Nilamani Sahoo (Dead) vs Bata Krushna Sahoo (Dead) And Another

Dr. S. Muralidhar, CJ

This is an appeal directed against a judgment dated 29th April, 2013 passed by the learned Single Judge dismissing W.P.(C) No. 9534 of 2013 filed by the Appellant, which in turn was directed against an order dated 10th April, 2013 of the Civil Judge (Junior Division), Kujanga in Civil Suit No.78 of 2009 declining to stay further proceedings in the suit on account of pendency of consolidation proceedings before the Consolidation Officer (CO) under the Odisha Consolidation of Holdings and Prevention and Fragmentation of Land Act, 1972 (‘Act’).

At the outset, it must be noted that while directing notice to issue in the present appeal on 26th July, 2013 this Court had stayed further proceedings in the aforementioned civil suit. That interim order has continued since.

The background facts are that the Appellant and the Respondents were the recorded owners of properties in Sabik Khata No.240, Plot No.1142 to an extent of Ac 0.28 decimals in Mouza Balarampur which stood recorded in the name of their ancestors. In the remarks column, a note was made regarding possession.

During the initial stage of consolidation operation, the land was divided into two plots and recorded separately in Consolidation Khata No.411, Plot No.754 Ac 0.14 in the name of the Appellant and his other co-sharers whereas Hal Khata No.165 Plot No.761, Ac 0.14 decimals was recorded in the name of the father of the Respondents.

It is stated that the Appellant got the property in Plot No.754 by mutual partition and therefore, has no grievance as regards that area. However, according to the Appellant, while preparing the map, the Consolidation Authorities carved out Hal Plot No.761 adjacent to the village road whereas the plot of the Appellant i.e. 754 was towards the rear side of Plot No.761 right behind it. This prevented the Appellant from approaching his land from the village road. At a time when the village had not yet been notified under Section 41 of the Act, the Appellant filed Consolidation Revision No.2750 of 2005 before the Director, Consolidation, Odisha under Section 37(2) of the Act for correcting the map so that the Appellant could approach his land from the village road.

By an order dated 15th July, 2006 the Director, Consolidation accepted the claim of the Appellant and directed the CO to enquire into the matter and correct the map, if necessary. It is stated that the said revision petition preferred by the Appellant is still pending before the CO, Kujanga for final adjudication.

According to the Appellants, the Respondents in the meanwhile started raising a construction covering the entire frontage of Plot No. 761 without any passage for the Appellant to approach his plot from the village road. This prompted the Appellant to file Civil Suit No.78 of 2009 seeking permanent injunction against the Respondents, not to undertake any construction on Plot No.761. After the Civil Judge dismissed the Appellant’s application for interim relief on 11th December, 2009 he approached the Additional District Judge (ADJ), Jagatsinghpur in FAO No.53 of 2009. By judgment dated 17th September, 2012 the ADJ allowed the FAO and directed the Respondents not to raise any construction or cause obstruction to the ingress and egress of the Appellant to his plot.

When the consolidation proceedings was pending before the CO, the Appellant applied to the Civil Judge under Section 151 CPC for stay of further proceedings till final adjudication of the revision petition pending before the CO, Kujanga. By the impugned order, the learned Single Judge rejected the prayer. Aggrieved by the said order dated 10th April, 2013 the Appellant preferred W.P.(C) No.9534 of 2013 before the learned Single Judge. By the impugned judgment dated 29th April, 2013 the learned Single Judge dismissed the said writ petition and accordingly, the present appeal has been filed.

Although the Appellant cited the decision of this Court in Netrananda Behera v. Khetrabasi Behera 2010 (II) OLR 379 before the learned Singe Judge in support of the plea that the suit had to be stayed till disposal of the revision petition before the CO, the learned Single Judge held that the said decision was not applicable since the final notification under Section 41 of the Act had already been published and with that the Consolidation Authority had no more power or jurisdiction to decide the claim of the parties and the suit was not barred. Consequently, it was held that the effect of Section 4 got wiped out and would not bar the Civil Court from entertaining the suit.

