of a raiyat was not touched by the Act and if there was an occupancy tenant on the property, even if the Collector made a settlement in exercise of his powers under Chapter II of the O. E. A. Act, there could be no scope for the conclusion that a tenancy right of the occupancy tenant could be taken away. The settlement in such a case would be beyond the jurisdiction of the Collector and even if upon notice the occupancy tenant does not enter contest, his right in the property cannot be affected by any action of the Collector. Since the act of the O. E. A. Collector in such a case would be one without jurisdiction, it is the submission of Mr. Pal that whenever the right of the occupancy tenant is threatened, whatever may be the point of time, it would be open for him to come before the Civil Court to establish the nullity of the settlement under the 0. E. A. Act and to safeguard his right. On such premises, it is his further contention that since Under Section 51 (2) of the Consolidation Act the right of the Civil Court to entertain such cause of action is taken away and vested in the consolidation authorities, the same jurisdiction as was exercisable by the Civil Court in respect of the decision of the O. E. A. Collector is available to be exercised by the consolidation authorities and hence the revisional order must be set aside and the matter remanded to the Consolidation Officer for re-determination as to whether the petitioners were the the' occupancy tenants and continue as raiyats under the State. Thus the sole question to be decided is whether: Section 51 (1)of the Consolidation Act vests jurisdiction in the consolidation authorities to decide such questions or not.
5. Whenever the question of exclusion of the jurisdiction of the Civil Court arises in the context of setting up of a special tribunal under a statute to adjudicate certain types of disputes, the law is wall settled that the jurisdiction of the Civil Court shall be taken to be excluded only to the extent it is specifically included either by express words or by implication within the jurisdiction of the tribunal. Conversely the tribunal so set up would have exclusive jurisdiction only to decide the questions specicaily entrusted to its care but would have no exclusive jurisdiction to decide what is usually known as preliminary, or collateral or jurisdictional facts, the decision on which it is necessary to assume jurisdiction to decide the special disputes entrusted to it unless the legislature itself excludes the jurisdiction of the Civil Court also to decide such preliminary, or collateral, or jurisdictional facts. Hence every tribunal has the inherent authority to decide two sets of facts ; the first being the preliminary, or collateral, or jurisdictional facts, shortly put, the primary facts, which it must decide so as to enable itself to assume the authority to act as the tribunal ; and the second being, once it decides the primary facts in the affirmative, to decide the second set of facts relating to the special dispute for the decision of which it has been constituted. The jurisdiction to decide the secondary set of facts is exclusive to itself and to that extent the jurisdiction of the Civil Court is excluded to decide such facts, but the decision of the Tribunal on the first set of facts is usually not conclusive and is open to be challenged before the Civil Court unless the legislature itself has also sealed such quastions from its cognizance. The law on the question was explicitly discussed in I.L.R. 1965 Cuttack 539 (Beharilal Neparam v. Urdhaba Charan Sahu and Ors.) where reliance was placed on (1988) 21 O. B. D. 313 (Queen v. Commissioner for Special Purposes of Income-tax) and on a passage from I. L. R. 1958 Cuttack 417 (Benudhar Dalai v. State of Orissa) to the effect :
"A collateral fact on the existence of which a Court or Tribunal gets jurisdiction to decide other questions should of necessity be decided by the same Tribunal and the only difference, between such decision on the collateral facts and the decision on other essential facts is that the former is not conclusive whereas the latter is made final and conclusive by the special statute creating jurisdiction."
