Orissa High Court
Sutar Chemical Private Limited And ... vs Collector Balasore And Others on 10 December, 2014
Author: A.K.Rath
Bench: Amitava Roy, A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
W.A.No.506 of 2013
In appeal under Cluase-10 of the Letters Patent read with Article-4 of the
Orissa High Court Order, 1948.
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Sutar Chemical Private Limited
and another .......... Appellants
Versus
Collector, Balasore and others ........... Respondents
For Appellants - Mr.B. Baug,
Advocate
For Respondents - Mr.B.N.Bhuyan,
Addl.Govt.Advocate
(For Resp. No.1)
Mr.S.K.Mishra,
Advocate
(For Resp.No.2)
PRESENT:
THE HON'BLE SHRI JUSTICE AMITAVA ROY
AND
THE HON'BLE DR.JUSTICE A.K.RATH
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Date of Hearing : 17.11.2014 : Date of Judgment : 10.12.2014
Dr.A.K.Rath, J.In this appeal under Clause-10 of the Letters Patent, the appellants call in question the legality and propriety of the judgment and order dated 10.10.2013 passed by the learned Single Judge in W.P.(C) No.31773 of 2011, whereby and whereunder, the learned Single Judge 2 dismissed the writ petition and confirmed the order dated 28.11.2011 passed by the Collector, Balasore in Consolidation Case No.8 of 2007. By order dated 28.11.2011, the Collector, Balasore-respondent no.1 held that RSD No.4172 dated 7.12.1990, RSD No. 4173 dated 7.12.1990 and RSD No.1147 dated 16.10.2007, which had been executed in contravention of Sec. 34 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as "the Act"), are void. Having held so, respondent no.1 evicted the present appellants, who are opposite parties 3 and 4 in consolidation case, from the land transferred to them vide RSD No.1147 dated 16.10.2007.
2. Bereft of unnecessary details, the short facts of the case of the appellants are that one Sridhar Sahoo was the recorded owner in respect of consolidation khata no.291, chaka no.48, chaka plot No.92, area- Ac.1.16 dec. of mouza-Sanamaitapur under the Balasore Tahasil. During his life time, he had executed two registered sale deeds bearing RSD No.4172 dated 7.12.1990 in respect of khata no.291, chaka no.48, plot no.92, area Ac.0.08 dec. and RSD No.4173 dated 7.12.1990 in respect of khata no.291, chaka No.48, plot no.92, area Ac.0.40 dec. in favour of respondent nos.3 and 4. Thereafter, respondent no.4 alienated an area of Ac.0.24 dec. out of Ac.0.48 dec. in favour of Narayan Sahoo, father of respondent no.2 by means of RSD No.1283 dated 1.10.2002. While the matter stood thus, respondent no.3 intended to execute a registered sale 3 deed of the remaining area in favour of the appellants. He made an application before the Tahasildar, Simulia to sale Ac.0.24 dec. land appertaining to khata no.291, chaka plot no.92, chaka no.48. In the said application, the amin submitted the enquiry report and sketch map. After considering the same, the Tahasildar, Simulia, respondent no.5 by order dated 12.10.2007 granted permission to sale the said land in favour of the appellants. Thereafter, respodnentno.3 had executed the registered sale deed on 16.10.2007 and delivered possession. After purchase, the appellants laid mutation case. By order dated 15.2.2008, in Mutation Case No.1683 of 2007 the respondent no.5 mutated the land in favour of the appellants and granted record of rights. The appellant no.1 had also filed OLR Case No.23 of 2008 under Sec.8(A) of the Orissa Land Reforms Act for conversion of the land. The same was allowed on 30.7.2008 and, accordingly the record of right was issued. After mutation, appellant no.1 has developed the land and constructed a weigh bridge. He has also constructed a house and installed an electric transformer for his business. While the matter stood thus, respondent no.2 had filed Consolidation Misc.Case No. 8 of 2007 before the Collector, Balasore under Sec. 35(1) of the Act for a declaration that the RSD Nos. 4172 and 4173 dated 7.12.1990 and 1147 dated 16.10.2007 are void and to delivery possession of the land.
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3. Pursuant to issuance of notice, the appellants entered appearance and filed their objections contending, inter alia, that the lands were sold after obtaining due permission under Sec. 34 (3) of the Act. It was further contended that in order to harass them, respondent no.2 had also filed a Civil Suit, being C.S.No.620 of 2008, in the Court of the learned Civil Judge, Senior Division, Balasore.
