Allowed

Benu Sethi v. Commnr.of Consolidn.

Orissa HC5 Jul 2018OJC/3116/2000

Case brief

AI extract

What is this about?

The Orissa High Court set aside an impugned order passed by the Commissioner of Consolidation. The Court held that the authority had no jurisdiction to review or recall its own order dismissing a revision under Section 36 of the Act, relying on this Court's previous decision in Balaram Swain.

What did the court decide?

The impugned order at Annexure-4 is set aside as it was passed without jurisdiction.

Benu Sethi Vs Commnr.of Consolidn. — Property and Title | Orissa HC (2018)

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ORISSA HIGH COURT, CUTTACK.

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O.J.C. No.3116 of 2000

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An application under Articles 226 & 227 of the Constitution of India.

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Benu Sethi & others … Petitioners

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Versus

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Commissioner of Consolidation, Orissa, … Opposite Parties Cuttack & others

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For Petitioners : M/s. A.K. Nayak, M.K. Panda, N. Panda-1

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For Opposite Party Nos.1 to 3 : Sri K.K. Mishra, Additional Government Advocate For Opposite Party Nos.4 to 5 : M/s. S.K. Mohanty, S. Mohanty, G. Bhol

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PRESENT :

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THE HONOURABLE MR. JUSTICE BISWANATH RATH

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--------------------------------------------------------------------------------------------------- Date of hearing :25.06.2018 Date of Judgment : 5.07.2018 ---------------------------------------------------------------------------------------------------

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Biswanath Rath, J. This writ petition involves a challenge to the

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order at Annexure-4 passed by the Commissioner Consolidation in Consolidation Revision Case no.799 of 1987, a proceeding under Section 36 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972, thereby the revisional authority while allowing the revision set aside the impugned order

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therein with a direction to record the disputed land in favour of the petitioners therein, namely, Smt. Sakhi Dei and Smt. Mali Dei by excluding the name of the opposite parties therein i.e. the present petitioners herein.

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2. Short background involving the case is that the land in question bearing Hal Plot No.4509, Hal Khata No.642 extending Ac.0.16 Dec. corresponding to C.S. Plot No.3523 in C.S. Khata No.210 of 1930, settlement extending Ac.0.14 decimals of land was purchased from the landlord, Pramod Kumar Ghosh, in R.S.D. No.202 dated 16.01.1946 by Pahali Sethi, the father of the petitioners, who was possessing the land since then and after his death the petitioners are in peaceful possession of the same. During 1977 Settlement the names of the opposite parties being the niece of Pahali Sethi were wrongly recorded in respect of this plot. Petitioner as objector filed objection case before the Consolidation Officer in the year 1985. The Consolidation Officer disallowed their claim without taking any evidence and deciding to be contrary to the materials available on record. Accordingly, the petitioners filed Appeal Case No.115 of 1984 before the Deputy Director of Consolidation under Section 12 of Act. The Deputy Director of Consolidation remanded the matter to the Consolidation officer for fresh hearing and disposal of the objection case. The Consolidation Officer in fresh disposal of the matter allowed the claim of the Objector-petitioners.

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Being aggrieved by the fresh order of the Consolidation Officer, the opposite party nos.4 & 5 preferred Revision Case No.799 of 1987 under Section 36 of the Act. The Commissioner, Consolidation finally dismissed the revision as not maintainable by his order dated 26.05.1988. Petitioners further submitted that when the matter stood thus, the Commissioner Consolidation

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sitting over his own order, on 26.11.1999 reviewed the order dated 26.05.1988, even though there was no challenge to the order dated 26.05.1988 by any concern thereby accepting the direction to delete the name of the petitioners from the records involving the disputed land at Annexure-4.

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3. Challenging the impugned order, learned counsel for the petitioner contended that Mahani, Banchhu & Uchhab were three sons of Bisi and were in joint family. As per the evidence available, Uchhab remained issueless and Mahani was karta of the family and died prior to 1964 and his wife predeceased him. The opposite party nos.4 & 5 married prior to death of Mahani and were all staying in their husband’s house. For the opposite party no.4 marrying during lifetime of Mahani and before the Hindu Succession Act, 1956 came into force, question raised on succession of opposite party nos.4 & 5 through Mahani. It is also further contended that the Commissioner, holding that after death of Mahani the property should have been recorded in the name of Ali Bewa as per Yadast record becomes contrary to the material available on record. Ali Bewa already predeceased. It is also alleged that the Commissioner of Consolidation has passed the order vide Annexure-4 without taking into account the evidence available on record. There is no consideration of the fact that the petitioners became the owner of the land for their father having purchased the disputed property as back as in the year 1946 and the petitioners are all residing thereon by constructing a house.

