Radhakanta Math vs State Of Odisha And Others ....... ... on 4 February, 2022

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Orissa High Court

Radhakanta Math vs State Of Odisha And Others ....... ... on 4 February, 2022

1. This IA has been filed by the State of Odisha-Opposite Party with a prayer to abate the proceeding under the Odisha Land Reforms Act, 1960 (herein after referred to as 'OLR Act' for convenience) as the said area under which the land in question situates is under consolidation operation initiated under the provisions of the Odisha Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as 'Consolidation Act' for convenience).

2. Materials on record reveal that Sri Radhakanta Math situated in the district of Puri (hereinafter referred to as 'Math' for convenience) is a Public Religious Institution under Odisha Hindu Religious Endowments Act, 1951 (hereinafter referred to as 'Endowments Act' for convenience) and Rules framed thereunder. In the year 1976, a suo motu ceiling proceeding under the OLR Act was initiated on the basis of the report of I.A. No.26 of 2021 Page 1 of 17 // 2 // the Amin in respect of an area Ac.515.03 decimal pertaining to Khata No.21 in mouza Sipasirubali (hereinafter referred to as 'the case land' for convenience) against Mahanta Goura Gobinda Das Goswami of Radha Gobinda Das Goswami, Radhakanta Math, Balisahi, Puri and draft statement prepared under Section 43(1) of the OLR Act was confirmed under Section 44(1) of the OLR Act vide order dated 16th December, 1995 (Annexure-5) holding the case land to be the personal property of Mahanta Goura Gobinda Das Goswami. Assailing the same, the Petitioner-Math preferred Appeal under Section 58 of the OLR Act in OLR Appeal No.12 of 1996. The Sub-Collector, Puri, vide his order dated 11th August, 1997 (Annexure-6) confirmed the order under Annexure-5. Assailing the same, the Petitioner-Math preferred OLR Revision Case No.1 of 1997, which was also dismissed vide order dated 9th September, 1998 (Annexure-7). Hence, the present writ petition has been filed.

3. Counter affidavit has also been filed by the State Government. In course of final hearing of the writ petition, the State of Odisha came up with this IA stating that during pendency of the ceiling proceeding under the OLR Act, a notification under Section 3(1) of the Consolidation Act was published notifying initiation of the consolidation operation in the area, i.e., Sipasirubali in which the case land situates. It is also stated in the IA that on the prayer of the Petitioner, further proceedings in Objection Case Nos.2667/1996 and 2668/1996 as well as Objection Case Nos. 597 to 612 of 2007 initiated under the provisions of the Consolidation Act pending before the Sub-Collector, Puri, was stayed. Although an application in Misc. Case No.22 of 2013 has been filed by the State of Odisha-Opposite Party to vacate the interim order, but no order to that effect has yet been passed.

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4. It is contended in the petition that in view of Section 4 (3) and (4) of the Consolidation Act, the ceiling proceeding initiated under the OLR Act ought to have been abated, but it was allowed to continue and at present is pending before this Court. An objection to the said IA has also been filed by the Petitioner denying the allegations made in the IA.

5. Learned counsel for both parties addressed the Court at length on the issue involved.

5.1 Mr. Dash, learned AGA submitted that the question of abatement of any proceeding arises when in the pending proceeding (in the instant case, the Ceiling proceeding) before any authority/Court, an issue of existence of right, title and interest over the subject matter arises which is under consideration either in the Civil Court or in any proceeding under the Special Act, i.e., in Consolidation Act in the instant case. The OLR authorities have so far proceeded under the premises that the person against whom Ceiling proceeding has been initiated has right, title and interest over the case land. But in the meantime, consolidation operation started and objection cases relating to the existence of right, title and interest in respect of the case land are pending before the Consolidation Authority. Objection cases have also been filed before the Consolidation Authority, which are awaiting disposal. The ceiling surplus land, if any, of the Petitioner can only be determined after a decision on the right, title and interest of the Petitioner over the case land. Thus, the issue with regard to maintainability of the ceiling proceeding, is dependent upon completion of the Consolidation operation. In such premises, OLR authorities should not proceed with the matter and should keep the ceiling proceeding on hold till completion/closure of the Consolidation proceeding. The consolidation authorities have jurisdiction of a Civil Court to decide the issue of right, title and interest of the parties litigating, Page 3 of 18 I.A. No.26 of 2021 // 4 // whereas the OLR authorities do not have such jurisdiction. Thus, the irresistible conclusion that flows from the above is that on an application filed by any of the parties to the ceiling proceeding, a direction should be made to abate the ceiling proceeding and await final decision on the issue of right, title and interest over the case land. In other words, upon a notification under Section 3(1) of the Consolidation Act, the ceiling proceeding will abate and after closure of the Consolidation operation, the ceiling proceeding may revive depending on the facts and circumstances of each case. In support of his case, he relied on (1974) 2 SCC 27 (Agricultural & Industrial Syndicate Ltd. Vs. State of U.P. and others) and (1980) 3 SCC 719 (Ambika Prasad Mishra Vs. State of U.P. and others). In view of the above, he prayed for allowing the IA.

