BUDHINATH MOHARANA Vs. DIRECTOR OF CONSOLIDATION, ORISSA, CUTTACK

JUDGEMENT

(1.) The writ petitioner herein seeks quashing of the proceeding in Consolidation Revision No. 388/05, so also the order dated 7.5.2005 passed by the learned Director, Consolidation, Orissa, Cuttack-opposite party No. 1. The case of the petitioner is to the effect that the case plot was jointly purchased by the petitioner and his brother opposite party No. 3. During the consolidation operation in their village both of them submitted joint objection for recording their names in respect of the case land in place of their vendor. During the course of hearing in the Objection Case before the Assistant Consolidation Officer (for short 'the ACO'), there was an amicable settlement between the two brothers by which it was agreed and settled that the entire case land should be allotted to the petitioner and their homestead land in their native village at Sahupada be allotted to opposite party No. 3. Accordingly, a joint application was made before the ACO who, after an enquiry through the local Amin, directed to prepare the Record of Right exclusively in the name of the petitioner in respect of the case land. Accordingly, the R.O.R. was finally published on 22.4.1999. Opposite party No. 3 allowed the order of the ACO to remain in force but about six years thereafter he made an application under Section 37(2) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short 'the Act') before the Director (opposite party No. 1) for separate recording of his name on the basis of the Registered Sale Deed, without disclosing the fact that previously in a proceeding before the ACO the case land had already been recorded in the name of the petitioner. As a result of such suppression of facts, the opposite party No. 1, without calling for the records of the Court below and without verification of records, passed the impugned order dated 7.5.2005 vide Annexure-3 to the effect that the case being for correction of record on the basis of Registered Sale Deed, the same be remanded to the Consolidation Officer, Khurda for disposal as per law. According to the petitioner, the impugned order obtained by suppression of material facts is a nullity and cannot be acted upon and that the proceeding in the Revision Case being an outcome of total non-application of judicial mind is illegal and if allowed to proceed, it will have the effect of reopening of the earlier closed proceeding which is prohibited under Section 14 of the Act.

(2.) Case of the opposite party No. 3 is that the case land was jointly purchased by both the brothers and a joint petition was filed before the ACO to record the case land for joint recording of their names. But opposite party No. 3 was never a party to any conciliation. To his knowledge there was never any conciliation. Since he is an illiterate, innocent rustic person, he was pursuaded by creating an impression that his name would be recorded along with the petitioner. Thus, his endorsement was fraudulently obtained on different papers. Even now also the opposite party No. 3 is in possession of half of the case land.

(3.) On the maintainability of the writ petition, it is contended that since an alternative remedy under Section 37(1) of the Act is available to the petitioner, he is not entitled to invoke the writ jurisdiction of this Court.