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4. It is also further urged that since the revision was already concluded with an order of dismissal on 26.05.1988, Misc. Case No.106/1991 filed for rehearing of the R.P. Case after three years was not permissible in the eye of law. It is also further urged

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that even assuming that the misc. case no.106 of 1991 was maintainable, then also for no service of notice in the misc. case and further for the dismissal of the misc. case for default on 1.05.1992 whereafter the opposite party nos.4 & 5 filed Misc. Case No.74 of 1994 with a prayer to restore the Misc. Case no.106 of 1991, which misc. case was also heard without affording opportunity to the present petitioners.

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It is in the above premises, learned counsel for the petitioners contended that the impugned order is passed not only without jurisdiction but also behind back of the petitioners, thus, remains otherwise not sustainable in the eye of law.

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5. Taking this Court to the evidence aspect, the petitioners also contended that though the present petitioners appeared through a fresh set of lawyers on 4.08.1999 involving the misc. case for restoration, the matter was adjourned to a subsequent date of hearing, but surprisingly the order sheet reveals that on the same day, the Commissioner heard the matter on merit and directed the parties to file the written note by 18.08.1999 and finally delivered the judgment on 26.11.1999 without actually giving opportunity of hearing to the petitioners. Challenging the review of his own order by the revisional authority, learned counsel for the petitioner also contended that the revisional authority reviewing his own order after 11 years was also improper. It is in the above premises, learned counsel for the petitioners prayed this Court for interfering in the impugned order and setting aside the same.

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6. In spite of service of notice on the private opposite party nos.4 & 5 and appearance of a set of counsel on behalf of them, nobody appeared on behalf of them at the time of hearing.

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7. Shri K.K. Mishra, learned Additional Government Advocate taking support of the findings and conclusion thereof involving the revisional order while strongly disputing the grounds raised by the petitioners and further producing the order-sheet of the revisional authority contended that there has been appropriate consideration of the case and for the findings therein contended that there remains no scope for interfering in the impugned order. Before proceeding to consider the validity of the impugned order looking to the allegation of the petitioner to the effect that when the revision was already dismissed by the revisional authority by his order dated 26.05.1988, the revisional authority was not justified in reviewing his own order, this Court looking to the order sheet produced finds, in fact the Consolidation Revision No.799 of 1987 at the instance of the opposite party nos.4 & 5 was dismissed by the revisional authority by his order dated 26.05.1988 with the followings:

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“The case called. Counsel for the petitioner present. Counsel filed ‘Vakalatnama’ for opposite party nos.1 & 5 and states that the area is nonconsolidable. Hence, in view of 65(1988)CLT 440, the case is struck off as not maintainable”.

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There appears, there is no denial to this decision of the revisional authority. It is at this stage of the matter, looking to the background involving the case, this Court finds, there remains no dispute between the parties that the Consolidation Revision No.799/1987 was preferred by the opposite party nos.4 & 5 and was long disposed of coming to the question of maintainability of the subsequent proceeding by the revisional authority, the provision under Section 36 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 reads as follows:

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“ 36. Revision – (1) The Consolidation Commissioner may, on an application by any person aggrieved by any decision of the Director of Consolidation within ninety days from the date of the decision, revise such decision and for the said purpose, he may call for and examine the records:

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Provided that no such order shall be passed without giving the parties concerned a reasonable opportunity of being heard. (2) All orders passed under this section shall be final and shall not be void in question in any Court of law.”

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8. The Act, 1972 nowhere gives any power to the Revisional authority for review or recall of his own order. It is at this stage of the matter taking into account a decision of this Court in the case of Balaram Swain & Anr. Versus Rabindra Swain & Ors. as reported in 2009(Supp.-I)OLR-534, this Court finds, this question having been considered by this Court on previous occasion, this Court in clear terms held, there is no provision under the Act for review/recall of the revisional order by the revisional authority. It is for the legal position settled through the above decision and in absence of any power of review, this Court finds, further entertainment of the revision by the same authority after the order dated 26.05.1988 is not permissible, for there being no challenge to the order dated 26.05.1985 in higher forum, this Court thus observes, the impugned order at Annexure-4 remains without jurisdiction of the authority and therefore, the same is set aside.

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9. The writ petition succeeds. However, there is no order as to cost.

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……………………….. (Biswanath Rath, J.)

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Orissa High Court, Cuttack. The 5^th day of July, 2018/ Ayas .

Benu Sethi v. Commnr.of Consolidn.

Case brief

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Benu Sethi v. Commnr.of Consolidn.

Case brief

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