Rama Nayak vs State Of Orissa & Ors
2022 Latest Caselaw 6753 Ori

A.F.R

             ORISSA HIGH COURT : C U T T A C K

                      W.P.(C) No.15008 of 2004

                  An application under Article 226 & 227 of
                      the Constitution of India, 1950

Rama Nayak                                         : Petitioner

                                -Versus-

State of Orissa & Ors.                         : Opposite Parties

For Petitioner                              : M/s.B. Routrary, Sr. Adv.
                                              being assisted by Mr. J. Biswal,
                                              B. Singh, P.K. Dash,
                                              D.K. Mohapatra, B.B. Routray

For Opposite Party Nos.1 to 4               : Mr. S.P. Panda,
                                              Addl. Govt. Adv.

For Opposite Party Nos.5(a),6(a),7(a) & (b) : M/s. D.P. Mohanty,
9(a) & (b)                                         T.K. Mohanty,
                                                   P.K. Swain, M. Pal,
                                                   R. Mohanty

                                JUDGMENT

CORAM :

JUSTICE BISWANATH RATH

Date of hearing & judgment : 21.11.2022

1. Heard the submissions of learned counsel for respective parties.

// 2 //

2. The Writ Petition involves a challenge to the impugned order at Annexure-3 passed in exercise of power U/s.36 of the O.C.H. & P.F.L. Act.

3. There is no dispute in the Bar that a serious question of law involved herein is; as to whether the observation of the Hon'ble apex Court in the case of Ram Prasad (Dead) by Lrs. & Ors. Vs. Assistant Director of Consolidation & Ors. as reported in 1994 Supp.(2) SCC228, the decision observing in absence of any evidence in the consolidation proceeding the suit even if abated, evidence therein and the findings of the trial court shall be abided, being contrary to the decision of the Hon'ble Apex Court in the case of Paras Nath Rai and Ors. Vrs. State of Bihar and Ors. as reported in (2012)12 SCC 642 thereby observing through paragraph no.32 to take away all development in the abated suit and such development will have no bearing at all in other proceedings, further the Full Bench of this Court in the case of Srinibas Jena and Ors. Vrs. Janardan Jena and Ors. as reported in AIR 1981 Ori. 1 has taken a view through paragraph nos.13 to 16 that once a suit is abated all development therein has to be thrown out, destroyed and quashed and this view being followed by the Single Bench of this Court in the case of Radhu Swain Vrs. Nitei as reported in MANU/OR/0411/2014 in W.P.(C) No.15972 of 2005 is sustainable in the eye of law?

4. Undisputed facts remain, the revisional Court in absence of evidence by both sides determined the suit relying heavily on the evidence and findings of the trial court in an abated suit. Petitioner claims, the judgment of the revisional authority becomes illegal whereas the contesting Opposite Party claims justification of the judgment impugned since decided on the available case law at the relevant point of

// 3 //

time. There has been of course no dispute on the change in the position of law since the Full Bench of this Court and the judgment of the Hon'ble Apex Court in the case of Paras Nath Rai & Ors. as well as in the case of Radhu Swain. Learned State Counsel adopts the submission of the learned counsel for the contesting Opposite Party. For there is decision on the point of law, this Court proceeds as follows:-

5. The impugned order herein involving disposal of Revision Case No.160 of 2003 through paragraph no.7 records the following findings:-

"7. The Hon'ble Supreme Court in their judgment passed in Civil Appeal No.2802 / 1980 decided on 30.03.1994 reported in 1994 Supp. (2) Supreme Court Cases P-228 held that "the authorities under the consolidation Act have been invested with the exclusive jurisdiction to decide the dispute. Though the suit stood abated, the evidence recorded in the suit or appeal and the findings recorded by the Civil courts do not got wiped out and are entitled to be considered and that, therefore it being the relevant evidence, the authorities under the consolidation Act, unless contrary evidence is established, could go into the evidence and were entitled to rely upon the findings recorded by the Civil Courts in support of its conclusion". In view of the judgment of the Hon'ble Supreme Court, it is to be seen what contrary evidence is forth coming to ignore the judgment passed by the civil trial court. No document such as voter list prior to the dispute or other co-laterial evidence has been examined by the learned Dy. Director. Basing upon only the statement of two witnesses, namely Iswar Nayak and Dharamu Prusty the Civil court judgment passed by the Addl. Munsif, Puri cannot be ignored. The status of the disputed land was jogiri and that was settled in favour of the petitioners by the OEA collector, vide his order dated 30.9.2002 passed in OEA Case No.826/2001. The O.Ps. have purchased the disputed land from Jata vide RSD dated 27.2.1962, prior to settlement under the OEA Act. The Jagiri land inalienable and does not convey any title in favour of the O.Ps.

