Orissa High Court
Baishnab Charan Badu vs Commissioner Of Consolidation And Ors. on 11 December, 2002
Equivalent citations: 95(2003)CLT151, 2003 A I H C 1466, (2003) 95 CUT LT 151
Author: A.S. Naidu
Bench: Chief Justice, A.S. Naidu
JUDGMENT A.S. Naidu, J.
1. What is sought to be challenged in this writ petition filed under Articles 226 and 227 of the Constitution of India is an order passed by the Commissioner of Consolidation in Revision Case No. 587 of 1990 under Section 36 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Lands Act, 1972 (in short "the Consolidation Act").
2. Hrusikesha Badu was the common ancestor. Hrusikesha had two sons, namely, Ganesh and Mani. Mani had three sons being Natabar, Pravakar and Bhaskar. Pravakar died leaving behind Nilamani as his widow. The present petitioner Baishnab claims to be the adopted son of Pravakar and Nilamani. The properties in dispute measuring Ac. 2.16 decimals comprising of several plots, according to the petitioner were the self-acquired properties of his adoptive father Pravakar. During the Settlement operation, as the record of rights reveal, the said properties were recorded in the name of Baishnab, the petitioner and her adoptive mother Nilamani. After the village in which the disputed properties are situated, was brought within the purview of the Consolidation Act by issuance of Notification under Section 4, Bhaskar, third son of Mani filed an objection case under Section 9(3) of the Consolidation. Act objecting to the recording of the properties and praying for recording the said lands jointly in the names of the co-sharers. The said objection was registered as Objection Case No. 1191 of 1989. When the aforesaid case was taken up for hearing on 21.6.1989, a petition was filed by the objector, inter alia, stating that an amicable settlement had been arrived at between the objector and the Opp. party and the complainant-objector wanted to withdraw the case. On the basis of such a petition, the Asst. Consolidation Officer, who was only authorised to decide the case on conciliation, permitted the withdrawal of the objection case. It appears that the talk of compromise thereafter failed and the objector filed another petition before the Asst, Consolidation Officer on 27.6.1989 intimating that the matter could not be settled by negotiation and prayed to re-open the case. No relief having been granted on the said petition. Bhaskar preferred an appeal before the Deputy Director of Consolidation, Jagatsinghpur, inter alia, challenging the orders dated 21.6.89 and 24.6.1989 passed by the Asst. Consolidation Officer, Alipingal. The said appeal was registered as Consolidation Appeal No. 180 of 1989. The Deputy Director, who heard the appeal, though observed that the learned lower Court should not have gone into the technicalities and should have decided the case on merit, declined to interfere with the order passed by the Asst. Consolidation Officer on the withdrawal petition on the ground that the Asst. Consolidation Officer had not committed any error in allowing the withdrawal petition and as the order deserved no interference, dismissed the appeal.
3. Bhaskar being aggrieved by the said order, preferred a revision before the Commissioner of Consolidation under Section 36 of the Consolidation Act which was registered as Revision Case No. 587 of 1990. Before the Commissioner, it was mainly contended that Baishnab was never adopted by Pravakar and Nilamani and the plea of adoption is a ruse. It was also contended that the claim that all the properties were purchased by Pravakar by different registered sale deeds out of his own income and should be treated as his self-acquired properties, was not correct. According to Bhaskar, his brother Pravakar did not have excess amount to purchase the properties and in fact, all the disputed properties were purchased from out of the joint family nucleus and assumed the character of joint properties.
4. The learned Commissioner after discussing the facts and circumstances, arrived at a conclusion that the Asst. Consolidation Officer while dealing with an application filed under Section 9(3) of the Consolidation Act, lacked jurisdiction to adjudicate the disputed questions of facts and law and that the appellate Court also failed to decide the status of Baishnab who claimed to be the adopted son of Pravakar and Nilamani. The Commissioner allowed the revision, set aside the order passed by the Asst. Consolidation Officer and the appellate Court in appeal and remanded the dispute to the Court of the Consolidation Officer, Jagatsinghpur for hearing the dispute under Section 11 of the Consolidation Act. The Consolidation officer was directed to decide the status of Baishnab who claimed to be the adopted son of Pravakar and Nilamani and also to decide the question of right, title and interest of all the parties over the disputed properties vis-a-vis the nature and character of the property.
It is pertinent to mention here that another revision case being Revision Case No. 716 of 1990 filed under Section 37(1) of the Consolidation Act by Bhaskar was dismissed as not maintable. The order of remand as stated earlier is impugned before this Court by Baishnab. In view of the fact that Bhaskar expired during the aforesaid litigation, his legal heirs and successors were impleaded as Opp. parties 5(a) to 5(f).