4. By order dated 28.11.2011, the Collector came to hold that RSD No.4172 dated 7.12.1990, RSD No.4173 dated 7.12.1990 and RSD No.1147 dated 16.10.2007 had been executed in contravention of Sec. 34 of the Act. Having held so, the Collector declared the same as void and evicted the appellants from the land in question.
5. Assailing the order dated 28.11.2011 passed by the Collector, Balasore, the appellants filed the writ petition. Pursuant to issuance of notice, a counter affidavit was filed by respondent no.1. By order dated 10.10.2013, learned Single Judge dismissed the writ petition and thereby confirmed the order dated 28.11.2011 passed by the Collector.
6. Heard Mr.B.Baug, learned counsel for the appellants, Mr.B.N.Bhuyan, learned Additional Government Advocate for respondent no.1 and Mr.S.K.Mishra, learned advocate for respondent no.2.
7. Mr.Baug, learned counsel for the appellants submitted that the Collector-respondent no.1 has committed a manifest illegality and 5 impropriety in initiating a proceeding under Sec. 35 of the Act after lapse of seventeen years. He further submitted that when there is no prescribed period of limitation in the statute, the proceeding ought to have been initiated within a reasonable time. Referring to Sec.57 of the Act, he submitted that the provisions of Limitation Act, 1963 except Secs. 6, 7, 8, 9, 18 and 19 shall apply to all applications, appeals, revisions and other proceedings under the Act or the Rules made thereunder. Thus, in view of Article 137 of the Limitation Act, the Collector ought to have initiated a proceeding within three years from the transfer of the land. He further submitted that necessary permission was accorded by the Tahasildar, Simulia to sale the land covered under the RSD No.4172 dated 17.12.1990 and RSD No.4173 dated 17.12.1990. According to Mr.Baug, even if the deeds are void, the appellants having in possession of the case land peacefully, continuously and to the hostile animus of owner more than 12 years and, as such, perfected title by way of adverse possession. He further submitted that after mutation, appellant no.1 has developed the land and constructed a house thereon. He has also installed weigh bridge and an electric transformer over the said land. After lapse of seventeen years, if the lands are reverted back to the original owner, then the appellants will be seriously prejudiced. He further submitted that in absence of any procedure laid down in the Act and Rules framed thereunder for summarily eviction, the provision of Sec. 35 of the said Act is unworkable. 6
8. Per contra, Mr.Bhuyan, learned Additional Government Advocate and Mr.Mishra, learned counsel for respondent no.2 supported the orders passed by the Collector, Balasore and the learned Single Judge.
9. Mr.Mishra submitted that no right accrues in favour of the vendee when the sale deeds are void. He further submitted that when a person, intending to transfer or fragment a portion of chaka, is unable to do so owing to the restrictions imposed under sub-sec.2 of Sec. 35 of the Act, he may apply in the prescribed manner to the Tahasildar of the locality for this purpose. The said provision is mandatory and any transfer of the land in contravention of the provisions of Sec. 34 shall be void as would be evident from Sec. 35(1) of the Act. In the instant case, no permission was accorded by the Tahasildar, Simulia to alienate a portion of chaka and, as such, deeds are void. The subsequent permission accorded by the Tahasildar to alienate the land does not validate the initial transfer. Mr.Mishra further submitted that when Act does not prescribe the period of limitation, the Collector can exercise its power under Sec. 35(1) of the Act at any time. He further submitted that the appellants cannot take plea of adverse possession. He further submitted that Secs. 34 and 35 of the Act are the heart and soul of the Act and the aforesaid provisions protects the solemn mandate of the Act i.e. prevention of fragmentation. Any person, who has breached the mandate of the Act or is a beneficiary to such action, cannot take the plea of limitation to prevent 7 an action under Sec.35 (2) of the Act. He further submitted that a void order is non-enforceable and non-est in the eye of law. The said order can be avoided at any point of time. He further submitted that there is no pleading with regard to adverse possession.
10. From the pleadings and submissions advanced by the learned counsel for the parties, the following points emerge for our consideration:-
1. Whether the Collector can exercise its jurisdiction under Sec. 35(2) of the Act at any time ?
2. Whether a vendee can take a plea of adverse possession where alienation is made in contravention of Sec. 34 of the Act?
3. Whether the purchaser in absence of any procedure laid down in the Act or Rules render Sec. 35(2) of the Act is unworkable and unenforceable ?
