Dismissed¶¶42

Pravati Manjari Behera @Prativa Manjari Behera v. Sarada Nanda

Orissa HC12 Apr 2024WP(C)/7149/2017

Case brief

AI extract

What is this about?

Orissa High Court, W.P.(C) 7149/2017, B.P. Routray J., 12-04-2024. Keywords: Section 37 OCHPFL Act revision; Section 41 notification; limitation barred by compelling circumstances; consolidation ROR 1980 wrongly recorded; doctrine of priority; Hal Khata No. 180 Plot No. 638 Ac. 0.258 decimals; RSD No. 4015 (1961), RSD No. 4450 (1966), RSD No. 7035 (1974), RSD No. 4313 (1989), RSD No. 11081122818 (2011); Gulzar Khan v. Commissioner of Consolidation 1993 (II) OLR 194 (F.B.) relied on; Manasaram v. S.P. Pathak AIR 1983 SC 1239 referred; Commissioner of Consolidation order 17-12-2016 confirmed; adequate opportunity of hearing/natural justice contention rejected; writ petition dismissed.

What did the court decide?

None to the petitioner; the impugned order of the Commissioner of Consolidation is confirmed. ¶¶42

Pravati Manjari Behera @Prativa Manjari Behera Vs… — Writ and Judicial Review | Orissa HC (2024)

What the court decided

AI extract

Outcome

None to the petitioner; the impugned order of the Commissioner of Consolidation is confirmed.

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Issue for consideration

Whether the revision under Section 37 OCHPFL Act, filed almost 30 years after the consolidation operation and the Section 41 notification, is barred by limitation and cannot be entertained. +1 more

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Court's answer

The revision petitioners' right over the case land is dominant on the principles of the doctrine of priority against the present petitioner's 1989 purchase; as held in Gulzar Khan (supra), the power under Section 37 OCHPFL Act cannot be fettered by limitation where compelling circumstances affect a party's substantial right, and therefore the delay alleged by the present petitioner cannot stand in the way.

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Ratio / Principle

Since the recording of the land in the consolidation ROR in the names of the sons of Lokanath Behera — by virtue of which the sale to the present petitioner was effected — is established as wrong, the present petitioner cannot derive any right therefrom to establish her right over the property.

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Key takeaways

The contention that no due opportunity of hearing was granted to the petitioner is unsustainable: issuance of notice to her and her appearance before the Commissioner much before the date of hearing is admitted, and she submitted a written note of submission before the Commissioner (Para-12 of the writ petition).ratio¶¶41

Detailed headnote1 paragraphs

Writ Petition (C) No. 7149 of 2017 (High Court of Orissa, Cuttack; B.P. Routray, J.; 12 April 2024): The petitioner, an LR of Birupakshya Nanda, challenged the Commissioner of Consolidation's order dated 17-12-2016 (Annexure-12), which had allowed a 2011 revision under S.37(1) of the OCHPFL Act by present Opposite Parties Nos. 1-4 seeking recording of Hal Khata No. 180, Plot No. 638 (Ac. 0.258 decimals) in their name. The Court held, relying on Gulzar Khan v. Commissioner of Consolidation, 1993 (II) OLR 194 (F.B.), that the S.37 power cannot be fettered by limitation where compelling circumstances affect a party's substantial right: the revisionists' title was dominant under the doctrine of priority, the 1980 consolidation ROR having wrongly recorded the land in the names of Lokanath Behera's sons, on the strength of which recording the petitioner had purchased in 1989 (RSD No. 4313). The plea of denial of adequate opportunity of hearing also failed, as the petitioner's notice, appearance and written submissions before the Commissioner were admitted. Writ petition dismissed; impugned order confirmed.

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Signature Not Verified

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Digitally Signed Signed by: SANGRAM DAS Designation: Sr.Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Apr-2024 15:40:21

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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WRIT PETITION (CIVIL) No. 7149 of 2017

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(An application under Articles 226 & 227 of the Constitution of India)

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Pravati Manjari Behera @ Prativa Manjari Behera .…… Petitioner

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Versus

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Sarada Nanda & Others ….… Opposite Parties Advocate(s) appeared in this case:-

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For Petitioner : Mr. P.Mohanty, Senior Advocate For Opposite Parties : Mr.U.K.Sahoo, ASC Mr.M.K.Rath, Advocate for O.P.1 to 3 Mr.A.Das, Advocate for O.P.5

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CORAM : JUSTICE B.P. ROUTRAY JUDGMENT 12^th April, 2024

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B.P. Routray,J.

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Heard Mr. P.Mohanty, learned Senior Counsel for the Petitioner, Mr. Rath, learned counsel for Opposite Party Nos.1 to 3, Mr.Das, learned counsel for Opposite Party No.5 and Mr. Sahoo, learned ASC for State-Opposite Parties.

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The writ petition is filed challenging the order of the Commissioner of Consolidation dated 17^th December, 2016 under Annexure-12.

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W.P.(C) No.7149 of 2017

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Page 1 of 5

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Signature Not Verified

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Digitally Signed Signed by: SANGRAM DAS Designation: Sr.Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Apr-2024 15:40:21

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Present Petitioner was Opposite Party No.4 before the Commissioner. The revision Petitioners, who are present Opposite Parties No.1 to 4, preferred the revision under Section 37 (1) of the Odisha Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (OCHPFL Act) praying to record the land in their name by setting aside the recording in the name of Opposite Party No.4 in the consolidation operation. The land appertains to Hal Khata No. 180, Plot No.638 measuring Ac.0.258 decimals, as detailed in the impugned order.

