Susmita Panda vs State Of Odisha And Others

A.C. Behera, J

This writ petition has been filed by the petitioner praying for quashing the final order dated 28.09.2022 passed in Consolidation Misc. Case No.4 of 2016 by the Collector, Bargarh (opposite party No.2) vide Annexure-7.

The factual backgrounds of the matter, which prompted the petitioner for filing of this writ petition is that, the petitioner purchased part chaka land of Chaka No.38 Plot No.61 A0.20 decimals out of A1.72 decimals under Khata No.133 in Mouza Tingipali under Barpali Tahasil in the district of Bargarh from its recorded owners i.e. Rama Padhan and Mitrabhanu Padhan through Registered Sale Deed No.878 dated 27.09.2002, to which, one Nidhi Padhan (son of Late Mitrabhanu Padhan) challenged by filing Consolidation Misc. Case No.4 of 2016 before the O.P. No.2 (Collector, Bargarh) against the petitioner and others praying for declaring that, the sale deed No.878 dated 27.09.2002 executed in favour of O.P. No.1 as void as per Section 34 & 35 of the OCH & PFL Act, 1972 and to evict him (O.P. No.1 in Consolidation Misc. Case No.4 of 2016) from the case land.

After hearing from both the sides, the Collector, Bargarh allowed that Consolidation Misc. Case No.04 of 2016 filed by Nidhi Padhan (O.P. No.3 of this writ petition) as per its final order dated 28.09.2022 (Annexure-7) assigning the reasons that,

“the case land has been transacted in contravention of Section 34 of the OCH & PFL Act, 1972 and as such, the R.S.D. No.878 dated 27.09.2002 is hereby declared void. The Tahasildar, Barpali is directed to restore the case land as per law.”

The O.P.1 of that Consolidation Misc. Case No.04 of 2016 (vendee of the sale deed) challenged that final order passed on dated 28.09.2022 (Annexure-7) by the Collector, Bargarh (O.P. No.2) by filing this writ petition.

I have already heard from the learned counsel for the petitioner, learned Addl. Standing Counsel for the State and learned counsel for O.P. No.3.

As per the Odisha Gazette Notification No.2910 dated 29.12.2023, Chapter-V of The OCH & PFL Act, 1972 relating to the 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 of The 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 as per Notification No.2910 dated 29.12.2023 in the Statute Book i.e. the OCH & PFL Act, 1972, it has been clarified by this Court in a case between Benudhar Swain Vrs. Bahudi Jena reported in 2024 (II) OLR—261 that,

“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 at hand, when the transfer of agricultural land has been made through R.S.D. Nos.878 dated 27.09.2002 in respect of part Chaka No.38 under Consolidation Khata No.133 in Mouza Tingipali under Barpali Tahasil before commencement of amendment Act, 2023 i.e. before 29.12.2023, then at this juncture, in view of the above omission of entire Chapter-V and insertion of Section 36A into the Statute Book of The OCH & PFL Act, 1972 as well as the clarification about the same made in the ratio of the above decision of this Court in a case between Benudhar Swain Vrs. Bahudi Jena reported in 2024 (II) OLR—261, the above sale made by Rama Padhan and Mitrabhanu Padhan in respect of part Chaka No.38 under Consolidation Khata No.133 A0.20 out of A1.72 decimals of Plot No.61 in Mouza Tingipali in favour of the petitioner in this writ petition through R.S.D. No.878 dated 27.09.2002 even making a fragment to the Chaka No.38 under Consolidation Khata No.133 cannot be held as invalid/void under law.

For which, in other words, it is held that, the said sale deed vide R.S.D. No.878 dated 27.09.2002 in favour of the writ petitioner is not void, but valid under law.

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

As such, the final order dated 28.09.2022 (Annexure-7) passed in Consolidation Misc. Case No.4 of 2016 by the Collector, Bargarh (O.P. No.2) declaring the registered sale deeds vide R.S.D. No.878 dated 27.09.2002 as void is set aside and quashed.

As such, the writ petition filed by the petitioner is disposed of finally.