Orissa High Court
WP(C)--12997/2008 on 8 August, 2013
Author: R. Dash
Bench: R. Dash
W.P.(C)NO.12997 OF 2008 17. 08.08.2013
The petitioners challenge the order dated 4.1.2007 passed by the learned Collector, Jagatsinghpur in Consolidation Case No.13 of 2005 wherein he has declared registered sale deeds bearing Nos.912 to 917, 919 and 920 dated 7.4.1998 as void on the ground that those are in contravention of provisions contained in Section 34 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short, the Act).
2. On an application filed by Adikanda Sahoo-O.P. No.3, alleging that fragments of the land appertaining to Consolidation Plot No.32 under Khata No.3 of Mouza Nimidihi recorded jointly in the names of said Adikanda Sahoo and others were sold by three of the co-owners, namely, Duryodhan Sahoo, Prahallad Sahoo and Siba Sahoo (O.P.Nos.4, 5 and deceased father of O.P.Nos.6 to
9) in contravention of Section 34 of the Act, the learned Collector initiated the proceeding in Consolidation Case No.13 of 2005 and finding that the sale transactions vide registered sale deed Nos.912 to 920 dated 7.4.1998 were in contravention of Section 34 of the Act, declared the same to be void.
3. The present petitioner Nos.1 to 11 are the purchasers of the portions of land sold under the aforestated registered sale deeds. Out of them, P.1 to 4, 7 and 9 have subsequently transferred their purchased portions to P.11 to P.23 under registered sale deed Nos.3127 to 3131, 3133 to 3134, 3140 and 3142 dated 27.12.2000. Their case is that they have purchased lands 2 not only from Plot No.32 of Mouza Nimidihi but also lands situate in two other villages, namely, Paradeep Garh and Udayabat and that whereas the land within the village Nimidihi is included in the consolidation, the lands of other two villages are not so included. Therefore, according to the petitioners, the impugned order declaring the sale deeds in their entirety as void is illegal and not sustainable. Further contention of the petitioners is that the original purchasers, i.e., P.1 to P.9 having their own land contiguous to their purchased land, the sale transaction under registered sale deed Nos.912 to 920 dated 7.4.1998 do not create any fragmentation. It is also contended by them that O.P.No.2, who was the petitioner before the learned Collector, is estopped from challenging the sale deeds executed by some of his co-owners inasmuch as he himself has also transferred a portion of Plot No.32 of village Nimidihi vide Sale Deed No.3367/98 which is in contravention of Section 34 of the Act. Further contention is that the petitioners before the learned Collector having admitted in their petition that according to a mutual arrangement the shareholders in respect of Plot No.32 of Mouza Nimidihi were in separate possession of their respective shares, the learned Collector should not have held that the sale transactions are in contravention of Section 34 of the Act.
4. Learned counsel for the petitioners while challenging the impugned order has reiterated the grounds mentioned in the writ petition. On the other 3 hand, learned counsel for O.P.Nos.3 to 9, so also the learned counsel for the State, argues in support of the impugned order.
5. The contention that the original purchasers, i.e., P.1 to P.9 had their own land contiguous to their purchased land vide sale deed Nos.912 to 920 dated 7.4.1998 is not there in the written note of arguments which is made Annexure-3 to the writ petition. The impugned order also does not reveal that such a stand was taken before the learned Collector, Jagatsinghpur. Therefore, in this writ proceeding they are not permitted to raise such an objection. The other contention that O.P.No.2, who was petitioner before the learned Collector, is estopped from challenging the sale deeds on the ground of he himself has contravened Section 34 of the Act is not sustainable in the eye of law. The petitioners cannot be permitted to raise an objection to the effect. The ground of prior partition is also not tenable. Admittedly, Plot No.32 was recorded jointly in the Consolidation R.O.R. So plea of prior partition is not acceptable. Once a notification under Section 41 of the Act has been issued no agricultural land in a locality shall be transferred or partitioned so as to create a fragment. The sale transactions in questions have created fragmentation of the land appertaining to Plot No.32 of Mouza Nimidihi. The petitioners cannot avoid the consequences of such transfer by taking such vexatious grounds. However, the last contention that the Collector could not have declared the sale deeds void in their 4 entirety is quite forceful. It is claimed by the petitioners that under the impugned sale deeds, lands situate in three villages, namely, Nimidihi, Paradeep Garh and Udayabat have been transferred and the last two villages do not come under the operation of the Act. This contention is not refuted by the O.Ps. Since the lands within village Paradeep Garh and Udayabat are not consolidable, any sale transaction involving area less than one acre cannot be declared as void under Section 35 of the Act. That part of the sale transaction in respect of land situate in village Paradeep Garh and Udayabat effected under the impugned sale deeds cannot be declared as void.
6. The impugned order vide Annexure-6 reflects that the petitioner before the learned Collector had raised objection only with regard to Plot No.32 under Khata No.3 of Mouza Nimidihi. No such objection has been raised with respect to other plots alienated under the sale deeds. Therefore, while passing the impugned order learned Collector ought to have limited it to Plot No.32 of Mouza Nimidihi and expressly excluded the other plots from its operation. The impugned order further reflects that the petitioner had challenged the legality of R.S.D. Nos.912 to 917 dated 7.4.1998 executed by Siba Sahoo and R.S.D. Nos.919 and 920 dated 7.4.1998 executed by Duryodhan Sahoo and Prahallad Sahoo. There was no such challenge to R.S.D. No.918 dated 7.4.1998. It is not forthcoming from the impugned order as to why the learned Collector 5 has declared R.S.D. No.918 dated 7.4.1998 as void. That apart, the impugned order further reflects that the petitioner had also challenged the validity of R.S.D. Nos.3127 to 3131, 3133, 3134, 3140 and 3142 dated 27.12.2000 which are subsequent sale transactions from out of lands purchased under registered sale deeds executed by Siba Sahoo, Duryodhan Sahoo and Prahallad Sahoo. But the learned Collector has made no observation with regard to these registered sale deeds. Therefore, this Court is of the considered view that the impugned order needs modification. Learned Collector is required to address to the points highlighted in this paragraph and to make necessary modification of the impugned order.
7. In the result, the writ petition is allowed in part. The impugned order declaring the sale transactions in respect of Plot No.32 under Khata No.3 of Mouza Nimidihi is confirmed. But so far as rest of the plots are concerned, the order declaring the sale transaction void is set aside. Learned Collector, Jagatsinghpur-O.P.No.2 is directed to make necessary modification of the impugned order in the light of the observation made in paragraph-6.
The writ petition is, accordingly, disposed of.
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R. Dash,J.