Orissa High Court
Jayashree Sharma & Another vs Chandbai Sharma & Others on 7 November, 2014
Author: B.K.Nayak
Bench: B.K.Nayak
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) No.1377 of 2005
An application under Articles, 226 and 227 of the Constitution of India.
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Jayashree Sharma & another ... ... Petitioners.
Versus.
Chandbai Sharma & others ... ... opp.parties.
For Petitioners : M/s. S.N. Mohapatra, K.R.
Mohapatra, S. Ghosh &
A.P. Mishra.
For opp.parties : M/s. N.K.Sahu, B. Swain &
M.K.Nayak.
(for opp.party nos.1 and 2)
PRESENT
THE HON'BLE SHRI JUSTICE B.K.NAYAK
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Date of hearing : 07.11.2014 : Date of judgment: 07.11.2014
B.K.NAYAK, J.Order dated 20.11.2004 (Annexue-4) passed by the Joint Commissioner, Settlement and Consolidation, Sambalpur in Consolidation Revision No.486 of 2004, has been challenged in this writ petition.
2. The disputed land measures Ac.9.36 in M.S. Holding No.308 corresponding to Chaka Holding No.757 in village-Barahaguda. Admittedly Ac.36.00 of land including the present disputed land was the self acquired property of one Manohar Sharma, who is the common ancestor of the petitioners and private opposite party nos.1 and 2. Manohar Sharma had three sons, namely, Harisankar, Ramkisan and 2 Surya and two daughters, namely, Chandbai and Gitabai, who are opposite party nos.1 and 2 to the writ petition. Surya had died issueless. The writ petitioners are the daughters of late Harisankar. Manohar Sharma died in 1972 and prior to his death, he had already sold some of his lands. In 1976 a suo motu ceiling proceeding bearing OLR Case No.261 of 1976 was initiated against Manohar Sharma by the Tahasildar- cum-Revenue Officer, Baragarh under Section 42 of the OLR Act. On 19.05.1982 Harisankar, the father of the present petitioners appears in the said OLR proceeding and raised objection stating that some of the lands had already been sold by Manohar and the rest of the properties were partitioned between Manohara and his two sons, Harisankar and Ramakisan and that both the sons were possessing their shares separately. The Revenue Officer directed for preparing a draft statement showing the names of Banibai, wife of late Surajmal, Harisankar, Ramkisan, Chandbai and Gitabai, showing Ac.24.96 as ceiling surplus since they as a body of individuals, were entitled to ten standard acres of land. The Tahasildar directed for service of the draft statement on all the parties interested in the property. However, no notice or draft statement was served on Chandbai and Gitabai (present opposite party nos.1 and 2). Harisankar and Ramakishan filed their objection to the draft statement. Because of their absence on the date of hearing the Revenue Officer confirmed the draft statement under Section 44(1) of the OLR Act. The confirmation order was challenged by Ramkisan and Harisankar before the Sub-Collector, Baragarh in OLR Appeal No.60 of 1982. The appeal was allowed and the ceiling proceeding was remanded to the Revenue 3 Officer for fresh hearing by giving due opportunity to the appellants therein. After such remand, the Revenue Officer by his order dated 15.01.1985 accepted the contention of Harisankar and Ramkisan and disposed of the proceeding holding that both the brothers were living separately in mess and property for more than twenty years and they were married prior to the appointed date and that their father was dead and hence both were entitled to two separate ceilings and that having regard to the total extent of land, there was no ceiling surplus.
3. In the meantime, after the final order was passed by the Revenue Officer as aforesaid, consolidation operation started in the disputed village. Opposite party no.1 filed OLR Appeal No.2 of 2000 challenging the order of the Revenue Officer accepting plea of partition raised by Harisankar and Ramkisan and allotment of two separate ceilings in their favour. The appeal was filed on the ground that no notice at all of the OLR proceeding and the draft statement was issued to her. The appellant's contention was that there was no partition and allotment of shares in favour of Harisankar and Ramkisan and that she being the daughter of late Manohar Sharma, she has 1/4th interest in the entire property left by Manohar Sharma. The appellate authority (Sub Collector) allowed the appeal, set aside the Revenue Officer's order and again remanded the ceiling case to the Revenue Officer for disposal after giving due opportunities to the appellant and other interested parties. The present writ petitioners challenged the said appellate order before the Additional District Magistrate, Baragarh in OLR Revision No.1 of 2000. The revision was allowed holding that Chandbai and Gitabai were major 4 daughters and married prior to the appointed date and, therefore, they cannot claim any land allotted to their brothers. The said revisional order of the Additional District Magistrate was challenged by present opposite party no.1 before this Court in W.P.(C) No.6797 of 2002, which has been disposed of by judgment dated 21.01.2013 directing for fresh hearing and disposal of the ceiling case by the Revenue Officer after giving notice to all persons to whom, the draft statement relates.
