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1996 Supreme(Ori) 204
IN THE HIGH COURT OF ORISSA
P.K. Misra, P. Ray, JJ.
PRAFULLA KUMAR ROUTRAY AND OTHERS - APPELLANT
Versus
COMMISSIONER OF CONSOLIDATION AND OTHERS - RESPONDENT
O.J.C. No. 1520 of 1996
Decided On : 22-11-1996
Anup Kumar Bose, P.K. Giri, B.N. Swain and P.K. Mishra, for the Appellant; State Counsel, for the Respondent
The Consolidation Commissioner has the power to examine the records of any case or proceeding and make appropriate orders, including interlocutory orders. The Consolidation authorities have the power to determine questions relating to right, title, interest, and liability in respect of the land lying under the consolidation area.
Headnote:
CONSOLIDATION OF HOLDINGS - AMENDMENT OF OBJECTION PETITION - SECTION 37(1) OF THE ORISSA CONSOLIDATION OF HOLDINGS AND PREVENTION OF FRAGMENTATION OF LAND ACT, 1972 - SCOPE - REVISION POWER OF CONSOLIDATION COMMISSIONER - INTERLOCUTORY ORDER - AMENDMENT OF OBJECTION PETITION - POWER OF CONSOLIDATION OFFICER - SECTION 9(3) OF THE ORISSA CONSOLIDATION OF HOLDINGS AND PREVENTION OF FRAGMENTATION OF LAND ACT, 1972 - SCOPE - ADVERSE POSSESSION - PLEA OF ACQUISITION OF TITLE BY ADVERSE POSSESSION - WHETHER DESTRUCTIVE OF ORIGINAL CASE - POWER OF CONSOLIDATION AUTHORITIES TO DETERMINE QUESTIONS RELATING TO RIGHT, TITLE, INTEREST AND LIABILITY IN RESPECT OF LAND LYING UNDER THE CONSOLIDATION AREA.
Fact of the Case:
Petitioners claimed to be permanent lessees under the ex-Proprietor and entitled to be recognized as tenants under the State Government on vesting of the Estate under the Orissa Estates Abolition Act. They filed Title Suits for declaration of their title and permanent injunction. After a decree in their favor, consolidation proceedings were initiated. Petitioners filed an objection petition u/s 9(3) of the Consolidation Act claiming title based on possession and a civil court decree. They sought to amend their petition to include an alternative plea of acquisition of title by adverse possession. The Consolidation Officer rejected the amendment, and the revision petition was dismissed on the ground of maintainability.
Finding of the Court:
The court held that the Consolidation Commissioner erred in dismissing the revision petition on the ground of maintainability. It held that Section 37(1) of the Consolidation Act gives the Commissioner wide powers to examine the records of any case or proceeding and make appropriate orders, including interlocutory orders. The court also held that the Consolidation Officer erred in rejecting the petitioners' application for amendment. It held that the plea of acquisition of title by adverse possession was not destructive of the original case and that the Consolidation authorities had the power to determine questions relating to right, title, interest, and liability in respect of the land lying under the consolidation area.
Issues: 1. Whether a revision petition u/s 37(1) of the Consolidation Act challenging an interlocutory order passed by the Consolidation Officer is maintainable? 2. Whether the Consolidation Officer can reject an application for amendment of an objection petition seeking to introduce an alternative plea of acquisition of title by adverse possession?
Ratio Decidendi: 1. Section 37(1) of the Consolidation Act gives the Consolidation Commissioner wide powers to examine the records of any case or proceeding and make appropriate orders, including interlocutory orders. 2. The plea of acquisition of title by adverse possession is not destructive of the original case. 3. The Consolidation authorities have the power to determine questions relating to right, title, interest, and liability in respect of the land lying under the consolidation area.
Final Decision: The court allowed the writ petition, set aside the impugned orders, and directed the Consolidation Officer to dispose of the petitioner's amended objection within three months.
JUDGMENT :
1. The writ petitioners have claimed that they were the permanent lessees under the ex-Proprietor and as such they were entitled to be recognised as tenants under the State Government on and from the vesting of the Estate under the provisions of Orissa Estates Abolition Act. It has been alleged that the opp. party No. 3 on the basis of an illegal vesting order was making attempts to dispossess the petitioners from the disputed lands. The petitioners thereafter filed Title Suit Nos. 212 and 213 of 1977 in the Court of Second Munsif. Cuttack for declaration of their title and permanent injunction. By judgment and decree dated August 5, 1989 the learned Munsif declared the vesting order as invalid and restrained the opp. party No. 3 from coming to the disputed lands. After ' such decree consolidation under the provisions of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act. 1972 (hereinafter referred to as the 'Consolidation Act') was started in the locality. The petitioners made a prayer before the Consolidation Officer, Niali Camp (0. P. No. 2) for recording their names on the basis of their possession and also on the basis of the title as declared by the competent Civil Court. The said claim of the petitioners was registered as Objection Case No. 1559/92 u/s 9 (3) of the Consolidation Act. In the said proceedings the petitioners filed a petition to amend their original objection petition to include an alternative plea of acquisition of title by adverse possession. By order dated October 10. 1995 the Consolidation Officer rejected the said petition for amendment holding inter alia that the said claim of acquisition of title by adverse possession is a different claim from the original claim put forward in the petition. Being aggrieved by the said order the petitioners filed a Revision Petition u/s 37 (1) of the Consolidation Act. By judgment and order dated January 22, 1996 the Commissioner, Consolidation of Orissa dismissed the said' revision petition on the ground of maintainability and directed the Consolidation Officer, Niali to proceed with and dispose of the objection petition case, Against the aforesaid order of revisional authority and the order passed by the Consolidation Officer refusing amendment the writ petitioners have filed the present writ application.
2. By order dated February 23, 1996 it was directed to issue notice of this writ petition to the opp. party No. 3. The counsel for the State accepted notice on behalf of the opp. party Nos. 1 and 2. The interim order was also issued staying further proceedings in the objection case pending before the Consolidation Officer, Niali. In spite of service opp. party Mo. 3 has not appeared.
3. It appears from the impugned order passed by the revisional authority, that the revision application was dismissed on the ground that a petition u/s 37 (1) of the Consolidation Act challenging an interlocutory order passed by the Consolidation Officer is not maintainable.
4. Under the provisions of the Consolidation Act, two different nature of revision powers have been conferred upon the Consolidation Commissioner. Power of revision u/s 36 is exercisable against any decision of the Director of Consolidation, who is the appellate authority in respect of an order passed by the Assistant Consolidation Officer or the Consolidation Officer u/s 10 or 11 of the Act. Sections. 10 and 11 of the Act speak of final orders passed by the Assistant Consolidation Officer or the Consolidation Officer. No appeal has been provided for against an interlocutory order passed by the Consolidation Officer or the Assistant Consolidation Officer. As the power exercisable under Sec, 36 is available only against the orders passed by the Director of Consolidation, there cannot be any revision tinder Section 3d against any interlocutory order passed by the Consolidation Officer or the Assistant Consolidation Officer.
5. Section 37 (1) of the Consolidation Act is reproduced
