The initiation of proceedings for bifurcation must comply with the mandatory rules, and the right to be heard before passing the order is essential.

ORDER :

Krushna Ram Mohapatra, J.

1. Heard Mr. Narendra Kumar Dash, learned counsel on behalf of Mr. Susanta Kumar Dash, learned counsel for the petitioners and Mr. Prabhat Kumar Muduli, learned Additional Government Advocate appearing for the State-opposite parties.

2. Petitioners in this writ petition assail the order dated 19.12.2002 (Annexure-2) passed by the Commissioner, Land Records and Settlement, Odisha, Cuttack, whereby a separate revenue village has been created by separating hamlet 'Darudhipa' from the revenue village 'Baladia Nuagaon' under Fategarh PS in the district of Nayagarh.

3. Mr. Dash, learned counsel for the petitioners submitted that the initiation of proceeding for bifurcation of revenue village is without jurisdiction, as it has been initiated by the Assistant Settlement Officer, who had no jurisdiction under Rule-61(1) of Odisha Survey and Settlement Rules, 1962 (for short, 'the Rules'). Further, there is violation of Rule 62(2) of the Rules, 1962 as the proceeding for bifurcation of revenue village was initiated after publication of final ROR. It is further submitted that by virtue of bifurcation/creation of a new revenue village, the villagers of Baladia Nuagaon are seriously affected. It is also his submission that no opportunity of hearing was given by learned Commissioner before passing the order under Annexure-2. As such, the impugned order under Annexure-2 is liable to be quashed and set aside.

4. Mr. Muduli, learned Additional Government Advocate prays for some time to file counter affidavit in this case. But, on perusal of order sheet, it appears that on 31.10.2017, a Division Bench of this Court passed the following order:-

"As a last opportunity, learned Addl. Government Advocate appearing for the State-opposite parties prays for and is granted two weeks further time to file counter affidavit and petitioner shall have a week thereafter to file rejoinder affidavit..'

List this matter after three weeks before the assigned Bench."

In spite of specific direction of this Court by order dated 31.10.2017, no counter affidavit is filed. Hence, prayer for grant of time to file counter affidavit cannot be accepted and this matter is heard in absence of counter affidavit on behalf of the State-opposite parties.

5. Mr. Muduli, learned Additional Government Advocate, submits that sub-rule (3) of Rule 61 of the Rules empowers the Assistant Settlement Officer to issue notices at the initiation of the proceeding, if he is so authorized. Further, in absence of any instruction he is not in a position to make any submission as to whether the proceeding was initiated after publication of the final ROR or beforehand. He, however, submits that in absence of any material to the contrary, it cannot be held that the proceeding for bifurcation of village was bad in law.

6. Heard learned counsel for the parties and perused the record. For convenience, Rule 61 of the Rules, which is relevant for the purpose of discussion, is reproduced hereunder.

61. Procedure for declaration of villages.- (1) Where proceedings in pursuance of an order made under Sections 11, 18 or 36 are in progress, the Settlement Officer may, if he deems fit, start proceedings for effecting changes in the boundaries of an existing village or for constitution of a new village:

Provided that when a portion of the village has been declared or will be declared to be a reserved forest under the provisions of Section 20 of the Indian Forest Act 16 of 1927 of Section 16 of the Madras Forest Act, 1882 (Madras Act 5 of 1882) or when a portion of the village has been deemed to be a reserved forest under Section 20A of the Indian Forest Act 16 of 1927. The changes in the boundaries of the village shall be effected according to such declaration or the deeming provisions, as the case may be, and it shall not be necessary to start proceedings under this rule for affecting such changes.

(2) Such proceedings shall be started before attestation of the draft record-of-rights or