Orissa High Court
Sarbeswar Lenka vs The Collector on 9 December, 2020
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Page 1 of 8
HIGH COURT OF ORISSA: CUTTACK
W.P.(C) No.11677 of 2020
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Sarbeswar Lenka ....... Petitioner
-Versus-
The Collector, Jagatsinghpur & Others ....... Opp. Parties
For Petitioner : Mr.Smita Ranjan Pattanaik,
S.K. Nayak, P.K. Mohanty,
I. Khan, S. Mohanty,
S. Mohakud & M. Kar
For Opp. Parties : Mr. Swayambhu Mishra,
Additional Standing Counsel
(for O.P. No. 1)
Mr.Basudev
Mr. Bismaya Stalin
(for O.P. Nos.2 & 3)
For Opp. Party No.4: None
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Heard and Order delivered by Virtual Mode on 09.12.2020
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA
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ORDER
K.R.Mohapatra, J This writ petition has been filed assailing the order dated 09.01.2020 (Annexure-4) passed by the Collector, Jagatsinghpur-opposite party No.1 in Consolidation Misc. Case Page 2 of 8 No.10 of 2019, whereby he declared registered sale deed No.387 dated 09.03.2005 (Annexure-1) executed by Gouranga Samal-opposite party No.4 in favour of the present petitioner, as void.
2. Mr. Pattanaik, learned counsel for the petitioner submits that Consolidation Khata No.43 (Mutation Khata No.225/14) Chaka No.88, Chaka Plot No.169 to an extent of Ac.0.50 decimals of mouza- Nimadihi (for short, 'the case land') stood recorded in the name of opposite party Nos.2 to 4. By virtue of a registered partition deed No.2955 dated 05.11.1997 an area of Ac.0.17 decimals out of the case land fell to the share of opposite party No.4. Accordingly, he transferred the same in favour of the petitioner vide registered sale deed No.387 dated 09.03.2005 (Annexure-1) and delivered possession thereof in favour of the petitioner. After lapse of 14 years, the opposite party Nos. 2 and 3 filed a petition under Sections 34 and 35 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short, 'the OCH & PFL Act') before the Collector, Jagatsinghpur-opposite party No.1, which was registered as Consolidation Misc. Case No.10 of 2019 (Annexure-2). On being noticed, the petitioner and proforma opposite party no.5 filed their objection (Annexure-3), but the Collector, Jagatsinghpur-opposite party No.1, without Page 3 of 8 considering the objection in its proper perspective, passed the impugned order under Annexure-4. Hence, this writ petition has been filed with a prayer to set aside the impugned order under Annexure-4.
3. Mr. Pattanaik, learned counsel for the petitioner further submits that the land purchased by the petitioner comes under the Master Plan of Paradeep Development Authority. Thus, the rigours of Section 34 (1) and (2) of OCH & PFL Act are not applicable to the transfer in question in view of the provision under Sub-section 5 of Section 34 of OCH & PFL Act. Section 34(1), (2) and (5) of OCH & PFL Act read as follows:
"34. Prevention of fragmentation. -(1) No agricultural land in a locality shall be transferred or partitioned so as to create 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.
xxx xxx xxx xxx (5) Nothing in Sub-sections (1) and (2) shall apply to-Page 4 of 8
(a) any land which is covered under the approved Master Plain published under the Odisha Town Planning and Improvement Trust Act, 1956 or as the case may be approved development plan published under the Odisha Development Authorities Act, 1982; or
(b) a transfer of any land for such public purposes, as may be specified, from time to time, by notification in this behalf, by the State Government."
It is his submission that this legal aspect was not taken into consideration by the Collector, Jagatsinghpur-opposite party No.1, while considering the Consolidation Misc. Case No.10 of 2019 filed by opposite party Nos.2 and 3, which makes the impugned order under Annexure-4 vulnerable. Hence, he prays for setting aside the impugned order.