Having heard learned counsel for the parties, the Court is of the view that the impugned order of the learned Single judge requires to be reversed for the following reasons:

(i) A Full Bench of this Court in Gulzar Khan v. Commissioner of Consolidation 1993 (II) OLR 194 has authoritatively settled the legal position that only because of a notification under Section 41 of the Act, the power of the Commissioner to entertain a revision petition under Section 36 of the Act is not taken away. It was explained that the revisional power is an integral part of the scheme of the Act. In particular, the majority judgment in Gulzar Khan (supra) explained the legal position as under:

“35. It is, however, apparent that if any cause of action were to arise after closure of the operations, it is the Civil Court which has to be approached because in that case the consolidation authorities at the grass root would not be available. This apart as already indicated, if the case be such which would attract principle (ii) of Magulu Jal's case the Civil Court would have jurisdiction. May we say that if fraud had been played while decision had been taken by the consolidation operations, the same would also provide a ground to approach the Civil Court after closure of the operations. It may be pointed out here that Karbalai Bagum's case (supra) was one of fraud and it was, inter alia, because of this that the bar of Section 49 was not accepted to oust the jurisdiction of the Civil Court.

We may conclude our views relating to Civil Court's jurisdiction by stating that the same would be available after closure of consolidation operations only in any one of the following circumstances ;

(i) The cause of action accruing after the closure of the consolidation operations, ala Suba Sing.

(ii) If the consolidation authorities had taken the decision without complying with the provisions of the Act or had not acted in conformity with the fundamental principle of judicial procedure (which would take within its fold the case of violation of natural justice), vide principle No. (ii) of Magulu.

(iii) Obtaining of order from the hand(s) of consolidation authorities by playing fraud on the party who seeks to approach the Civil Court, as per Karbalai Begum's case.

The aforesaid being the position, it is apparent that a forum has to be available to a person who was to be aggrieved, after Section 41 notification has been issued, with any order having been passed or anything having been done during the consolidation operations affecting his right, title and interest. As stated in the opening sentence of this judgment, there cannot be a right without any remedy; and, according to us, the remedy can be made available principally by Section 37 of the Act. As to when such a situation may arise need not be spelt out, indeed, it cannot be; the probability of such a situation arising cannot obviously be ruled out. The power being unlettered, we cannot put any fetter, any such action of ours would render some really hard-pressed people without a remedy. May we repeat that we are not at the question as to when power under Sec, 37 would be or should be exercised. As already pointed out, this power shall be available only under compelling circumstances, but on compelling circumstances existing, we cannot shut out the invocation of the power. May we also observe that though Section 37 has conferred an unfettered power it is settled law that every power be it administrative or judicial, has as to be exercised in a reasonable manner, and the reasonable exercise of power inheres in its exercise within a reasonable time as stated at pp. 1245-6 of Manasaram v. S. P. Pathak : AIR 1983 SC 1239. This apart no power is really unfettered every power has to be exercised according to rules of reason and justice, not according to private opinion; according to law, and not according to humour. The exercise of discretionary power cannot be arbitrary, vague and fanciful it has to be legal and regular.”

(ii) With the legal position being absolutely clear that the revision petition was not barred, the logical course would have been to stay the further proceedings in C.S. No.78 of 2009 while awaiting the decision in the Consolidation Revision No. 2750 of 2005 pending before the Director, Consolidation of Odisha under Section 37(2) of the Act.

Consequently, while setting aside the impugned order of the learned Single Judge and allowing the present appeal, the Court further directs that till the disposal of the aforementioned remanded Consolidation Revision No.2750 of 2005 by the Director, Consolidation, Odisha, further proceedings in C.S. No.78 of 2009 pending before the Court of the Civil Judge (Junior Division), Kujanga shall remain stayed. The aforementioned consolidation case will now be listed before the CO, Kujanga on 19th September, 2022 and he is requested to dispose of the said revision petition within a period of four months thereafter.

It may be noted here that during the pendency of the present writ appeal, the sole Appellant has died. His legal representatives (LRs) have already been substituted in the aforementioned revision case which will now proceed on that basis before the CO, Kujanga.

Learned counsel for the Respondent No.1 informs that he too has expired and his LRs will have to be brought on record in the aforementioned revision case as well as in the suit. It will be open to the LRs of Respondent No.1 to get themselves substituted in his place in the revision petition by filing an appropriate application which will be taken up for hearing on the first day of listing of the revision petition i.e. 19th September, 2022.

The writ appeal is disposed of in the above terms. An urgent certified copy of this order be issued as per rules.

……………………….