6. Mr. Mohapatra, learned counsel for the writ Petitioner-Math objecting to the prayer in the IA submitted that the present proceeding, i.e., the writ petition, cannot be said to be a proceeding under the OLR Act. Further, the OLR authorities treating Goura Gobinda Das Goswami as a ceiling surplus land holder prepared draft statement under Section 43(1) of the OLR Act and initiated suo motu OLR Case No. 1/243 of 1986 against his Chela namely, Mahanta Dhyan Chandra Das. The issue involved in the OLR proceeding is as to whether the land in question is the personal property of said Goura Gobinda Das Goswami or it belongs to the Math, which is a public religious institution. The OLR authorities on the premises that the land in question is personal property of Sri Goura Gobinda Das Goswami confirmed the draft statement, which has been affirmed by the appellate authority as well as revisional authority and is pending for consideration in this writ petition. There is no issue of right, title and interest over the case land. If on the materials available on record, this Court comes to a conclusion that the Math is a privileged Page 4 of 18 I.A. No.26 of 2021 // 5 // Raiyat and the property belongs to it, then the draft statement which has been made final, will not sustain. The notification under Section 3(1) of the Consolidation Act was made on 22nd September, 1988, i.e., only two years after the initiation of the suo motu Ceiling proceeding. But at no stage of the proceeding under the OLR Act, such a question was raised by the State of Odisha, although it contested the proceeding in all forums. In the counter affidavit filed by the State of Odisha, no such issue has also been raised. In course of final hearing of the writ petition, this IA has been filed. Such a plea has been taken only to drag the litigation and to harass the writ Petitioner.

7. It is his submission that Section 4(3) or (4) of the Consolidation Act does not clothe a ceiling proceeding under the OLR Act. Section 4 (3) of the Consolidation Act refers to abatement of the proceeding relating to survey, preparation and maintenance of record as well as settlement of land. Although preparation and maintenance of record of right has not been defined in the Consolidation Act, it has the same meaning as mentioned in Odisha Survey and Settlement Act, 1958 (hereinafter referred to as 'Settlement Act') in view of the proviso to Section 2(w) of the Consolidation Act. Section 2(7) of the Settlement Act defines ROR. Section 16 of the said Act refers to maintenance of records. Rules 33 of the Odisha Survey and Settlement Rules, 1962 (hereinafter referred to as 'Rules') prescribes the manner and procedure of maintenance of records. A harmonious reading of the provisions of the OLR Act vis-à-vis Consolidation Act as well as Settlement Act makes it clear that a ceiling proceeding initiated under the OLR Act does not come within the scope and ambit of Sub-sections (3) and (4) of Section 4 of the Consolidation Act. He also refers to a decision of this Court in the case of Pradeep Kumar Behera & Ors. Vs. Commissioner, Land Records and Settlement Page 5 of 18 I.A. No.26 of 2021 // 6 // & Ors reported in 2015 (I) ILR-CUT 545, wherein this Court dealing with scope and ambit of Section 4(3) observed as follows:-

"It is also seen that as per provision of Sub-Section-3 of Section 4 every proceeding relating to Survey and preparation of ROR and Settlement of rent which might be pending before the authorities under Orissa Survey and Settlement Act shall stand abated after publication of Notification under Sub-Section 1 of Section 6 by the Director, Consolidation initiating preparation of Map and land register in respect of the consolidation area."

