Orissa High Court
Pradeep Kumar Senapati And vs The Collector/District Magistrate on 23 July, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.34678 of 2022
(In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950)
Pradeep Kumar Senapati and .... Petitioners
others
-versus-
The Collector/District Magistrate, .... Opposite Parties
Balasore and others
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Petitioner - Mr. B. Tripathy,
Advocate.
For Opposite Parties - Mr. Gyanalok Mohanty,
Standing Counsel.
For O.P. No.1
Mr. D. Mohanty,
Advocate. for O.P. No.2
Mr. T.K. Nayak,
Advocate. for O.P. No.3
CORAM:
HON'BLE MR. JUSTICE A.C.BEHERA
Date of Hearing :10.07.2025 :: Date of Judgment :23.07.2025
A.C. Behera, J. This writ petition under Articles 226 & 227 of the
Constitution of India, 1950 has been filed by the petitioners praying for
quashing the final order dated 14.10.2022 (Annexure-5) passed in
Consolidation Case No.40 of 2018 under Sections 34 & 35 of the Odisha
Consolidation of Holdings and Prevention of Fragmentation of Land Act,
1972 (in short OCH & PFL Act, 1972) by the Collector, Balasore (O.P.
No.1).
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W.P.(C) No.34678 of 2022
2. The factual backgrounds of this matter, which prompted the
petitioners for filing of this writ petition is that, the petitioners purchased
A0.50 decimal out of A.1.59 decimals of Plot No.108 in Chaka No.65
under Consolidation Khata No.694 in Mouza Markona under Simulia
Tahasil in the district of Balasore from its recorded owner i.e. Malli
Nayak (mother of O.P. No.3 i.e. Ganjendra Nayak) through Registered
Sale Deed No.757 dated 08.07.2010 on payment of due consideration
amount, to which, Pankaj Kumar Nayak challenged the same by filing a
case vide Consolidation Case No.40 of 2018 before the Collector,
Balasore (O.P. No.1) against the petitioners of this writ petition arraying
them as opposite party Nos.2 to 5 and arraying Gajendra Naik as O.P.
No.1 under Sections 34 & 35 of the OCH & PFL Act, 1972 praying for
declaring that, the sale deed No.757 dated 08.07.2010 executed in favour
of O.P. Nos. 2 to 5 as void and to evict them from the case land.
3. After hearing from both the sides, the Collector, Balasore (O.P.
No.1) allowed that Consolidation Case No.40 of 2018 filed by Pankaj
Kumar Nayak as per its final order dated 14.10.2022 (Annexure-5)
assigning the reasons that, the sale deed No.757 dated 08.07.2010 has
been executed in favour of O.P. Nos.2 to 5 creating fragmentation in
contravention of Section 34 of the OCH & PFL Act, 1972, for which, the
said sale deed is declared as void and Opposite Party Nos.2 to 5 are
summarily evicted from the land purchased by them through RSD No.757
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W.P.(C) No.34678 of 2022
dated 08.07.2010 and a copy of that order was sent to the Tahasildar,
Simulia and Sub-Registrar, Simulia by the Collector, Balasore (O.P.
No.1) for implementation of that order.
The opposite party Nos.2 to 5 of that Consolidation Case No.40 of
2018 challenged that final order passed on dated 14.10.2022 (Annexure-
5) by the Collector, Balasore by filing this writ petition against the
Collector, Balasore arraying him as opposite party No.1 and also arraying
Pankaj Kumar Nayak (petitioner in Consolidation Case No.40 of 2018) as
O.P. No.2 as well as arraying Gajendra Nayak as O.P. No.3.
4. I have already heard from the learned counsel for the petitioners,
learned Standing Counsel for the State (O.P. No.1), learned counsel for
O.P. No.2 and learned counsel for O.P. No.3.