POINT NO.I
11. The Statement of Objects and Reasons given in the Bill leading to OCH & PFL Act (Act 53), reads:-
"Statement of Objects and Reasons- In the context of strategy for increasing agricultural production in the country and in pursuance thereof to give inducement and incentive to the cultivators, it is considered expedient to initiate legislation for consolidation of scattered holdings and re-arrange the holdings including fragmented holdings among various landowners to make them more compact and to provide against future fragmentation of holdings.8
This will help in economic farming and application of improved implements and methods of farming which are necessary for development of agriculture and increased agricultural production."
12. Section 34(1) (2) and (3) and Section 35 (1) and (2), which are relevant, are quoted hereunder:-
"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.
xxx xxx xxx (3) Where a person, intending to transfer a fragment, is unable to do so owing to restrictions imposed under Sub section (2), he may apply in the prescribed manner to the Tahasildar of the locality for this purpose whereupon the Tahasildar shall, as far as practicable within forty-five days from the receipt of the application determine the market value of the fragment and sell it through an auction among the landowners of contiguous Chakas at a value not less than the market value so determined.
xxx xxx xxx
35. Consequences of transfer or partition contrary to provisions of Section 34.
(1) A transfer or partition in contravention of the provisions of Section 34 shall be void.
(2) A person occupying or in possession of any land by virtue of a transfer or partition which is 9 void under the provisions of this Act, may be summarily evicted by the Collector."
13. Further Sec. 53 of the Act, stipulates that a transfer made in contravention of any of the provisions of this Act shall not be valid or recognized, anything contained in any other law for the time being in force notwithstanding.
14. The object of Sec.53 of the Act is to consolidate and prevent fragmentation of holdings. The intention of the legislature is to encourage the development of agriculture and improve the agricultural products, and one way achieves the object by introducing consolidation schemes. The object of the Act is sought to be achieved by allotting a compact area in lieu of scattered plots, as that would facilitate large-scale cultivation, which will help in economic farming and application of improved implements and methods of farming, which are necessary for development of agriculture and increased agricultural production. Fragmentation of holdings is intended to be avoided, since that will impede the development of agriculture and interfere with increasing of production of food grains. The language employed in Section 34 of the Act is imperative, which provides that no agricultural land in a locality shall be transferred or partitioned so as to create a fragment except to a land owner of a contiguous Chaka. Sub-sec. of Sec.34 of the Act cast a duty on the owner of a Chaka intending to transfer a fragment may apply in prescribed 10 manner to the Tahasildar of the locality for this purpose whereupon the Tahasildar as far as practicable within forty-five days from the receipt of the application determine the market value of the fragment and sell it through an auction among the land owners of contiguous Chakas at a value not less than the market value so determined. Sub-sec. 4 of the said Act provides that when the fragment is not sold in course of the auction, it may be transferred to the State Government and the State Government, shall, on payment of the market value determined under sub-sec.(3), purchase the same and thereupon the garment shall vest in the State Government free from all the encumbrances.
15. On a cumulative analysis of the aforesaid provisions, it is vivid and luminescent that before the owner of a Chaka intends to transfer a fragment of the same, he may apply to the Tahasildar of the locality for the said purpose, otherwise a transfer or partition in contravention of the provisions of Sec. 34 shall be void in view of Sec.35. Further in view of Sec. 53 of the Act, a transfer made in contravention of any of the provisions of the Act shall not be valid or recognized, anything contained in any other law for the time being in force notwithstanding.
16. Bearing in mind the statement of objects of the bill leading to statement of objects and reasons and provisions quoted (supra), let us examine the first submission of Mr.Baug, learned counsel that since no period of limitation has been prescribed in the Act for exercise of power 11 under Sec. 35 (2) of the Act, the Collector has to exercise its power within twelve years from the date of transfer, as has been held by the learned Single Judge of this Court in Jogendra Jena and another Vrs. Krushna Jena and another, 2012(I) CLR-902. Though the submission of Mr.Baug appears at a first blush to be attractive, but on a deeper scrutiny, it is like a billabong.
17. In State of Orissa and others Vrs. Brundaban Sharma and another, 1995 Supp. (3) S.C.C.249, the question arose before the apex Court as to whether Board of Revenue was justified to exercise its jurisdiction under Sec.38-B of the Orissa Estate Abolition Act, 1951 after a lapse of 27 years. The apex Court held that:-
"When the revisional power was conferred to effectuate a purpose, it is to be exercised in a reasonable manner which inheres the concept of its exercise within a reasonable time. Absence of limitation is an assurance to exercise the power with caution or circumspection to effectuate the purpose of the Act, or to prevent miscarriage of justice or violation of the provisions of the Act or misuse or abuse of the power by the lower authorities or fraud or suppression. Length of time depends on the factual scenario in a given case."