Three legislations to refer as illustrations in which the jurisdiction of the Civil Court is ousted even in respect of the primary facts are the O.L.R. Act, the Orissa Tenants Relief Act (Act No. 5 of 1955) and the Orissa Prevention of Land Encroachment Act, 1972. In the First Act, determination" of various disputes including that of relationship of landlord and tenant is stipulated to be decided, only by the Revenue Officer with appeal and revision provided before a hierarchy of revenue tribunals. The disputes to be so determined comprise determination of both the primary facts of existence of relationship of landlord and tenant as also of the special facts like quantum of rent payable, question of possesssion of the land, the right of the landlord to terminate tenancy Under Section 14, etc. Section 15 (1) (d) specifically vests authority in the Revenue Officer to decide the question of relationship of landlord and tenant, ft is to be seen that even without a provision like Section 15(1)(d), the Revenue Officer had also the jurisdiction to decide such dispute as a jurisdictional fact but such decision by him would not have been conclusive and could be assailed before the Civil Court. But since the legislature desires that, the decision on the question must be completely sealed,from the authority of the Civil Court, it made the specific legislation in Section 15(1 )(d) authorising the Revenue Officer to decide the question of existence of relationship of landlord and tenant and in Section 67 provided that no Civil Court shall have the jurisdiction to try and decide a suit or proceeding in so far as it relates to any matter which any officer or other competent authority is empowered by or under the O. L. R. Act to decide. A similar step was taken by the legislature so far as the Orissa Tenancy Relief Act, 1955 (Act No. 5 of 1955), since repealed, was concerned. Its predecessor Act, the Orissa Tenancy Protection Act (Act No. 3 of 1943) had provided in Section 7(1) five types of disputes to be decided by the 0. T. P. Collector and Section 8(1) thereof provided that subject to the provisions of Section 7, all disputes arising between landlord and tenant shall be cognizable by the Revenue Court and shall not be cognizable by the Civil Court. Since it was held in AIR 1962 SC 547 (Magiti Sasamal v. Pandab Bissoi and Ors.) reversing the decision of this Court in AIR 1957 Ori. 17 (Pandab Bissoyi and Ors. v. Magiti Sasamal) that disputes regarding existence of relationship of landlord and tenant was Beyond the purview of the Collector's decision Under Section 7(1) and was to be decided by the Civil Court, the Orissa Tenancy Relief Act which had repealed the Orissa Tenancy Protection Act and had come in its place was amended by Orissa Act 29 of 1962 to add Section 11-A thereto excluding the jurisdiction of the Civil Court and vesting exclusive jurisdiction in the Collector to decide dispute even regarding existence of relationship of landlord and tenant. In the Orissa Prevention of Land Encroachment Act, 1972 which is the legislation dealing with the eviction of unauthorised encroachers upon Government property as defined in the Act. Section 8(A) was introduced by Orissa Act 13 of 1982 to provide that where in a proceeding Under Sections 4, 6, 7 and 8 it is proved by the encroacher that he has been in actual continuous and undisputed occupation of the land for more than thirty years by the date of the institution of the proceeding, the land may be settled with the person after making the enquiry and following the procedure as provided for under the Section. Section 16 of the Act bars any suit or other proceedings for determination, or decision of disputes for which provision has been made in the Act. Thus the questions to whether a person was actually in possession of the Government land for more than thirty years by the date of the institution of the proceeding is no more open to be decided by the Civil Court but is only to be decided, so far as proceedings of encroachment are concerned, by the authorities under the Act.
6. So far as the authority of the. O. E. A. Collector Under Section 7, so far as relevant to the present case, is concerned, it is in the context of deemed settlement of land used for agricultural and horticultural proposes which were in khas possession of the intermediary on the date of the vesting. Section 8.A requires the intermediary claiming for deemed' settlement to file a claim in the prescribed manner for the benefit of such settlement and on filing of the claim the Collector is to give public notice thereof in the manner provided. If objections are made disputing the claim of the intermediary, the Collector is to enquire into the same in the prescribed manner and pass such order as he deems just and proper; that is, if objections are found to be true the settlement is to be refused, but if the objections are rejected, the settlement would be made which will operate as a deemed settlement. Thus when a claim is lodged by the intermediary Under Section 7 and an objection is made to such claim, the questions for determination before the O. E. A. Collector as the tribunal are, (i) whether the estate has vested ; (ii) whether the claimant is the intermediary in respect of the estate ; and (iii) whether he was in khas possession of the land on the date of vesting. While the decision on preliminary or jurisdictional facts the decision on the first two questions can be taken as the decision on the third question is exclusively within the jurisdiction of the O. E. A. Collector, In other words, if the decision on the first two' questions is correctly made by the O. E. A. Collector, his determination regarding the third question is not available to be disturbed by the Civil Court as that is a question which has been specifically entrusted by the legislature to him for decision and Section 39 of the O. E. A. Act also makes the provision for the same in providing that no suit is to be brought in any Civil Court concerning any