Girija Mohanty vs Revenue Divisional Commissioner, (Central Division) and Others

M.M. Das, J.—The petitioner being aggrieved by the order passed by the Revenue Divisional Commissioner (Central Division), Cuttack in R.C. No. 29 of 2006, which was a revision petition u/s 37(1) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short, ''the Act'') has preferred this writ petition.

The sole point raised by Mr. Mishra, learned Counsel for the petitioner is that in the order passed u/s 37(1) of the Act, the Revenue Divisional Commissioner without discussing the merits of the case and contentions raised by the respective parties, recording that the hal consolidation operation is over and the petitioner could not be able to file objection before the concerned consolidation authority due to her prolonged illness, remanded the matter to the Tahasildar, Udala with a direction to dispose of the case within a period of three months after verifying all the relevant documents, examining the possession of the petitioner over the case land and by giving opportunity of hearing to both the parties as per law.

According to Mr. Mishra, even if notification u/s 41(1) of the Act has been made, but since the revision petition was pending before the Revenue Divisional Commissioner, the Tahasildar cannot be directed to decide and dispose of the case pursuant to the remand order passed by the said R.D.C.. Mr. Mishra also submitted that Section 37 is the power vested with the Commissioner, Consolidation to call for the record from any subordinate authority and examine the same with regard to the regularity of the proceeding or its correctness, legality or propriety and to pass such orders as he thinks fit. Mr. Mishra further drew the attention of the Court to Section 41(2) of the Act, which provides that notwithstanding anything contained in Sub-section (1), consolidation operation shall not be deemed to have been closed in respect of case or proceeding pending under the provisions of the Act on the date of issue of notification under Sub-section (1) thereof. In Sub-section (3) thereof, it has been provided that the orders passed by the competent authorities in matters referred to in Sub-section (2) shall be given effect to by such authorities as may be prescribed. According to Mr. Mishra, the Tahasildar has no jurisdiction under the Act to adjudicate a dispute even after closure of the consolidation by issuance of notification u/s 41 of the Act. Referring to Rule 36 of the Rules framed under the Act, he contended that though the said Rule provides that the orders passed by the competent authorities shall be given effect to under Sub-section (3) of Section 41 of the Act by the local Tahasildar, but reading of Section 41 (3) of the act and Rule 36 of the Rules together would go to show that the consolidation operation shall be deemed to be continuing in respect of pending cases and the Tahasildar under Rule 36 has been vested with the power, only to give effect to an order passed by the competent authority. Hence, the Tahasildar does not have any jurisdiction to adjudicate a dispute. Mr. Mishra, therefore, contended that the R.D.C. has committed an error in remitting the case to the concerned Tahasildar instead of remitting the matter to the Consolidation Officer.

Mr. B. Dash, learned AddI. Government Advocate and Mr. N. Lenka, learned Counsel appearing for opp.parties 4 to 7 drawing the attention of the Court to Section 25(4) of the Act, submitted that the said provision clearly stipulates that the powers conferred on the Assistant Consolidation Officer under Sub-section (3) of the said Section shall in the like manner and like circumstances be exercisable by the Tahasildar having jurisdiction after the issuance of notification under Sub-section (1) of Section 41 of the Act. They further submitted that u/s 44(1) of the Act, it has been clearly stipulated that the authorities under the Act as well as the Tahasildar shall have all such powers, rights and privileges as are vested in a Civil Court in respect of the matters specified in Clause (a) to Clause (d) thereof. According to Mr. Dash, since Section 44(1) of the Act provides that the Tahasildar can exercise the powers of the Civil Court with regard to summoning and enforcing the attendance of the witnesses and examining them on oath, issue a commission, compel production of documents, admit evidence by affidavit, and pass orders with regard to other matters as may be prescribed, it clearly implies that the said powers are to be exercised while adjudicating a dispute. Therefore, Mr. Dash submitted that this power having been vested with the Tahasildar, it can be safely inferred that the Tahasildar., after closure of the consolidation operation and issuance of notification u/s 41(1) of the Act, has the power to adjudicate a dispute between the parties. In view of the above, it is submitted that there is no error committed by the R.D.C. in remitting the matter to the Tahasildar to adjudicate the dispute.

In order to appreciate the rival contentions of the parties, it is necessary to refer to the aforesaid provisions of the Act and the Rules.

