Orissa High Court: A Division Bench of S K Mishra and Savitri Ratho, JJ., answered both the questions posed before it elaborately.
The present petition was filed to resolve the conflict between the reported cases of Abhaya Charan Mohanty v. State of Orissa; 2003 (Supp.) OLR-882 and Bhagaban Jena and others v. State of Orissa; 2007 (1) OLR-598. Apparently, both the aforesaid reported cases were decided by different Single Benches of the Court and there appears to be a conflict of opinion regarding delay in filing the application under Section 37 (1) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (in short “OCH & PFL Act”).
Section 37 OCH & PFL Act do not provide for any limitation for filing an application under Section 37 of the OCH & PFL Act. It is also apparent from the provisions itself that the Consolidation Commissioner as well as the Director of Consolidation can suo motu examine the regularity of the proceeding or as to the correctness, legality or propriety of any order passed by such authority in the case or proceedings and may after allowing the parties concerned a reasonable opportunity of being heard make such order as it thinks fit.
The Court relied on judgment Gulzar Khan v. Commissioner of Consolidation and others; 1993(II) OLR-194 and observed that the power under Section 37 of the OCH & PFL Act is unfettered and can be exercised to render justice to some really hard-pressed people who are without a remedy. Such power has to be exercised in a reasonable manner and reasonable exercise of power inheres in its exercise within a reasonable time.
It was also observed that the power to call for records by the Director or Commissioner Consolidation has been provided to give relief to some persons who are hard-pressed having right but without effective forum of remedy. It is also provided that this power is a suo motu power and which can be exercised by the Commissioner or Director without any application or with an application of an aggrieved party.
The Court thus held “(1) The Commissioner/Director can entertain a petition at any point of time as there is no period of limitation has been prescribed for the same under Section 37 of the OCH & PFL Act.
(2) What is a reasonable time as it is seen from the reported cases referred to above that in appropriate case even after 27 years the Revisional Authorities have exercised their suo motu power to correct a grave error or injustice perpetuated.”
The Court further observed with regard to reasonable time that it may extend even to 20 to 30 years also in cases where the facts of the case involved any of the following factual/legal aspects:-
- When the order impugned is passed on the basis of fraud or fraudulent misrepresentation made by a party or based on a fraudulent document
- when the order was passed is inherently without any jurisdiction or is passed by a person who has no authority to pass such an order;
- When an order is passed adversely effecting the interest of a minor without being represented by legal guardian and it includes the perpetual minor like deity;
- When any Government land or community land has been grabbed by an abuse of process of law; and
- when the order impugned before the Revisional authority is passed in complete disregard of the provisions of law guiding the field.
The Court further added that “this list is not exhaustive but is only illustrative. So, we answer the second point that “what is a reasonable time” in approaching the Court, is in fact a question of fact depending on the peculiar facts of each and every case and no strait jacket formula can be provided”.
[Siba Muduli v. Director, Consolidation Odisha, 2021 SCC OnLine Ori 1632, decided on 07-10-2021]
For Petitioner: Mr H.N.Mohapatra,
For Opp.Party 1 to 4 : Mr M.S. Sahoo,
For Interveners: Mr Samir Mishra