Orissa High Court
Rajkishore Pradhan And Others vs Commissioner on 7 December, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 8507 of 2013
Rajkishore Pradhan and others .... Petitioners
Mr. D.R. Swain, Advocate
-versus-
Commissioner, Consolidation, Board of .... Opp. Parties
Revenue, Odisha, Cuttack and others
Mr. Dillip Kumar Mishra,
Additional Government Advocate
(For Opposite Party Nos.1 and 2)
Mrs. Sumitra Mohanty, Advocate
(For Opposite Party No.3)
Mr. Prafulla Kumar Rath, Advocate
(For Opposite Party No.5)
Mr. Dayananda Mohapatra, Advocate
(For Opposite Party No.6)
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 07.12.2021
5. 1. This matter is taken up through hybrid mode.
2. Petitioners in this writ petition seek to assail the order
dated 14th October, 1992 (Annexure-3) passed by the
Commissioner, Consolidation, Odisha, Cuttack in
Consolidation Revision No.1391 of 1986, whereby he
dismissed the Revision filed by the present Petitioners under
Section 37(1) of the Odisha Prevention of Holdings and
Prevention of Fragmentation of Land Act, 1972 (for short 'the
Act').
3. Materials available on record disclose that the land was
recorded in the name of one Hemalata Pradhan. The same was
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purchased in the name of the Petitioners vide registered sale
deed No.585 dated 4th February, 1972. Since the Petitioners
were minor, their father, namely, Biswanath Pradhan was
looking after the matter. However, no step could be taken
during the consolidation operation to record the land in the
name of the Petitioners and the ROR was published in the name
of Hemalata Pradhan under Section 22(2) of the Act on 18th
January, 1984. Notification under Section 41(1) of the Act was
made on 19th August, 1986. Thereafter, the Petitioners filed the
aforesaid Revision under Section 37(1) of the Act. The
Commissioner, Consolidation holding that the Petitioners did
not take any step during the consolidation operation to record
the land in question in their name and in the meantime,
notification under Section 41(1) of the Act has been issued,
dismissed the Revision vide order dated 14th October, 1992
under Annexure-3. The said order is under challenge in this writ
petition.
4. It is submitted that Petitioners had also filed Civil Suit
bearing CS No.106 of 2008/CS No.110 of 2004 for declaration
of their right, title and interest in respect of the self-same land
and for permanent injunction. Said suit was dismissed vide
judgment and order dated 31st January, 2013 passed by learned
Civil Judge (Junior Division), 2nd Court, Cuttack. Against the
said judgment, the Petitioners filed R.F.A No.28 of 2013 and
learned District Judge, Cuttack, dismissed the appeal vide
judgment dated 12th February, 2015. Assailing the same, the
Petitioners filed RSA No.109 of 2015, which is pending for
adjudication before this Court.
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5. It is the case of the Petitioners that as they were minor at
the relevant time, they could not take appropriate steps during
consolidation operation to record the land in their name.
However, immediately after Section 41(1) notification was
made, they filed Consolidation Revision No.1391 of 1986 to
record the land in their name. Commissioner, Consolidation
erroneously holding that that no Revision is maintainable under
Section 37(1) after closure of the consolidation operation under
Section 41 of the Act, dismissed the revision, vide the
impugned order under Annexure-3.
6. Mr. Swain, learned counsel further submitted that the
Petitioners could not file the writ petition immediately and tried
their luck by filing the Civil Suit, which is sub judice before
this Court in RSA No.109 of 2015. It is his submission that the
pendency of the appeal nor the delay in filing the writ petition
should stand on the way of substantial justice. In support of his
case, he relied on the decision of the Hon'ble Supreme Court in
the case of Tukaram Kana Joshi and others through Power of
Attorney Holder Vs. Maharashtra Industrial Development
Corporation and others, reported in AIR 2013 SC 566 and
Bhagaban Jena and others Vs. State of Odisha and others,
reported in 2007 (I) OLR 598 and submitted that when
substantial justice pitted with limitation, the Court should take
pragmatic view in condoning the delay and entertain the matter
on merit. The Consolidation Commissioner did not at all take
into consideration that the Petitioners are rightful purchasers of
the land in question by virtue of RSD No.585 dated 4th
February, 1972. As such, they have acquired a valid right, title
and interest thereon. Hence, the impugned order under
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Annexure-3 is liable to be set aside and Consolidation
Commissioner should be directed to consider the matter afresh
on merit.
7. Briefly stated the submission of Mr. Rath, learned
counsel for Opposite Party No.5, Mr. Mohapatra, learned
counsel for Opposite Party No.6 and Mrs. Mohanty, learned
counsel for Opposite Party No.3, the vender, is that the
Commissioner, Consolidation did not dismiss the revision on
the ground that it was filed after publication of notification
under Section 41 of the Act. Incidentally, it is observed by the
Commissioner, Consolidation that after closure of the
Consolidation operation, the Petitioners filed Revision to record
the land in question in their name. The Petitioners did not at all
take any step during consolidation operation although they
stated to have purchased the land in question in the year 1972.
