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Brundaban Bisoyee and ors. Vs. Tahsildar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberOriginal Jurisdiction Case No. 893 of 1982
Judge
Reported inAIR1984Ori128
ActsOrissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 - Sections 51; Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Rules, 1972 - Rule 10(2)
AppellantBrundaban Bisoyee and ors.
RespondentTahsildar and ors.
Appellant AdvocateB.B. Ratho and ;Manoj Misra, Advs.
Respondent AdvocateAddl. Govt. Adv. and ;S.K. Mohanty, Adv.
DispositionPetition allowed
Excerpt:
.....union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - in the interest of peace and good relationship between the villagers of both the villages, the tank should not be settled with any of them......under the orissa consolidation of holdings and prevention of fragmentation of land act, 1972. the opposite parties 4 and 5 thereupon carried a revision before the additional district magistrate labelling it to be one under section 12 (2) of the orissa prevention of land encroachment act. the additional district magistrate (opposite party no. 3) after hearing parties held thatthe revision was incompetent, yet, he proceeded to direct:--'as such this is not a matter for declaration of right, interest on any land as observed by the learned sub-divisional officer. the tank is a source of sairat to government. the contending villagers of lunipada and sasan have no right of pisciculture in this tank. in the interest of peace and good relationship between the villagers of both the villages, the.....
Judgment:

R.N. Misra, C.J.

1. The dispute in this application is one relating to a tank. Petitioners claim that the tank has been in their occupation for more than thirty years prior to the direction given by the Tahasildar to include it as a Sairat. They, therefore, challenged the order of the Tahsildar by filing an appeal before the Sub-Divisional Officer. The Sub-Divisional Officer vacated the direction of the Tahsiidar and suggested that the matter should go to the Consolidation Authorities under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972. The opposite parties 4 and 5 thereupon carried a revision before the Additional District Magistrate labelling it to be one under Section 12 (2) of the Orissa Prevention of Land Encroachment Act. The Additional District Magistrate (opposite party No. 3) after hearing parties held thatthe revision was incompetent, yet, he proceeded to direct:--

'As such this is not a matter for declaration of right, interest on any land as observed by the learned Sub-Divisional Officer. The tank is a source of Sairat to Government. The contending villagers of Lunipada and Sasan have no right of pisciculture in this tank. In the interest of peace and good relationship between the villagers of both the villages, the tank should not be settled with any of them. The order of the learned Sub-Divisional Officer, Bhanjanagar is therefore set aside. The revision is allowed.'

Against this revisional order, the petitioners have come before this Court asking forquashing of it by issue of a writ of certiorari.

2. Counter-affidavits have been filed by opposite parties 1, 2 and 3 and also by opposite parties 4 and 5. Several factual allegations have been made.

3. There is no dispute, however, that the appropriate notification under the Act of 1972 has been made and the tank is within the area covered by the notification. Though learned Additional Government Advocate appearing for opposite parties 1, 2 and 3 and Mr. Mohanty appearing for opposite parties 4 and 5 contended that the dispute would riot be within the jurisdiction of the consolidation authorities, we do not find it possible to accept their stand. The provisions of the Consolidation Act are such that every land within the area covered by the statute, the names of owners as also of persons having interest therein have to be indicated in the final register to be prepared: (SeeRule 10 (2)). For such purpose, appropriate enquiry has to be made and if a dispute is raised, the same has to be resolved and after decision thereof can a record be finally prepared. The Sub-Divisional Officer was, therefore, right in indicating that when a dispute of this type has been raised with reference to the tank in question, the sameshould be left to the consolidation authority for determination and the Tahsildar should not have taken jurisdiction to decide the dispute.

The very reasoning which we have now indicated applies to repel the contention of the opposite parties that the matter should be left to the Civil Court to decide. A suit for the reliefs now claimed would not lie in view of the bar provided under Section 51 of the Consolidation Act.

4. We would accordingly set aside the order of the Additional District Magistrateand leave the parties to work out their rights as indicated in the order of the Sub-Divisional Officer. We make no order as to costs.

Patnaik, J.

I agree.


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