KANDURI CHARAN NAYAK Vs. MANOJ KUMAR NAYAK

JUDGEMENT

(1.) THE order dated 16.3.2004, Annexure -1 passed by the Consolidation Commissioner, Orissa in Consolidation Revision Petition No. 222 of 2002 is assailed in this Writ Petition.

(2.) BEREFT of unnecessary details, the short facts necessary for appreciating the inter se disputes are that both the petitioner and opposite party No. 1 belong to the same family, being sons of late Gangadhar Nayak. Gajendra and Dami Dei happened to be the father and mother of Gangadhar respectively. An area of Ac.0.016 land appertaining to M.S.Plot Nos. 600 and 602 of Khata No. 518 situated in village Dharadharpur was purchased in the name of Dami Dei. It is asserted that she was the absolute owner thereof. She had executed and registered a sale deed in respect of Ac 0.011 dec. of land out of the said Ac 0.016 on 28th April, 1959 in favour of petitioner Kanduri. The village Dharadharpur came within the fold of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as 'the Act) in consonance with a Notification issued to that effect. In the Land Register, the aforesaid Ac. 0.011 dec. of land stood recorded in the name of petitioner Kanduri. It is alleged that a joint petition was filed before the concerned Assistant Consolidation Officer, opposite party No. 2, which was registered as Objection Case No. 2648/112 of 1989 under Section 9(3) of the Act. The A.C.O., it is alleged, by consent of the parties directed to record the lands in question jointly in the names of the petitioner and opposite party No. 1. Thereafter the petitioner filed a Revision Petition before the Director of Consolidation invoking jurisdiction of the said authority under Section 37(2) of the Act inter alia challenging the order passed by the Assistant Consolidation Officer alleging that he was not a party to the consent given before the A.C.O. and the entire proceeding was stage -managed by impersonation. The said Revision Petition was numbered as 2519 of 1996. The Director allowed the Revision and remanded the case to the Consolidation Officer, Raghunathpur for fresh adjudication. The Consolidation Officer Raghunathpur after hearing the parties and basing upon the 1959 R.S.D. directed to record the disputed lands in favour of petitioner Kanduri exclusively by order dated 9th May, 2001, vide Annexure -3. Being aggrieved by the order Annexure -3, opposite party No. 1 preferred an appeal before the Deputy Director, Consolidation which was registered as Appeal No. 43 of 2001 which was dismissed and the order passed by the Consolidation Officer was confirmed. Being aggrieved, opposite party No.1 preferred Consolidation Revision Case No.222 of 2002 before the Consolidation Commissioner which was disposed of by the impugned order Annexure -1. The Commissioner observed that the fact that the Assistant Consolidation Officer had entertained the Objection Case No.2648/112 of 1989 and had passed order under Section 9(3) of the Act was suppressed before the authorities below. He further held that as opposite party No.1 and the petitioner gave their consent and on the basis of such consent the Assistant Consolidation Officer had directed to record the disputed lands, which were homestead in nature, jointly in the names of those parties, it was no more open to petitioner Kanduri to wriggle out of such consent and the plea taken by him subsequently that he was the exclusive owner and the disputed lands should be recorded exclusively in his name could not be entertained. On the basis of such conclusion, the Commissioner set aside the order passed by the Consolidation Officer as well as that of the Deputy Director and directed to record the disputed lands as per the order passed by the Assistant Consolidation Officer under Section 9(3) of the Act in Objection Case No. 2648/112 of 1989.

(3.) THE aforesaid submission of Mr. Sarangi is strongly repudiated by Mr. J. R. Dash, learned counsel for opposite party No. 1. According to Mr. Dash, the petitioner is estopped form raising the aforesaid contention as he had appeared before the Assistant Consolidation Officer at the very initial stage of consolidation operation and in consonance with the consent given by him the Assistant Consolidation Officer had passed order to record the lands in question jointly in the name of the petitioner and opposite party No. 1. Such order of the Assistant Consolidation Officer under Section 9(3) of the Act having not been challenged for a period of six years, the same attained finality and the Commissioner has rightly set aside the orders passed by the Consolidation Officer and the Deputy Director.