UMAKANTA PANDA Vs. COMM CONSOLIDATION

JUDGEMENT

(1.) THIS writ petition is in challenge of the order of remand dated 12.4.2010 passed by the learned Commissioner, Consolidation and Settlement, Cuttack (O.P. No. 1) in R.C. No. 170 of 2009. Case of the petitioner, in short, is that O.P. Nos. 2 and 3 as petitioners before the Commissioner filed Consolidation Revision Case No. 170 of 2009 for enhancement of the area and map of Hal Plot No. 57 on the basis of Registered Partition Deed No. 6115 dated 17.11.1951. The present petitioner as opposite party before the learned Commissioner raised contention that since the final R.O.R. was published long back in 1983 and notification under Section 41 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short, the Act) was made within two years of final publication of R.O.R., the revision petition, after lapse of 27 years, was not entertainable. Yet, the learned Commissioner without proper discussion on the points raised, passed the impugned order. Another stand taken by the petitioner is that two suits, one filed by the O.P. Nos. 2 and 3 and another filed by the petitioner with respect to the same land are pending in the competent Civil Court. Therefore, during pendency of the Civil Suits, the learned Commissioner should not have entertained the revision petition.

(2.) THE O.P. Nos. 2 and 3 in their counter have contended that since the disputed land situates within the purview of Consolidation operation, the O.Ps. have filed the Consolidation Revision before the Commissioner, O.P. No. 1, for correction of R.O.R. as well as map by way of enhancement of the area of Hal Plot No. 57 as per their entitlement. According to the O.Ps., the suits filed by the parties are for permanent injunction, during pendency of which the learned Civil Court appointed Survey knowing Commissioner for field enquiry and after such field enquiry the O.Ps. have come to know about shortage of the area in respect of Hal Plot No. 57. Hence, they have preferred the revision before the Commissioner -O.P. No. 1, after hearing the parties, has remanded the case to the Consolidation Officer, Kendrapara for disposal as per law and while passing the order of remand the learned Commissioner has elaborately discussed the points raised by the writ petitioner. Since the Civil Court has no jurisdiction to decide the matter with regard to the enhancement of the area and map of Hap Plot No. 57, whereas the Consolidation authorities are empowered to do so, the O.P. Nos. 2 and 3 moved the Consolidation authority during pendency of the Suit. It is also contended that if any record, prepared during course of Consolidation operation, is not in conformity with fundamental judicial procedure, the revisional power can be invoked even after notification under Section 41 of the Act.

(3.) THE disputed property is the ancestral homestead property of the parties. There was partition of the ancestral properties including the disputed property under a registered partition deed of the year 1951. Thereafter, in the year 1953 there was exchange of some lands between the two branches of the parties under a registered deed. Thereafter, in the year 1964, Ac. 0.15 of land out of their homestead land was acquired by the Revenue and Excise Department, Government of Orissa for Distributory No. 1 of Gobari Canal. From a perusal of the impugned order passed by the learned Commissioner it reveals that after a thorough scrutiny the learned Commissioner has worked out the extents of homestead land which were subjected to the aforesaid partition, exchange and acquisition and come to a conclusion that the net entitlement of the branch to which the present petitioner belongs is Ac. 0.34 but an area of Ac. 0.36 has been recorded in their names whereas as against the entitlement of Ac. 0.38, the O.Ps. have been recorded an area of Ac. 0.36. So, considering that the true picture can be ascertained only by field enquiry, the learned Commissioner passed the impugned order admitting the revision and remitting it to the Consolidation Officer, Kendrapara to verify the Hal and Sabik R.O.Rs. and maps and various documents relied on by both the parties and to conduct field enquiry to pass appropriate order in accordance with law after issuing notice to all the persons interested and giving them opportunity of being heard.