The requirement for a valid notification published in the official gazette and the need for a judicial order for abatement.

S. C. MOHAPATRA, J.

( 1 ) DEFENDANT 5 is the petitioner in this Civil revision which arises out of an order under S. 4 (4), Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as 'the Act' ).

( 2 ) IN the suit for partition by the plaintiff in respect of the family property, relief under S. 4, Partition Act, was claimed against defendant 5 who is a stranger purchaser of homestead. On the allegation that during the pendency of the suit the disputed land came within the consolidation area in view of the notification under S. 3 of the Act, petitioner filed an application for ordering abatement of the suit.

( 3 ) IN the absence of any objection to the fact of the disputed land being in the consolidation area, the trial court ordered abatement of the suit in respect of the relief of partition, but directed the suit to continue in respect of the relief under S. 4, Partition Act.

( 4 ) ASSAILING the order Mr. R. K. Mohanty, submitted that the relief under S. 4, Partition Act, would depend upon the relief of partition. The main relief not being available to be given, the consequential relief is not available to the plaintiff.

( 5 ) SECTION 4 (4) of the Act applies only where a notification under S. 3 (3) of the Act is issued bringing the areas within the consolidation area. Notification has been defined under the Orissa General Clauses Act to be one which is published in the official gazette. Neither in the petition nor in the objection the fact of publication of a notification has been asserted. Whether the area has come within the consolidation area would depend upon a valid notification. Therefore, it was the bounden duty of the court to be satisfied on scrutiny of the official gazette itself. Even if the Revenue Department issued a declaration indicating it to be notification and the same is sent to the Government Press for publication in the official gazette the same would not be a notification until actually published in the official gazette. Ouster of the jurisdiction of the civil court is not to be readily inferred. When a statute requires an order to be passed for abatement of the suit, trial Court was required to carefully examine and to be satisfied that the preconditions are satisfied. Non-traverse by the plaintiff would not lead to the irresistible conclusion that there is such a notification. Even the admission would not act as an estoppel if in fact there is no notification as required under law. The impugned order is accordingly set aside.

( 6 ) THE language of S. 4 (4) of the Act indicates that the suit would abate. It does not indicate that a relief would abate. In such contingency question of stay of suit till the competent authority under the law decides the question may arise for consideration. Legislature did not provide for automatic abatement. For these aspects to be considered, the Legislature required the Court to pass an order of abatement which obviously is required to be a judicial order. However, I need not consider the question whether one of the reliefs would abate and whether the relief under S. 4, Partition Act, would be available when the relief of partition has been declared to be abated, since I have vacated the impugned order.

( 7 ) IF the publication in the official gazette would have been produced before me, I would have considered these questions. Therefore, interest of justice would be best served, in case the trial court is directed to consider the questions in the light of the points indicated after being satisfied from the notification published in the gazette that the area has come within the consolidation area.

( 8 ) IN the result, the impugned order is set aside and the Civil Revision is allowed. Trial Court shall consider the questions in the light of the observations made above. There shall be no order as to costs. Revision allowed.

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