Orissa High Court
WP(C)--11689/2009 on 17 July, 2013
Author: R. Dash
Bench: R. Dash
W.P.(C)NO.11689 OF 2009 4. 17.7.2013
Challenging the legality of the order passed by the learned Commissioner of Consolidation, Orissa in R.P. No.178 of 2007 on the ground of non-application of judicial mind as well as arbitrariness, this writ petition has been filed.
2. According to the petitioner, Ac.0.69 decimals of land purchased by him under Registered Sale Deed No.5355 dated 8.12.1972 was recorded in his name during the current Consolidation operation but the area was incorrectly recorded as Ac.0.62 decimals. Since the petitioner while working in Indian Air Force was out of the suit village for a long period, he could not know about the incorrect recording of the area for which he could not file any case immediately after publication of the R.O.R. Having knowledge of the incorrect entry, he filed C.R. No.178 of 2007 before the learned Commissioner who has passed the impugned order rejecting the Review Petition on the ground that no appeal was filed by the petitioner for correction of area and that the Consolidation operation in respect of the petitioner's village was already closed since 1985 by way of a notification under Section 41(1) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short ' the Act').
3. Learned counsel for the petitioner submits that non-preferring an appeal does not oust the jurisdiction of the Commissioner under Section 37 (1) of the Act and even closure of Consolidation operation does not wipe out the power of the Commissioner under the said Scheme. Learned counsel for the State on the other hand submits 2 that the dismissal of the R.P. Case is not only on the ground as stated by the petitioner but also on the ground that after verification of the case record, the learned Commissioner found that the petitioner's prayer for correction of the area was rightly dismissed because the area as recorded in the Consolidation R.O.R. was found to be correct both in map and record. It is also pointed out by the learned counsel for the State that the Revision Petition was filed by the petitioner after a long period of 22 years of closure of the Consolidation operation. To support the contention that issuance of notification under Section 41 (1) of the Act is not a ground for refusal of action under Section 37 of the Act. The learned counsel for the petitioner has cited a decision of this Court in Maguni Pradhan v. Commissioner of Consolidation, Orissa and others, reported in 1992 (1) OLR 246.
4. Annexure-5 is a copy of the impugned order which reflects that the learned Commissioner dismissed the Revision Petition after hearing the learned counsel for the petitioner on merit of the case only after perusal of the case record concerned as well as parawise report submitted by A.C.O. (record room), Deputy Director, C.H., Bhubaneswar and on being satisfied that the petition under Section 9 (3) of the Act for enhancement of area of his purchased land was rejected because the area was found to be correct both in map and record. The learned Commissioner refused to act under Section 37 of the Act with further observation that as against the order of the Consolidation Officer no appeal was filed and the Revision 3 Petition itself was filed after 22 years of closure of Consolidation operation. Thus, it is found that the learned Commissioner has acted in accordance with Section 37 of the Act. Perusal of the impugned order does not reveal that there is non-application of judicial mind or any arbitrariness on the part of the learned Commissioner while deciding the Revision Petition No.178 of 2007. It is not correct to say that the learned Commissioner dismissed the R.P. merely on the ground that no appeal was filed and the Revision Petition was made after closure of the Consolidation operation. The petitioner has failed to show that the learned Commissioner has acted without jurisdiction or in excess of it or has failed to exercise it.
5. Therefore, the writ petition being without merit is dismissed but in the facts and circumstances without cost.
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R. Dash,J.