Orissa High Court
Maguni Pradhan vs Commissioner Of Consolidation And Ors. on 23 January, 1992
Equivalent citations: 1992(I)OLR246
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT A. Pasayat, J.
1. Does power of Commissioner of Consolidation to act in terms of Section 37 become inoperative after a notification under Section 41 is issued under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (in short 'the Act') is the core question that falls for determination in this writ application.
2. Since the dispute revolves round a conjoint reading of two provisions of the Act, detailed reference to the factual aspects is unnecessary. Stated in short, the factual position is as follows :
On 14-10-1985, a notification in terms of Section 41 of the Act was issued signifying closure of consolidation operations in the consolidation unit relating to village Banakhandi in Puri district. Petitioner filed an application styled as one under Section 37 of the Act, before the Commissioner praying for correction of the record-of-rights and the map. The said application was numbered as Consolidation Revision No. 1208 of 1986. On 6-10-1986, the revision application was admitted and a report was called for from the concerned Consolidation Officer. The opposite parties were noticed to appear on 30-10-1986. On the said date as the Commissioner was busy otherwise, the case was adjourned to 25-5-1987 and the Assistant Consolidation Officer was directed to be present with connected records. Though originally the date was adjourned to 22-5-1987, the case was taken up on 23-2-1987. On that date the Commissioner held the revision application to be not maintainable, since the unit had been notified under Section 41 of the Act on 14-10-1985. This conclusion of the Commissioner is subject-matter of challenge in this writ application.
3. According to the petitioner, power conferred under Section 37 is not tramelled by a notification under Section 41, and therefore, the Commissioner was not justified in his conclusion. The learned counsel for opp. party No. 4, however, submits that finality is attached to a notification under Section 41 in the sense that after issuance of such a notification there is closure of consolidation operations in respect of the concerned unit except those covered by operation of provisions contained in Chapter IV, and those involved in pending proceedings. According to him motion for action under Section 37 is not covered by either of the exclusions, and therefore the Commissioner was justified in treating the revision application as not maintainable. It is also submitted that Section 37 is not intended to be used in a routine manner and unless dispute was subject-matter of a proceeding before the subordinate authority, and illegalities and irregularities are committed therein, question of acting under Section 37 does not arise.
4. Sections 37 and 41 so far as they are relevant read as follows :
"37. Power to call for records :
(1) The Consolidation Commissioner may call for and examine the records of any case decided or proceedings taken up by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings or as to the correctness, legality or propriety of any order passed Jay such authority in the case or proceedings and may, after allowing the parties concerned a reasonable opportunity of being heard, make such order as he thinks fit."
"41. Closure of consolidation operations :
(1) As soon as may be after the final maps and records have been prepared under Section 22, the State Government shall issue a notification to the effect that the consolidation operations have been closed in the unit and then the village or villages forming part of the unit shall cease to be under the consolidation operations :
Provided that the issue of a notification under this section shall not affect the operation of the provisions contained in Chapter IV."
5. Section 37(1) vests the Commissioner with powers of satisfying himself as to the regularity of the proceedings or as to the correctness, legality or propriety of any order passed by any authority subordinate to him. On a plain reading, Commissioner can act under Section 37 when there is a case decided or a proceeding taken up by any subordinate authority and an order has been passed therein. The regularity of the proceeding, or correctness or lagality or propriety of an order in the case of a proceeding can be looked into by the Commissioner after calling for the necessary records. The powers vested under Section 37 are in the nature of residuary powers in addition to those conferred on the appellate or the revisional authority. They are not intended to be used as original powers. Section 37(1) dose not contemplate the Commissioner to function as an original authority. Otherwise, the question of his calling for and examining the records of subordinate authority would not arise.