5. The petitioner Baishnab Charan Badu appeared in person and argued the case. According to the petitioner the impugned order passed in Revision suffers from the vice of non-consideration of material facts and cannot be sustained in the eye of law. It was submitted that the Asst. Consolidation Officer having disposed of the objection case filed before him under Section 9{3) of the Consolidation Act on the basis of the petition for withdrawal, has rightly refused to reopen the case and there is absolutely no illegality in the said order. It was further submitted that he had been accepted as the adopted son and the adoption being an ancient one, the fact of giving and taking need not be proved. It was further submitted that all the properties stand recorded in the Record of Rights published during the last settlement operation jointly in his name and in the name of his adoptive mother Nilamani and that neither Bhaskar nor any of his legal heirs or any other co-sharers has any right, title and interest over the same. It was forcefully contended that the disputed properties were the self-acquired properties of his adoptive father Pravakar and the present opp. parties have no share in the said properties and the contentions raised were mischievously false. It was also contended by the petition that the Deputy Director rightly arrived at a conclusion that the Asst. Consolidation Officer had not committed any error as the said order was not appealable and rightly dismissed the appeal. At the cost of repetition, it was reiterated by the petitioner that the Commissioner has acted in excess of his jurisdiction in entertaining a revision under Section 37(1) of the Consolidation Act and the impugned order is liable to be set aside.
6. At the other hand, Mr. Pal, Senior Advocate appearing for opp. party No. 5, contended that a Asst. Consolidation Officer acted illegally and with material irregularity in not recalling the order disposing of the objection case as withdrawn, specially in view of the fact that the petition filed before him only revealed that a talk of compromise was in progress. According to Mr. Pal when the negotiation failed, Bhaskar, the ancestor of opp. party Nos. 5(a) to 5(f) moved the Asst. Consolidation Officer and prayed to restore the objection case and refer the matter to the Consolidation Officer specially in view of the fact that the Asst. Consolidation Officer lacked the jurisdiction under Section 9(3) of the Consolidation Act, to decide any dispute. Not entertaining such a petition in spite of the fact that several disputed questions with regard to the right, title and interest of the parties over the properties as well as the status of petitioner Baishnab as adopted son were involved, was illegal. According to Mr. Pal, it was a fit case where the Asst. Consolidation Officer should have referred the objection petition to the Consolidation Officer under Section 10(2) of the Consolidation Act for disposal.
7. We have heard the petitioner in person and Mr. Pal, learned counsel for opp. party No. 5, in extenso. We have also given our anxious consideration to the various submissions advanced before us. We have no hesitation to observe that the Code of Civil Procedure in strict sense is not applicable to a proceeding under the Consolidation Act. After promulgation of the Orissa Consolidation Act, the right of Civil Court was taken away and the questions relating to right, title, interest and liability in land lying in the Consolidation area are to be decided under the provisions of the Consolidation Act by the appropriate authority, during the consolidation operation since in consonance with Section 51 of the Consolidation Act, no Civil Court shall entertain any suit or proceeding which an officer or authority is empowered under the Consolidation Act to decide.
In the case at hand, several disputed questions of facts, the status of the petitioner as the adopted son, the nature of the properties i.e. whether the same were self-acquired properties of Pravakar or ancestral properties and whether the opp. parties have any share over the said properties and if so, to what extent, are involved. Admittedly, a petition was filed before the Asst. Consolidation Officer within a span of three days to restore the objection case and hear the same. We are not proposing to examine the propriety and/or the power of the Asst. Consolidation Officer to recall his own order and rehear the matter. But then, law has to be interpreted in a flexible manner so as to see that rule of law is not abrogated and merely on technical grounds, a party is not deprived of being heard as regards his rights. This aspect was not kept in mind either by the Asst. Consolidation Officer or by the Deputy Director who heard the appeal. The questions centring round the inter se disputes among the parties need to be effectually adjudicated so as to determine the rights of the parties. According to us, the Commissioner of Consolidation has rightly appreciated the facts and circumstances and while setting aside the order passed by the Asst. Consolidation Officer and the Deputy Director, remanded the matter to the Court of the Consolidation Officer, Jagatsinghpur for re-hearing and disposal under Section 11 of the Consolidation Act. He has also specifically directed that the status of Baishnab as the adopted son of Pravakar also needs to be determined so as to confer any right on the petitioner vis-a-vis right, title and interest of other parties and co-sharers in respect of the properties in question. We do not find any error apparent on the face of record nor the impugned order is otherwise unjust, illegal or arbitrary. We are, therefore, not persuaded to interfere with the said order and dismiss this writ petition with the direction that the Consolidation Officer shall decide all the disputed questions raised before him by the parties except the property or otherwise of the order of withdrawal passed by the Asst. Consolidation Officer. The Consolidation Officer is also directed to give adequate opportunity to all the parties to file necessary pleadings and also to adduce evidence, if they so desire. After giving adequate opportunity, the Consolidation Officer shall decide the case on its own merit and in accordance with law. It is made clear that we have not expressed any opinion regarding rights of any of the parties and it is open to the Consolidation Officer to decide the case on the basis of the materials available and strictly in accordance with law.
There is no order as to costs.
P.K. Balasubramanyan, C.J.
8. I agree.