Orissa High Court
Dhadi Parida (After Him And) Sundari ... vs The Commissioner Of Consolidation And ... on 9 August, 2002
Equivalent citations: 2002(II)OLR323, 2002 A I H C 4359, (2002) 2 ORISSA LR 323 (2002) 94 CUT LT 344, (2002) 94 CUT LT 344
Author: Pradip Mohanty
Bench: Pradip Mohanty
JUDGMENT Pradip Mohanty, J.
1. All these applications under Articles 226 and 227 of the Constitution of India were heard together as they arise out of the common orders passed by the Consolidation authorities under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as 'the Act') in respect of all the lands which the petitioners claim to have purchased the same by registered sale-deeds. They are accordingly disposed of by this common judgment.
2. Shorn of unnecessary detaifs, the facts of the case are as follows :
The disputed property stood recorded in the name of Deity Shri Shri Biswanath Mohadev, Bije Samangola in the district of Jagatsinghpur, which according to the petitioners is a private deity. The Marfatdars, thereafter, transferred them for consideration under some registered sale-deeds of the year 1965. During the last settlement operation, the Settlement Authorities recorded the property in favour of the 'Deity Marfat Dhadi Panda' (petitioner No. 1). Before the settlement operation was finalised, the consolidation operation came into force in the locality by virtue of Notification dated 15.7.1978 which was published under Section 3(1) of the Act.
3. On the commencement of the consolidation proceeding / operation, petitioner Nos. 1 and 2 filed their objections separately before the Assistant Consolidation Officer as provided under Section 9(3) of the Act. The said objection cases were registered as Objection Case Nos, 1777/625 and 241/788 respectively. In both the objection cases, prayer was made for deleting the name of the Deity and recording the lands in favour of petitioners Nos. 1 and 2 and also for correction of the area in favour of petitioner No. 1.
The Assistant Consolidation Officer passed orders on 7.7.1981 and 13.8.1981 rejecting both the objection cases (vide Annexures-1/1 and 1/2 in OJC 3385 of 1992). The petitioners did not prefer to challenge the orders.
While this was the position, the provisional consolidation scheme was prepared and published under Sections 17 and 18 of the Act and notices were issued under Section 18 to the two petitioners-Marfat the Deity. Instead of filing any objection pursuant to the notices issued under Section 18 of the Act, the petitioners filed two revision cases before the Director of Consolidation under Section 37(2) of the Act which were registered as Revision Case Nos. 394 of 1985 and 395 of 1985. !n these two revision cases, the petitioner challenged the orders under Annexures- 2/2 and 2/3 (in OJC 3385 of 1992). The Director disposed of the revision cases by order dated 13.9.1985 under Annexures- 5 and 6 by remitting back the objection cases to the Consolidation Officer for disposal according to law. This was so done because it was brought to the notice of the Director that the Consolidation Officer was hearing Objection Case No. 943/243 of 1.984 and Objection Case No. 941/241 of 1984 filed by the opposite parties.
4. On 7.1.1986 the Consolidation Officer, after hearing the objection f.rom the parties including opposite parties 5 to 8, disposed of the objection cases of both the parties under Annexure- 7 with a direction to record the land in the name of opposite parties 5 to 8 as Trustees of the Deity. Thereafter, the petitioners preferred four consolidation appeals to the'Deputy Director of Consolidation which were registered as Appeal Case Nos. 23 to 26 of 1986. The Deputy Director, opposite party No. 3, after hearing the parties dismissed ail the appeals on 29.3.1986 vide Annexure- 8. Thereafter the petitioners preferred consolidation revisions to the Commissioner of Consolidation, opposite party No. 1 which were registered as Consolidation Revision Nos. .880 to 883 of 1986. After giving opportunity of hearing to the parties, on 13.3.1992 the Consolidation Commissioner passed an order dismissing all the revisions by a common order under Annexure- 9. Against that order the petitioners have preferred these writ applications, (All the Annexures referred to above relate to OJC 3385 of 1992).
