Soumitri Bhue vs State Of Odisha And Others Vs

A.C. Behera, J

This writ petition under Article 226 & 227 of the Constitution of India, 1950 has been filed by the petitioner praying for quashing the final order dated 24.06.2021 (Annexure-8) passed in OCH & PFL Case No.02 of 2016 under Sections 34 & 35 of the Odisha Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (in short OCH & PFL Act, 1972) by the Collector, Subarnapur (O.P.No.2).

The factual backgrounds of the matter, which prompted the petitioner for filing of this writ petition is that, the petitioner purchased A0.10 decimals in total out of A0.942 decimals from the part of Chaka Plot No.2010 under Chaka No.576 of Consolidation Khata No.380/397 in Mouza Gambharipali under Rampur Tahasil in the district of Subarnapur from its recorded owners i.e. Laxman Pradhan and Kamini Pradhan through R.S.D. Nos.416/2013 & 414/2013 respectively, to which, one Anuchhaya Naik challenged by filing OCH & PFL Case No.02 of 2016 before the O.P.2 (Collector, Subarnapur) against the petitioner of this writ petition and his vendors under Sections 34 & 35 of the O.C.H. & P.F.L. Act, 1972 praying for a declaration that, the R.S.D. Nos.11691100268 & 11691100271 dated 19.02.2011 and R.S.D. Nos.416/2013 & 414/2013 as void, because the R.S.D. Nos.416/2013 & 414/2013 were executed by its vendors on the basis of the R.S.D. Nos.11691100268 & 11691100271 dated 19.02.2011.

The O.P. No.2 (Collector, Subarnapur) allowed that OCH & PFL Case No.02 of 2016 as per its final order dated 24.06.2021 only on the basis of the report of the Tahasildar, Rampur and declared the R.S.D. Nos.11691100268 & 11691100271 dated 19.02.2011 as well as R.S.D. Nos.416/2013 & 414/2013 as void assigning the reasons that, “the notification U/s 41 of OCH & PFL Act, 1972 in respect of Mouza Gambharipali has been issued vide letter No.45683 dated 04.07.1988 and no permission has also been granted as per Section 34(3) of OCH & PFL Act, 1972. Beyond Section 34 of OCH & PFL Act, 1972, as per Section 33, the Chapter V shall apply to an area in respect of which a notification U/s 41 has been issued. As the R.S.D. Nos.11691100268 and 11691100271 dated 19.02.2011, R.S.D. Nos.416 & 414 of 2013 have been executed after issue of notification U/s 41, these violate the provision under Section 34 of the OCH & PFL Act, 1972, for which, the R.S.D. Nos.11691100268 & 11691100271 dated 19.02.2011 and R.S.D. Nos.416 & 414 of 2013 are declared as void.”

On being aggrieved by the above order dated 24.06.2021 (Annexure-8) passed by the Collector, Subarnapur (O.P. No.2), the petitioner (purchaser) challenged the same by filing this writ petition praying for quashing that Annexure-8.

I have already heard from the learned counsel for the petitioner, the learned Standing Counsel for the State (O.P. Nos.1 to 3), the learned counsel for O.P. No.4 and the learned counsel for O.P. No.5.

As per the Odisha Gazette Notification No.2910 dated 29.12.2023, Chapter-V of OCH & PFL Act, 1972 concerning Prevention of Fragmentation containing Sections-33, 34 & 35 has already been omitted from the Statute Book of The OCH & PFL Act, 1972 and a new Section as Section 36A has been inserted into the said Statute Book i.e. OCH & PFL Act, 1972 and the said newly inserted Section 36A is as follows:-

“Section 36A- Any transfer or partition of agricultural land in a locality creating fragmentation made under the Principal Act before the commencement of the Odisha Consolidation of Holdings and Prevention of Fragmentation of Land (Amendment) Act, 2023, shall be treated as valid:

Provided that cases where any eviction has been made by the Collector under sub-Section (2) of Section 35 of the Principal Act as omitted in this Act shall not be reopened.”

Taking into account the above omissions and insertions in the Statute Book i.e. The OCH & PFL Act, 1972 as per Notification No.2910 dated 29.12.2023, it has been clarified by this Hon’ble Courts in a case between Benudhar Swain Vrs. Bahudi Jena reported in 2024 (II) OLR-261 that,

“this Section i.e. Section 36A has been introduced in the Statute as per Section 3 of the Amendment Act, 2023, which have come into force w.e.f. 29.12.2023.”

It has been envisaged in Section 36A of The OCH & PFL Act, 1972 that,

“any  transfer  or  partition  of  agricultural  land  in  a  locality  creating fragmentation made under the principal Act before  commencement  of  the  Amendment  Act  shall  be  treated  as  valid.”

Here in this writ petition at hand, when, the transfer of agricultural land has been made through R.S.D. Nos.11691100268 & 11691100271 dated 19.02.2011 and R.S.D. Nos.416/2013 & 414/2013 in respect of A0.10 decimals in total out of A0.942 decimals of Plot No.2010 from Chaka No.576 under Consolidation Khata No.380/397 in Mouza Gambharipali before commencement of Amendment Act, 2023 i.e. before 29.12.2023, then at this juncture, in view of the above omissions of entire Chapter-V and insertion of Section 36A into the Statute Book of The OCH & PFL Act, 1972 as well as the clarifications about the same made above in the ratio of the above decision of the Hon’ble Courts in a case between Benudhar Swain Vrs. Bahudi Jena reported in 2024 (II) OLR-261, the above sales made by the opposite party No.4 in favour of the petitioner in this writ petition though R.S.D. Nos.416/2013 and R.S.D. No.414/2013 on the basis of R.S.D. Nos.11691100268 & 11691100271 dated 19.02.2011 cannot be held as invalid/void.

For which, in other words, it is held that, the said R.S.D. Nos.11691100268 & 11691100271 dated 19.02.2011 and R.S.D. Nos.416/2013 & 414/2013 in favour of the petitioner and his vendors are not void.

Therefore, the writ petition filed by the petitioner is allowed on contest.

Accordingly, the final order dated 24.06.2021 (Annexure-8) passed in OCH & PFL Case No.02 of 2016 by the Collector, Subarnapur declaring the R.S.D. Nos.11691100268 & 11691100271 dated 19.02.2011 and R.S.D. Nos.416/2013 & 414/2013 as void is set aside and quashed.

As such, the writ petition is disposed of finally..

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