Thus, the Revision under Section 37 (1) of the Act was
disposed of not only on the ground that Section 41 notification
has already been made but also on other grounds including
delay and latches. It is their submission that although a
Revision can be entertained after closure of the Consolidation
operation under Section 41 of the Act, but that does not give the
Petitioners a right to file the Revision without participating in
the Consolidation operation, that too without explaining the
delay. In support of their case, reliance is placed on the decision
of this Court in the case of Bhajaman Parida Vs. State of
Odisha and others, reported in 2005 (II) OLR 161 held as
follows:-
"7. Law is well settled that if a person has not
preferred any objection in consonance with Section
9 of the Act, he has no right to file any objection
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after final publication of the Land Register
under Section 13, inasmuch as Section 14 of the Act
creates a bar and stipulates that a land owner is
estopped from raising any contention which he has
not raised either under Section 6 or under Section
9 of the Act at subsequent stages of the
consolidation proceeding. This provision is based
on the doctrine of constructive res judicata and
stares at the petitioner....."
7.1 It is further contended that the Petitioners cannot
maintain two parallel proceedings for the self-same relief in
respect of the same subject matter in dispute. In support of
their case, Mr. Rath, learned counsel for Opposite Party No.5
placed reliance on Jai Singh v. Union of India, reported in
(1977) 1 SCC 1, wherein the Hon'ble Supreme Court held as
under:-
"4. .......It has also been brought to our notice
that after the dismissal of the writ petition by the
High Court, the appellant has filed a suit, in which
he has agitated the same question which is the
subject-matter of the writ petition. In our opinion,
the appellant cannot pursue two parallel remedies
in respect of the same matter at the same time."
7.2 It is further contended that learned Civil Judge, while
adjudicating the matter has come to a categorical finding that
Hemalata Pradhan has not executed any sale deed in favour of
the Plaintiffs therein, who are none other than the Petitioners
in this writ petition. He further contended that since the matter
is pending in Second appeal, the veracity of the judgment and
decree passed in the suit as well as appeal can be taken care of
in the said second appeal. It is the contention of Mr.
Mohapatra and Mr. Rath, learned counsel for Opposite Party
Nos.6 and 5 respectively that since the Opposite Party Nos.5
and 6 have acquired valid right, title and interest in their
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favour and are in possession of the case land pursuant to the
sale deed executed in their favour, the writ petition filed after
twenty-one years of passing of the impugned order without
explaining the delay, should not be entertained; otherwise it
will unsettle the settled position. In that view of the matter,
they pray for dismissal of the writ petition.
8. Mr. Mishra, learned AGA also supported the
submissions of learned counsel for Opposite Party Nos. 5 and
6 and contended that in the facts and circumstances of the
case, learned Commissioner, Consolidation committed no
error in passing the impugned order under Annexure-3.
9. Upon hearing learned counsel for the parties and on
perusal of record, it is apparent that the ROR in respect of the
case land was published on 18th January, 1984 and the
Petitioners filed Consolidation Revision in the year 1986. Be
that as it may, the impugned order was passed on 14th October,
1992. Thereafter, the Petitioners tried their luck approaching
the Civil Court. The matter is now pending in Second Appeal
filed by the present Petitioners in RSA No.109 of 2015. There
is no averment made in the writ petition for condonation of
delay of twenty-one years in filing the writ petition. The case
laws relied upon by the Petitioners such as Tukaram Kana
Joshi and others through Power of Attorney Holder (supra)
and Bhagaban Jena and others (supra) are not applicable to
the case at hand, as the said judgments were based on the facts
and circumstances of the cases involved therein. In the instant
case, the Petitioners have not made out any ground for
condonation of delay of twenty one years in filing the present
writ petition. It is apparent that the impugned order was passed
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on 14th October, 1992 and the writ Petition is filed on 10th
April, 2013. Nothing prevented the Petitioners to approach this
Court within a reasonable time. As held by this Court in Bruti
Pradhan and others Vs. Rampriya Pradhan and others,
reported in 2011 (I) OLR 990, that although no limitation has
been prescribed for filing of revision petition under Section
37(1) of the Act, but that does not confer an unfettered power
on the revisional authority to entertain the revision at any
stage. Be that as it may, the Petitioners appear to have been
negligent all throughout in asserting their right, if any over the
land in question. Delay defeats the cause. Since no plausible
explanation has been spelt out in the writ petition to entertain
the writ petition after delay of twenty-one years and the matter
in issue is sub judice before this court in R.S.A. No. 109 of
2015, I am not inclined to entertain this writ petition.
10. Accordingly, the writ petition stands dismissed.
Issue urgent certified copy of the order on proper
application.
(K.R. Mohapatra)
Judge
s.s.satapathy