matter which is or has already been the subject of an application made or according to him under Chapter-II An exception to this was decided by the Full Bench of this Court in 50(1980) CLT 393 (supra) in which it was held, relying upon AIR 1940 PC 105 (Secretary of State v. Mask and Co.) that where in making the settlement with the intermediary the O. E. A. Collector had not complied with the statutory provisions in making it, a suit would lie to examine the validity of the decision. Thus where in making the settlement the O. E A. Collector does not comply with the provision of the first proviso to Section 8-A(2), it can be taken to have affected his jurisdiction in making the settlement and a suit would lie to question it. After reaching such conclusion, it was further decided, differing with V. Krishna Rao Dora's case(supra), that the interest of a raiyat was not touched by the O. E. A. Act and even if a settlement had been made by the Collector under Chapter II, yet it would in no way affect the right of an occupancy raiyat on the land even if he might not have responded to the notice issued by, the Collector on the application made by the intermediary for settlement as the entire assumption of jurisdiction and. exercise.of it by the Collector is without authority of law he having no jurisdiction over an occupancy tenancy. Hence in view of the decision of the Full Bench it must be held that where in a proceeding commenced on the basis of an application of the intermediary claiming deemed settlement, the O. E A. Collector decides him to be in khas possession either negativing an objection by, or in ignorance of the existence of, an occupancy tenant upon the, land, such decision of his would only be a decision on a primary fact vis-a-vis the right of the occupancy tenant and cannot be taken to be conclusive of his right. In coming to such conclusion, the Full Bench disagreed with the earlier Division Bench case in V. Krishna Rao Dora's case (supra).
7. Section 51 of the Consolidation Act is to be interpreted in this, background of the position of law :
"51. Bar of jurisdiction of Civil Courts-Notwithstanding anything contained in any other |aw for the time being, 1,0 force,, but subject to the provisions contained in Clause.(3,) of. Section 4 and, Sub-section (1) of Section 7- (1) all questions relating to right; title, interest and liability in land lying in the consolidation area, except those coming within the jurisdiction of Revenue Courts or authorities under any local law for the time being in force, shall be decided under the provisions of this Act by the appropriate authority during the consolidation operations; and (2) No Civil Court shall entertain any suit of proceedings in respect of any matter which an officer or authority empowered under this Act is competent to decide.
Sub-section (2) bars the jurisdiction of the 'Civil Court to entertain any suit or proceeding regarding any matter which an officer or authority is competent to decide. Sub-section (1) vests the jurisdiction to decide questions of right, title, interest and liability in land with the consolidation area in the appropriate authority under the Act except when those questions are within the jurisdiction of the Revenue Courts or authorities under any local law for the time being in force. We are concerned here with the scope and embit of the exception as being whether only prospective in nature or also as covering decision rendered by the Revenue Courts or the authorities under any local law prior to the commencement of the consolidation operation. The submission of Mr. Pal, as has been noticed earlier, is that as undoubtedly a Civil Court has the jurisdiction to entertain a suit relating to the right of an occupancy tenant in an estate settled under the provisions of Section 7 of the O. E. A, Act, such right must now be conceded the consolidation authorities and that the exception to such rights of the authorities under the Act operates only when such questions are simultaneously also within the cognizance of the Revenue Courts or authorities under any local law. In other words, the submission is that since Section 51 itself operates prospectively ; that is, it does not relate to pending suits but only bars the entertainment of suits by the Civil Court after the commencement of the consolidation operation and makes the provision that where the cause of action for the suit arises after such commencement it is to be decided by the consolidation authorities, the exception to the jurisdiction of the consolidation authorities can only be in relation to the causes of action which arise after the commencement of the consolidation operation and not otherwise. For the purpose reliance has also been placed on an earlier decision of my own reported in 63 (1987) CLT 347 (Brajakishore Panda and Ors. v. Damodar Rout and Anr.) wherein I observed as follows :
"......The question whether the Orissa Estates Abolition Collector acted without jurisdiction in settling the land by way of lease in favour of the defendants is one which can also be decided by the consolidation authorites. A settlement made under the Orissa Estates Abolition Act Under Sections 6 and 7 thereof is not a lease freshly granted but is a deemed settlement by fiction of the statute. Grant of fresh lease to intermediaries is not contemplated under the Orissa Estates Abolition Act. Such leases are granted under a set of executive instructions to those intermediaries who had failed to make applications Under Sections 6 and 7 of the Orissa Estates Abolition Act in time as also to other persons. They are thus not statutory settlements but are administrative acts of the Estates Abolition Collector. The plea of the plaintiffs that they being tenants upon the land before vesting were to continue as such after the vesting and that the Government would not lease out the land, it being not free for any further settlement, is a question which is not beyond the ourview of the consolidation authorities.........."