5. A counter-affidavit has been filed by opposite parties 5 to 8 in which it is stated that after the appointment of interim trustee of Shri Shri Biswanath Mohadev Bije Samangola (opp. party No. 5), filed objection to delete the name of the petitioners as Marfatdars of the Deity. Their further case is that the interim trustee appointed by the Assistant Commissidner of Hindu Religious Endowments should be recorded as Marfatdars. It is stated in the, counter that their objection was heard along with the objection filed by the petitioners. This was so done in view of the order passed by the Director of Consolidation under Annexure-6. Therefore, it is contended that the order passed by the Consolidation Officer under Annexure-7 disposing of the objection of the petitioners, as well as the opposite parties 5 to 8, is one under Section 11 of the Act. Hence, the provision contained in Section 14 of the Act does not operate as a bar, The opposite parties further contend that the sale-deeds having been executed without obtaining any permission as envisaged in Section 19 of the Hindu Religious Endowments Act (hereinafter called as the "OHRE Act'), the same are void. The opposite parties have also stated in the counter-affidavit that the authorities under the OHRE Act have appointed them as non-hereditary interim trustees under Section 27 of the said Act which order having reached finality, the petitioners have no locus standi to maintain the present writ applications. The opposite parties have also disputed the fact that Shri Shri Biswanath Mohadev Bije Samangola is a private Deity. According to them, the Deity is a public Deity. The opposite parties have further submitted that the orders passed by the Consolidation Authorities are absolutely justified which required no interference. Though rejoinder-affidavit has been filed by the petitioners and reply affidavit has been filed by opposite parties 5 to .8, yet facts already noticed by us have been reiterated for which it is not necessary to refer to them again.
6. Before dealing with the submissions of the respective parties, it would be apt to indicate that a Division Bench of this Court while hearing the matter was of the view on the context of appointment of interim trustee that the decision rendered by a Full Bench of this Court reported in 1992(11) OLR, 330 (Khetra Mohan Rout and Ors. v. Shri Shri Nageswar Mohadev and Ors.) deserves a rethinking for the reasons stated vide order dated 21.12.1994. Accordingly, the matter was placed before the Full Bench of this Court. The Full Bench answered the reference by judgment dated : 22.12.1995 stating that the decision rendered in Khetra's case (supra) need not be referred to a larger Bench,
7. Shri B. Routray, learned counsel appearing for the petitioners, submitted that the objection filed by opposite parties 5 to 8 are not maintainable in view of the bar contained in Section 14 of the Act. In other words, Shri Routray's submission was that the Consolidation Officer acted illegally in entertaining the objection filed by opp. parties 5 to 8. He further submitted that the opposite parties filed their objection under Section 18 of the Act and the said objection under Section 18 of the Act being limited in nature and only relating to the scheme, the Consolidation Officer erred in law in deciding the right, title of the parties. The learned counsel also contended that in the objection under Section 18 of the Act, there was hardly any scope to go into the title of the disputed land. He further submitted that the Addl. Assistant Commissioner of Endowments was not justified in appointing opp. parties 6 to 8 as interim non-hereditary trustees under Section 27 of the OHRE Act, since the Deity in question is a private one. He further pointed out that there was no enquiry under Section 41 of the OHRE Act.
Shri Parija, learned counsel appearing for opp .parties 5 to 8, submitted that the Deity in question is a public Deity and the transfer made in favour of the petitioners being without permission of the authorities under the provisions of the OHRE Act is void. So far as maintainability of the objection filed by opp. parties 5 to 8 is concerned, he submitted that while their objection was pending adjudication, the Director of Consolidation, in exercise of the power under Section 37(2) of the Act, remitted the matter to the Consolidation Officer for fresh disposal. By this order of remand the Director of Consolidation remitted the objection under Section 9 of the Act filed by the petitioners. Thus, the Consolidation Officer heard the objection of the petitioners and 6pp. parties 5 to 8 together, Shri Parija further submitted that their objection under Section 18 was treated as one under Section 11 of the Act. According to him, Section 14 of the Act does not operate as a bar.
8. From the aforesaid contentions of the learned counsel for the parties, it appears that the main thrust of argument of the petitioners is that, the objection filed by opposite parties 5 to 8 under Section 18 of the Act is not maintainable in view of the bar under Section 14 of the Act. If we answer the question in affirmative, then the learned counsel is right in submitting that the orders passed by the Consolidation Officer, the Deputy Director of Consolidation and the Commissioner of Consolidation are unsustainable. But, in the event the answer is in negative, then the orders passed by the said authorities are to be upheld. Therefore, let us examine the said contention at the outset.
