BAISHNAB CHARAN BADU Vs. COMMISSIONER OF CONSOLIDATION

JUDGEMENT

(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 behindNilamani 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.) 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).