6. The learned counsel for opp. party No. 4 has stressed that whatever the legislature intended to either include or exclude has been specifically indicated in Section 41 and proviso thereto, and therefore, once finality is given by a notification under Section 41, action under Section 37 is ruled out. The argument is no doubt attractive, but it overlooks a very significant aspect. While construing applicability of a provision, the scheme of the entire statute in which it appears has to be judged. Section 41 permits issuance of a notification as soon as may be after the final maps and records have been prepared under Section 22, to the effect that the consolidation operations have been closed in the unit and then the village or villages forming part of the unit shall cease to be under the consolidation operations. Sub-section (4) of Section 22 provides that subject to alterations and modifications made in pursuance of orders passed under Section 15 or 36, or of orders referred to in Sub-section (3) of Section 41 the map and the record-of-rights published under Sub-section (2) shall for all intents and purposes be deemed to have been prepared under the Orissa Survey and Settlement Act, 1953. Under Sub-section (1) of Section 22, after confirmation of the provisional consolidation scheme, final map and record-of-rights on the basis of the consolidation scheme so confirmed shall be prepared in respect of each village in the consolidation area. Final consolidation scheme comes into force from the date of publication of the map and the record-of-rights prepared under Sub-section (1) in the prescribed manner. Sub-section (4) does not encompass any alterations and modifications pursuant to an order passed under Section 37. If the argument of the learned counsel for opp. party No. 4 is accepted, it would mean that any order passed under Section 37 would have no effect while making alteration or modification in terms of Section 22 (4).
7. Section 41 (2) excludes proceedings pending under the provisions of the Act on the date of issue of the notification under Sub-section (1). The expression 'proceedings pending' creates some amount of confusion. We may take an illustrative case. Under Section 36, the Consolidation Commissioner on an application by any person aggrieved by any decision of the Director of Consolidation within ninety days from the date of the decision, may revise such decision. Suppose, before expiry of the period of ninety days, a notification under Section 41 (1) is issued, and since time prescribed for filing revision is not over, an aggrieved party has not preferred a revision. Can it be said that because there is no proceeding pending in the strict sense, the aggrieved party will have no remedy because notification under Section 41 (1) has been issued ? The provisions have to be construed in a manner that the vested right of appeal or revision would not be taken away, since time prescribed in the statute to avail that is available. The expression 'pending' has not to be given a narrow construction so as to confine it only to the cases where appeals or revisions have been already filed and not to include within its fold those which may be in the process of being filed or under contemplation to be agitated before the appropriate authority. Section 37 in terms does not prescribe filing of any petition, but the Commissioner has been given the power to examine the legal propriety or correctness of action of a subordinate authority. The application filed by an aggrieved party may be the foundation or the information on the basis of which the Commissioner may decide to exercise power under Section 37. That is how the petition filed is relevant to a proceeding under Section 37. As indicated above, the provisions in the statute are to be read together and harmonious construction has to be made. It cannot be the legislative intent to put out of operation any particular provision, while some other provision operates. Therefore, making a harmonious reading of Sections 37 and 41 of the Act, we are of the view that merely because a notification under Section 41 is issued, the power to act under Section 37 (1) is not wiped out.
8. Section 37 is intended to further the interest of justice and is not intended to act as a camouflage to get over statutory bars and prohibitions. Finality is attached to certain orders under the Act, for example an order under Section 36. Section 14 bars entertainment of any objection in respect of right, title and interest in land,' partition of joint holdings, or valuation of lands, houses, structures, trees, wells and other improvements, where the question is sought to be raised by a land owner recorded in the land register prepared under Section 6, which question might or ought to have been raised under Section 9, but has not been raised. After expiry of the period prescribed under Section 9 (3), no challenge under Section 14 is permissible. Where the Commissioner finds that there were genuine grounds for which there was non-prosecution of the remedies available, in order to prevent abuse of the process of law and to nullify illegalities, the powers under Section 37 may be exercised. It has to be borne in mind that they are not intended to get over the specific prohibitions contained in other provisions. To illustrate exercise of power under Section 37 would be illegal when a revision application filed under Section 36 had been rejected at the initial stage on the ground that either it was barred by time or suffered from such other defect which rendered it liable for rejection. Unless compelling and plausible circumstances are shown as to why the remedy available under the statute was not availed, the Commissioner would be slow to act under Section 37. This aspect was highlighted by a Division Bench of this Court to which one of us (Pasayat, J.) was a party in Modern Fabricators etc. v. Rajendra Harichandan and Ors., etc. (O.J.C. Nos. 390, 1431 and 1924 of 1984 disposed of on 11-10-1991).
9. In conclusion, therefore, the action of the Commissioner in refusing to act under Section 37 on the ground that a notification under Section 41 has been issued is not tenable in law, we do not think it necessary to express any opinion about merits of the case because it is not necessary to refer to them in view of the analysis of legal position made by us. The Commissioner of Consolidation shall consider the question whether action under Section 37 (1) is warranted. The order dated 23-2-1937 (Annexure-1) is quashed.
The writ application succeeds. No costs.
K.C. Jagadeb Roy, J.
I agree.