Sections 41 and 44 of the Act read as follows:

Closure of consolidation operations - (1) As soon as may be after the final maps and records have been prepared u/s 22, the State Government shall issue a notification to the effect that the consolidation operations have been closed in the unit and then the village or villages forming part of the unit shall cease to be under the consolidation operations:

Provided that the issue of a notification under this Section shall not affect the operation of the provisions contained in Chapter IV.

(2) Notwithstanding anything contained in Sub-section (1) consolidation operations shall not be deemed to have been closed in respect of cases or proceedings pending under the provisions of this Act on the date of issue of the notification under Sub-section (1).

(3) The orders passed by the competent authorities in matters referred to in Sub-section (2) shall be given effect to by such authorities as may be prescribed.

Powers of Civil Court to be exercised by authorities under this Act- (1) The Consolidation Commissioner, Director of Consolidation, Collector, Consolidation Officer, Assistant Consolidation Officer and Tahsildar shall have all such powers, rights and privileges as are vested in a Civil Court in respect of the following matters in trying a suit-

(a) summoning and enforcing the attendance of witnesses and examining them on oath, affirmation or otherwise and the issue of commission;

(b) compelling the production of documents;

(c) admission of evidence by affidavit, and

(d) any other matter that may be prescribed.

(2) xxx xxx xxx

Rule 36 of the Rules reads as follows:

Closure of Consolidation operations- The orders passed by the competent authorities shall be given effect to under Sub-section (3) of Section 41 by the local Tahasildar.

A reading of Section 41(2) of the Act clearly shows that even when a notification u/s 41(1) has been issued, notwithstanding issuance of such notification, consolidation operation shall be treated to be still continuing in respect of cases or proceedings pending under any of the provision of the Act on the date of issuance of such notification. Sub-section (3) of Section 41 of the Act stipulates that the order passed in such pending proceedings shall be given effect to by such authorities as may be prescribed.

Rule 36 of the Rules framed under the Act prescribes that such orders passed in the pending proceedings u/s 41(2) of the Act, shall be given effect to by the local Tahasildar. Though Section 44 of the Act vests the power with the Tahasildar as well as with other authorities under the Act, which are vested in a Civil Court relating to summoning, enforcing of attendance of witnesses, examining them on oath, affirmation or otherwise, issuing commission, compelling production of documents and admitting evidence by affidavit, but the said Section does not specifically confer the power of adjudication on the Tahasildar which is vested with the authorities under the Act, such as, Assistant Consolidation Officer, Consolidation Officer, Director of Consolidation and Commissioner, Consolidation. No inference from the said Section 44 can, therefore, be drawn that the Tahasildar has the jurisdiction to adjudicate a dispute between the parties after issuance of notification u/s 41(1) of the Act. Since it is clear from Section 41(2) of the Act that the pending proceedings on the date of issuance of the notification u/s 41(1) shall continue and, there is nothing in Section 41 or in any other provisions in the Act, which stipulates that after closure of the consolidation operation by issuance of the notification u/s 41(1), the authorities under the Act cease to have jurisdiction to decide a case, the only conclusion which can be drawn is that, in the event, a pending case, as in Sub-section (2) of Section 41, is remanded, the same can only be remanded to a subordinate authority under the Act and not to the local Tahasildar, who only possess the power to give effect to an order passed in a pending proceeding u/s 41(2) and has no power to adjudicate the same, in other words, only in a case, which is pending on the date of issuance of notification u/s 41(1) of the Act, where a positive direction to correct the land record or map, finally published, is passed, such order can be given effect to, by the local Tahasildar under Rule 36 of the Rules. This Court is, therefore, of the view that the R.D.C. was in error in remitting the case to the Tahasildar instead of the Consolidation Officer, Udala.as the same is a whole remand requiring a fresh adjudication of the lis.

In view of the above, the impugned order dated 8.9.2006 passed in R.C. No. 29 of 2006 by the R.D.C. (Central Division) Cuttack is modified to the extent that the matter shall be remitted back to the Consolidation Officer, Udala to carry out the directions given in the remand order instead of the Tahasildar, Udala. Since the matter is pending for a long period, it is directed that the Consolidation Officer, Udala-opp.party No. 2 shall take all effective steps to finally dispose of the case within a period of six months from the date of communication of this order, to the said opposite party No. 2.

In the result, the writ petition is partly allowed.