Orissa High Court
Nayak vs State Of Odisha And Others) on 24 March, 2021
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
W.P.(C) No. 10534 of 2021
2. 24.03.2021 Heard Miss Deepali Mahapatra, learned counsel
for the petitioner and Mr. Swayambhu Mishra, learned
Additional Standing Counsel for the State-opposite
parties.
2. Petitioner in this writ petition prays for quashing
the Yadasta No. 1241 (Annexure-8) of mouza
Gothapatna in the district of Khurda as well as
consequential R.O.R. under Annexure-9 and further
prays to record the suit land in her favour.
3. Miss Mahapatra, learned counsel for the
petitioner submits that the land pertaining to Hal Plot
No.1241, Hal Khata No. 684 of mouza Gothapatna
corresponding to Sabik Plot No.51/681, to an extent of
Ac.1.800 decimal in Gothapatna Mouza under
Bhubaneswar tahasil (for short, 'the case land') was in
Government Khata under 'Abadajogya Anabadi' status.
Subsequently, it was settled in the name of one Smt.
Sabitri Mohanty, wife of Sarat Chandra Mohanty,
under the lease principles in W.L. Case No.177 of
1972-73 by opposite party No.5-Tahasildar,
Bhubaneswar. Smt. Mohanty for her legal necessity,
sold some portion of the suit land, i.e., Ac.0.400
decimal out of Ac.1.800 decimal to one Panchanan
Behera vide Registered Sale Deed No.9058 dated
08.12.1981 (Annexure-1). Said Panchanan Behera
mutated the land in his name vide Mutation Case
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No.5204/1994 and R.O.R. was corrected in his favour
in respect of Khata No.174/278, Plot No.51/681/1186
to an extent of Ac.0.400 decimals, Kissam-Sarada
Dofasal-3. When the matter stood thus, the said
Panchanan Behera through Power of Attorney holder
(his son Priyaranjan Behera) sold Ac.0.400 decimal in
favour of the petitioner vide registered sale document
No.11131110388 dated 16.08.2011 (Annexure-5).
After purchase, the petitioner mutated the said area of
Ac.0.400 decimal and filed application for conversion
of kisam of the land to Gharabari under Section 8A of
the OLR Act. Accordingly, 'K' form was issued in favour
of the petitioner in respect of corrected Khata
No.174/287, Plot No.51/681/1186 for said extent of
Ac.0.400 decimal, Kisam 'Gharabari' (Annexure-7).
4. During Settlement Operation, the draft
Yadast was prepared in the name of Government
under 'Abada Jogya Anabadi status without issuing
any notice to the petitioner in Rent Objection stage,
i.e., Yadast stage and directed the same to be recorded
in the name of Government in respect of Hal Plot
No.1241, Hal Khata No.684. However, the Settlement
authority wrongly mentioned the Sabik Plot No.48
instead of Sabik plot No.51, which is evident from
Yadast under Annexure-8. The petitioner being kept in
dark about the change of status as well as ownership
of the case land could not raise her objection. As such,
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a valuable right is taken away without affording any
opportunity to the petitioner.
4.1 It is submitted by learned counsel for the
petitioner that the Settlement Authority has no
jurisdiction to sit over the leasehold property. In
support of her case, Miss Mahapatra, learned counsel,
relied upon the decisions of this Court in W.P.(C)
No.10339 of 2018 decided on 27.06.2018 (Sukadev
Nayak Vs. State of Odisha and others), W.P.(C)
No.21325 of 2014 decided on 02.05.2016 (Sitansu
Sekhar Baral Vs. State of Odisha and others) and
W.P.(C) No.516 of 2016 decided on 21.07.2016
(Rabindranath Biswal Vs. State of Odisha and
others). For ready reference, relevant portion of order
dated 21.07.2016 passed in W.P.(C) No.516 of 2016 is
quoted below.
"5. Considering the above, it appears
that in the present case the lease was
scrutinized earlier and the revisional
authority in Revision Case No.179 of 1982
has confirmed that there is no irregularity
and illegality. Therefore, the appellate
authority should have directed to prepare
the Record of Rights in favour of the
petitioner as he has no jurisdiction to
interfere with the order of the revisional
authority. Since there is an error on the
face of the record, this Court in exercise of
the extra ordinary jurisdiction while
quashing the impugned order under
Annexure-5 directs the Settlement Officer,
Major Settlement, Cuttack-opposite party
no.2 to prepare the Record of Rights in
favour of the petitioner, as expeditiously as
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possible, on production of certified copy of
this order.
The Writ Petition is accordingly
disposed of."
4.2 Accordingly, Miss Mahapatra, learned
counsel for the petitioner prays for a direction to
dispose of the writ petition in terms of the order
quoted above.
5. Mr. Mishra, learned Additional Government
Advocate does not dispute either the facts narrated
above nor the orders passed by this Court (supra)
and submits that the present writ petition is
squarely covered by the earlier decisions of this
Court including the order passed in W.P.(C) No.516
of 2016 disposed of vide order dated 21.07.2016.
He, however, submits that the ROR in respect of
Gothapatna mouza has been finally published
under Section 12-B of Odisha Survey and
Settlement Act, 1958. Thus, remanding the matter
to the Assistant Settlement Officer, who has no
jurisdiction to consider the Objection of the
petitioner, will be a futile exercise. He, therefore,
submits that interest of justice will be served better
if the petitioner files a Revision under Section 15(b)
of the OSS Act, 1958 for correction of the ROR
under Annexure-11.
6. Taking into consideration the submissions
of learned counsel for the petitioner and on
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perusal of records, it appears that the Assistant
Settlement Officer-opposite party No.6 has no
jurisdiction to sit over the lease granted in favour
of Smt. Sabitri Mohanty, which has never been
varied by any competent authority/court of law.
Although there is force in the submission of Mr.
Mishra, learned Additional Government Advocate
to the effect that appropriate remedy for the
petitioner after publication of final ROR under
Section 12-B of the Act will be by filing a petition
under Section 15(b) of the Act; but in view of the
observations made by a Division Bench of this
Court in W.P.(C). No. No.516 of 2016 disposed of
vide order dated 21.07.2016, the order passed by
the Assistant Settlement Officer under Annexure-
10 is not sustainable being without jurisdiction
and accordingly the ROR (Annexure-9) published
pursuant to the Yadast under Annexure-8 is also
not sustainable.
7. Accordingly, the Yadast No.1241 under
Annexure-8 and the ROR issued under Annexure-
9 stand set aside. The ASO is directed to consider
the case of the petitioner afresh giving her an
opportunity of hearing and pass a reasoned order
in accordance with law.
7.1 In order to avoid further delay in the
matter, petitioner is directed appear before the
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Assistant Settlement Officer, Major Settlement,
Jobra, Cuttack on 26.04.2021 along with certified
copy of this order to receive further instruction in
the matter. On appearance and filing relevant
documents in support of her case, the Assistant
Settlement Officer shall fix the date of hearing,
preferably within a period of one month there from
and proceed with the matter accordingly. He shall
also make an endeavour to dispose of the matter
giving opportunity of hearing to the parties
concerned expeditiously, preferably within a
period of four months from the date the matter
becomes ready for hearing.
Urgent certified copy of this order be
granted on proper application.
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K.R. Mohapatra, J.
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