O.J.C. No. 4353 of 1997. Case: Pradeep Kumar Behera and Ors. Vs Commissioner of Land Records and Settlement and Ors.. High Court of Orissa (India)
| Case Number | O.J.C. No. 4353 of 1997 |
| Counsel | For Appellant: J.R. Dash,Adv. |
| Judges | B.K. Nayak, J. |
| Issue | Orissa Consolidation Of Holdings And Prevention Of Fragmentation Of Land Act, 1972 - Sections 10, 11, 12, 13, 13(1), 13(4), 15, 15(b), 17, 18, 19, 20, 21, 22, 22(1), 23, 25, 3, 3(1), 31, 36, 36(1), 37, 4, 4(3), 4(4), 41, 5, 5(1), 51, 6, 7, 8, 9, 10, 11, 12, 6(1), 7(1); Orissa Survey And Settlement Act, 1958 - Sections 11, 12, 12A, 12B, 13, 15,... |
| Citation | 2015 (I) ILR 545 |
| Judgement Date | November 28, 2014 |
| Court | High Court of Orissa (India) |
Judgment:
B.K. Nayak, J.
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Order dated 27.01.1997 (Annexure-4) passed by the Commissioner, Land Records & Settlement, Orissa, Cuttack in R.P. Case No. 3437 of 1995 under Section 15 of the Orissa Survey and Settlement Act, 1958, has been assailed in this writ application. The present opposite party Nos. 2 to 5 filed R.P. Case No. 3437 of 1995 under Section 15 of the Orissa Survey and Settlement Act challenging the correctness of R.O.R. published under Section 13 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act in respect of land under Khata No. 577 of mouza-Nuapada, Tahasil-Cuttack Sadar since in the R.O.R. the lands were recorded in favour of Subash Chandra Behera, the predecessor-in-interest of the writ petitioners to the exclusion of opposite party Nos. 2 to 5. By the impugned order, the revision was disposed of directing Tahasildar, Cuttack to include the names of the present opposite party Nos. 2 to 5 jointly with Subash Chandra Behera.
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The learned counsel for the petitioners only challenges the jurisdiction of the Commissioner, Land Records and Settlement to entertain the revision and pass the impugned order. Undisputedly the R.O.R. in question was published under Section 13(1) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act and soon thereafter an order by the State Government under sub-section (1) of Section 5 of the Consolidation Act was published cancelling Government notification under Section 3(1) of the said Act whereby the village in question had been brought under consolidation operation.
The contention of the learned counsel for the petitioners is that even though in terms of sub-section (4) of Section 13 of the Consolidation Act, the R.O.R. published under sub-section (1) of the said section be deemed to have been made under the Orissa Survey and Settlement Act because of order of de-notification issued under Section 5(1) of the Consolidation Act, since the R.O.R. has been published on determination of right, title and interest by the competent authorities under the Consolidation Act, it was only the Commissioner, Consolidation or the Director, Consolidation, who could have revisional jurisdiction under Section 37 of the Consolidation Act to decide the correctness, legality and propriety of the R.O.R. and the Commissioner of land records and settlement could not have entertained the revision since the authorities under the Orissa Survey and Settlement Act have no jurisdiction to decide the question of right, title and interest in land. His submission is that the deeming provision of Section 13(4) of the Consolidation Act does not confer jurisdiction on the Settlement Commissioner to decide the correctness of the R.O.R. published under Section 13(1) of the Consolidation Act. Extending his argument he submits that in view of Section 51 of the Consolidation Act investing jurisdiction on the Consolidation authorities and ousting the jurisdiction of the Civil Court to decide the question of right, title and interest in the land within the consolidation area and a publication of the R.O.R. under Section 13 of the Consolidation Act is based on the decision of the question relating to right, title and interest by the consolidation authorities, the Settlement Commissioner cannot sit on judgment over the said R.O.R. Drawing analogy from Section 22 of the Consolidation Act, he submits further that a final consolidation R.O.R. published under sub-section (1) of Section 22 of the Consolidation Act is also deemed to be an R.O.R. prepared under the Orissa Survey and Settlement Act as per sub-section (4) of Section 22 but the correctness of such R.O.R. can be subjected to scrutiny only by the revisional authority under the Consolidation Act and, therefore, for the same reason an R.O.R. published under Section 13(1) of the Consolidation Act may be scrutinized by the revisional authority under the said Act and not by the revisional authority under the Orissa Survey and Settlement Act. He also submits that issuance of an order of de-notification of consolidation under Section 5(1) of the Consolidation Act does not obliterate the decision of the consolidation authorities with regard to right, title and interest in land which has culminated in publication of R.O.R. under Section 13(1) of the Act inasmuch as such publication is made after hearing of objections, appeals and revisions with regard to right, title and interest in land. He further logicises his contention stating that even after issuance of a notification under Section 41 of the Consolidation Act closing consolidation operation in an area the revisional authorities under the Consolidation Act continue to have jurisdiction with regard to orders passed by sub-ordinate authorities under the Act and for the same reason even after de-notification of consolidation by publication of order under Section 5(1) of the Act, the revisional authorities under the Consolidation Act will continue to have jurisdiction.