8. In interpreting a statute a cogent rule to be adopted is not merely a textual interpretation but also a contextual one. The interpretation has to be so made as to interpret the text in the context in which it is made so as to neither violate the express words of the statute and also not to violate the spirit in which it was enacted. It is for such reason that the statute must be interpreted and read in a purposive manner so as to avoid any incongruity, absurdity or irrationality. The Consolidation Act adopted a strategy, as is seen from the statement of objects and reasons of the Act, for increasing agricultural production in the country and in pursuance thereof to give inducement and incentive to the cultivators. It was considered expedient to initiate a legislation for consolidation of scattered holdings and re-arrange the holdings including the fragmented holdings among various land owners to make them more compact and to provide against future fragmentation of holdings. The stop was thought necessary as it would help in economic farming, in application of improved implements and methods of farming which are necessary for development of agriculture and for increased agricultural production. The scheme of the Act discloses a time bound programme in which a combined operation of the preparation of the record-of-rights as also consolidation of chakas are to be made so as to do o away with fragmentation of lands and provides within the scheme of the Act constitution of single units of individual land owners by bringing fragmented lands into one unit. The Act purports to operate on the time schedule for achieving the object as expeditiously as possible and it is in this context that the Civil Courts were deprived of jurisdiction Under Section 4(4) of either continuing the pending litigations or Under Section 51(2) to entertain fresh ones relating to right, title, interest and liability in the lands and such functions were transferred to the authorities under the Act who are in themselves no other than the executive officers. This was so done with a view to free the implementation of the scheme under the Act from the time consuming process of contested litigations in the Civil Courts. It is in this context, while excluding the jurisdiction of the Civil Courts Under Section 61 (2), that the exception was made in Sub-section (1) directing that where questions as are to be decided by the consolidation authorities are also within the cognizance of the Revenue Courts or authorities functioning under the local law, the decision on the question would be left to such authorities and the consolidation authorities would not again investigate into the matter. If such was the intention of the legislature, there is no reason as to why the consolidation authorities would be denied of the jurisdiction to decide such questions when they arise after the commencement of the consolidation operation but would have the authority to decide the very same questions when they have already been subjected to decision of the very same authorities who are declared competent to decide such questions exclusively after commencement of the consolidation operation. Such an interpretation would otherwise lead to incongruity and obviously unacceptable results. The consolidation authorities are in themselves nothing more than either the Revenue Courts or the authorities functioning under local law. There is no reason why they should be considered to be any superior status than the authorities who have already dealt with the question when it arose before them. The procedure for decision of the dispute before the Revenue Courts or before the authorities under local law is also not materially different than the procedure followed before the consolidation authorities in decision of disputes. Often it may so happen that the decision by the Revenue Courts or authorities under local law may be of officers of co-ordinate rank or even higher rank than the authorities under the Act. The O. E. A. Act provides an appeal, ' if the decision has been taken by the Collector of the district, to the Board of Revenue and to the Collector, if the order has been passed' by an officer other than the Collector, Section 33-B also provides for revision by the Board of Revenue. An Order passed by the O. E. A. Collector under 'Section 7 of the 0. E. A. Act may have been finally upheld at the revisional stage by the Board of Revenue. Yet, if the interpretation as suggested by Mr. Pal is accepted, a Consolidation Officer may set at naught a decision of the Board of Revenue on the identical set of facts, This certainly could not have been meant by the legislature and on the contrary being aware of such contingency, the exception was carved out. It rather appeals to reason to hold that the scheme of the Act is on the one hand abatement 6f all pending "causes of action as provided Under Section 4 (4) and on the other hand deprivation of the Civil Courts Under Section 51 (2) of the powers to entertain any new cause of actions' but so far as the Revenue Courts of authorties under local law are concerned, to put finality to their decisions earlier ' reached in respect of subject-matters which properly fell under their jurisdiction and also to allow them to decide such matters 'exclusively and not bring those matters before the consolidation authorties again. The legislature was conscious of a conflict of jurisdiction between different Revenue Courts or authorities under local law which expression may also apply to consolidation authorities and hence by providing for the exception intended, on the one hand to resolve such conflict of jurisdictions and on the other hand, to give a seal of finality to decisions reached by the respective authorities in their own spheres, thus intending to achieve the objectives of the Act with expediency.