6. The Hon'ble Apex Court by its earlier decision on this subject in the case of Ram Prasad (Dead) (Supra) in paragraph no.8 has come to observe as follows:-

// 4 //

"Undoubtedly no fresh evidence was adduced in the proceedings before Consolidation Officer except the judgments and decrees of the civil court and the appellate court. The authorities under the Act held that though the civil suit stood abated, the evidence considered by the civil court and the findings recorded therein would be available for consideration and can be relied upon. We find that the view taken by the authorities is well justified. Though the suit stood abated, yet the evidence recorded in the suit or appeal and the findings recorded by civil courts do not get wiped out; are entitled to be considered and that, therefore, it being the relevant evidence the authorities under the Consolidation Act, unless contrary evidence is established, could go into the evidence and were entitled to rely upon the findings recorded by the civil courts in support of its conclusions. Undoubtedly the tribunals below had gone into the question and held that the decree obtained by the respondent was collusive and fraudulent decree and that, therefore, it does not bind the appellants."

7. The Full Bench of this Court in deciding the First Appeal No.33 of 1968 as reported in AIR 1981 Ori 1 on the above question through paragraph no.13 to 16 have come to observe as follows:

"13. It is now to be seen what is the effect of abatement. There is divergence of opinion between two learned Judges of this Court on the question as to whether on an order of abatement being passed, the suit is completely destroyed and wiped out of existence for all times to come or whether the suit remains in abeyance during the consolidation operation. While one of us (P.K. Mohanti, J.) in the case of Puni Bewa v. Ananta Sahoo, MANU/OR/0215/1978 : 47(1979) CLT 494 took the view that the effect of abatement is to destroy or take away the jurisdiction of the Court and that the suit once abated cannot be revived after closure of the consolidation operation, Mr. Justice Acharya took the contrary view in MANU/OR/0043/1979 (Adhikari Gopinath Das v. Nirmal Chandra Mohanty).

14. Ordinarily the Parliamentary history of the provisions of a section of the statute is not admissible to construe its meaning, but where it has undergone changes it is of great assistance in the matter of interpretation. In the case of R.M.D. Chamarbougwalla v. Union of India, MANU/SC/0020/1957 (Para 6) it was observed as follows:--

// 5 //

"...... To decide the true scope of the present Act, therefore, we must have regard to all such factors as can legitimately be taken into account in ascertaining the intention of the legislature, such as the history of the legislation and the purposes thereof, the mischief which it intended to suppress and the other provisions of the statute and construe the language of Section 2(d) in the light of the indications furnished by them."

In The Central Bank of India Ltd. v. Rajagopalan, MANU/SC/0149/1963, before dealing with the question of construction of Section 33-C of the Industrial Disputes Act, the Supreme Court considered it to be material to refer to the legislative history of the section.

15. In the original Bill, provision was made for stay of pending suits, but the Select Committee was of the opinion that the suits should stand abated in the interest of the progress of consolidation work and that the disputes with regard to right or interest could better be referred before the consolidation authorities who shall have power to hear and dispose them of in accordance with the provisions of the Act and the Rules made thereunder. Accordingly, paragraph (4) of Clause 4 of the Bill was re-drafted and the words "stand abated" were used. Change of wording denotes a change of intention. The alteration in the language must be taken to have been made deliberately. In the Bill there was a provision to paragraph (4) of Clause 4 which suggested that suits and proceedings stayed under this paragraph would be disposed of after the issue of the notification under Clause 42 (corresponding to Section 41 of the Act). That proviso was omitted from the Act and another proviso was inserted entitling the person affected by the abatement to agitate the right or interest which formed the subject-matter of the pending suit, before the consolidation authorities in accordance with the provisions of the Act and the Rules. The ancestry of the provision strongly suggests that the intention was to terminate the suit completely and to confer exclusive jurisdiction on the consolidation authorities.

16. 'Stay' and 'abatement' are not synonymous. Abatement means an entire overthrow by destruction of a suit while stay is a temporary suspension of further proceedings in the suit. "Abate" is a generic term derived from the French work "Abattre" and signifies to quash, to beat down or destroy. According to Black's Law Dictionary, Fifth Edition, "abate" means to throw down, to beat down, destroy, quash. The same meaning is given in the Venkataramaiya's Law Lexicon and Legal Maxims, Second Edition. According to Prem's Judicial Dictionary, 1964 Edition, Volume I, in Civil Law and abatement of a suit is a

// 6 //

complete termination of it. According to Words and Phrases, (Permanent Edition), to abate a suit is to put an end to its existence."

