An Application Under Articles 226 ... vs Collector
2023 Latest Caselaw 1502 Ori

               ORISSA HIGH COURT : C U T T A C K
                             W.P.(C) NO.3237 OF 2014
                        An application under Articles 226 & 227 of
                             the Constitution of India.
AFR
      Manoj Kumar Swain                                 : Petitioner

                                     -Versus-

      Collector, Jagatsinghpur & ors.                   : Opposite Parties



            For Petitioner                  : M/s.P.K.Rath, R.N.Parija,
                                              A.K.Rout, S.K.Pattnaik,
                                              A.Bhera, S.K.Singh &
                                              P.K.Sahoo, Advs.

            For O.P.1                       : Mr.U.K.Sahoo, ASC

            For O.P.2                       : Mr.P.Panda, Adv.

                                     JUDGMENT

CORAM :

JUSTICE BISWANATH RATH

Date of Hearing & Judgment : 17.02.2023

1. Even though there has been appearance for the contesting

O.P.2, no one is appearing to benefit his case. The case is heard and

disposed of only in the involvement of the learned counsel for the

Petitioner and the learned Additional Standing Counsel for O.P.1.

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2. Factual background involved herein is originally there was

purchase of a piece of land of the Chaka involved herein. Finding the sale

deed void, there has been entering into a fresh sale deed executed on

5.1.2011 involving transfer of the entire Chaka plot. Though it appears

from Record, the land transferred measuring Ac.1.38 decimals but

wrongly taken note in the impugned order as Ac.1.12 decimals. The Writ

Petition involving a challenge to the order of the Competent Authority in

exercise of power under Section 34 of the OCH & PFL Act, vide

Annexure-6. Looking to the observations of the Collector, Jagatsinghpur

appears to be allowing the Application under Section 34 of the OCH &

PFL Act on the premises that there has been entering into a fraudulent

sale deed.

3. Mr.Rath, learned counsel for the Petitioner in his attempt to

challenge such decision raised two grounds. Firstly, even assuming there

is an allegation of fraud, the Collector has no authority to enter into such

dispute. The second limb of submission appears to be there is no

attraction of the provision at Section 34 of the OCH & PFL Act for the

actual disclosures through the sale deed in purchase of the whole Chaka

land involved therein. It is thus claimed, there has been wrong application

of the provision of Section 34 of the OHC & PFL Act. Taking this Court

to the provision at Section 34 of the OHC & PFL Act, Mr.Rath, learned

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counsel for the Petitioner attempted to establish his case requiring

interference in the impugned order and setting aside the same.

4. Mr.Sahoo, learned Additional Standing Counsel for O.P.1 in

his attempt to defend the impugned order submitted, for the disclosure

through the impugned order of purchase of Ac.1.12 decimals of land,

there is appearing to be involvement of fragmentation. Therefore, there is

attracting of provision of Section 34 OHC & PFL Act. There is however

no dispute that the Collector involved herein has no jurisdiction to enter

into and decide on the allegation of fraud involved therein.

5. Considering the rival contentions of the Parties and reading

through the provision of Section 34 of OHC & PFL Act, particularly,

Section 34(1) & (2) of the Act, this Court finds, the provision reads 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."

6. Reading the aforesaid provisions, this Court finds, Section 34

of the OHC & PFL Act comes into play when there involves

fragmentation. Looking to the recitals in the sale deed and even the

disclosure by the Collector, Jagatsinghpur in the last part of the impugned

order, there is clear recording that the sale deed executed on 5.1.2011

involves transfer of entire Chaka plots. In the circumstance, this Court

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finds, there has been no application of provision at Section 34 of the OCH

& PFL Act. Further on the question of allowing the Application on the

premises of an allegation of the Applicant therein of fraud in entering into

sale deed, this Court opines, even there involves such a dispute in the

interest of justice and for the limited jurisdiction of the Adjudicating

Authority, such dispute instead of entertaining in such proceeding should

have been left open to be agitated and adjudicated in appropriate forum.

The Adjudicating Authority failed in interpreting the difference in

between a mere allegation of fraud and in the determination on fraud.

Thus there is illegal exercise of power by the Adjudicating Authority and

the impugned order must be interfered with.

7. This Court accordingly interferes with the impugned order at

Annexure-1 and sets aside the same thereby rejecting the Application of

the private O.P. under Section 34 of the OHC & PFL Act, as not

entertainable for being opposed to the provision at Section 34 herein.

8. The Writ Petition succeeds. No costs.

(Biswanath Rath) Judge

Orissa High Court, Cuttack.

The 17th February, 2023/M.K.Rout, A.R.-cum-Sr.Secy.

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