It is categorically observed therein that in order to avoid duplication work by the Settlement as well as Consolidation Authority, provision under Section 4(3) has been incorporated in the Consolidation Act. Thus, a ceiling proceeding initiated under the OLR Act shall not abate on initiation of consolidation operation by notification under Section 3(1) of the Consolidation Act. Section 7 of the Consolidation Act only refers to abatement of a proceeding for partition of the holding situated in the consolidation area under Section 19 of the OLR Act, as it is capable of being adjudicated by the Consolidation authority.

8. Section 51(1) of the Consolidation Act refers to abatement of the disputes/proceedings relating to right, title and interest in the land situated 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. Thus, the OLR Act being local law, ceiling proceeding under the OLR Act will not come within the ambit of Sub-sections (3) or (4) of Section 4 of the Consolidation Act. The Consolidation operation does not give a fresh cause of action to adjudicate the grievance concerning right, title and interest which is already settled. It only deals with subsisting dispute with regard to right, title and interest and if the same is pending before any civil court, it will certainly abate. But in the instant case, the State of Odisha accepting the Petitioner as the land owner, initiated Page 6 of 18 I.A. No.26 of 2021 // 7 // ceiling proceeding under the OLR Act. Thus, it will not abate as a proceeding for determination of ceiling surplus holding is not amenable to the jurisdiction of the Civil Court in view of Section 67 of the OLR Act.

9. Mr. Mohapatra, learned counsel further contended that the ratio in Agricultural & Industrial Syndicate Ltd. (supra) has no application to the instant case, as the Hon'ble Supreme Court while interpreting Section 5(2) of the U.P. Consolidation of Holdings Act, 1954 (hereinafter referred to 'UP Consolidation Act') laid down the ratio. Realizing the difficulty, Section 5(2) of the U.P Consolidation Act was subsequently amended and the amended provision was interpreted in the case of Ambika Prasad Mishra (supra). While distinguishing the ratio decided in Agricultural & Industrial Syndicate Ltd. (supra), Hon'ble Supreme Court in paragraph 34 held as follows:-

"34. ......Thus there is no basic injustice nor gross arbitrariness in the continuance of the land reforms proceedings even when consolidation proceedings are under way. ....."

Mr. Mohapatra, thus, prayed for dismissal of the IA.

10. The prayer made in the IA has to be considered in the context of Sub-sections (3) and (4) of Section 4, Section 7 as well as Section 51 of the Consolidation Act. For ready reference, relevant portion of the said provisions are reproduced hereunder:-

4. Effect of notification. - Upon the publication of the notification issued under sub-section (1) of section 3 in the Official Gazette, the consequences as hereinafter set forth, shall, subject to the provisions of this Act, ensue in the consolidation area till the publication of notification under section 41 or sub-section (1) of section 5, as the case may be-

xxx xxx xxx (3) Every proceeding relating to survey, preparation and maintenance of record-of-rights and settlement of rent shall stand abated after publication of the notification under sub-section (1) of section 6; and Page 7 of 18 I.A. No.26 of 2021 // 8 // (4) Every suit and proceeding for declaration of any right or interest in any land situate within the consolidation area in regard to which proceedings could be or ought to be started under this Act, which is pending before any Civil Court, whether of the first instance or appeal, reference or revision shall, on an order being passed in that behalf by the Court before which such suit or proceeding is pending, stand abated;

Provided that no such order shall be passed without giving the parties concerned an opportunity of being heard;

[Provided further that on the issue of a notification under sub-section (1) of section 5 in respect of the said area or part thereof -

(a) every order passed by the Court under clause (4) in relation to the lands situate in such area or part thereof, as the case may be, shall stand vacated; and

(b) all such suits and proceedings as are referred to in clause (3) or clause (4) which related to lands situate in such area or part thereof, as the case may be, shall be proceeded with and disposed of in accordance with the law as if they had never abated;] Provided also that such abatement shall be without prejudice to the right of the person affected to agitate the right or interest which formed the subject matter of the said suit or proceeding, before the proper consolidation authority in accordance with the provisions of this Act or the rules made there under.