The apex Court further held that it cannot be said that the Board of Revenue exercised the power under Sec.38-B after an unreasonable lapse of time, though from the date of grant of patta by the Tehsildar is of 27 years.
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18. In Ibrahimpatnam Taluk Vyavasaya Coolie Sangham Vrs. K.Suresh Reddy and others, (2003) 7 Supreme Court Cases 667, the apex Court had the occasion to consider Sec. 50-B(IV) of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950, which provides that the Collector may suo motu at any point of time, call for and examine the record relating to any certificate issued or proceedings taken by the Tahasildar under the section for the purpose of satisfying himself as to the legality or propriety of such certificate or as to the regularity of such proceedings and pass such order in relation as he may think fit. The apex Court held that use of words "at any time" in sub-sec. (4) of Sec. 50-B of the Act cannot be rigidly read letter by letter. It must be read and construed contextually and reasonably. If one has to simply proceed on the basis of the dictionary meaning of the dictionary meaning of the words "at any time", the suo motu power under sub-sec. (4) of Sec. 50-B of the Act could be exercised even after decades and then it would lead to anomalous position leading to uncertainty and complications seriously affecting the rights of the parties, that too, over immovable prosperities. Orders attaining finality and certainty of the rights of the parties accrued in the light of the orders passed must have sanctity. Exercise of suo motu power "at any time" only means that no specific period such as days, months or years are not prescribed reckoning from a particular date. But that does not mean that "at any time" should be 13 unguided and arbitrary. In this view, "at any time" must be understood as within a reasonable time depending on the facts and circumstances of each case in the absence of prescribed period of limitation.
19. Similarly in Uttam Namdeo Mahala Vrs.Vithal Deo and others (1997) 6 Supreme Court Cases 73, the apex Court held that in the absence of any specific limitation provided in the statute, necessary implication is that the general law of limitation provided in the Limitation Act (Act 2 of 1963) stands excluded. It was further held that when there is statutory rule operating in the field, the implied power of exercise of the right within reasonable limitation does not arise.
20. Similar view has been taken in Situ Sahu and others Vrs. State of Jharkhand and others, AIR 2004 Supreme Court 4918. The apex Court held that lapse of forty years is certainly not a reasonable time for exercise of power, even if it is not hedged in by a period of limitation. On interpretation of Sec.71A of the Chhota Nagatpur Tenancy Act (6 of 1908), which empowers the Deputy Commissioner to restore possession to members of the Scheduled Tribes over land unlawfully transferred "at any time".
21. In Santoshkumar Shivgonda Patil and others Vrs. Balasaheb Tukarm Shevale and others, 2009 AIR SCW 6305, the apex Court held that if no period of limitation has been prescribed, statutory 14 authority must exercise its jurisdiction within a reasonable period. What, however, shall be the reasonable period would depend upon the nature of the statute, rights and liabilities thereunder and other relevant factors (emphasis is ours). In the said case, it was further held that revisional jurisdiction should ordinarily be exercised within a period of three years having regard to the scheme of Act and in any event, the same should not exceed the period of five years.
22. Be it noted that in the decisions cited supra, the apex Court had the occasion to deal with the suo motu revisional jurisdiction of the authorities for exercise of power, but the same is not the case here. While exercising the jurisdiction under Sec. 35 of the OCH & PFL Act, the Collector neither exercises jurisdiction as an appellate authority nor revisional authority. Sec.35 of the Act also does not contemplate in making an application. In view of the same, reliance placed on Sec. 57 of the Act is totally misplaced.
23. Since no period of limitation has been prescribed in Sec. 35 of the Act for exercise of power by the Collector to evict the transferee of a portion of chaka in contravention of Sec. 34 of the Act, we are of the view that power of the Collector cannot be cribbed, cabined or confined by providing a period of limitation by judicial interpretation. If any period of limitation will be prescribed by the judicial interpretation, then the 15 legislative intention of the OCH & PFL Act would be frustrated. Again there will be innumerable fragments of the chakas.
