Susanta Chatterji, A.C.J.

1. The question referred to the Full Bench for decision is -- whether in view of Section 51 of the Orisssa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as "the Consolidation Act"), a consolidation authority can ignore the adjudication made by the revenue authority under Section 23 of the Orissa Land Reforms Act, 1960 which has attained its finality, the same having been not challenged before any higher forum

2. Opposite Party No. 1 Kashi Mallik belongs to scheduled caste. He was the recorded owner of land measuring Ac.O.24.6 Kadis appertaining to Sabik Khata No. 47, Plot Nos. 752 and 753 situated in village Soral. As he was in need of money, he wanted to dispose of the land in question and, accordingly, approached the petitioner and requested him to purchase the land. As the petitioner does not belong to scheduled caste, an application for obtaining permission under Section 22 of the Orissa Land Reforms Act, 1960 (hereinafter referred to as "the O.L.R. Act") was filed before the S.D.O., Sadar Cuttack. On receiving the application, the S.D.O. asked the Tahsildar to cause enquiry in the matter and submit report. Pending such enquiry, opposite party No. 1 who was in dire need of money again approached the petitioner and executed a registered sale deed on 8-2-1971. Out of the consideration received from the petitioner, opposite party No. 1 purchased some other landed property on the same day. Meanwhile, on receiving a favourable report from the Tahsildar, the S.D.O. passed an order on 29-5-1971 granting permission to transfer the land applied for, vide O.L.R. Misc. Case No. 2 of 1971 (Annexure 2). From the date of execution of the registered sale deed, the petitioner has been in possession of the land in question. In the year 1979, opposite party No. 1 filed an application under Section 23 of the O.L.R. Act (vide O.L.R. Case No, 137 of 1979) before the S.D.O., Sadar Cuttack for restoration of the land in question on the ground that the transfer made on 8-2-1971 being without permission from the revenue officer, is invalid. He also alleged that the petitioner in the garb of mortgage got a sale deed executed. The S.D.O. after hearing parties, in his order dated 31-1-1983 (Annexure-3) held that the vendor opposite party No. 1 alienated the land after the enquiry by the Tahsildar who recommended transfer and as it was done for the "better relief and benefit" of the petitioner, the transaction cannot be concluded to be in violation of Section 22 of the O.L.R. Act. He further held that the transaction in question was a sale and no fraud was practised by the petitioner on opposite party No. 1. In view of the fact that the transaction was effected and order for transfer was passed later, the S.D.O. disposed of the matter by imposing penalty of Rs. 90/- on the petitioner. It is neither in dispute that the aforesaid order of the S.D.O. has become final as it was not challenged by way of appeal or revision as provided in the O.L.R. Act.

3. In the meantime, consolidation operation in the area for preparation of map and land, registersatared. Petitioner thereafter filed an objection under Section 9(2) of the Consolidation Act which came to be registered as Objection Case No. 529 of 1,979. Opposite party No. 1 was impleaded as a party in the said case. The Assistant Consolidation Officer by his order dated 11-6-1979 allowed the objection filed by the petitioner. At that time, Saran Mallik and Kalandi Mallik, sons of opposite party No. 1, filed Objection Case No. 870 of 1979 praying that the land in question be recorded in their names. Petitioner was impleaded as an opposite party in that case. The said objection case, however, was dismissed on 11-6-1979 for their default and no further steps were taken by Saran Mallik and Kalandi Mallik to revive the said case. As Objection Case No. 5219 of 1979 filed by the petitioner was allowed, the land in question was carved out as a Chaka and it was delivered to the petitioner. Record of-rights was accordingly prepared in the name of the petitioner which was duly published on 25-5-1991. We may mention here that the order dated 11-6-1979 passed in Objection Case No. 529 of 1979 was not challenged by opposite party No. 1 by filing any revision as provided under Section. 36 of the Consolidation Act. In the year 1981, he however filed an application under Section 37(1) of the Consolidation Act before the Consolidation Commissioner (vide Revision Case No. 2273 of 1981). The Commissioner in the impugned order dated 27-4-1989 (Annex-ure-8) held that as the sale deed was executed by opposite party No. 1 in favour of the petitioner before obtaining prior permission as required under Section 22 of the O.L.R. Act, the sale is void. The Commissioner directed to record the name of opposite party No. 1. She also ordered the petitioner to restore the land to opposite party No. 1. Petitioner assails the validity of this order in this writ application filed under Articles 226 and 227 of the Constitution of India.