xxx xxx xxx "7. Powers relating to partition of joint holding, amalgamation of holdings and to determine rent and cess and effect change in the village boundaries. - (1) Upon the publication of the notification issued under Subsection (1) of Section 3, no partition of a holding lying in the consolidation area under Section 19 of the Orissa Land Reforms Act, 1960 (Orissa Act 16 of 1960) shall be effected by the Revenue Officer till the publication of the notification under Section 41 or Sub-section (1) of Section 5, as the case may be, and the Assistant Consolidation Officer and the Consolidation Officer shall, in addition to the powers vested in them under this Act, have powers to effect partition of joint holdings on application of any party interested notwithstanding anything to the contrary contained in any other law for the time being in force:

xxx xxx xxx

51. Bar of jurisdiction of Civil Courts. - Notwithstanding anything contained in any other law for the being in 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 Page 8 of 18 I.A. No.26 of 2021 // 9 // 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 or proceeding in respect of any matter which an officer or authority empowered under this Act is competent to decide."

11. On a harmonious reading of the aforesaid provisions of the Consolidation Act, it can be safely inferred that on an application or otherwise, as the case may be, cause of action in respect of any subject matter of dispute, which is capable of being adjudicated by the Consolidation authorities, will stand abated as soon as a notification under Section 3(1) of the Consolidation Act is published in the official gazette and will continue to be in effect till a notification either under Section 41 or Section 5(1) of the Consolidation Act is made.

12. Section 7 of the Consolidation Act provides for partition of joint holding, amalgamation of holdings, to determine rent and cess and to effect change in the village boundaries. It provides that upon the publication of the notification issued under sub-section (1) of section 3 of the Consolidation Act, no partition of a holding lying in the consolidation area shall be effected by the Revenue Officer under Section 19 of the OLR Act, till the publication of the notification under Section 41 or sub- section (1) of Section 5 of the Consolidation Act, as the case may be, is made and the Assistant Consolidation Officer and the Consolidation Officer shall, in addition to the powers vested in them under the said Act, will have power to effect partition of joint holdings on application of any party interested notwithstanding anything to the contrary in any other law for the time being in force. Thus, Section 7 (1) of the Consolidation Act makes it clear that a proceeding under Section 19 of the OLR Act will abate on initiation of a consolidation operation in the village or locality in Page 9 of 18 I.A. No.26 of 2021 // 10 // which the land in question situates. A ceiling proceeding is not covered under Section 19 of the OLR Act.

13. Mr. Dash, learned AGA strenuously argued that unless right, title and interest in respect of the land in question is determined, no ceiling proceeding can either be initiated or continued to determine the retainable area of the land owner. It also transpires from the record that a notification under Section 3 (1) of the Consolidation Act published in the Official Gazette on 22nd September, 1988 (Annexure-A to the IA), which includes the village in which the case land situates. Further, no notification either under Section 5(1) or Section 41 of the Consolidation Act has yet been made in respect of the village. Thus, consolidation operation is in vogue in the village. Some Objection Cases have also been filed in respect of case land. Further, proceeding of the Objection cases have been stayed pursuant to interim order passed by this Court. 13.1 In the case of Agricultural & Industrial Syndicate Ltd. (supra), the Appellant-Agricultural & Industrial Syndicate Ltd. was a tenure holder of the land in two villages in the district of Saharanpur, Uttar Pradesh. Some of the areas of such holding were declared as ceiling surplus under the provisions of UP Imposition of Ceiling on Land Holdings Act (hereinafter referred to 'UP Land Ceiling Act' for convenience). The main contention raised before the Hon'ble Supreme Court was that the prescribed authority should have stayed the ceiling proceeding during continuance of the consolidation operation in the said village. Relevant portion of pre-amended Section 5(2) of the UP Consolidation Act, reads as follows:-

"Upon such publication of the notification under subsection (2) of section 4 the following further consequences shall ensue in the area to which the notification relates:

(a) every proceeding for the correction of records and every suit and proceedings in respect of declaration of rights or Page 10 of 18 I.A. No.26 of 2021 // 11 // interest in any land lying in the area, or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any court or authority whether of the first instance or of appeal, reference, or revision, shall, on an order being passed in that behalf by the court or authority before whom such suit or proceeding is pending stand abated. Provided further that on the issuance of a notification under sub-section (1) of section 6 in respect of the said area or part thereof, every such order in relation to the land lying in such area or part...... shall stand vacated.

