The timing and implications of the publication of notification under Section 5(1) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972, and the jurisdiction of Consolidation Authorities after the issuance of the notification.

JUDGMENT

K.R. Mohapatra, J. - Heard Mr. Susanta Kumar Dash, learned counsel for the petitioner and Mr. Sarojananda Mishra, learned Additional Government Advocate for the State-opposite party Nos 1 to 3.

2. The petitioner in this writ petition seeks to assail the order dated 17.01.2001 (Annexure-3) passed by the Commissioner, Consolidation & Settlement, Bhubaneswar in Consolidation Revision Case No.74 of 1997, whereby he dismissed the revision filed by the petitioner under Section 36 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short 'the Act') holding it to be not maintainable in view of publication of notification under Section 5(1) of the Act. Aforesaid Revision Case was filed assailing the order dated 20.02.1997 (Annexure-2) passed by Deputy Director, Consolidation, Bhubaneswar in Appeal Case No. 262 of 1996 filed under Section 12 of the Act assailing the order dated 19.11.1996 (Annexure-1) passed by the Consolidation Officer, Banpur under Section 11 of the Act in Objection Case No. 1577/215.

3. The averments made in the writ petition reveal that the Mouza-Nachuni was published under Section 3(1) of the Act and consolidation operation started in the said village. In due process, land register under Section 9(1) of the Act was published and the land owners filed their respective objections. When the village was proceeding under Section 13 of the Act, notification under Section 5(1) of the Act was published on 31.03.1998 in the village notifying closure of the consolidation operation. By that time, the Deputy Director, Consolidation, Bhubaneswar had disposed of Consolidation Appeal Case No.262 of 1996 vide his order dated 20.02.1997 filed under Section 12 of the Act. Assailing the same, the petitioner along with one Banchhanidhi Sahu filed Consolidation Revision Case No.74 of 1997 under Section 36 of the Act, which was disposed of vide order dated 17.01.2001 holding that the revision is not maintainable in view of publication of village under Section 5(1) of the Act. The relevant portion of the impugned order under Annexure-3 is reproduced hereunder:

"4. The consolidation revision case is considered on the point of maintainability. Evidence shows that village Nachuni, P.S. No.367 where the disputed land lies has been notified u/s 5(1) of the Act and maps and records relating to that village have been finally published u/s 22(2) of the Act as required u/s 13(4) of the said Act on 23.4.98. Once such a notification has been issued the Commissioner, Consolidation as the revisional authority ceases jurisdiction to proceed further in the present case. Hence, the revision petition is liable to be dismissed for lack of jurisdiction."

4. Mr. Dash, learned counsel for the petitioner relying upon the observation made in the impugned order submitted that by the time notification under Section 5(1) of the Act was made, R.O.R. under Section 22(1) of the Act had already published in respect of the said village. Thus, notification under Section 5(1) of the Act becomes redundant and the revision is maintainable. In support of his case, he relied upon the decision of this Court in the case of Govinda Chandra Tripathy and others -v- The State of Orissa and Others, 1989 1 OrissaLR 367, wherein it has been held at paragraphs-6 and 7 as follows:

"7. A combined reading of ail the aforesaid provisions would unequivocally indicate that a power of cancellation conferred on the State Government under section 5(1) of the Act can be exercised only before the publication of final map and record-of-rights under section 22 and not after that. The aforesaid conclusion is strengthened from a combined reading of sub-sections (1) and (2) of section 5 of the Act itself, which is extracted hereunder:-

"5.(1) It shall be lawful for the State Government at any time to cancel, by publication of an order to that effect in the Official Gazette, the notification made under sub-section (1) of section 3 in respect of the whole