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Niranjan Ray Vs. Jogendra Behera and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberOriginal Jur. Case No. 1492 of 1979
Judge
Reported inAIR1981Ori68
ActsOrissa Estates Abolition Act, 1952; Constitution of India - Article 226
AppellantNiranjan Ray
RespondentJogendra Behera and ors.
Appellant AdvocateP. Kar, Adv.
Respondent AdvocateB. Pal, ;N. Prusty and ;Ashok Mohanty, Advs.
DispositionPetition allowed
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........even though the opposite parties had no anterior title to the property, they acquired title by adverse possession. the estate having vested in 1963 and consolidation operations having been taken up more than 12 years thereafter, the consolidation authorities accepted the claim of the opposite parties. when the appellate and the revisional authorities did not vacate the order, the petitioner has come with this writ application.3. law is settled that the consolidation authorities have been vested with the powers of the civil court in respect of matters which have been specified in the statute. mr. kar for the petitioner does not, therefore, dispute the jurisdiction of the consolidation officer to examine the question of acquisition of title by the opposite parties on the ground of.....
Judgment:

R.N. Misra, J.

1. Challenge in this application under Article 226 of the Constitution is to the order of the Consolidation Officer and the appellate and the revisional orders of the Deputy Director, Consolidation and the Consolidation Commissioner respectively.

2. Petitioner was admittedly the recorded Sthitiban tenant of 54 decimals of land covered by plots Nos. 21 and 22under Hal Khata No. 42 of village Dubulia in Basta area of Balasore district under Deity Dadhibaman Jew recorded with Madhvasatwadhikari status. According to the petitioner when the estate vested, rent-roll was given in the name of the petitioner and rent was received from the petitioner by the Revenue Officers until 1978. The tenure holders did not apply under Chapter-II of the Orissa Estates Abolition Act being aware of the position that petitioner was in possession of the property with occupancy right. As the lands were located at a distance petitioner had entrusted cultivation thereof to opposite parties 1 to 10 who are god-relations on condition that the expenses would be met by him, a part of the produce would be appropriated by the cultivating opposite parties 1 to 10 and the remainder would be paid to the petitioner. When consolidation proceedings were taken, on the basis of possession opposite parties claimed to be recorded as owner. The Amin who visited the locality reported in favour of the opposite parties behind the back of the petitioner. Petitioner raised objection. The same was, however, not entertained and ultimately on the basis of the report of the Amin and without holding any further enquiry and affording opportunity to the petitioner to be heard, the consolidation authorities recorded the property in the names of opposite parties 1 to 10 and sustained such record on the footing that even though the opposite parties had no anterior title to the property, they acquired title by adverse possession. The estate having vested in 1963 and consolidation operations having been taken up more than 12 years thereafter, the consolidation authorities accepted the claim of the opposite parties. When the appellate and the revisional authorities did not vacate the order, the petitioner has come with this writ application.

3. Law is settled that the consolidation authorities have been vested with the powers of the Civil Court in respect of matters which have been specified in the statute. Mr. Kar for the petitioner does not, therefore, dispute the jurisdiction of the Consolidation Officer to examine the question of acquisition of title by the opposite parties on the ground of adverse possession. Adverse possession, however, could not have been determined on the basis of the Amin's re-port. If the Consolidation Officer wanted to exercise jurisdiction to determine whether opposite parties had acquired title by adverse possession, the matter had got to be investigated in accordance with law and known procedure. Title of the original owner could not be negatived on the basis of an ex parte amin's report. The question of possession had to be thrashed out; from what date possession became adverse had to be investigated and whether a continuous period of twelve years' adverse possession had been established had to be determined. If such a matter as the present one could be concluded on the basis of an amin's report only, gravest injustice is bound to result particularly when the jurisdiction of the common law Court is ousted by statute. Mr. Pal for the opposite parties found it difficult to support the order on account of the procedure adopted in determining the dispute. It surpasses our comprehension that the higher authorities under the statute never looked at the matter from this angle and chose not to interfere even when jurisdiction had been exercised in such an unsustainble process. The Consolidation Officers must be made aware of the position that if the scheme under the statute has to work and their orders are to operate as substitute of Civil Court's determination, their proceedings must conform to known procedure and fit in with principles of natural justice and care and attention should be fully devoted to see that injustice is not done to parties. Consolidation proceedings are not intended to be confiscatory proceedings and rights of parties cannot be taken away in such casual manner as has been exhibited in the present proceeding.

4. We quash the order of the Consolidation Officer as also the appellate and the revisional orders of the Deputy Director of Consolidation and the Consolidation Commissioner. The Consolidation Officer is directed to redispose of the proceedings in accordance with law after giving full opportunity to both sides to place their respective cases. Petitioner shall be entitled to costs. Hearing fee is assessed at rupees one hundred to be recovered from opposite parties 11 to 13 only.

Das, J.

I agree.


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