(b) such abatement shall be without prejudice to the rights of the persons affected to agitate the right or interest in dispute in the said suits or proceedings before the appropriate consolidation authorities under and in accordance with the provisions of this Act and the rules thereunder."

Taking into consideration the different provisions of the UP Land Ceiling Act as well as UP Consolidation Act, Hon'ble Supreme Court at paragraphs-9 and 10 held as follows:-

"9. It is true that the purposes of the two Acts are different. Under the Ceiling Act, the ceiling area and surplus land of a tenure- holder are determined; under the Consolidation Act, the holdings of a tenure holder are consolidated. But neither purpose may in a large number of cases be accomplished without first determining the right or interest of various claimants in the plots. So the crucial question for decision is as to whether the Prescribed Authority under the Ceiling Act or the Consolidation authority under the Consolidation Act has got a preemptive jurisdiction to determine rival rights and interests in the land of the appellant. We have already shown that the proceeding under s. 12 of the Ceiling Act is a proceeding within the purview of s. 5(2) of the Consolidation Act. Section 49 of the Consolidation Act materially provides:

"Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of rights of tenure-holders in respect of land lying in an area, for which a notification has been issued under subsection (2) of s. 4 .... shall be done in accordance with the provisions of this Act. . . . "

10. Obviously the purpose of the non-obstante clause in s. 49 is to exclude the operation of any other overlapping Act. So the non- obstante clause would exclude the operation of the Ceiling Act while the Consolidation Act is in operation in a particular area. Section 5(2) and s. 49 indicate clearly that the proceedings in the instant case are to be abated under s. 5(2). Section 48A of the Consolidation Act expressly saves the jurisdiction of the Custodian of the Evacuee Page 11 of 18 I.A. No.26 of 2021 // 12 // properties to decide claims to the, plots of the evacuees during consolidation operations. The absence of a like provision in relation to the jurisdiction of the Prescribed Authority under the Ceiling Act lends support to our inference."

