Orissa High Court
OJC/3062/2000 on 3 May, 2018
Author: Biswanath Rath
Bench: Biswanath Rath
O.J.C. No.3062 of 2000
04. 03.05.2018 Heard Shri S.S. Rao, learned counsel appearing
for the petitioners and Shri A.K. Mishra, learned Addl.
Government Advocate appearing for the opposite
parties-State. Though a set of counsel is appearing for
the private opposite party nos.4 to 6, but nobody is
appearing during hearing today.
2. This writ petition involves an order passed by the
Joint Commissioner of Consolidation, Berhampur
involving R.C. No.661 of 1998 at Annexure-4.
3. Short background involved in the case is that the
lands covered under Plot Nos.2943 and 2947
measuring Ac.0.010 decimals and Ac.0.030 decimals of
village- Angu were given by way of grant to the
grandfather of the original petitioner vide Annexure-1.
Original petitioner is residing over the disputed plot
involving Plot No.2943 by constructing a house. In the
family partition the house standing on the said plot
no.2943 appears to have been allotted in favour of the
original petitioner. During consolidation operation, in
Objection Case No.493 of 1993 after field enquiry and
calling for the records, land was directed to be recorded
in the name of the original petitioner appearing at
Annexure-3 and consequently, the 'patta' was also
granted vide Annexure-3/a. After five years, the private
opposite party nos.4 to 6 filed a revision under Section
37 of the Orissa Consolidation of Holdings and
Prevention of Fragmentation of Land Act, 1972 (for
short the "OCH&PFL Act") challenging the order under
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Contd........ Annexure-3. The Joint Commissioner of Consolidation,
03.05.2018
Berhampur while holding that the land not only is of
'Gramakantha' character, but further the construction
of the house by the original petitioner, obstructing the
villagers passage and prevent them from using the
same as a road, dismissed the revision.
4. Assailing the impugned order at Annexure-4,
Shri Rao, learned counsel appearing for the petitioners
challenged the impugned order on two counts, firstly
there is no prohibition of recording of land in the
status of 'Gramakantha' in favour of the occupier and
further the observation of the revisional Court
regarding construction of the house of the petitioner is
obstructing "Grama Rasta" not only not based on
material available on record but also entering into
disputes having no jurisdiction. Further for the
revisional order being passed based on report called for
during the proceeding and copy of the same having not
been served on the original petitioner, such report
should not have been relied upon. Shri S.S. Rao,
learned counsel appearing for the petitioners claimed
that the revisional order otherwise suffers for non-
compliance of principle of natural justice.
5. Shri A.K. Mishra, learned Addl. Government
Advocate appearing for the opposite parties-State while
objecting the submissions made by Shri Rao, learned
counsel appearing for the petitioners, on the other
hand taking this Court to the discussions by the
revisional authority, submitted that for the clear
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Contd........ disclosures regarding a report indicating nature of the
03.05.2018
land as well as the objection created by the
construction of the house by the petitioners,
particularly in respect of plot No.2943, submitted that
the impugned order being justified and no infirmity in
the same, there is no scope to this Court for interfering
with the same. Shri Mishra, learned Addl. Government
Advocate also raised the maintainability of the writ
petition in absence of the parties like the Collector and
the Tahasildar, who are all parties in the revision, but
not made party herein.
6. Considering the rival contentions of the parties,
this Court finds, the disputed site is standing over Plot
No.2943. There is no dispute that the Objection Case
No.439 of 1993 was heard and decided after calling for
objection in favour of the original petitioner, thereby
directing recording of the disputed land in favour of the
original petitioner. Considering that the revision was
preferred by the private opposite party nos.4 to 6 under
Section 37 of the OCH & PFL Act, for the exercise of
revisional jurisdiction by the revisional authority
deciding the matter involving Annexure-4, this Court
finds, the Consolidation Commissioner or the Officer
undertaking such process has to decide the revision by
calling for and examining the records of proceeding
involved. In the circumstances, this Court finds, since
the revision was under Section 37 of the OCH & PFL
Act, there was no occasion on the part of the authority
deciding the revision to call for a fresh report. It is on
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Contd........ the other hand, the revision should have been decided
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on the basis of the materials available on record.
Further, taking into account the observations of the
revisional authority so far it relates to the construction
of the house by the original petitioner obstructing
Rasta (road) being used by villagers, this being not the
case of the parties in the objection case and further
looking to the nature of objection, this Court not only
finds the revisional authority considered extraneous
materials but deciding disputes without having such
jurisdiction. It is on the above premises, this Court
interferes in the revisional order and sets aside the
order at Annexure-4 so far it relates to Plot No.2943 is
concerned.
7. The writ petition succeeds.
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Biswanath Rath, J.
MRS 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61