BISWANATH RATH,J. -
(1.) This is a writ petition involving a challenge to the order dated 14.03.1995 passed by the Commissioner, Consolidation, Bhubaneswar in Consolidation Revision Case Nos.1942 and 1943 of 1984 moved at the instance of private opposite parties vide Annexure-16 to the writ petition.
(2.) Short recital of the case is that the private opposite parties filed objection case under Section 9(3) of the Odisha Consolidation of Holding and Prevention of Fragmentation of Land Act, 1972 (hereinafter called herein as "OCH and PFL Act") praying therein to record the property involved therein in their name. The Consolidation Officer in disposal of the proceeding was pleased to record the disputed land in the name of the opposite parties, the applicants therein. When the matter stood thus, petitioners herein filed two objection cases bearing Objection Case No.538 of 1983 and Objection Case No.593 of 1983. The Assistant Consolidation Officer considered the objections under Section 15 of the OCH and PFL Act and directed to record the same land in the name of the petitioners herein. Above orders were challenged by the opposite party no.1 in contest in Revision Case No. 1942 before the Commissioner, Consolidation. The opposite party no.4 being petitioner filed another revision bearing Revision Case No.1943 of 1984. Both the matters were heard together and the Commissioner of Consolidation finally held that for the existence of order of Orissa Estate Abolition Authority functioning as Tahasildar vide O.E.A. Misc. Case No.42 of 1969-70 remain valid and accordingly while holding that revision petitioners i.e. opposite party no.1 and opposite party no.4 able to satisfy their occupancy right over the disputed land consequently directed for recording the name of opposite party no.1 and opposite party no.4 involving the disputed land. This order is available at Annexure-16 and impugned herein.
(3.) The case of the petitioners in their challenge to the impugned order at Annexure-16, as claimed in the writ petition and submitted during course of hearing is that the husband of the opposite party no.1 Surendranath Naik was the ex-intermediary and he executed sale deed dated 21.08.1959 in favour of his wife Ashamani Devi, the opposite party no.1. This sale deed had the recital that Surendranath acquired occupancy right over the property which demand is claimed to have been considered and rejected by this High Court in the disposal of Second Appeal No.394 of 1950 appearing at Annexure-1. Accordingly, the petitioner claimed that sale deed indicates herein is a void one. Further claim of the petitioners is that Makadami Village of Gadasitha contained Ac.37.44 decimals of Nijchas lands. The Makadami was abolished under provisions of O.E.A. Act on 11.04.1959 almost all the Nijchas lands were under the cultivating possession of Bhag Tenants, the petitioners and others. It is just after abolition of exintermediary husband of opposite party no.1 as uncle of opposite party no.2 and father-in-law of opposite party no.4 transferred the disputed land by R.S.D. dated 21.08.1959 measuring Ac.9.39 -2./3rd decimals of land to his wife. Subsequently, the opposite party no.1 also obtained ekapadia noting therein entry in the name of his son-in-law, the opposite party no.4 measuring Ac.3.26 decimals of Nijchas lands. For the remaining land Ac.24.78 decimals and other lands measuring Ac.0.94 decimals , the ex-intermediary filed O.E.A.No.609 of 1959-60, a proceeding under Section 7 of O.E.A. Act, for fixation of fair rent on the ground that these lands were in khas dakhali. The O.E.A. Authority found out of Nijchas Khata No.10 only Plot No.800, Ac.0.28 decimals, Plot No.280, Ac.0.13 decimals and Plot No.797/1193, Ac.0.22 decimals in all Ac.0.063 decimals to be his khas dakhali and then while directing recording of above lands with him, the balance land Ac.24.15 decimals were held to be in cultivating possession of the Bhagchasi as appearing at Annexure-3. It is further claimed that Bhagchasi including petitioner in all were 36 persons, who were paying the share of the bhag produced to the ex-intermediary and used to obtain receipts. They all continued to pay bhag to State as the Landlord and used to obtain receipt from Revenue Inspector vide Annexure-4 and by exintermediary vide Anenxure-5. It is claimed that though the bhagchasis filed application under Section 4(2) and sub-Rule 1 of Rule 10 of O.L.R. Act to declare them as tenants