The central legal point established in the judgment is that the provisions of Sections 34 and 35 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972, must be interpreted in light of the specific circumstances of the case, including the conversion and mutation of the land.

ORDER

K.R. Mohapatra, J. - Heard Ms. Supriya Patra, learned counsel for the petitioners, Mr. Sailesh Das, learned counsel for the opposite party Nos.4 to 8 and Mr. Amiya Kumar Mishra, learned Additional Government Advocate for the State-opposite party Nos. 1 to 2.

2. On the death of the opposite party No.3, namely, Smt. Shantilata Sahoo, her name has been deleted vide order dated 17.12.2020, as her legal heirs are already on record as opposite party Nos. 4 to 8.

3. The petitioners in this writ petition seek to challenge the order dated 05.04.2017 (Annexure-6) passed by the Collector, Cuttack in Consolidation Misc. Case No.9 of 2014 filed by the opposite party No.3 under Sections 34 and 35 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short, 'the Act').

4. The averments made in the writ petition reveal that the land in Khata No.469, Chaka No.577, Plot No.1048 to an extent of Ac.0.702 decimals in mouza - Betei in the district of Cuttack stood recorded in the name of one Laxmidhar Sahoo (for short, 'the case land'). The opposite party Nos.1 and 2 purchased an area of Ac.0.120 decimals from the case land vide Registered Sale Deed No.2568 dated 07.10.1998 from the recorded tenant, late Laxmidhar Sahoo and possession was delivered to him. After the death of said Laxmidhar Sahoo, his widow, namely, Shantilata Sahoo, filed Consolidation Misc. Case No.9 of 2014 under Sections 34 and 35 of the Act alleging that the Petitioners are not the continguous Chaka owner and by alienating, i.e. Ac.0.120 decimals from Chaka No.577, a fragment has been created. The alienation is made without permission from the competent authority in contravention with Section 34 of the Act. As such, the sale in question is void in view of Section 35 of the Act. It further appears that after purchase of the case land, the opposite party Nos.1 and 2 got the case land mutated in their names and OLR Case No.120 of 2004 was filed for conversion of the land to homestead, which was allowed vide order dated 28.08.2020. Accordingly, ROR (Annexure-6) has also been issued in the name of the petitioners. The Collector, Cuttack without considering the same and only by referring to the provisions of Sections 34 and 35 Act held the transfer in favour of the petitioners vide Registered Sale Deed No.2568 dated 07.10.1998 as void vide his order dated 25.04.2019. Assailing the same, the writ petition has been filed.

5. Ms. Patra, learned counsel for the petitioners submits that the petition under Sections 34 and 35 of the Act is barred by limitation as it was filed 16 years after the impugned transaction. In support of her case, Ms. Patra relied upon paragraph-30 of case of Sutar Chemical Private Ltd. and Another -v-Collector, Balasore and others, reported 2015 (I) OLR 394 and submitted that after purchase of the case land, the same has already been mutated in the name of the petitioners and the same has been converted to 'Gharabari' kissam. Thus, by the time a proceeding under Sections 34 and 35 of the Act was initiated, the land had lost its character of being an agricultural land. As such, the petition under Sections 34 and 35 of the Act is not maintainable. After purchase, the petitioners have also made improvements in the land and made it ready for construction of residential house. She, therefore, prays for setting aside the order under Annexure-6.

6. Mr. Mishra, learned Additional Government Advocate for the State submits that the impugned order is quite justified being passed in conformity with law. Admittedly, the land owner had alienated a fragment of Chaka which is prohibited under Section 34 of the Act. Hence, the Collector, Cuttack has committed no error in declaring the same to be void under Section 35(1) of the Act and the petitioners are liable to be summarily evicted. As such, the impugned order under Annexure-6 needs no interference.

7. Mr. Das, learned counsel for the opposite party Nos.4 to 8 vehemently objected to the s