Orissa High Court
Sri Purna Chandra Palai vs Collector And District Magistrate on 24 July, 2019
Author: A.K. Rath
Bench: A.K. Rath
HIGH COURT OF ORISSA: CUTTACK
W.P.(C) No.23334 of 2017
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Sri Purna Chandra Palai ................. Petitioner
---versus--
Collector and District Magistrate,
Bhadrak and others ................. Opp. Parties
For Petitioner : Mr. Somadarsan Mohanty, Advocate
For O.P. Nos.1 and 2 : Mr. Swayambhu Mishra, A.S.C.
For O.P. Nos.3 to 5 : Mr. Pradeep Kumar Das, Advocate
JUDGMENT
P R E S E N T:
THE HON'BLE DR. JUSTICE A.K. RATH
----------------------------------------------------------------------------------- Date of Hearing: 24.07.2019 │ Date of Judgment:24.07.2019
----------------------------------------------------------------------------------- Dr. A.K. Rath, J. This petition seeks to lacinate the order dated 28.07.2017 passed by the Collector, Bhadrak, opposite party no.1, in Misc.
Case No.13 of 2016, whereby and whereunder, the opposite party no.1 directed the Tahasildar, Bhadrak to evict the petitioner from the disputed land in a proceeding under Sec.35 of the Odisha Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (―OCH & PFL Act‖).
02. Shorn of unnecessary details, the short facts of the case is that the opposite party nos.3 and 4 as petitioners filed an application under Sec.35 of the OCH & PFL Act before the Collector, Bhadrak to declare the registered sale deed no.471 dated 13.02.1989 is illegal and void since no permission was accorded by the competent authority for alienation of a part of the chaka. It is stated that the consolidation khata no.575, Chaka No.304, Chaka Plot No.463, area Ac.2.27 dec. of village Sabaranga under Bhadrak Tahasil stands recorded jointly in favour of 2 Nishakar Barik, Bhaskar Barik, sons of Ratha Barik. After death of the recorded tenants, Nishakar Barik alienated an area Ac.0.20 dec. of land from eastern side of the Chaka to Purna Chandra Palai, petitioner herein, by means of a registered sale deed no.471, dt.13.02.1989 in contravention of the provisions of Secs.34 and 35 of the OCH & PFL Act. According to the petitioner, he is a bonafide purchaser for value. Nishakar Barik was the absolute owner of the case land. He has transferred Ac.0.20 dec. of land out of Ac.2.27 dec. appertaining to Chaka Plot No.463 to him by means of a registered sale deed and thereafter delivered possession. He is in possession of the land since 29 years. The Collector, Bhadrak has allowed the application holding that the transaction of fractioned Chaka made vide registered sale deed no.471 dated 13.02.1989 is void and accordingly directed the Tahasildar, Bhadrak, opposite party no.2, to evict the petitioner from the land in question.
03. Heard Mr. Somadarsan Mohanty, learned counsel for the petitioner, Mr. Swayambhu Mishra, learned A.S.C. for the State-opposite party nos.1 and 2 and Mr. Pradeep Kumar Das, learned counsel for the opposite party nos.3 to 5.
04. Mr. Mohanty, learned counsel for the petitioner, submits that the entire area consisting of Ac.2.27 dec. Out of the same, Ac.0.20 dec. was transferred by Nishakar Barik in favour of the petitioner by means of a registered sale deed no.471, dated 13.02.1989. After lapse of 27 years, a proceeding was initiated. He further submits that transfer of a part of the chaka cannot be construed as fraction so as to attract the provision of Sec.35 of the OCH & PFL Act. To buttress the submission, he places reliance on the decision of this Court in the case of (Sri) Bhagaban Nath & others vs. Collector, Bhadrak & others, 2016 (II) CLR--845.
05. Per contra, Mr. Mishra, learned A.S.C. for the State-opposite party nos.1 and 2, submits that no permission was accorded by the competent authority for alienation of a part of the chaka. The sale deed is void. Further the district Bhadrak has not been included in sub-clause (i) 3 of clause (m) of Sec.2 of the OCH & PFL Act. There is no infirmity in the order passed by the Collector, Bhadrak, opposite party no.1.
