Orissa High Court
Subash Chandra Bhoi And Another vs Joint Commissioner Of Settlement And ... on 30 January, 2017
Author: Biswanath Rath
Bench: Biswanath Rath
ORISSA HIGH COURT : C U T T A C K
O.J.C. No.5916 of 1998
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
Subash Chandra Bhoi & another : Petitioners
-Versus-
Joint Commissioner of Settlement
& Consolidation, Sambalpur & others : Opp. Parties
For petitioner : Mr. A.K. Hota, A.K. Upadhyaya
For O.P. Nos.1 to 4 : Mr.A. Sahu,
Additional Standing Counsel
For O.P. Nos.5, 6 & 8 : M/s. B. Panigrahi,
PRESENT:-
THE HONOURABLE MR. JUSTICE BISWANATH RATH
Date of Hearing :17.1.2017 & Date of Judgment : 30.1.2017
Biswanath Rath, J.This writ petition has been filed as against the order of dismissal passed in the Consolidation Revision No.840 of 1997 and making the following prayer :
"(i) To issue notice asking the opposite parties as to why the confirmed Chakas allotted to the Petitioners shall not be retained by the petitioners in view of illegal procedures adopted by the opposite parties contravening the statutory provisions of the O.C.H. & P.F.L. Act, 1972 and Rules thereunder, to affect their interests and call for the L.C.Rs from the Courts below:
(ii) To scrutinize the case records of Lower Courts below under the tests of the said 2 Act, 1972 and Rules thereunder, and hear both the parties;
(iii) After hearing and on receipt of unsustainable, unsatisfactory, improper reply, to quash the orders of Director remanding the Six Revision Cases under nonapplication of mind as well as the orders of Consolidation Officer dt.27.8.96, the order of Deputy Director dt.21.7.97 and the orders of the Joint Commissioner dt.27.2.98
(iv) To issue appropriate writ(s)/direction(s)/order(s) to the opposite party No.1 to 4 to confirm the Chakas allotted to the petitioners prior to 3.3.89 under the Act, 1972 and allow the petitioners to retain the same without any dispute from whatsoever;
2. Short background involved in the case is that the Consolidation Officer undertook the duty of preparation of Records of Rights and Maps on the basis of earlier settlement. Following the provision contained in Section 6(I) of the Act, the Director of Consolidation issued Notification on 9.4.1977 by circulating the same in the Orissa Gazettee on 15.4.1977 to publish the initial preparation of Maps and Land Register at a conspicuous place of the village and accordingly, the General Notice was published on 21.6.1977. After disposal of the objections under sections 10 & 11 of the Act and disposal of the consequential appeals under Section 12, the Maps & Land Register in respect of the said village were revised under Section 13 of the Act and published on 28.8.1985. It is claimed that the Consolidation Officials prepared a provisional scheme under Section 17 of the Act and published the same under Section 18 of the Act inviting objections from the public in respect of the Chakas. Provisional Consolidation scheme was published on 5.12.1987 3 following the provisions contained in Sections 17, 18, 19 & 21 of the O.C.H. & P.F.L. Act as stated hereinabove. The final proposal of the scheme was confirmed and the conformation was accorded by the competent authority on 18.1.1989. It is contended that while the matter stood as above in the year 1995 the petitioners received notices in the revision cases asking them to appear before the Director, consolidation on 7.4.1995 involving the Consolidation Revision Case Nos.3042 to 3047 of 1994. It is at this point of time, the petitioners came to understand that in the revision case No.3042 of 1994 one Gundam Raja Rao, son of Gundum Venkat Raju -opposite party No.8 has claimed allotment of Chaka and recording of land measuring Ac.4.24 dec. in his favour on the ground of purchase through Registered Sale Deeds pursuant to the permission granted under Section 4(2) of the Act, in Revision Case No.3043/94 one Gundum Venkat Rao, son of Gundum Raja Rao-opposite party No.5 has claimed allotment of Chaka on the land measuring Ac.2.03 dec. in his favour purchased through Registered Sale Deeds pursuant to the permission granted under Section 4(2) of the Act, in Revision Case No.3044/94 the opposite party No.8 has again claimed allotment of Chaka on the land measuring Ac.1.54 dec. purchased vide Registered Sale Deeds pursuant to the permission, in Revision Case No.3045/94 one Gundum Venkata Raju, S/o- Gundum Ramanna(late husband of opposite party No.7) has claimed allotment of Chaka on the land measuring Ac.5.90 dec. purchased vide Registered Sale Deeds pursuant to the permission, in Revision Case No.3046/94 one Gundum Veer Babu, S/o- Gundum Raja Rao(opposite partyNo.6) has 4 claimed allotment of Chaka on the land measuring Ac.0.92 dec. purchased vide Registered Sale Deeds, in Revision Case No.3047/94 the same Gundum Veer Babu, S/o-Gundum Raja Rao(opposite party No.6) has claimed allotment of Chaka on the lands measuring Ac.4.80 dec. purchased vide Registered Sale Deeds. Petitioners claimed that at a later point of time during inspection of the permission granted under Section 4(2) of the Act referred to in the above revisions, the petitioners came to know that after completion of the process for publication of the land register on 28.8.1985 and further more after publication of the Chaka in respect of the village-Larasara on 5.12.1987, the permission have been granted by the Consolidation Officer referring to the plot numbers in the previous major settlement and the details of the irregularities in the grant of permission. The petitioners demonstrating the irregularities contended that the permissions were granted on 3.3.1989 but however, the Director on illegal consideration of the materials remanded the revision cases to the Consolidation Officer to consider the claim of the claimants therein remaining within the frame work of the provisions contained in the Act, 1972. The dispute as regards Chaka No.360 allotted to petitioner No.2 and Chaka No.358 allotted to petitioner No.1 were modified on value and unsustainable pleas. In spite of the fact that no such claim were put forth by the original vendor prior to 3.3.1989 under the Act in favour of the claimants, the entire action is to their prejudice and disadvantage. The petitioners challenged the illegal order dated 27.8.1996 passed by the C.O. by filing the Consolidation appeal No.67/96. It is alleged that the appellate authority having failed in 5 appreciating the issues involved therein illegally rejected the appeal of the petitioners. Petitioners filed Consolidation Revision No.840/1997 and claimed that unfortunately, the revision was also dismissed vide the impugned order herein.