Under Section 9(1) of the Act, the draft R.O.R. was published showing the Deity as the owner through the purchaser-Marfatdars. An objection under Section 9(3) of the Act was filed by the purchasers to delete the name of the Deity from the record-of-right and to re-record the lands in their favour only. The Consolidation Officer, the adjudicating authority, rejected the objection of the purchasers under Section 11 of the Act. Thereafter, preparation of the Consolidation Scheme was taken up and there was publication of provisional scheme and for receipt of objection under Section 18 of the Act. In the proceeding under Section 18 or the ACT, THE interim non-hereditary trustees who did not appear before the Consolidation Authorities under Section 9(3) of the Act, fifed objection to the proposed scheme notified under Section 18. The purchasers whose objection was rejected under Section 11, after lapse of four years filed a revision under Section 37(2) of the Act.
Sections 37(1) and (2) being relevant are extracted hereunder.
"37. Power to call for records : (1) The Consolidation Commissioner may call for and examine the records of any case decided or proceedings taken up by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings or as to the correctness, legality or propriety of any order passed by such authority in the case or proceedings and may, after allowing the parties concerned a reasonable opportunity of being heard make such order as he thinks fit.
(2) The power under Sub-section (1) may be exercised by the Director of Consolidation in respect of authorities subordinate to him."
Though the power is suo motu one, the same could be invoked by a person interested in respect of a proceeding under the Act. The Director exercised power under Section 37(2) of the Act and considered the matter and remanded the entire matter back to the Consolidation Officer for fresh enquiry 'as other objections are pending before the Consolidation Officer' namely the objection to the proposed scheme under Section 13. After remand, the Consolidation Officer acting under Section 11 of the Act directed that the R.O.R. should be in the name of the Deity through the interim trustees by taking into consideration the objection filed by the interim trustees under Section 18 of the Act. Thereafter, the matter went to the appellate authority, revisional authority and finally before this Court. For the first time objection is raised that the Director had no jurisdiction or authority to direct the remand of the matter to the Consolidation Officer to decide the matter after taking into consideration the objection filed in the matter under Section 18 of the Act.
The learned counsel for the petitioners has relied upon the decision in the case of Nikunja Kishore Das v. Consolidation Officer, 66(1988) CLT 182. The Division Bench Judgment, delivered by Hon'ble Mr. Justice D.P. Mohapatra (as His Lordship then was) relied on the decision reported in AIR 1975 SC 1716 and held in paragraphs 5 and 6 of the judgment that, 'a person who could not place his claim for title and interest to the property at the appropriate stage may file objection before the Director or the Consolidation Commissioner as the case may be, by drawing their attention to any irregularity or illegality and the said authority if convinced about the plea of the applicant can pass appropriate order in exercise of revisional power'. Further, it was held that, 'the order of the Consolidation Officer entertaining objection filed for the first time under Section "18(2) of the Act was held to be without jurisdiction' and was quashed.
The other decision cited is reported in 1992(1) OLR 322 in which it has been held that Section 14 acts as a complete bar for subsequent objection to the draft R.O.R. and Section 15 is of no consequence. It was not the intention of the Legislature to bypass the bar under Section 14 by any collusive transfer. By necessary implication, the objection under Section 18 of the Act cannot relate back to the stage of objection under Section 9(3) of the Act.
But, in the case at hand, the Director, in exercise of revisional power, remitted the objection of the petitioners to the Consolidation Officer by which time the objection of the opposite parties under Section 18 of the Act was very much pending before the Consolidation Officer, Accordingly, the Consolidation Officer disposed of both the objections by directing that the land should be recorded in the name of the Deity and the interim trustees are shown as Marfatdars.
