SARBESWAR LENKA Vs. COLLECTOR
HIGH COURT OF ORISSA
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(1.) This writ petition has been filed assailing the order dated 09.01.2020 (Annexure-4) passed by the Collector, Jagatsinghpur-opposite party No.1 in Consolidation Misc. Case Page 2 of 8 No.10 of 2019, whereby he declared registered sale deed No.387 dated 09.03.2005 (Annexure-1) executed by Gouranga Samal-opposite party No.4 in favour of the present petitioner, as void.
(2.) Mr. Pattanaik, learned counsel for the petitioner submits that Consolidation Khata No.43 (Mutation Khata No.225/14) Chaka No.88, Chaka Plot No.169 to an extent of Ac.0.50 decimals of mouza- Nimadihi (for short, 'the case land') stood recorded in the name of opposite party Nos.2 to 4. By virtue of a registered partition deed No.2955 dated 05.11.1997 an area of Ac.0.17 decimals out of the case land fell to the share of opposite party No.4. Accordingly, he transferred the same in favour of the petitioner vide registered sale deed No.387 dated 09.03.2005 (Annexure-1) and delivered possession thereof in favour of the petitioner. After lapse of 14 years, the opposite party Nos. 2 and 3 filed a petition under Sections 34 and 35 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short, 'the OCH and PFL Act') before the Collector, Jagatsinghpur-opposite party No.1, which was registered as Consolidation Misc. Case No.10 of 2019 (Annexure-2). On being noticed, the petitioner and proforma opposite party no.5 filed their objection (Annexure-3), but the Collector, Jagatsinghpur-opposite party No.1, without considering the objection in its proper perspective, passed the impugned order under Annexure-4. Hence, this writ petition has been filed with a prayer to set aside the impugned order under Annexure-4.
(3.) Mr. Pattanaik, learned counsel for the petitioner further submits that the land purchased by the petitioner comes under the Master Plan of Paradeep Development Authority. Thus, the rigours of Section 34 (1) and (2) of OCH and PFL Act are not applicable to the transfer in question in view of the provision under Sub-section 5 of Section 34 of OCH and PFL Act. Section 34(1), (2) and (5) of OCH and PFL Act read as follows:
" 34. Prevention of fragmentation . -(1) No agricultural land in a locality shall be transferred or partitioned so as to create a fragment.
(2) No fragment shall be transferred except to a land-owner of a contiguous Chaka: Provided that a fragment may be mortgaged or transferred in favour of the State Government, a Co-operative Society, a scheduled bank within the meaning of the Reserve Bank of India Act, 1934 (2 of 1934) or such other financial institution as may be notified by the State Government in that behalf as security for the loan advanced by such Government, Society, Bank or institution, as the case may be. xxx xxx xxx xxx
(5) Nothing in Sub-sections (1) and (2) shall apply to- (a) any land which is covered under the approved Master Plain published under the Odisha Town Planning and Improvement Trust Act, 1956 or as the case may be approved development plan published under the Odisha Development Authorities Act, 1982; or
(b) a transfer of any land for such public purposes, as may be specified, from time to time, by notification in this behalf, by the State Government."
It is his submission that this legal aspect was not taken into consideration by the Collector, Jagatsinghpur-opposite party No.1, while considering the Consolidation Misc. Case No.10 of 2019 filed by opposite party Nos.2 and 3, which makes the impugned order under Annexure-4 vulnerable. Hence, he prays for setting aside the impugned order. ;
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