13.2 In course of discussions, Hon'ble Supreme Court observed that the purposes of the Act, i.e., UP Land Ceiling Act and UP Consolidation Act are different. Under the provisions of the UP Land Ceiling Act, a ceiling area and surplus land of the tenure holder is determined, whereas, under the provisions of the UP Consolidation Act, holding of the tenure holder is consolidated, but neither of the purposes may in large number of cases be accomplished without first determining the right and interest of various claims in the plots. So a crucial question for determination is as to whether the prescribed authority under the Ceiling Act or the Consolidation Act has a preemptive jurisdiction to determine rival rights and interests in the land of the tenure holder. Mr. Dash, learned AGA advanced his argument in the light of the aforesaid observation of the Hon'ble Supreme Court. It is his submission that when the consolidation operation is in vogue, the prescribed authority under the OLR Act should await the decision of the consolidation authorities with regard to right and title of the Petitioner in respect of the land in question. It is only after determination of the rights of the Petitioner vis-à-vis the land in question, a decision with regard to ceiling surplus area of the Petitioner can only be determined. The argument of Mr. Dash, learned AGA is quite persuasive, but keeping in view the provisions of both the statutes, namely, OLR Act as well as Consolidation Act, the same has to be considered. On a close scrutiny of the materials available, it is apparent that at the time of initiation of the ceiling proceeding, the Petitioner has been accepted to be the land owner (tenure holder). Neither any civil suit nor proceeding under any special Act with regard to the right or title of the Petitioner in respect of the case land, Page 12 of 18 I.A. No.26 of 2021 // 13 // was pending at the time of notification under section 3(1) of the Consolidation Act. In course of the OLR proceeding, no issue with regard to the title of the Petitioner was ever raised by any party. In the ceiling proceeding, the Petitioner claimed the case land to be that of the Math (religious institution), whereas the prescribed authority under the OLR Act taking into consideration the ROR published, held the same to be the personal property of the Mahanta (Manager of the Math). Hon'ble Supreme Court, in the case of Agricultural and Industrial Syndicate Ltd. (supra) made the aforesaid observation taking into consideration the tenor and language of Section 5(2) and Section 49 of the UP Consolidation Act. Section 5(2) of the said Act provided that upon issuance of notification under Section 4(2) of the UP Consolidation Act, the consequences as provided under Section 5(2) of the said Act, would follow. It specifically provides that upon publication of such notification every proceeding for correction of record and every suit and proceedings in respect of declaration of rights or interest in any land lying in the area or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under the said Act, pending before any Court or authority whether at the first instance or in appeal, reference or revision shall, on an order being passed in that behalf by the Court or the authority before whom such proceeding is pending shall stand abated. But the provisions of Section 4(3) and (4) of the Consolidation Act is quite different. It does not include a proceeding pending before an 'authority'. As provided under Section 51 (1) of the Consolidation Act that all questions relating to right, title, interest and liability in the 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 the Consolidation Act. There can be no second thought that the authorities under the Consolidation Act cannot take Page 13 of 18 I.A. No.26 of 2021 // 14 // up and adjudicate upon a ceiling proceeding initiated on publication of draft statement under Section 43(1) of the OLR Act. However, a proceeding under Section 19 of the OLR Act shall stand abated upon publication of the notification under Section 3(1) of the Consolidation Act, as the consolidation authority under Section 7 of the Consolidation Act is capable of taking up the issue of partition. The language of Section 7 read with Section 51 of the Consolidation Act makes the same abundantly clear. 13.3 In view of language of Section 4(3), 7(1) and Section 51 of the Consolidation Act, there is no iota of confusion to come to a conclusion that upon publication of notification under section 3(1) of the Consolidation Act, the issue which is capable of being adjudicated by the consolidation authority, shall stand abated, if the same is pending either before any civil court or any revenue authority as discussed earlier. Authorities under the Consolidation Act are not empowered to adjudicate upon a ceiling proceeding. Further, a ceiling proceeding is initiated only after the authorities under the OLR Act come to a conclusion that the property in question belongs to the tenure holder. Keeping in view the difficulty/ambiguity in Section 5(2) of the UP Consolidation Act, the State of Uttar Pradesh thought it proper to amend the said provision after the judgment in Agricultural and Industrial Syndicate Ltd. (supra). Subsequently, Hon'ble Supreme Court had the occasion to deal with the amended provision of Section 5 of the UP Consolidation Act in the case of Ambika Prasad Mishra (supra). In the said case law, a larger Bench in paragraphs-33 and 34, observed as follows:-

"33. The whole scheme of consolidation of holdings is to restructure agrarian landscape of U.P. so as to promote better farming and economic holdings by eliminating fragmentation and organising consolidation. No one is deprived of his land. What happens is, his scattered bits are taken away and in lieu thereof a continuous conglomeration equal in value is allotted subject to Page 14 of 18 I.A. No.26 of 2021 // 15 // minimal deduction for community use and better enjoyment. Once this central idea is grasped, the grievance voiced by the petitioner becomes chimerical. Counsel complains that the tenure-holder will not be able to choose his land when consolidation proceedings are in an on-going stage. True, whatever land belongs to him at that time, may or may not belong to him after the consolidation proceedings are completed. Alternative allotments may be made and so the choice that he may make before the prescribed authority for the purpose of surrendering surplus lands and preserving "permissible holding" may have only tentative value. But this factor does not seriously prejudice the holder. While he chooses the best at the given time the Consolidation Officer will give him its equivalent when a new plot is given to him in the place of the old. There is no diminution in the quantum of land and quality of land since the object of consolidation is not deprivation but mere substitution of scattered pieces with a consolidated plot. The tenure-holder may well exercise his option before the prescribed officer and if, later, the Consolidation Officer takes away these lands, he will allot a real equivalent thereof to the tenure-holder elsewhere. There is no reduction or damage or other prejudice by this process of statutory exchange.

34. Chapter III of the Consolidation Act provides, in great detail, for equity and equality, compensation and other benefits when finalizing the consolidation scheme. Section 19(1) (b) ensure that "the valuation of plots allotted to a tenure- holder subject to deductions, if any, made on account of contributions to public purposes under this Act is equal to the valuation of plots originally held by him:

Provided that, except with the permission of the Director of Consolidation, the area of the holding or holdings allotted to a tenure-holder shall not differ from the area of his original holding or holdings by more than twenty five percent of the latter."