9. The next question is with regard to extent of jurisdiction of the revisional authority. In this connection, reference may be made to the decision reported in 1996(1) SUPREME, 625 (Preetam Singh (dead) by L.Rs. v. Asst. Director of Consolidation). Relying on two other earlier decisions stated therein, in paragraph 6 it was held that 'the matter was in revision before the Assistant Director (Consolidation) he had the entire matter before him and his jurisdiction was unfettered. While in seisin of the matter in his revisional jurisdiction, he was in complete control and in position to test the correctness of the order made by the Settlement Officer (Consolidation) effecting remand; In other words, in exercise of revisional jurisdiction the Assistant Director (Consolidation) could examine the finding recorded by the Settlement Officer as to the abandonment of the land in dispute by those tenants who had been recorded at the crucial time in the Khasara of 1359 Fasli. That power as a superior court, the Assistant Director (Consolidation) had, even if the remand order of the settlement officer had not been specifically put to challenge in separate and independent proceedings. It is noteworthy that the Court of the Assistant Director (Consolidation) is a court of revisional jurisdiction otherwise having suo motu power to correct any order of the subordinate officer. In this situation the Assistant Director (Consolidation) should not have felt fettered in doing complete justice between the parties when the entire matter was before him. The war of legalistics fought in the High Court was of no material benefit to the appellants. A decision on merit covering the entire controversy was due from, the Assistant Director (Consolidation).
But, the facts of this case stand on a different footing inasmuch as the Director in exercise of his revisional power remitted the objection to the Consolidation Officer. At that relevant time, the objection of the opposite parties under Section 18 of the Act was pending before the Consolidation Officer. Accordingly, the Consolidation Officer disposed of both the objections.
10. The next question is, what is the jurisdiction of the revisional authority: The revisional power, which could have been exercised suo motu, the Director had ample power to do justice in the case. His power is not fettered by any legalistic narrow technical bounds. Apart from this, even on a narrow legalistic point it may be said that the purchaser who filed objection in time and whose objection was over-ruled and filed petition under Section 37(2) of the Act having not challenged the order of remand issued by the Director, is estopped from challenging the same now, as the same has become final.
Undisputedly the Director remitted the objections of the petitioners to the Consolidation Officer. The order of remand was riot a limited remand but was an open one. Therefore, the objections of the petitioners on being remanded was relegated to its earlier position i.e. under Section 9(3) of the Act which is required to be disposed of under Section 11 of the Act. As already noticed, the objection of the opposite parties under Section 18 of the Act was pending before the Consolidation Officer. Since objections of both the parties were heard together and were disposed of by a common order, necessarily the objections of the opposite parties were treated as one under Section 9 of the Act. It is worthwhile to note that the opposite parties in their objection never claimed title to the disputed land, but what they claimed, was for inclusion of their names as Marfatdars in place of the petitioners.
Therefore, there is no illegality committed by the Consolidation Officer. Since the matter was remitted by the Director, in exercise of the power under Section 37(2) of the Act, we hold that Section 14 of the Act does not operate as a bar. The contention of the learned counsel for the petitioners in this regard is untenable.
11. As regards the contention of the learned counsel for the petitioners that the Deity in question is a private Deity, we may state that we have perused the sale-deed under Annexure- 1 and from the status of the venders' name, we found that Shri Biswanath Mahadev and Shri Gopinath Jew Bije at Samangola Marfat Samangola Brahmana Maha Saya Mananka Taraf. It, therefore, follows that Deity Shri Shri Biswanath Mahadev was a public; Deity of the entire Brahmin community of the area. Therefore, the Deity is a public Deity and is not a private one as contended, The petitioners have also assailed the order appointing opposite parties 6 to 8 as the interim trustees which was passed by the Additional Assistant . Commissioner of Endowments, in exercise of the power under Section 27 of the OHRE Act. Admittedly, the petitioners have not challenged the same in the appropriate forum under the OHRE Act. It has been held in the Full Bench decision (supra) that if the order of the Addl. Assistant Endowment Commissioner was vitiated on account of arbitrariness, then it was open to the person concerned to move the Commissioner on revision. The Full Bench also held that an aggrieved party was not without any remedy. As such, it is not open to the petitioners to challenge the said order in these writ applications.
12. For the reasons aforesaid, we do not find any merit in the writ applications which, are hereby dismissed. There shall be no order as to costs.
R.K. Patra, J.
13. I agree.