Allowed

Raghunath Panda v. Collector,Bhadrak

Orissa HC22 Mar 2021WP(C)/3418/2010

Case brief

AI extract

What is this about?

In a writ petition, the petitioner challenged the Collector's order declaring sales of a fragmented chaka land void under Section 35 of the Orissa Chakmas and Halua Par Gola Act. The single-judge bench held that since the petitioner, a contiguous chaka owner, had amalgamated the fragmented land with his plot, the strict prohibition under Section 2(m) was no longer applicable, leading to the settin

What did the court decide?

The impugned order dated 27.11.2009 passed by the Collector, Bhadrak in OCH Misc. Case No.1 of 2009 is set aside, and the writ petition is allowed.

Raghunath Panda Vs Collector,Bhadrak — Land Acquisition | Orissa HC (2021)

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W.P.(C) No. 3418 of 2010

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22.03.2021 Heard Mr. S. K. Nayak, learned counsel for the petitioner, Mr. S. K. Swain, learned counsel for opposite party Nos. 2 to 4 and Mr. S.N.Mishra, learned Additional Government Advocate for opposite party No.1.

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The petitioner in this writ petition seeks to assail the order dated 27.11.2009 (Annexure-3) passed by the Collector, Bhadrak in OCH Misc. Case No.1 of 2009, whereby he allowed an application under Section 35 of OCH & PFL Act, 1972 (for short, ‘the Act’) filed by the present opposite party No.2 to 4 declaring the sale deed executed by Damodar Panigrahi, father of opposite parties 2 to 4 in favour of opposite party No.5, namely, Satyabrata Raul in respect of, plot No.587 under Chaka No.97b and Khata No.68 in mouza Kuansamadhia to an extent of Ac.0.10 decimal out of Ac.0.42 decimal in the district of Cuttack (for short, ‘the case land’) vide RSD No.1657 dated 28.04.1995 as well as subsequent sale made by Satyabrata Raul (OP No.5) in favour of the present petitioner vide RSD No.3428 dated 24.11.1989, to be void. He further directed to evict the petitioner from the case land and restore the case land to original khata.

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Mr. Nayak, learned counsel for the petitioner submits that the petitioner being contiguous Chaka owner of the case land, there cannot be any fragmentation of Chaka as defined under Section 2 (m) of the Act. It is his submission that the petition under Section 35 of the Act was filed in 2009 after lapse of more than thirteen years of the initial sale in favour of the opposite party No.5. Moreover, the opposite party No. 2 was a signatory to the sale deed executed by Damodar Panigrahi in favour of opposite party No.5. He had knowledge of execution of the sale deed from the date of its execution. Thus, the proceeding under Section 35 of the Act is hit by the provision of Section 57 of the Act read with Article 137 of the Limitation Act. In support of his case, Mr. Nayak relied upon a decision of this Court in the case of Jogendra Jena and another Vs. Krushna Jena and another , reported in 2012 (Supp.-I) OLR 857 , relevant portion of which reads as under;-

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“From a plain reading of the reasonings resorted to by the Hon’ble Supreme Court in the aforesaid case leaves no doubt in the mind of the Court that such a special treatment is meted out to the tribals because of the fact that the tribals are considered by the legislature not to be capable of protecting their immovable

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property. Such a reasoning is not applicable to this case. It is not the case of the opposite party No.1 that he is incapable of protecting his own property neither he pleads that is illiterate and do not understand the process of registration etc. The basic object of prohibition of transfer of a fragment of land in the Act is to prevent fragmentation of consolidable lands, which is the main object of the Act. Such a prohibition of transfer is not intended to protect any class of persons, which is considered to be incapable of taking care of their own property. On the contrary law of limitation requires that the parties should be vigilant to protect their right and that they should not sleep over the matter indefinitely. Such inaction and efflux of time in fact creates a right in favour of the purchaser or the party against whom a legal action is brought out.”

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The Collector, Bhadrak (OP No.1), without considering the provisions under Section 57 of the Act as well as the case law cited supra, allowed the said application vide order under Annexure-3 relying upon ratio decided in AIR 1982 Orissa 241 wherein it is held that if a document is void ab initio , it is to be avoided and is not required to be cancelled or set aside by filing a suit. As such, Limitation Act does not have any application to the case at hand, as the sale deeds in question are void ab initio and nonexistent in the eyes of law. Hence, he prays for setting aside of the order under Annexure-3.

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Mr. Swain, learned counsel for opposite party Nos.2 to 4 vehemently objected to the

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same. Referring to the counter affidavit, he submits that alienation in favour of Satyabrata Raul in the year 1995 was a nullity. Thus, any alienation in continuation to such sale cannot validate the transaction. It is the admitted case that the permission under Section 4(2) of the Act was not taken prior to alienation in favour of opposite party No.5. The petitioner also does not dispute that the case land is a fragment of Chaka No.97. Thus, when the initial sale by Damodar Panigrahi in favour of Satyabrata Raul was a nullity, the sale in favour of the petitioner cannot be held to be valid. In support of his case, he verily relied upon the judgment of Hon’ble Division Bench of this Court in Sutar Chemical Private Limited Vs. Collector

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Balasore And Others , reported in 2015 (I) ILRCUT-646 , paragraphs-22 and 23 are quoted hereunder, for consideration of the present case.:-

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“22. Be it noted that in the decisions cited supra, the apex Court had the occasion to deal with the suo motu revisional jurisdiction of the authorities for exercise of power, but the same is not the case here. While exercising the jurisdiction under Sec. 35 of the OCH & PFL Act, the Collector neither exercises jurisdiction as an appellate authority nor revisional authority. Sec.35 of the Act also does not contemplate in making an application. In view of the same, reliance

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placed on Sec. 57 of the Act is totally misplaced.