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Learned counsel for opposite party No. 2, on the other hand, submits that issuance of order under Section 5(1) of the Consolidation Act de-notifying consolidation operation not only has the effect of stopping the consolidation proceeding in the consolidation area, but also has the effect of obliterating all orders passed by the consolidation authorities deciding right, title and interest in the land in the consolidation area and that since the consolidation proceeding in the area is stopped from being brought to its logical end, the preparation of the R.O.R. under Section 13(1) of the Act is only for the purpose of having consequences attached to publication of an R.O.R. under the Orissa Survey and Settlement Act, by virtue of the deeming provision of Section 13(4) of the Consolidation Act. Therefore, the Settlement Commissioner in exercise of its revisional jurisdiction under Section 15 of the Orissa Survey and Settlement Act can examine the correctness of the entries made in the R.O.R. published under Section 13(1) of the Consolidation Act.
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Mr. N.K. Sahu, the learned amicus curiae supports the contentions raised by the learned counsel for the petitioners. Mr. U.K. Samal, the learned amicus curiae while supporting the contention of the learned counsel for opposite party No. 2 to the extent that publication of de-notification order under Section 5(1) of the Consolidation Act obliterates and sets at naught all orders and actions of the consolidation authorities in respect of their decisions on right, title and interest in land, further contends that neither the revisional authorities under the Consolidation Act nor the authorities under the Orissa Survey and Settlement Act can have power or jurisdiction to examine the correctness of the entries made in the R.O.R. and that any person aggrieved by any entries made in any such R.O.R. shall have to take recourse to the common law forum by instituting a civil suit.
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The question that falls for consideration is whether the correctness of R.O.R. published under Section 13(1) of the Consolidation Act before issuance of order under Section 5(1) of the said Act de-notifying consolidation operation in respect of the village concerned can be examined by the revisional authority under the Consolidation Act or the revisional authority under the Orissa Survey and Settlement Act?
In order to answer the question, necessarily we have to decide the effect of an order published under Section 5(1) of the Consolidation Act de-notifying consolidation operation in the concerned area. If Section 5(1) notification has the effect of obliterating or setting at naught all orders passed and action taken by the Consolidation Authorities under the Act prior to the issuance of such notification including orders passed determining right, title and interest in the land, then the revisional authorities under the Consolidation Act will have no power and jurisdiction to examine the correctness of the R.O.R. published under Section 13(1) of the Act. If the revisional authority under the Consolidation Act will have no jurisdiction, the further question would be whether the revisional authority under the Orissa Survey and Settlement Act will have the jurisdiction to examine the correctness of the R.O.R. published under Section 13(1) of the Consolidation Act by virtue of the deeming provision of sub-section (4) of Section 13 of the said Act.
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In order to answer the question, it is necessary to examine the scheme of the Orissa Consolidation Act and the Orissa Survey and Settlement Act and some relevant provisions thereof.
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The Orissa Survey and Settlement Act, 1958 was enacted by the State Legislature to consolidate and amend the laws relating to survey, preparation of record of rights and settlement of rent on land holdings in the State of Orissa. Different parts of the State, prior to the enactment of the Orissa Survey and Settlement Act 1958 (in short 'OSS Act') were being governed by different tenancy laws for the purpose of survey, record of...
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