4. It is stated that while the ceiling proceeding was pending before the Revenue Authorities, Consolidation R.O.R. in respect of the disputed land was published jointly in the names of legal representatives of late Manohar Sharma. Harisankar (father of the present petitioners) filed Consolidation Revision No.1066 of 1998 under Section 37(1) of the O.C.H. & P.F.L. Act praying to delete the names of Ramkisan, Chandbai and Gitabai from the R.O.R. The Joint Commissioner, Consolidation remanded the case to the Consolidation Officer-opposite party no.5 for disposal as per law. Similarly, Gitabai had filed R.P.Case No.554 of 2001 and 5800 of 2000 under Section 37(1) of the O.C.H. & P.F.L. Act challenging the permission granted by the Consolidation Officer to Harisankar under Section 4(2) of the Consolidation Act to alienate some properties. These two revisions were also remanded to the Consolidation Officer for disposal. Further, R.C. Case No.696 of 2002 was filed by the Secretary, Barahaguda High School under Section 37(1) of the Consolidation Act for recording Ac.0.40 dec. out of the disputed land in the name of the School on the ground that the same had been donated to the School by Harisankar vide Registered Gift Deed No.1918 dated 5 18.08.1998. That revision was also remanded to the Consolidation Officer. Thus, all the four remand revision cases were taken up together by the Consolidation Officer. On Harisankar's death the present petitioners were substituted in his place. At one point of time, the Consolidation Officer stayed the remand revision cases on the ground of pendency of W.P.(C) No.6797 of 2002 before this Court. On the application of present opposite party nos.1 and 2, the Consolidation Officer proceeded with the hearing of the remand revision cases and accordingly the cases were heard and disposed of by the common order dated 30.12.2003 (Annexure-1) holding that in the partition the disputed land was allotted to the share of Harisankar. It is submitted by the learned counsel for the petitioners that the finding of the partition was given on the basis of orders of the Revenue Officer passed in OLR ceiling proceeding and a decree passed by the Civil Judge (Junior Division), Baragarh in T.S. No.17 of 1994 and other materials on record in favour of the present petitioners. Challenging the order passed by the Consolidation Officer, present opposite party nos.1 and 2 filed Consolidation Appeal Nos.1 & 2 of 2004 and Ramkisan Sharma preferred Appeal No.3 of 2004. During the course of hearing of the appeals, the present opposite party nos.1 and 2 filed an application before the appellate Court for stay of further proceeding of the appeals on the ground of pendency of W.P.(C) No.6797 of 2002 in the High Court. At the same time, opposite party nos.1 and 2 also filed Misc. Case No.6045 of 2004 in W.P.(C) No.6797 of 2002 praying for stay of the Consolidation appeals until disposal of the said writ petition. The said misc. case was disposed of by this Court on 22.06.2004 directing the appellate authority, 6 i.e., the Deputy Director, Consolidation to hear the parties and pass appropriate orders on the petition for stay pending before the said appellate authority before proceeding with the hearing of the consolidation appeals. Before this Court's order could be communicated to the Deputy Director, Consolidation, on the very next day, i.e., on 23.06.2004, the Deputy Director dismissed all the appeals finally and thereby confirmed the order passed by the Consolidation Officer. Present opposite party nos.1 and 2 preferred Revision Case Nos.486 and 487 of 2004 challenging the appellate order passed by the Deputy Director, Consolidation. At the same time, they also filed an application for stay of further proceeding of the revision case on the ground of pendency of W.P.(C) No.6797 of 2002 before this Court. While considering such stay petition, the Joint Commissioner, Consolidation and Settlement-opposite party no.3, by the impugned order, disposed of the revision cases finally and set aside the original and appellate orders passed by the Consolidation Officer and Deputy Director, Consolidation holding that the orders passed by the Consolidation Officer as well as the Deputy Director, Consolidation are nullity inasmuch they were passed during the pendency of W.P.(C) No.6797 of 2002 and in violation of the High Court's stay order.
