HAREKRUSHNA SAMAL Vs. KASHI MALLIK

JUDGEMENT

(1.) The question referred to the Full Bench for decision is - whether in view of Section 51 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as "the Consolidation Act''), a consolidation authority can ignore the adjudication made by the revenue authority under Section 23 of the Orissa Land Reforms Act, 1960 which has attained its finality, the same having been not challenged before any higher forum?

(2.) Opposite Party No. 1 Kashi Mallik belongs to scheduled caste. He was the recorded owner of land measuring Ac. O.24.6 Kadis appertaining to Sabik Khata No. 47, Plot Nos. 752 and 753 situated in village Soral. As he was in need of money, he wanted to dispose of the land in question and, accordingly, approached the petitioner and requested him to purchase the land. As the petitioner does not belong to scheduled caste, an application for obtaining permission under Section 22 of the Orissa Land Reforms Act, 1960 (hereinafter referred to as "the O.L.R. Act") was filed before the S.D.O., Sadar Cuttack. On receiving the application, the S.D.O. asked the Tahsildar to cause enquiry in the matter and submit report. Pending such enquiry, opposite party No. 1 who was in dire need of money again approached the petitioner and executed a registered sale deed on 8-2-1971. Out of the consideration received from the petitioner, opposite party No- 1 purchased some other landed property on the same day. Meanwhile, on receiving a favourable report from the Tahsildar, the S.D.O. passed an order on 295-197l granting permission to transfer the land applied for, vide O.L.R. Misc. Case No. 2 of 1971 (Annexure 2). From the date of execution of the registered sale deed, the petitioner has been in possession of the land in question. In the year 1979, opposite party No. 1 filed an application under Section 23 of the O.L.R. Act (vide O. L. R. Case No. 137 of 1979) before the S.D.O., Sadar Cuttack for restoration of the land in question on the ground that the transfer made on 8-2-1971 being without permission from the revenue officer, is invalid. He also alleged that the petitioner in the garb of mortgage got a sale deed executed. The S.D.O. after hearing parties, in his order dated 31-1-1983 (Annexure-3) held that the vendor opposite party No. 1 alienated the land after the enquiry by the Tahsildar who recommended transfer and as it was done for the "better relief and benefit" of the petitioner, the transaction cannot be concluded to be in violation of Section 22 of the O. L. R. Act. He further held that the transaction in question was a sale and no fraud was practised by the petitioner on opposite party No. 1. In view of the fact that the transaction was effected and order for transfer was passed later, the S.D.O. disposed of the matter by imposing penalty of Rs. 90/- on the petitioner. It is neither in dispute that the aforesaid order of the S.D.O. has become final as it was not challenged by way of appeal or revision as provided in the O.L.R. Act.

(3.) In the meantime, consolidation operation in the area for preparation of map and land register satarted. Petitioner thereafter filed an objection under Section 9(2) of the Consolidation Act which came to be registered as Objection Case No. 529 of 1979. Opposite party No, 1 was impleaded as a party in the said case. The Assistant Consolidation Officer by his order dated 11-6-1979 allowed the objection filed by the petitioner. At that time, Saran Mallik and Kalandi Mallik, sons of opposite party No. 1, filed Objection Case No. 870 of 1979 praying that the land in question be recorded in their names. Petitioner was impleaded as an opposite party in that case. The said objection case, however, was dismissed on 11-6-1979 for their default and no further steps were taken by Saran Mallik and Kalandi Mallik to revive the said case. As Objection Case No. 5219 of 1979 filed by the petitioner was allowed, the land in question was carved out as a Chaka and it was delivered to the petitioner. Record-of-rights was accordingly prepared in the name of the petitioner which was duly published on 25-5-1991. We may mention here that the order dated 11-6-1979 passed in Objection Case No. 529 or 1979 was not challenged by opposite party No. 1 by filing any revision as provided under Section 36 of the Consolidation Act. In the year 1981, he however filed on application under Section 37(1) of the Consolidation Act before the Consolidation Commissioner (vide Revision Case No. 2273 of 1981). The Commissioner in the impugned order dated 27-4-1989(Annexure-8) held that as the sale deed was executed by opposite party No. 1 in favour of the petitioner before obtaining prior permission as required under Section 22 of the O.L.R. Act, the sale is void. The Commissioner directed to record the name of opposite party No. 1. She also ordered the petitioner to restore the land to opposite party No.1. Petitioner assails the validity of this order in this writ application filed under Arts. 226 and 227 of the Constitution of India.