¶20

Originally Sabik Plot No. 1028 measuring 515 decimals was recorded in the name of Lokanath Behera. Out of the same, area measuring Ac.0.258 decimals (present case land) was sold by him in favour of Kanduri Behera in RSD No. 4015 dated 27^th May 1961, who again sold it in favour of Birupakshya Nanda and Bramhanand Jena vide RSD No.4450 dated 25^th May 1966. Bramhananda Jena sold 50% of his share in favour of Golapamani Jena and Birupakshya Nanda sold 50% of his share in favour of Tanulata Sahoo vide RSD No.7035 dated 29^th October, 1974 and RSD No.11081122818 dated 6^th September, 2011 respectively.

¶21

In the meantime, consolidation operation started and the consolidation ROR was published in 1980 in respect of the case land recording the name of Daitari Behera, Jayaram Behera and Baidhara Behera, who are all sons of Lokanath Behera, instead of the name of Kanduri Behera and the subsequent purchasers. Taking advantage of such recording of the land in favour of the sons of Lokanath Behera in

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W.P.(C) No.7149 of 2017

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Page 2 of 5

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Signature Not Verified

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Digitally Signed Signed by: SANGRAM DAS Designation: Sr.Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Apr-2024 15:40:21

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the consolidation ROR, they sold it in favour of Opposite Party No.4 vide RSD No. 4313 dated 17^th April, 1989. As such, the Petitioners who are the LRs of Birupakshya Nanda invoked the jurisdiction of Commissioner of Consolidation under Section 37 of the OCHPFL Act to file the revision in 2011.

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Mr.Mohanty, learned Senior Counsel for the Petitioner submits that filing of the revision under Section 37 almost after 30 years of the consolidation operation and Section 41 notification was made, is barred by limitation and cannot be entertained. It is further submitted that adequate opportunity of hearing was not granted to present Petitioner before the Commissioner.

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In Gulzar Khan vs. Commissioner of Consolidation & Ors., 1993 (II) OLR 194 (F.B.), it is observed that the power under Section 37 has to be exercised in a reasonable manner and reasonable time. The relevant observation is as follows:-

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“37. The aforesaid being the position, it is apparent that a forum has to be available to a person who was to be aggrieved, after Section 41 notification has been issued, with any order having been passed or anything having been done during the consolidation operations affecting his right, title and interest. As stated in the opening sentence of this judgment, there cannot be a right without any remedy; and, according to us, the remedy can be made available principally by Section 37 of the Act. As to when such a situation may arise need not be spelt out; indeed, it cannot be, the probability of such a situation arising cannot obviously be ruled out. The power being unfettered, we cannot put any fetter, any such action of ours would render some really hard-pressed people without a remedy. May we repeat that we are not at the question as to when power under Section 37 would be or

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W.P.(C) No.7149 of 2017

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Page 3 of 5

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Signature Not Verified

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Digitally Signed Signed by: SANGRAM DAS Designation: Sr.Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Apr-2024 15:40:21

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should be exercised. As already pointed out, this power shall be available only under compelling circumstances, but on compelling circumstances existing, we cannot shut out the invocation of the power. May we also observe that though Section 37 has conferred an unfettered power it is settled law that every power, be it administrative or judicial, has as to be exercised in a reasonable manner, and the reasonable exercise of power inheres in its exercise within a reasonable time as stated at pp.1245-6 of Manasaram vs. S.P. Pathak , AIR 1983 SC 1239. This apart no power is really unfettered, every power has to be exercised according to rules of reason and justice, not according to private opinion; according to law, and not according to humour. The exercise of discretionary power cannot be arbitrary, vague and fanciful; it has to be legal and regular.”

¶35

In the case at hand, the sale of land by Lokanath Behera in the year 1961 in favour of the vendor of the Revision Petitioners is not disputed. The purchase of land by the Petitioner in the year 1989, i.e. much after the land purchased by the predecessor of Opposite Party Nos. 1 to 5 is also not disputed. Therefore, the revision Petitioner’s right over the land is found dominant on the principles of doctrine of priority against the purchase of land by present Petitioner and as such, the revision Petitioners do have their substantial right over the property in question. As held in the case of Gulzar Khan (supra), the power under Section 37 cannot be fettered by limitation when compelling circumstances are there affecting substantial right of a party. The recording of the land in the name of sons of Lokanath Behera, by virtue of which the sale was effected in favour of present Petitioner, when is established as wrong, present Petitioner cannot derive any right thereof in her favour to establish her right over the property. Therefore, the learned Commissioner has rightly opined in favour of revision

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W.P.(C) No.7149 of 2017

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Page 4 of 5

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Signature Not Verified

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Digitally Signed Signed by: SANGRAM DAS Designation: Sr.Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Apr-2024 15:40:21

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Petitioners in the impugned order and the delay as alleged by present Petitioner cannot stand on the way.

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The other contention raised by Mr.Mohanty, learned Senior Counsel for the Petitioner, that no due opportunity of hearing was granted to the present Petitioner is found without substance. It is for the reason that, issuance of notice on the present petitioner and her appearance before the Commissioner much before the date of hearing is admitted. It is also averred by the present Petitioner at Para-12 of the writ petition that she has already submitted the written note of submission before the Commissioner. Therefore, all such contentions raised at this stage that adequate opportunity was not granted to her are found unsustainable.

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In view of the discussions made above, the impugned order is confirmed and the writ petition is dismissed being devoid of merit.

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(B.P. Routray) Judge

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Sangram Das, Sr.Steno

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W.P.(C) No.7149 of 2017

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Pravati Manjari Behera @Prativa Manjari Behera v. Sarada Nanda

Case brief

What is this about?

What did the court decide?

Pravati Manjari Behera @Prativa Manjari Behera v. Sarada Nanda

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

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