9. One submission has been made with great tenacity that since the occupancy tenant had a right to come before the Civil Court assailing the decision of the O. E. A. Collector, his such right cannot be taken to have been wiped out and that the consolidation authorities being the substitutes of the Civil Courts in that regard' should be held to have the authority to examine the issues. The submission does not find force with me. As has been seen earlier, it is open for the legislature to exclude from the gaze of the Civil Court also decisions of the special tribunals on questions of preliminary, or collateral, or jurisdictional facts. Hence even if the decision as to whether there was an occupancy tenant upon the land on the date of vesting is taken as a primary fact decided by the estate abolition authorities while deciding the fact of the intermediary being in khas possession on the date of vesting or not, as has been decided by the Full Bench in 50 (1980) CLT 393 (supra), yet it has to be held that in providing for the exception under -Section 51 (1) the legislature has intended to grant finality to the decision of the O. E. A. Collector even on such primary fact. As such either where the occupancy tenant has appeared and contested the claim of the intermediary and has host before the estate abolition authorities in a Section 7 proceeding or has not responded to the public notice issued under the the first proviso to Section 8-A (2) of the O. E. A. Act and the decision has been rendered by the O. E. A, Collector upholding the claim of the intermediary, that must be taken to have achieved finality and is not liable to be questioned any further before the consolidation authorities. The decision in 63 (1987) CLT 347 (supra), relied upon by Mr. Pal has no application to the facts of the case. That was a case where the settlement was not made Under Section 7 but under the executive instructions. The settlement was not a deemed settlement but by way of a lease. In terms, such lease being not a deemed settlement under the O. E. A. Act is not covered under the exception Under Section 51 (1) of the Consolidation Act which excepts only decision of the Revenue Courts or authorities functioning under any local law for the time being in force. The 0. E. A. Collector functioning under the executive instructions to grant lease to intermediaries who had failed within the stipulated time to lodge claims under" Section 7 is not an Authority functioning under the O.E.A. Act but is an authority functioning under the lease principles only. Thus the exception being not applicable, the settlement is not beyond the scrutiny of the consolidation authorities a position which was expressly recognised in the decision.
10. The conclusion reached as regards the finality of the decision of the estate abolition authorities under Section 7 is however subject to one exception so tar as the jurisdiction of the Civil Court is concerned. Section 31 (1) proviso provides that where the land owner is allotted his original holding either wholly or in part in the final consolidation scheme, his right, title, interest and liability in such holding or part thereof, as the case may be, shall remain unaffected. Thus even though in respect of the chakas allotted to a land owner after the final consolidation schema there is creation of a new right in the chakas, yet the liability of a land owner in respect of any land allotted to him under the final scheme will continue unabated it he was the owner of the chaka also originally and hence if the land which had been settled with the intermediary Under Section 7 is re-allotted to him either in whole or in part the respect of that land either wholly or in part, as the case may be, vis-a-vis an occupancy tenant shall continue unaffected and hence the decision of the O. E. A. Collector will still remain open to question before a Civil Court after the consolidation operation has ceased.
11. In the result, the petitions have no merit and hence are dismissed. No costs.
K.C. Jagadeb Roy, J.
12. I agree.