4. A Full Bench of this Court in Ranka Bhua v. Jabaraj Saraf , held that a transfer made in contravention of Section 22 of of the O.L.R. Act is void and the consolidation authority while disposing of objection has the power to decide whether the transfer is Void being in violation of Section 22 of the O.L.R. Act. In holding so, the Full Bench did not approve the observation of this Court made in Labanga Debaia v. State of Orissa, (O.J.C. No. 12566 of 1984 decided on 10-8-1990) wherein it was held that the sale in contravention of Section 22 of the O.L.R. Act is not ipso facto void but has to be declared as such in a proceeding initiated under Section 23.

5. In a given question of law alone, two aspects are highlighted before us, namely, (1) whether the consolidation authority is empowered to ignore the order of the revenue authority and consider the validity of the transaction within the scope of Section 22 of the Act and, (2) is the consolidation authority entitled to sit in appeal over the order of the revenue authority and whether the order of the revenue authority ought to be set aside by a competent forum or not

6. Mr. Mohanty, learned advocate appearing in support of the writ application, has drawn attention of the Court to the decision reported in (State of Karala v. M.K. Kunhikannan Nambiar). The ratio of the said decision is that:

"Even a void order or decision rendered between parties cannot be said to be nonexistent in all cases and in all situations. Ordinarily, such an order will, in fact, be effective inter parties until it is successfully avoided or challenged in a higher forum. More use of the word void is not determinative of its legal impact. The word void has a relative rather than an absolute meaning. It only conveys the idea that the order is invalid or illegal. It can be avoided. There are degrees of invalidity depending upon the gravity of the infirmity, as to whether it is fundamental of otherwise. In this case, the only complaint about the initiation of the suo motu proceedings by the Board was that it was not initiated on intimation by the State Land Board about the non-filing of the statement as required by Section 85(7) of the Kerala Land Reforms Act."

On scrutiny, it was found that the said case was not one where the infirmity was fundamental. Therefore, the order of the Board declining to implead respondents 3 and 4 in that case concluded the matter against the said respondents.

7. In the aforesaid decision, a paragraph from the Halsburys Laws of England, 4th Edn., (Re-issue) Vol. 1(1) (para 26, p. 31) has been quoted which is to the effect:

"If an act or decision, or an order or other instrument is invalid, it should, in principle, be null and void for all purposes; and it has been said that there are no degrees of nullity. Even though such an act is wrong and lacking in jurisdiction, however, it subsists and remains fully effective unless and until it is set aside by a court of competent jurisdiction. Until its validity is challenged, its legality is preserved."

8. The decision has further quoted from the Judicial Review of Administrative Action by De Smith, Woolf and Jowell, 1995 Edn., at pp. 259-60 as follows:

"All official decisions are presumed to be valid until set aside or otherwise held to be invalid by a court of competent jurisdiction."

9. Reliance was also placed on the following observation of the Supreme Court in the judgment in State of Punjab v. Gurdev Singh AIR 1991 SC 2219 [LQ/SC/1991/408] : 1991 Lab IC 2129 ; of AIR):

"In the instant cases, the respondents were dismissed from service. May be illegally. The order of dismissal has clearly infringed their right to continue in the service and indeed they were precluded from attending the office from the date of their dismissal. They have not been paid their salary from that date. They came forward to the Court with a grievance that their dismissal from service was no dismissal in law. According to them the order of dismissal was illegal, inoperative and not binding on them and they continue to be in service. For the purpose of these cases, we may assume that the order of dismissal was void, inoperative and ultra vires, and not voidable. If an act is void or ultra vires it is enough for the Court to declare it so and it collapses automatically. It need not be set aside. The aggrieved party simply seeks a declaration that it is void and not binding upon him. A declaration merely declared the existing state of affairs and does not quash so as to produce a new state of affairs."

10. These principles or the ratio of the decisions are never in doubt or dispute. The argument advanced before us in support of the petitioner is that without differing from the view taken by the Full Bench in (supra) the order of the Consolidation Commissioner by avoiding the order of the revenue authority is not well justified.