5. In assailing the impugned order, the learned counsel for the petitioners submits that this Court has never passed orders of stay of the Consolidation cases or the appeals in W.P.(C) No.6797 of 2002 and that mere pendency of that writ petition, which arose out of the OLR ceiling proceeding, the Consolidation Officer and the Deputy Director, 7 Consolidation were not bound to stay the proceedings pending before them. It is his further contention that since the Consolidation Officer and the Deputy Director passed orders on merits taking into consideration various evidences with regard to partition of the properties of Manohar Sharma and the allotment of the present disputed properties in favour of petitioner's father, Harisankar, the Joint Commissioner, Consolidation could not have disposed of the revision holding the orders of the Consolidation Officer and the Deputy Director as nullity, without considering the revision on merits.
6. Learned counsel for opposite party nos.1 and 2, on the other hand, contends that the finding of the Consolidation Officer and the Deputy Director with regard to partition and allotment of shares in relation to the properties of Manohar Sharma was based mainly on the order passed in the ceiling proceeding by the Revenue Officer and the trial court in T.S. No.17 of 1994. But in the meantime, the orders of the Revenue Officer in the ceiling proceeding has been set aside by this Court in W.P.(C) No.6797 of 2002, which was disposed of on 21.01.2013, and that the decree passed in favour of the present writ petitioner by the Civil Judge (Junior Division) Baragarh in T.S. No.17 of 1994 has been set aside by the court of the learned Additional District Judge (Fast Track) Court, Baragarh in Title Appeal No.12 of 1996 vide order dated 24.09.2003 and the same being remanded is still pending before the trial court. Therefore, the basis of the finding of partition given by the Consolidation Officer being totally nonexistent the matter may be remanded back to the Consolidation Officer for fresh disposal.
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7. The Consolidation authorities are vested with the power under O.C.H. & P.F.L. Act to decide the question of right, title and interest in land and civil court's jurisdiction to decide such questions has been ousted by virtue of Section 51 and 4(4) of the O.C.H. & P.F.L. Act. The disputed questions of partition cannot be decided by the Revenue Officer in a ceiling proceeding under the OLR Act, unless partition is admitted by the parties concerned or it has already been adjudicated by a competent court or Tribunal. The Consolidation Authorities being competent to either partition or decide the question of title on the basis of previous partition their findings will be binding on the Revenue Officer deciding the ceiling proceeding and not vice-versa. Admittedly, two main documentary evidences with regard to partition of the properties of late Manohar Sharma were the order of the Revenue Officer in the ceiling proceeding and the decree passed by the learned Civil Judge (Junior Division), Baragarh in T.S. No.17 of 1997, which were taken into consideration by the Consolidation Officer and the Deputy Director, Consolidation to hold that the disputed land had fallen to the share of the petitioners' father in the partition. Those two orders having lost their force, the first one being set aside in W.P.(C) No.6797 of 2002 and the second one in Title Appeal No.12 of 1996, those have to be taken out of consideration and the question of partition now remains to be decided only on the basis of other evidence on record. Since, this Court had never passed any order for staying the proceedings of the remand Consolidation revisions before the Consolidation Officer or the Consolidation appeals before the Deputy Director, Consolidation, those authorities were not bound to stay the 9 proceedings, merely because W.P.(C) No.6797 of 2002 was pending before this Court. Even the order dated 22.6.2004 passed by this Court in Misc. Case No.6045 of 2004 (In W.P.(C) No.6797 of 2002) directing the Deputy Director, Consolidation to consider the stay petition filed before him could not be communicated to the Deputy Director, Consolidation before he finally disposed of the appeals. Therefore, the orders passed by the Consolidation Officer and the Deputy Director cannot be said to be a nullity as held by the Joint Commissioner, Consolidation and Settlement.
8. In the aforesaid circumstances, the impugned order is quashed and Consolidation Revision Nos.486 of 2004 and 487 of 2004 are remanded back to the Joint Commissioner, Consolidation and Settlement, Sambalpur-opposite party no.3 for fresh disposal after giving opportunity of hearing to the parties. The revisions are directed to be disposed of within a period of three months from the date of communication of this order.
The writ petition is accordingly allowed.
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B.K.Nayak,J.
Orissa High Court, Cuttack The 7th November, 2014/Gs.