24. The matter may be examined from another angle. A transfer or partition in contravention of provisions of Sec. 34 shall be void, as would be evident from Sec. 35 (1) of the Act. What is the meaning of the word 'void'. Black's Law Dictionary defines the word 'void' as follows:-
"Null; ineffectual; nugatory; having no legal force or binding effect; unable, in law, to support the purpose for which it was intended. An instrument or transaction which is wholly ineffective, inoperative, and incapable of ratification and which thus has no force or effect so that nothing can cure it."
25. In Smt.Kalawati Vrs. Bisheswar, AIR 1968 SC 261, the apex Court held that 'void' means non existent from in its very inception and ban against its recognition. It also means merely a nullity and may be ignored even in collateral proceeding as if it never were. Thus, void means non-est in the eye of law.
26. A Full Bench of Allahabad High Court in Nutan Kumar and others Vrs. IInd Additional District Judge, Banda and others, AIR 1994 Allahabad 298(FB), considered the legal status of an agreement formed in contravention of the provision of Sec.7(2) of the U.P.Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. It was held that the appellation 'Void' in relation to a juristic act, means without legal 16 force, effect or consequence; not binding; invalid; null; worthless; cipher; useless and ineffectual. Void agreements are destitute of all legal effects and force. They are totally ineffectual rather cipher. No legal relationship, right or liabilities emanates therefrom. It was further held that an agreement offending a statute or public policy or forbidden by law is void. It is invalid from nativity. No legal relations come into being from an agreement offending a statute or public policy. Paragraphs 22 and 23 of the report are quoted hereunder:-
"22. An agreement offending a Statute or public policy or forbidden by law is not merely void and it is invalid from nativity. It cannot become valid even if the parties thereto agree to it.
23. The concept that an agreement may be void in relation to a specified person and may be valid or voidable between the parties thereto is not applicable to an agreement the very formation whereof law interdicts; or which is of such a character that, if permitted, it would frustrate the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the court regards it as immoral or opposed to public policy. Neither party can enforce said agreement. No legal relations come into being from an agreement offending a Statute or public policy."
27. A sale deed executed in contravention of Sec.34 of the Act is not merely void, but it is invalid from nativity. No legal relations come into being from the sale deed offending the Act.
17POINT NO.2.
28. The submission of Mr.Baug, learned counsel for the appellants that the appellants have perfected their title by way of adverse possession is difficult to fathom. Mr.Baug placed heavy reliance on Jogendra Jena (supra). With profound respect to the learned Single Judge, it is not possible on our part to agree with the ratio laid down in Jogendra Jena (supra). As we have held that a sale deed executed in contravention of Sec.34 of the Act is not merely void, but the same is invalid from nativity. No legal relations come into being from the sale deed offending the Act. Further Sec.53 of the Act mandates that a transfer made in contravention of any of the provisions of the Act shall not be valid or recognized, anything contained in any other law from the time being in force notwithstanding. While exercising jurisdiction under Sec.35 of the Act, the Collector neither acts as appellate or revisional authority. No application is contemplated in the section. The same is not a proceeding in stricto sensu. Applicability of Limitation Act is only relation to any applications, appeals, revisions and other proceedings except sections 6 to 9, 18 and 19. Entertainment of plea of adverse possession would have a 18 disastrous and far reaching consequence. A statutory prohibition would be again validated. The consequence: - it will give rise to innumberable fragmentation of chakas and frustrate the legislative intention. POINT NO.3.
29. Suffice it to say that in the absence of any procedure/mechanism laid down in Sec.35 of the Act, the Collector will adher to the principles of natural justice.
30. But the question does arise when successive transactions have been taken place and the transferee has made some improvement of the property. The submission of Mr.Baug, learned counsel for the appellants is that status of the land has been changed to homestead land from agriculture by the Tahasildar. Further appellant no.1 has developed the land, constructed a weigh bridge in a portion thereof in 2008 and in other portion constructed a house and has also installed an electric transformer for his business purpose. The same is neither disputed nor denied. In view of the long lapse of time of seventeen years, successive transactions have been made and appellant no.1 has constructed a house, weigh bridge and installed an electric transformer over the same, it would be too iniquitous to dispossess him from the said land in question.
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31. In view of the above, the order dated 28.11.2011 passed by the Collector, Balasore as well as the order dated 10.10.2013 passed by the learned Single Judge are hereby quashed.
The writ appeal is allowed.
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Dr.A.K.Rath, J.
Amitava Roy, C.J. I agree.
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Amitava Roy, C.J.
Orissa High Court, Cuttack.
The 10th December,2014/CRB
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