BHARAT SAHU Vs. STATE OF ORISSA

JUDGEMENT

(1.) The order of the Consolidation Commissioner dated 21st of .September, 1989, in a revision tiled under Sec' 37 (1) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act (hereinafter referred to as the Act), annexed as. Annexure -1 is being assailed in this writ application, inter alia,on the gound that though the order of the Consolidation Officer was appealable.under Sac. 20 and no appeal having been preferred, the Commissioner could not have invoked his suo motu jurisdiction under Section 37(1) of the Act.

(2.) THE short facts necessary to decide the legality of the impugned order of the Commissioner may be briefly stated. A provisional consolidation scheme was prepared under Section 18 of the Act whereunder Chaka -83 had been allotted to the petitioner and Chaka -107 had been allotted to opposite party No. 4. Opp. party No. 4 filed an objection before the, Consolidation Officer invoking his jurisdiction under Sub -section (2) of Section 18 of the Act alleging therein that some low lands have been given to him for which he is sustaining loss and further praying that the two -Chakas namely 83 and 107 be recarved out in east -west direction since the earlier carving, on north -south direction has caused loss to the objector. That objection was heard -and disposed of by order dated 15 -1 -1988, annexed as Annexure -2. The Consolidation Officer directed re -carving of the Chakas on east -west direction and further directed that after such re -carving Chaka -83 be allotted to the petitioner and Chaka -107 be allotted to opp. party No. 4. In pursuance to the aforesaid direction of the Consolidation Officer passed in Objection Case No. 15/83 in exercise of. power under Sub sec(2)of Section 18 of the Act, the two Chakas were re -carved out and then possession was delivered to the parties. It is then the oppsite party No 4 filed a revision before the Consolidation . Commissioner invoking his jurisdiction under Sub -section.(1).of Section 37. That revision having been entertained and allowed by the impugned order under Annexre -1 the petitioner has approached . this Court.

(3.) HAVING examined the rival submissions of the learned counsel for the parties and after scrutinising the order of the Consolidation Officer under Annexure -2, we find that no such objection had been raised by opp. party No. 4 with regard to the alleged action of then Provisions of Section 16 of the Act. What was contended before the Consolidation Officer in the objection filed undsr Section 18 (2) of the Act was that same .low -.lying lands having been given to opp party No. 4 he is sustaning loss and that Chaks should be re -carved out on east west direction which were earlier carved out on north south that prayer having been considered and allowed.the Chacks were re carved out in accordance with east -west direction allotting the northen portion of.Viere.caved out Chaka to opp. party No. 4 and possession pursuant to the same having been delivered if opp party No 4 was aggrieved by the order, he should have approached the appellate authority under Section 20 of the Act. Non -prefernng -ot an appeal under Sec.20 though does not oust the jurisdiction of the Commissioner under Section 37(1) but on going through the imougned order of the Commissioner. we are of the opinion that in the present case the jurisdiction of the Commissioner should not have been invoked and exercised under Section 37(1) of the Act: As has been stated earlier by a Full Bench decision of this Court that the power of the Commissioner under Section 37 (1) should be exercised with circumspection and only when the Commissioner comes to the conclusion that there has been a gross injustice by the subordinate authority in the matter of carrying out the obligation under the statute. But the facts narrated earlier as well as the order of the Consolidation Officer under Annexure -3 indicate that the relief sought for by opposite party No. 4 in -his objection filed under Section 18 (2) has been granted to him and he never assailed the legality of the same by approaching the appellate forum. In that view of the matter, he could not have invoked the suo motu jurisdiction of the Commissioner under Section 37 (1) nor the Commissioner was entitled to alter the Chakas allotted to the parties pursuant to the order of the Consolidation Officer under Annexure -2. We accordingly quash the order of the Commissioner under Annexure -1. Necessarily, therefore, the order of the Consolidation Officer under Annexure -3 is affirmed and the Chakas allotted pursuant thereto need not be interfered with. In course of his submission Mr. Mohapatra appearing for opp. party No. 4 raised a contention that even the allotment at Chakas factually made had not bean in consonace with the order of the Consolidation Officer Under Annexure -3. We do not find any substance in the same.