When land is contributed for public purposes compensation is paid in that behalf in the event of illegal or unjust orders passed, appellate and revisory remedies are also provided. On such exchange or transfer taking place, pursuant to the finalisation of the consolidation scheme, the holding, upto the ceiling available to the Page 15 of 18 I.A. No.26 of 2021 // 16 // tenure holder, will be converted into the new allotment under the consolidation scheme. Thus, we see no basis in justice nor gross arbitrariness in the continuance of the land reforms proceedings even when consolidation proceedings are under way. We are not all impressed with counsel's citation of the ruling in Agricultural & Industrial Syndicate Ltd. v. State of UP and others,(l), particularly because there has been a significant amendment to s. S subsequent thereto. The law as it stood then was laid down by this Court in the above case; but precisely because of that decision an explanation has been added to s. 5 of the Consolidation Act which reads thus:

Explanation:- For the purposes of subsection(2) a proceeding under the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 or an uncontested proceeding under Sections 134 to 137 of the U.P. Jamindari Abolition and Land Reforms Act, 1950, shall not be deemed to be a proceeding in respect of declaration of rights or interest, in any land. The view of the Allahabad High Court in Kshetrapal Singh v. State of U.P.(2) (H.C.) is correct, and in effect negatives the submission of Shri Arvind Kumar that there should be a stay of ceiling proceedings pending completion of consolidation proceedings. The head note in Kshetrapal Singh's case (Supra) brings out the ratio and for brevity's sake, we quote it;

By adding the Explanation after sub-section(2) of Section 5 of the Act a legal fiction has been created. What is otherwise a proceeding in respect of declaration of rights or interest in any land is deemed not to be such a proceeding. That is the clear legislative intent behind the Explanation. ordinarily an Explanation is intended to explain the scope of the main section and is not expected to enlarge or narrow down its scope but where the legislative intent clearly and unambiguously indicates an intention to do so, effect must be given to the legislative intent notwithstanding the fact that the legislature named that provision as an Explanation."

(emphasis supplied) It flows from the aforesaid observation that the larger Bench did not approve the analogy made in the case of Agricultural and Industrial Syndicate Ltd. (supra). Thus, there can be no ambiguity in the position of Page 16 of 18 I.A. No.26 of 2021 // 17 // law to the effect that upon publication of notification under Section 3(1) of the Consolidation Act, the proceedings which are capable of being adjudicated under the provisions of the said Act, will certainly abate if the same are pending either in any civil Court or in a revenue Court. A ceiling proceeding being unique in its nature which is initiated under the OLR Act, will continue being unaffected by the notification under Section 3(1) of the Consolidation Act.

14. Although the notification under Section 3(1) was made on 22nd September, 1988 by publication in the Official Gazette, but no step was ever taken by the State Government to make a prayer before the OLR authorities either to suspend the proceeding or to abate the same till completion/closure of the consolidation operation either under Section 41 or under Section 5(1) of the Consolidation Act and rightly so. Further, no proceeding under the OLR Act at present is pending, since the revision under Section 59 of the OLR Act has already been decided and the matter is pending before the constitutional Court to test the veracity of the order passed under the OLR Act. True it is that, further proceeding in certain Objection cases relating to the land in question has been stayed by this Court in the present writ petition. Even if, said proceedings under the Consolidation Act are allowed to continue it will not affect the proceedings under the OLR Act, as the Consolidation authorities have to respect the record of right published in respect of the land in question by following due procedure of law unless and until it is proved to be null and void by any competent Court of law. Admittedly, the ROR in respect of the land in question has not been challenged and proved to be null and void by any competent Court of law. It is further observed that this Interlocutory Application has been filed at a much belated stage, i.e., in the midst of the final hearing the writ petition. As all the forums available Page 17 of 18 I.A. No.26 of 2021 // 18 // under the OLR Act have been exhausted, literally there is no proceeding under the OLR Act pending at present.

15. In view of the discussions made above, question of abatement of ceiling proceeding does not arise at all.

16. Thus, the prayer made in the Interlocutory Application merits no consideration and the IA is accordingly dismissed.

(K.R. Mohapatra) Judge Orissa High Court, Cuttack.

Dated the 4th February, 2022/S.S. Satapathy Page 18 of 18 I.A. No.26 of 2021

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