under the State, but the said proceeding was kept pending and the case of ex-intermediary was taken up for hearing. After the decision in O.E.A. Case No.609 of 1959-60, exintermediary filed O.E.A. Appeal No.36 of 1966 before the A.D.M., Puri, which was dismissed vide Annexure-6. Ex-intermediary filed O.E.A. Case No.77 of 1968 and the Member, Board of Revenue dismissed the said case on 26.4.1969, vide Anenxure-7. It is averred that in the meantime ex-intermediary Surendranath filed O.J.C.No.673 of 1969 in this High Court which was dismissed on 08.08.1969, vide Annexure-9. It is further stated that only after the above developments, exintermediary S.N.Naik got a deed of partition executed between opposite party no.1 and his nephew-opposite party nos.2 and 3 in respect of land covered by the sale deed in favour of the opposite party no.1 and partitioned the lands between them. It is accordingly claimed that on the basis of above invalid partition deed, opposite party nos.2 and 3 filed an application before the S.D.O., Puri and prayed to direct the Tahasildar to get their names mutated and realize rent from them. It is at this stage, the Tahasildar on the other hand initiated a suo motu proceeding bearing M.C.No.38 of 1981 and mutated the names of the applicants and instructed the Revenue Inspector to realize rent from them. Bhagchasis being aggrieved by such action of the Tahasildar filed M.A.No.4 of 1982. The opposite parties instead of waiting for the outcome in the appeal rather filed objection case and it is alleged that the Consolidation Officer ignoring all the above developments illegally and without jurisdiction passed order directing recording of the name of opposite parties involving the disputed land in the land register. On an appeal, the S.D.O. passed order for realization of rent from the opposite party nos.1 to 3, vide Annexure-10. Failing to get relief, opposite party nos.1 to 3 filed O.E.A. Revision No.80 of 1983 before the Member, Board of Revenue to set aside the order of the appellate authority dated 03.08.1983. The Board of Revenue disposed of the matter observing that payment of rent by any party could not confer any right and there is no obstruction on the opposite parties also in paying the rent. It is in the above premises, petitioners in different sets filed 19 O.L.R. Cases. In disposal of all these cases, there is decision in favour of bhagchasis and bhagchasis were recognized as occupying rayati as appearing at Anenxrue-11. By filing separate application under Section 15 of the OCH and PFL Act, petitioners got their names recorded in the land register vide Annexure-15 to the writ petition. This order being challenged by opposite party nos.1 and 4, the Consolidation Commissioner, Bhubaneswar sets aside the order passed by the A.C.O., vide Annexure-16. The impugned order at Annexure-16 is challenged claiming that the impugned order remain contrary to the development through O.J.C.No.673 of 1969 vide Annexure-8, the order in O.J.C.No.639 of 1972 at Annexure-9 and the order passed in S.A.No.394 of 1950. It is further alleged that the impugned order also contrary to the orders vide Annexures-6 and 11. It is in the above premises, petitioners in the first instance filed O.J.C.No.113 of 1987 in this High Court and the same was dismissed for default on account of non-appearance of the counsel. As it appears from the further pleadings as against the dismissal of the writ petition for default, petitioner has preferred M.J.C.No.82 of 1994 for restoration of the previous writ petition, which was also dismissed and after about nine years of passing of the impugned order, vide Annexure-16, this writ petition has been instituted. On the issue of writ petition being filed on delay and being second successive writ petition on the self same issue, learned counsel for the petitioners contended that for technical disposal of first writ petition and also technical dismissal of M.J.C.No.82 of 1994, the filing of present writ petition cannot be held to be suffering by delay and latches. But unfortunately no party is in position to bring copy of the order in M.J.C. No.82 of 1994 except petitioner stating in paragraph-14- B that same has been dismissed for default again. In the process learned counsel for the petitioners also relied on a decision of Hon'ble Apex Court in the case of Rafiq and another Vs. Municilal and another, 1981 AIR(SC) 1400 and urged allowing the writ petition in the above premises.;