2. In assailing the impugned order, Sri Hota, learned counsel for the petitioners claimed that in absence of any claim by the opposite party Nos.5 to 8 to retain the total patch of land and further in absence of an application for modification of the Chaka till 3.3.1989, rejection of the claim of the petitioners is unjustified. It is claimed by the petitioners that no permission under the circumstance could have been granted after 3.3.1989 referring to the previous M.S. Plot numbers. It is further claimed that once the Chakas are confirmed, law also otherwise prohibits for any disturbance in the Chakas.
In the above premises, it is contended by Sri Hota, learned counsel that the authorities having failed to appreciate this aspect arrived at wrong and erroneous judgment, which needs to be interfered with and set aside.
3. Challenging the contentions of the petitioners, Mr. Panigrahi, leaned counsel appearing on behalf Mr. S.K. Padhi, learned senior advocate for the opposite party Nos.5, 6 & 8 contended that the petitioners were the contestants in the Revision Case Nos.3042/94 to 3047/94 and the aforesaid revisions were disposed of by a common judgment after giving opportunity of hearing to the respective parties and further considering the objections raised therein by the petitioners and the revisions were disposed of with an order of 6 remand. Petitioners if at all were aggrieved by the order of remand, could have preferred an appeal at that stage and in absence of which, the petitioners have no chance to raise the contentions raised herein as the same have already been considered in the revisions indicated hereinabove. Presently, questions already determined had no scope for reconsideration. The subsequent appeal and revision involved in the impugned order were all on restricted points. Scope of consideration in subsequent appeal and revision was very very limited and therefore, there is no illegality committed either by the appellate authority or by the revisional authority. It is contended by the learned counsel for private opposite parties that the validity of permission under Section 4(2) of the Act have not been challenged in the first round of litigation involving revisions and an original proceeding on remand by the revisional authority could neither have been raised in the subsequent proceedings nor considered. It is also contended by the learned counsel for the private opposite parties that the grant of permission was immaterial as the sale transactions were all made prior to the final publication under Section 22(2) of the Act.
Under the circumstance, Sri Panigrahi, learned counsel submitted that there is no illegality committed either by the appellate authority or by the revisional authority.
4. Learned State Counsel supported the contentions raised by the learned counsel for the private opposite parties and justified the impugned order passed in the revision.
5. Considering the rival contentions of the parties and after perusal of the pleadings of the parties as well as the discussions made 7 in the impugned order and the documents appended to the counter affidavit at the instance of the opposite party Nos.5, 6 & 8, this Court finds, there is no dispute that the sale transactions involved herein are all of the year 1989 i.e. on 8.3.1989 & 9.3.1989 respectively, which has been confirmed from the statement made at paragraph No.6 to this writ petition. There is no dispute that the final publication under Section 22(2) of the Act was made on 17.4.1989. The date of grant of permission and the records also reveals that as per the report of the A.C.O, the owners of the land had not entered into the physical possession of the allotted Chakas at the time the impugned order was passed by the Consolidation Officer, it was also ascertained in the revision that the vendees therein were in physical possession of the land purchased by them. Therefore, the Revisional Court observed that there is no prejudice to the present petitioners, as their possession over the particular portion of the land has not been disturbed even by the orders passed by the Consolidation officer. For the concurrent finding of the fact that the permission granted remains valid, there is no scope for interfering in the grant of permission otherwise.
6. Under the circumstances, this Court finds that the petitioners did not challenge the order passed in the first round of revision ended with an order of remand deciding the issue of grant of permission even and further for the sale transactions having taken place prior to the final publication of Chaka and for the finding that the vendeeds were in possession of the disputed plot by the time of final publication and the petitioners' right over the properties in their 8 possession having not been affected, this Court finds, the petitioners have no case in the writ petition.
Scan of the revisional order under Annexure-4, this Court finds, the revisional authority has taken all the above aspect into consideration and rejected the claim of the petitioners by giving reasons. The revisional authority even has gone to the extent of finding that the petitioners have no land near the Chaka land in dispute being a finding on fact, this Court observes such fact cannot be disturbed in exercise of power under Article 227 of the Constitution of India. There is no gross injustice to the petitioners otherwise. For the observations made hereinabove and the reasons assigned by the revisional Court, this Court finds no merit in the writ petition. Consequently, while dismissing the writ petition, this Court confirms the order of the revisional authority. No cost.
.............................
Biswanath Rath, J.
Orissa High Court, Cuttack.
The 30th day of January, 2017/Ayas