4. Mr. Stalin, learned counsel for the opposite party Nos. 2 and 3, on the other hand, vehemently objected to the submission of Mr. Pattanaik, learned counsel for the petitioner and submits that in view of the provision of Section 59 of OCH & PFL Act, the rigours of Section 34(1) and (2) of the said Act are applicable to the transfer in question in favour of the petitioner. Admittedly, the petitioner is not a contiguous Chaka owner and no permission before transfer of the case land was obtained from the competent authority under OCH & PFL Act. Hence, the Collector, Jagatsinghpur-opposite party No.1 has committed no error in declaring the sale deed executed in Page 5 of 8 favour of the petitioner to be void. He also relies upon paragraph-11 of the decision of this Court in the case of Nikunja Kishore Rajguru & Another -v- Nityananda Barik and others, reported in 2019 (II) OLR 1029, which is reproduced hereunder:
"11. On a conspectus of the Statement of Objects and Reasons together with Section 2(e), Section 2(m) and 34(1) & 2 of the Act makes it abundantly clear that the object behind introduction of Section 34 to the Act is not to create a 'fragment of chaka' in contravention of Section 2(m). Section 2(m) though refers to a compact parcel of land, it cannot be equated with 'Chak' as defined under Section 2(e) of the Act. Thus, the word 'fragment' necessarily means a 'fragment of Chak' or 'a division of Chak', which is less than one acre in the district of Cuttack, Puri, Balasore and Ganjam and in Anandapur Sub-division Keonjhar district and less than two acres in rest of the areas of Odisha. Further, Section 34(2) provides that a fragment of the chaka can be sold to a contiguous land owner. A 'Chak' may be a compact parcel of land less than one acre/two acres. But, it cannot be inferred that wherever a 'Chak' is less than one acre/two acres depending upon the locality, where it situates, the compact parcel of land would be called a 'fragment'."
5. Heard learned counsel for the parties; perused the impugned order and materials placed before this Court. It is the admitted case of the parties that the petitioner is not a contiguous Chaka owner before purchasing the case land. Further, no permission under Section 4(2) of OCH & PFL Act appears to have been taken before the alienation was made in Page 6 of 8 favour of the petitioner. Mr. Stalin, learned counsel for the opposite party Nos. 2 and 3 also disputes the fact that the land in question was allotted to the share of the opposite party No.4 in the family partition. It is under this backdrop the case has to be decided.
Section 59 of the Act reads as follows:
"59. Act to override other laws-Save as otherwise provided the provisions of this Act shall have effect notwithstanding anything to the contrary in any other law, custom, usage, agreement, decreed or order of Court."
6. A reading of Section 59 makes it abundantly clear that the provisions of OCH & PFL Act shall have an overriding effect notwithstanding anything to the contrary in any other law, custom, usage, agreement, decree or order of Court. But, the provision opens with a saving Clause, which provides that the overriding effect is subject to the provisions made in OCH & PFL Act itself. Sub-section 5 of Section 34 of OCH & PFL Act clearly provides that the provisions of Sub-sections (1) and (2) of Section 34 are not applicable to the land which is covered under the approved Master Plan published under the Odisha Town Planning and Improvement Trust Act, 1956 (for short, 'the Town Planning Act') or as the case may be approved development plan published under the Orissa Development Authorities Act, 1982 (for short, 'ODA Act'). Page 7 of 8 6.1 It connotes that the land situated within the territorial jurisdiction of Master Plan published under the Town Planning Act or approved plan published under the ODA Act shall not attract the rigours of the provisions of Section 34 (1) and (2) of OCH & PFL Act. It is submitted by Mr. Pattanaik, learned counsel for the petitioner that the case land situates within the territorial jurisdiction of Paradeep Development Authority, which has been declared, as such pursuant to Government notification No.31172-H.U.D. dated 06.09.1989 issued by the Housing and Urban Development Department, Government of Odisha. This material aspect was not taken into consideration by the Collector, Jagatsinghpur-opposite party No.1 while adjudicating Consolidation Misc. Case No.10 of 2019 filed under Sections 34 and 35 of OCH & PFL Act.
7. In that view of the matter, the impugned order suffers from non-consideration of statutory provision of the OCH & PFL Act. Accordingly, the impugned order is set aside, the matter is remitted back to the Collector, Jagatsinghpur- opposite party No.1 for de novo adjudication by giving opportunity of hearing to the parties concerned and by examining as to whether the case land situates within the territorial jurisdiction of the approved plan of Paradeep Development Authority and whether Sub-section (5) of Section Page 8 of 8 34 of OCH & PFL Act has any application to the case land. The Collector, Jagatsinghpur-opposite party No.1 shall act upon production of an authenticated copy of this order.
8. The writ petition is accordingly disposed of with the aforesaid observation and direction.
8.1 Interim order dated 27.05.2020 passed in I.A. No. 5258 of 2020 stands vacated.
8.2 Authenticated copy of this order downloaded from the website of this Court shall be treated at par with certified copy in the manner prescribed in this Court's Notice No.4587 dated 25.03.2020.
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K.R. Mohapatra, J.
Orissa High Court, Cuttack.
Dated the 9th December, 2020/bct