06. Mr. Das, learned counsel for the opposite party nos.3 to 5 supports the impugned order. He places reliance on the decision of this Court in the case of Smt. Binapani Sethi and another vs. Sri Bijay Kumar Sahoo and others, 1997 (II) OLR--399.
07. Before adverting to the contentions raised by learned counsel for the parties, it will be necessary to set out some of the provisions of the OCH & PFL Act.
―2.(m)‖fragment‖ means a compact parcel of agricultural land held by a land-owner by himself or jointly with others comprising an area which is less than-
(i) one acre in the district of Cuttack, Puri, Balasore and Ganjam and in the Anandpur subdivision in the district of Keonjhar, and
(ii) two acres in the other areas of the State;
xxx xxx xxx
34. Prevention of fragmentation - (1) No agricultural land in a locality shall be transferred or partitioned so as to cerate a fragment.
(2) No fragment shall be transferred except to a land-owner of a contiguous Chaka :
Provided that a fragment may be mortgaged or transferred in favour of the State Government, a Co- operative Society, a scheduled bank within the meaning of the Reserve Bank of India Act, 1934 (2 of 1934) or such other financial institution as may be notified by the State Government in that behalf as security for the loan advanced by such Government, Society, Bank or Institution, as the case may be.
(3) When a person, intending to transfer a fragment, is unable to do so owing to restrictions imposed under Sub-
section (2), he may apply in the prescribed manner to the Tahasildar of the locality for this purpose whereupon the Tahasildar shall, as far as practicable within forty-five days from the receipt of the application determine the market value of the fragment and sell it through an auction among the landowners of contiguous Chakas at a value not less than the market value so determined.
xxx xxx xxx 4
35. Consequences of transfer or partition contrary to provisions of Section 34--(1) A transfer or partition in contravention of the provisions of Section 34 shall be void. (2) A person occupying or in possession of any land by virtue of a transfer or partition which is void under the provisions of this Act, may summarily evicted by the Collector.‖
08. On a conspectus of Sec.2(m) of the OCH & PFL Act, it is manifestly clear that a compact parcel of agricultural land held by a land owner by himself or jointly with others comprising an area which is less than one acre in the district of Cuttack, Puri, Balasore, Ganjam, Anandapur Sub-Division in the district of Keonjhar and two acres in the other areas of the State cannot be construed as fragment. OCH & PFL Act was enacted in the year 1972. Bhadrak was not a separate district. It was the Sub- Division under the district of Balasore. Subsequently, Bhadrak district was created. For the purpose of interpretation of Sec.2(m) of the OCH & PFL Act, the restriction imposed in the State in respect of Balasore district shall mutatis mutandis apply to Bhadrak district.
09. In (Sri) Bhagaban Nath & others (supra), an area of Ac.0.36 dec. out of Ac.1.52 dec. situate in Bhadrak district was alienated without prior permission of the Tahasildar. This Court held that the land situates in the district of Bhadrak is carved out from undivided district of Balasore. The restriction in the Act does not apply.
10. Reverting to the facts of the case, this Court finds that the suit land situates in the district of Bhadrak. Nishakar Barik transferred an area of Ac.0.20 dec. out of Ac.2.27 dec. appertaining to Chaka No.304, Chaka Plot No.463. If the same is deducted, the area comes to Ac.2.07 dec. In view of the same, the Collector, Bhadrak dehors its jurisdiction in initiating proceeding under Sec.35 of the OCH & PFL Act. The proceeding is mis-conceived.
11. The decision cited by Mr. Das, learned counsel for the opposite party nos.3 to 5, is distinguishable on facts. Paragraph 6 of the report reveals that the parcels of land sold separately and collectively measure less than one acre, which is the minimum area prescribed for the 5 district of Cuttack. This Court held that there was clear contravention of Section 34 of OCH & PFL Act. But in the instant case, the area is more than Ac.2.00 dec.
12. Before parting with the case, this Court observes that several such instances have been brought to the notice of the Court. After enactment of OCH & PFL Act, 1972, new districts have been created. But then, the statute has not been amended. Had the statute been amended, precious time of this Court would have saved.
13. In view of the foregoing discussions, the impugned order is quashed. The petition is allowed. There shall be no order as to costs.
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Dr. A.K. Rath, J.
Orissa High Court, Cuttack The 24th July, 2019/Basanta