5. During the course of argument, Mr. D. Mohanty, learned counsel
for O.P. No.2-Pankaj Kumar Nayak (petitioner in Consolidation Case
No.40 of 2018) contended that, when as per the impugned final order
dated 14.10.2022 passed in Consolidation Case No.40 of 2018 vide
Annexure-5, the Collector, Balasore (O.P. No.1) in addition to declare the
R.S.D. No.757 dated 08.07.2010 in favour of the O.P. Nos.2 to 5 as void
has passed order that, the O.P. Nos.2 to 5 are summarily evicted from the
land purchased by them through the R.S.D. No.757 dated 08.07.2010 and
sent a copy of that order to the Tahasildar, Simulia and Sub-Registrar,
Simulia for implementation of that order, then, according to him (learned
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W.P.(C) No.34678 of 2022
counsel for O.P. No.2), the O.P. Nos.2 to 5 have already been evicted
summarily from the land purchased by them through the R.S.D. No.757
dated 08.07.2010, therefore, in view of the proviso of Section 36A of the
OCH & PFL Act, 1972, the said order of eviction passed by the Collector,
Balasore (O.P. No.1) in Consolidation Case No.40 of 2018 shall not be
reopened. So, the question of interfering with the impugned order dated
14.10.2022
passed in Consolidation Case No.40 of 2018 by the Collector,
Balasore through this writ petition filed by the O.P. Nos.2 to 5 of that
Consolidation Case No.40 of 2018 does not arise.
6. 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."
7. When, it appears from the impugned order dated 14.10.2022 passed
in Consolidation Case No.40 of 2018 by the Collector, Balasore (O.P.
No.1) that, such impugned order regarding the declaration of R.S.D.
No.757 dated 08.07.2010 as void and summarily eviction of purchasers of
the sale deed i.e. O.P. Nos.2 to 5 in Consolidation Case No.40 of 2018
(petitioners in this writ petition) was sent to the Tahasildar, Simulia and
Sub-Registrar, Simulia by the Collector, Balasore (O.P. No.1) for
implementation of that order and when there is no material in the record to
show about the implementation of the said impugned order dated
14.10.2022 passed in Consolidation Case No.40 of 2018 about the
physical eviction of the purchasers i.e. the petitioners of this writ petition
from the case land, then at this juncture, it cannot be held that, the
petitioners in this writ petition have already been evicted from the case
land and this writ petition filed by them (petitioners in this writ petition
and O.P. Nos.2 to 5 in Consolidation Case No.40 of 2018) challenging the
impugned order dated 14.10.2022 passed in Consolidation Case No.40 of
2018 (Annexure-5) by the Collector, Balasore is not maintainable under
law. For which, the aforesaid contentions made by the learned counsel for
O.P. No.2 concerning the non-maintainability of this writ petition on the
ground of eviction of the petitioners of this writ petition from the case
land cannot be acceptable under law. Because, there is no material in the
record for the reasons assigned above about their eviction.
8. 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 Court in a case between
Benudhar Swain Vrs. Bahudi Jena reported in 2024 (II) OLR-261 at
para 12 that, "Section 36A has been introduced/incorporated in the Statute
Book as per Section 3 of the Amendment Act, 2023 omitting Sections 33,
34 & 35 of The OCH & PFL Act, 1972 from the Statute Book, then, it
would not be permissible to hold any transfer in contravention of Section
34 of The OCH & PFL Act, 1972 (which has already been omitted) as
void."
9. Here in this writ at hand, when the transfer of agricultural land has
been made through RSD No.757 dated 08.07.2010 in respect of A0.50
decimals out of A1.59 decimals of plot No.108 from Chaka No.65 under
Consolidation Khata No.694 in Mouza Markona, 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 this Court in a case between Benudhar Swain Vrs. Bahudi
Jena reported in 2024 (II) OLR-261, the above sale made by the mother
of opposite party No.3 i.e. Malli Nayak in favour of the petitioners in this
writ petition though R.S.D. No.757 dated 08.07.2010 cannot be held as
invalid/void.
For which, in other words, it is held that, the said sale deed No.757
dated 08.07.2010 in favour of the writ petitioners is not void.
10. Therefore, the writ petition filed by the petitioners is allowed on
contest.
The final order dated 14.10.2022 (Annexure-5) passed in
Consolidation Case No.40 of 2018 by the Collector, Balasore declaring
the R.S.D. No.757 dated 08.07.2010 as void is quashed and set aside.
11. As such, the writ petition is disposed of finally.
(A.C. Behera),
Judge.
Orissa High Court, Cuttack.
23.07.2025//Utkalika Nayak//
Junior Stenographer
Location: High Court of Orissa,