8. This Court observes, in the pendency of the Writ Petition the Hon'ble apex Court also involving the above question through another decision in the case of Paras Nath Rai & Ors. (Supra) more particularly through paragraph no.32 therein has also come to observe as follows:-

"At this stage, it is condign to clarify that the High Court of Patna in Dr. Jagdish Prasad (supra) and Raja Mahto and Anr. (supra) had read the judgment of this Court absolutely erroneously. It has been held by this Court that the entire civil proceeding from its commencement stands abated and it comes to a naught. In Satynaryan Prasad Sah (supra) this Court had found an error in the decision of the High Court in nullifying the decree. It was explained in Mst. Bibi Rahmani Khatoon case (supra) case that what is the impact when a scheme of a consolidation is undertaken. This Court had referred to the pronouncement in Satynaryan Prasad Sah (supra) and stated that both in principle and precedent it is clear that where a notification is issued bringing the land involved in a dispute in the civil proceeding under a scheme of consolidation, the proceeding pending before the civil court either in trial court, appeal or revision shall abate as a consequence ensuing upon the issue of notification and the effect of abatement would be that the civil proceeding as a whole come to a naught. To elaborate not only the judgment and decrees would become extinct but the entire civil proceeding would come to a naught."

9. Dependent on the above legal development a Single bench of this Court in deciding a matter in the year 2014 vide W.P.(C) No.15972 of 2005 following the decision in the case of Ram Prasad (Dead) (Supra) in paragraph no.9 therein came to observe as follows:-

"It is also clear from Ram Prasad (supra) that the question whether the finding of a civil Court in a civil proceeding which stood abated making the proceeding wholly nonexistent from its very inception, can be taken into consideration by the Consolidation authorities was not directly raised nor argued though the Apex Court gave the decision as aforesaid whereas in the latter decision of Paras Nath Rai (supra) the question was directly involved. For the reasons aforesaid, following the decision of the Supreme Court in Paras Nath Rai (supra) it has to be held that the

// 7 //

decision with regard to the finding of the civil Court (Sub-Judge) with regard to adoption of Opp. Party No. 1 (which question arises incidentally while considering the question of right, title & interest by the Consolidation authorities) could not have been taken into consideration by the Commissioner, Consolidation to come to the conclusion that Opp. Party No. 1-Nityananda is the adopted son of Sadhu & hence entitled to 50% share in the disputed property. The impugned revisional order, therefore, cannot be sustained & I set aside the same. The revision is remitted back to the Commissioner, Consolidation to decide the same afresh on the basis of evidence already led by the parties before the Consolidation Officer other than the finding of the civil Court in the abated civil suit with regard to the adoption of Opp. Party No. 1 by Sadhu. The revision shall be disposed of within a period of four months from the date of communication of this order."

10. Keeping the question in view and looking to the adjudication of the question through the above series of decisions, this Court finds, the position of law on the applicability of the materials, evidence and findings in an abated suit even though decided otherwise through the Full Bench decision of this Court, but however, the view of the Full Bench though not challenged in Higher Forum, the revisional authority at the time of taking decision vide Annexure-3 has not considered the Full Bench view of this Court which has a binding effect on all the Court and the authorities in the State of Odisha. Again in hearing similar situations the Hon'ble Supreme Court in the case of Paras Nath Rai & Ors (supra) has reaffirmed the view of the Full Bench of this Court. In the circumstance, this Court finds, disposal of the Revision relying on an obsolete decision effect of which has been taken away in disposal of the case of Paras Nath Rai & Ors. (supra), remains unsustainable.

11. This Court here records no objection of both parties for rendering a fresh decision by the revisional authority, but however, taking into account the evidence required to be led by the respective parties.

// 8 //

12. In the circumstance and for the decision of the revisional authority in paragraph no.7 basing on an old decision of the Hon'ble Apex Court this Court finds, for a different view through the Full Bench decision of this Court already existing by the time impugned order was passed and for the change in the legal position involving such a greater issue through the case of Paras Nath Rai & Ors. (Supra) and consistently followed in later cases by this Court in the case of Ram Prasad (Dead) (Supra), this Court finds, the impugned order at Annexure-3 passed in Revision Case No.160 of 2003 is not sustainable in the eye of law. This Court, accordingly, interfering in the impugned order at Annexure-3, sets aside the same, but since the proceeding vide Revision Case No.160 of 2003 requires fresh determination, this Court remits the matter vide Revision Case No.160 of 2003 to the revisional authority i.e. the Commissioner, Consolidation, Orissa for fresh adjudication of the same involving both the parties. For the remand of the matter for re-adjudication of the proceeding U/s.36 of the O.C.H. & P.F.L. Act, 1972, both the parties are at liberty to lead evidence with opportunity of cross examination, if any. Parties are also at liberty to have their cross-examination scope before the revisional authority.

13. Let there be a fresh judgment in the revision involved at least within a period of four months from the date of communication of a certified copy of this order by the parties.

14. Both the parties are directed to appear before the learned Commissioner, Consolidation, Odisha along with a certified copy of this order on 6th December, 2022. Both the parties will also file their evidence by way of affidavit on the date of appearance itself.

// 9 //

15. The Writ Petition stands disposed of, however, with an order of remand. No order as to costs.

...............................

(Biswanath Rath) Judge Orissa High Court, Cuttack.

The 21st day of November, 2022// Ayaskanta Jena, Senior Stenographer