10A. Mr. Kar appearing for opposite party No. 1 submits inter alia that the consolidation authority can look to the transaction itself de hors the order made by the revenue authority. If any order is made by any authority without jurisdiction, it should be held to be a nullity. He has drawn attention of the Court to the decision reported in (FB) (Trilochan Dandsena v. State of Orissa). The proposition of law as found in the said Full Bench decision is with regard to two points, such as, S. 23-B of the Orissa Land Reforms Act (16 of 1960) --validity of transfer and perfection of title by adverse possession, and the scope of Article 65 of the Limitation Act. Ingredients of adverse possession to be recorded and the starting point of limitation is the date of denial of title of real owner. It was held that mere possession is not sufficient per se to perfect title by adverse possession. The entire gist of argument of Mr. Kar is that in a given circumstance, the position of law has been made very clear in the earlier Full Bench decision and de hors the order of the revenue authority the consolidation authority is quite entitled to pass an effective order and there is no confusion at all. It is submitted that the order vide Annexure-8 should be sustained.

11. Mr. S.P. Misra, learned Addl. Govt. Advocate, has tried to assist us by drawing our attention to the decision reported in AIR 1991 SC 2219 [LQ/SC/1991/408] : 1991 Lab IC 2129 (State of Punjab v. Gurdev Singh) (supra). He has also drawn our attention to the decision reported in 1990 (I) OLR 369 (Baidhar v. Special Officer) where a transfer was made by a scheduled caste man in favour of a non-scheduled caste person on 16-4-1968. The vendor had made an application for permission on 7-2-1968 and permission was given on 9-5-1968. It was held that executing a sale deed at a point of time when there was no prior permission in writing of the revenue officer rendered the document void and subsequent permission cannot legalise such transfer. Precisely Mr. Misra submits that there is scope of appeal or revision. Ultimately in all fairness he submits that in view of the observation made by the Supreme Court that in a given situation the appropriate order should be considered. Two other decisions have also been brought to our notice, namely (1996) 81 CLT 292 (Chunti Patra y. State of Orissa) and (Trilochan Singh v. Commissioner of Land Records).

12. Patiently we have considered the submissions on behalf of the respective parties. Diligently we have considered the points of reference. We have tried to appreciate the situation as it stands. Regard being had to the materials on record, we are of the view that the ratio of the earlier Full Bench decision (supra) does not spell out a situation as it has occurred in the instant case. If a transaction per se is void, no doubt it is open to the consolidation authority to consider the said aspect in the present case as envisaged under Sections 22 and 23 of the Act. But in the present case, there is an order by the revenue authority as indicated above. It has to be appreciated further what is the impact of the said order. Can the consolidation authority ignore the said order of the revenue authority Admittedly, the consolidation authority is not sitting in appeal over the order of the revenue authority. Admittedly also this order cannot be ignored or bypassed. The order of the revenue authority is not so fundamentally illegal as observed by the Apex Court in the decision in (supra). We have made a judicial scrutiny of the said order. The nature of that order is not so that it can be ignored or overlooked. Even if the transaction is void, since the revenue authority has passed an order that is obviously binding inter paries the same having not been set aside by appropriate forum and the consolidation authority cannot pass an order to upset the result of that. We are of the further view that in the instant case there is no infirmity in the order of the revenue officer concerned. Here is a distinguishable point one can take notice of. We are of the view further that in the light of the judgment of the Apex Court as we have discussed and recorded above, the order of the revenue officer cannot be ignored in the manner as done by the consolidation authority and the order of the consolidation authority as per Annexure-8 cannot be sustained in the eye of law. There is no conflict of view as held by the earlier Full Bench and the Division Bench should not find any difficulty to appreciate the provisions of law and decide the case as we have found above.

13. Since this is the only point of law and there is no need to further appreciate the facts, instead of sending the matter back to the Division Bench, again which Would be an exercise in futility; we prefer to complete the adjudication by holding inter alia that the order of the consolidation authority as per Annexure-8 to the writ application cannot be sustained in law. Consequently we allow the writ petition and quash Annexure-8, the order of the Consolidation Commissioner in revision and direct issue of appropriate writ to record the continued possession of the petitioner and follow the consequential measure as available in law.