Orissa High Court
Smt. Malati Siala vs Collector on 31 January, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.27363 of 2017
(In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950)
Smt. Malati Siala .... Petitioner
-versus-
Collector, Balasore and others .... Opposite Parties
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Petitioner - Mr. P.R. Barik,
Advocate.
For Opposite Parties - Mr. V. Jena,
Advocate.
For O.Ps 5 & 6
Ms. Arjun Ch. Behera,
Advocate. for O.P. 7
Mr. P. Satapathy,
ASC. For O.P.1
CORAM:
HON'BLE MR. JUSTICE A.C.BEHERA
Date of Hearing :15.01.2025 :: Date of Judgment :31.01.2025
A.C. Behera, J. The petitioner has approached this Hon'ble Courts
through this writ petition praying for quashing the final order dated
02.04.2014 passed in Consolidation Case No.28 of 2013 under Sections
34 & 35 of the Odisha Consolidation of Holdings and Prevention of
Fragmentation of Land Act, 1972 (in short OCH & PFL Act, 1972) vide
Annexure-1 by the Collector, Balasore.
2. The factual backgrounds of the matter, which prompted the
petitioner for filing of this writ petition is that, the petitioner purchased
A0.72 ½ decimals of chaka land of Plot No.1423, chaka No.179 under
Consolidation Khata No.270 in Mouza Samasundarpur under Simulia
Tahasil in the district of Balasore from its recorded owners i.e. Purna
Chandra Jena and Damodara Jena with consent of their other co-sharers
i.e. Binod Jena and Purusottam Jena through Registered Sale Deed
No.1440 dated 31.10.2008 on payment of due consideration amount, to,
which, Maheswar Dalai, Narendra Prasad Dalai and Ananta Prasad Dalai
challenged the same by filing a case vide Consolidation Case No.28 of
2013 before the Collector, Balasore against the petitioner of this writ
petition arraying her as opposite party No.4 along with her vendors and
consentors of the Sale Deed No.1440 dated 31.10.2008 under Sections 34
& 35 of the OCH & PFL Act, 1972 praying for declaring that sale deed in
favour of the writ petitioner as void and to evict her (writ petitioner-
purchaser) from her above purchased Chaka land, as she has purchased
the same creating fragment of Chaka No.179 without being a land owner
of a contiguous Chaka, because they (Maheswar Dalai, Narendra Prasad
Dalai and Ananta Prasad Dalai) are the land owners of its contiguous
Chaka of the sold land from Chaka No.179.
3. After hearing from both the sides, the Collector, Balasore allowed
that Consolidation Case No.28 of 2013 filed by Maheswar Dalai,
Narendra Prasad Dalai and Ananta Prasad Dalai as per its final order
dated 02.04.2014 (Annexure-1) holding that, the petitioner of this writ
petition (who was opposite party No.4 in Consolidation Case No.28 of
2013) has purchased the properties i.e. A0.72 ½ decimals of Chaka land
of Plot No.1423, Chaka No.179 under consolidation Khata No.270
through RSD No.1440 dated 31.10.2008 in violation of Section 34 of the
OCH & PFL Act, 1972, for which, the said sale deed vide R.S.D.
No.1440 dated 31.10.2008 is declared as void and the purchaser i.e.
opposite party No.4 of that Consolidation Case No.28 of 2013 is to be
evicted from the disputed land covered under the above Sale Deed
No.1440 dated 31.10.2008 and directed to the Tahasildar, Simulia to evict
her (opposite party No.4 in Consolidation Case No.28 of 2013) from the
disputed land forthwith.
The opposite party No.4 of that Consolidation Case No.28 of 2013
challenged that final order passed on dated 02.04.2014 (Annexure-1) by
the Collector, Balasore by filing this writ petition against the Collector,
Balasore arraying him as opposite party No.1 along with the petitioners
and opposite party Nos.1 to 3 in that Consolidation Case No.28 of 2013
as opposite party Nos.2 to 7.
4. I have already heard from the learned counsel for the petitioner, the
learned Addl. Standing Counsel for the State (opposite party No.1),
learned counsel for opposite party No.7 and learned counsel for opposite
party Nos.5 & 6.
5. As per the Odisha Gazette Notification No.2910 dated 29.12.2023,
Chapter-V of OCH & PFL Act, 1972 relating to Prevention of
Fragmentation containing Sections-33, 34 & 35 has already been omitted
from the Statute Book of The OCH & PFL Act, 1972 and a new Section
as Section 36A has been inserted into the said Statute Book i.e. OCH &
PFL Act, 1972 and the said newly inserted Section 36A is as follows:-
"Section 36A- Any transfer or partition of agricultural land
in a locality creating fragmentation made under the Principal Act
before the commencement of the Odisha Consolidation of
Holdings and Prevention of Fragmentation of Land (Amendment)
Act, 2023, shall be treated as valid:
Provided that cases where any eviction has been made by the
Collector under sub-Section (2) of Section 35 of the Principal Act
as omitted in this Act shall not be reopened."
Taking into account the above omissions and insertions as per
Notification No.2910 dated 29.12.2023 in the Statute Book i.e. The OCH
& PFL Act, 1972, it has been clarified by this Hon'ble Courts in a case
between Benudhar Swain Vrs. Bahudi Jena reported in 2024 (II) OLR-
261 that, "this Section i.e. Section 36A has been introduced in the Statute
as per Section 3 of the Amendment Act, 2023, which have come into force
w.e.f. 29.12.2023."
It has been envisaged in Section 36A of The OCH & PFL Act, 1972
that, "any transfer or partition of agricultural land in a locality creating
fragmentation made under the principal Act before commencement of the
Amendment Act shall be treated as valid."
6. Here in this writ at hand, when the transfer of agricultural land has
been made through RSD No.1440 dated 31.10.2008 in respect of A0.72 ½
decimals out of A1.45 decimals of plot No.1423 from Chaka No.179
under Consolidation Khata No.270 in Mouza Samasundarpur before
commencement of Amendment Act, 2023 i.e. before 29.12.2023, then at
this juncture, in view of the above omissions of entire Chapter-V and
insertion of Section 36A into the Statute Book of The OCH & PFL Act,
1972 as well as the clarifications about the same made above in the ratio
of the above decision of the Hon'ble Courts in a case between Benudhar
Swain Vrs. Bahudi Jena reported in 2024 (II) OLR-261, the above sale
made by the opposite party Nos.5 to 7 in favour of the petitioner in this
writ though R.S.D. No.1440 dated 31.10.2008 cannot be held as
invalid/void.
For which, in other words, it is held that, the said sale deed
No.1440 dated 31.10.2008 in favour of the writ petitioner is not void.
7. Therefore, the writ petition filed by the petitioner is allowed on
contest.
Accordingly, the final order dated 02.04.2014 (Annexure-1) passed
in Consolidation Case No.28 of 2013 by the Collector, Balasore declaring
the R.S.D. No.1440 dated 31.10.2008 as void is set aside and quashed.
8. As such, the writ petition is disposed of finally.
(A.C. Behera),
Judge.
Orissa High Court, Cuttack.
31.01.2025//Utkalika Nayak//
Junior Stenographer
Signature Not
Verified
Digitally Signed
Signed by: UTKALIKA
NAYAK
Reason: Authentication W.P.(C) No.27363 of 2017
Location: High Court of
Orissa, Cuttack
Date: 31-Jan-2025
15:14:23
