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8. Admittedly at the time the Collector, Bhadrak passed the aforementioned order the amendment to Section 34 of the OCH & PFL Act had not become effective. However, by the time Respondent No.1 filed W.P.(C) No.15048 of 2013 in this Court on 5th July, 2013 the said amendment came into effect on 8th March, 2013.

9. Prior to the amendment Section 34 of the OCH & PFL Act read as under:

"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 a land-owner of a contiguous Chaka;

Provided that a fragment may be mortgaged or transferred in favour of the State Government, a Co-operative Society, a scheduled bank within the meaning of the Reserve Bank of India Act, 1934 (2 of 1934) or such other financial institution as may be notified by the State Government in that behalf as security for the loan advanced by such Government Society, Bank or institution, as the case may be.

(3) When 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 where upon 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.

14. The Court in the first place like to observe that at the time when the Collector decided the application filed by the present Appellant, the aforementioned amendment of 2012 had, admittedly, not being notified. In other words there was no occasion for the Collector to have examined whether in terms of the 2012 amendment, the land in question should be exempted from the rule of fragmentation.

15. Section 34 as it stood prior to the 2012 amendment expressly prohibited any agricultural land in a locality from being transferred or partitioned "so as to create a fragment". The expression "fragment" has been defined in Section 2(m) of the OCH & PFL Act as under:

17. The learned Single Judge ought to have first examined, if at all the 2012 amendment would apply, whether in fact the fragment in question within a TP area. This is because the amended Section 34(5) clearly states that only that portion of fragment which is covered under the "approved Master Plan‟ published under the Odisha Town Planning and Improvement Trust Act, 1956" which would stand exempted from the rule against fragmentation contained in Section 34(1) and (2) of the OCH & PFL Act. In the present case since no document was placed by Respondent No.1, the learned Single Judge ought not to have proceeded to examine the applicability of the amended provision at all.