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23. Since no period of limitation has been prescribed in Sec. 35 of the Act for exercise of power by the Collector to evict the transferee of a portion of chaka in contravention of Sec. 34 of the Act, we are of the view that power of the Collector cannot be cribbed, cabined or confined by providing a period of limitation by judicial interpretation. If any period of limitation will be prescribed by the judicial interpretation, then the legislative intention of the OCH & PFL Act would be frustrated. Again there will be innumerable fragments of the chakas.”

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He, therefore, submits that Section 57 of the Act has no application to the case at hand and the impugned sales being void from their inception, the petitioner cannot acquire any right, title and interest over the case land. He, therefore, prays for dismissal of the writ petition.

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Mr. Mishra, learned AGA defending the impugned order and relying upon the ratio decided in Sutar Chemical (supra) submitted that Section 35 of the Act does not provide any period of limitation. Thus, by introducing a period of limitation interpreting Section 57 of the Act will frustrate the very object of the Act itself, which cannot be the legislative intention. Accordingly, he prays for dismissal of the writ petition.

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Heard learned counsel for the parties; perused the materials on record. There is no dispute to the fact that the initial transaction between Damodar Panigrahi and Satyabrata Raul (OP No.5) is without any prior permission under Section 4(2) of the Act. It is also not disputed that the case land is less than one acre. It is also admitted by the parties that said Satyabrata Raul (OP No.5) was not a contiguous chaka owner. But, Satyabrata subsequent to his purchase, sold the case land to the petitioner vide RSD dated 24.12.1998 who is a contiguous Chaka owner of Chaka No.96, which is contiguous to Chaka No 97. It is also admitted by opposite party Nos. 2 to 4 in paragraph-11 of their counter, which is reproduced hereunder for ready reference. “11. That it is humbly submitted that the disputed Chaka No.97 is bounded by Chaka No.94, 96, 98 and 99. The owners of Chaka No.98 is Syamsunder Sethi. Chaka No.94 is Kumudasundari Mohanty, Chaka No.99 is Manoranjan Pattnaik, Chaka No.96 is Rabindra Nath Mohapatra. Where the petitioner is not the owner of any of the plot at the time of alleged sale deed. The copy of the sketch map and the pata of boundary plots is filed herewith as annexure-D/2 series.”

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7.1 In course of hearing, Mr. Nayak, learned counsel for the petitioner draws attention of this

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Court to paragraph-30 of the case law in Sutar Chemical (supra) , which is quoted below:-

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“ 30. But the question does arise when successive transactions have been taken place and the transferee has made some improvement of the property. The submission of Mr. Baug, learned counsel for the appellants is that status of the land has been changed to homestead land from agriculture by the Tahasildar. Further appellant no.1 has developed the land, constructed a weigh bridge in a portion thereof in 2008 and in other portion constructed a house and has also installed an electric transformer for his business purpose. The same is neither disputed nor denied. In view of the long lapse of time of seventeen years, successive transactions have been made and appellant no.1 has constructed a house, weigh bridge and installed an electric transformer over the same, it would be too iniquitous to dispossess him from the said land in question.”

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Relying upon the said paragraph, it is submitted by Mr. Nayak, learned counsel for the petitioner that since the petitioner is a contiguous Chaka owner and has made certain developments after purchase of the case land mutating the same in his name, it would be too iniquitous to dispossess him from the said land in question. Mr. Swain, learned counsel for opposite party Nos. 2 to 4 vehemently objected to the same reiterating his submission to the effect that mutation of the land in favour of the petitioner and development of the case land cannot stand

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on the way of the Collector, Bhadrak to declare the alienation to be void under Section 35(2) of the Act.

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Taking into consideration the submissions made by learned counsel for the parties and the subsequent developments in the meantime, it is crystal clear that the petitioner, who is the subsequent purchaser is a contiguous Chaka owner of Chaka No.97 and has amalgamated his Chaka No. 96 with the case land. Thus, Section 2(m) of the Act will not be strictly applicable to the instant case in the changed circumstances as the case land no more remains to be a fragment of Chaka No. 97, as it has already amalgamated in Chaka No.96.

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In that view of the matter, the case laws relied upon and the observation made in paragraph-30 of Sutar Chemical (supra) , I am of the considered opinion that the impugned order is sustainable in the eyes of law. 10. Accordingly, the impugned order under Annexure-3 is set aside and the writ petition is allowed as such.

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Issue urgent certified copy of the order on proper application.

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……..……………………

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K.R. MOHAPATRA,J.

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Raghunath Panda v. Collector,Bhadrak

Case brief

What is this about?

What did the court decide?

Raghunath Panda v. Collector,Bhadrak

Case brief

What is this about?

What did the court decide?

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