Orissa High Court
Kriday Realty Pvt. Ltd vs State Of Odisha And Others ...... ... on 3 September, 2024
Author: B.P. Routray
Bench: B.P. Routray
Signature Not Verified
Digitally Signed
Signed by: CHITTA RANJAN BISWALIN THE HIGH COURT OF ORISSA AT CUTTACK
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 10-Sep-2024 17:52:26 W.P.(C) No.10091 of 2024
(An application under Articles 226 & 227 of the Constitution of India.)
Kriday Realty Pvt. Ltd.,
and another ...... Petitioners
Versus
State of Odisha and others ...... Opposite Parties
Advocate(s) appeared in this case :-
For Petitioners : Mr.M.Kanungo, Sr. Advocate
For Opposite Parties : Mr.D.Mohapatra, Advocate
(for O.P.No.5)
Mr.K.K.Das, ASC
CORAM : JUSTICE B.P. ROUTRAY
JUDGMENT
3rd September 2024 B.P. Routray,J.
1. Heard Mr.Kanungo, learned Senior Counsel for the Petitioners and Mr.Mohapatra, learned counsel for Opposite Party No.5 as well as Mr.Das, learned counsel for the State-Opposite Parties.
2. Mr.Das, learned Additional Standing Counsel for the State submits that Opposite Party No.3 has filed his counter today through e-filing.
W.P.(C) No.10091 of 2024 Page 1 of 7 Signature Not Verified Digitally SignedSigned by: CHITTA RANJAN 3. BISWALThe Petitioners in this writ petition have prayed for quashing of Reason: Authentication Location: Orissa High Court, Cuttackdated 9th February 2024 (Annexure-2) passed by the Additional order Date: 10-Sep-2024 17:52:26 Commissioner, Bhubaneswar in OSS Case No.826/ 2023.
4. The Petitioners are Real Estate Developers who have been allowed to develop the land on PPP Mode. Bhubaneswar Development Authority, who allotted the land for development to the present Petitioners, preferred the revision case before the Additional Commissioner impleading Petitioner No.1 as Opposite Party No.5. The entire dispute is regarding recording of the land in Hal Plot No.97 extending Ac.1.016 dec corresponding to Sabik Plot No.87/1264 in Government Rakhit Khata No.2075 having Kisam Jungle.
5. The admitted fact remains that in the Sabik ROR, it was recorded as Puratana Patita and while preparing the hal records, such extent of the land measuring Ac.1.016 dec. has been recorded in Jungle Kisam.
6. The learned Commissioner in the impugned order under Annexure- 2 has though agreed that RoR of the land in question has been prepared wrongly with an apparent error committed by the Settlement Authority during last settlement operation shifting southern boundary line of Hal Plot No.97, thereby mismatching the Hal-Sabik comparison of maps. Despite holding so, the Commissioner has denied to correct the Kisam of the land holding that even if for wrong recording of the land in Jungle Kisam, prior approval of Government of India in the Ministry of Environment and Forest is mandatory and therefore, refused to correct the Kisam.
7. Perusal of the hal ROR under Annexure-1 admittedly reveals recording of the Kisam as Jungle in respect of Plot No.97. The real dispute involved here is that, the land in question was never in Jungle Kisam, but W.P.(C) No.10091 of 2024 Page 2 of 7 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN byBISWAL wrong shifting of boundary line of the plot in the map, some Jungle Reason: Authentication Location: Orissa High Court, Cuttacklands were included. It is submitted on behalf of the Petitioners and Kisam Date: 10-Sep-2024 17:52:26 Opposite Party No.6 that, if the boundary line in the map would be corrected, all those Jungle Kisam lands will be excluded. It is seen from the counter filed by Opposite Party No.7, i.e. The Forest Department, they have admitted regarding mismatch in the preparation of boundary line in the Hal map of Plot No.97. Paragraph 5 and 6 of their counter are reproduced below:
"5. That the deponent respectfully submits that Sabik Plot No.87/1264 & No.87/1263 of Village-Sankarpur, P.S-Chandaka recorded in Sabik Khata No.421 corresponds to series of Hal plot with Gocher classification recorded in Hal Khata No.2075 (Rakhit Khata). But on super imposition of Hal & Sabik map, it reveals that Sabik Plot No.87/1264 with an area of Ac.7.990 corresponds to several Hal plots including plot No.97(P) with an area of Ac.1.016 classified as Jungle, recorded in "Jungle Bibhag" Khata No.2076.
But Hal plot No.97(P) as per Hal map does not tally with the Hal Sabik & Sabik Hal plot index co-relation. So, as it appears there is a mis-match in preparation of boundary line of Hal plot No.97, Hal Khata No.2076 which corresponds to Sabik plot No.87 (P) of Mouza-Sankarpur.
6. That on verification in the field, it is seen that the Forest Deptt. is not in possession over the schedule area of Ac.1.016 of plot No.97(p) having no forest growth. The Settlement Officer, Major Settlement, Cuttack is the competent authority to offer his views in the matter of change of boundary line in the Hal map if required which has been communicated to the Under Secretary, Board of Revenue, Odisha, Cuttack vide this office letter No.8159 dated 07.11.2023."
W.P.(C) No.10091 of 2024 Page 3 of 7 Signature Not Verified Digitally SignedSigned by: CHITTA RANJAN 8. BISWALOpposite Party No.5 in their counter supports the case of the Reason: Authentication Location: Orissa High Court, Cuttack Petitioners of course.
Date: 10-Sep-2024 17:52:26
9. Opposite Party No.3 in his counter has stated that the Settlement Officer is not the competent authority to correct the map and ROR after final publication of the same.
10. In such view of the matter, the question arises that, when it is admitted that the boundary line has been wrongly drawn in the map to include some portion of the Jungle Kisam lands, can the Revenue Authorities under the provisions of Odisha Survey and Settlement Act rectify the same ?
11. Section 15 of the OSS Act, which gives the revisional power to the Board of Revenue, stipulates as follows:
"15. Revision by Board of Revenue - The Board of Revenue may in any case direct-
(a) of its own motion the revision of any record-of-rights, or any portion of a record-of rights, at any time after the date of final publication under Section 12-B but not so to affect any order passed by a Civil Court under Section 42.
(b) on application made within one year from the date of final publication under Section 12-B the revision of record-of-rights or any portion thereof whether within the said period of one year or thereafter but not so as to affect any order passed by a Civil Court under Section 42.
Provided that no such direction shall be made until reasonable opportunity has been given to the parties concerned to appear and be heard in the matter."
W.P.(C) No.10091 of 2024 Page 4 of 7 Signature Not Verified Digitally SignedSigned by: CHITTA RANJAN 12.BISWALIt is no more res integra that the authority exercising the revision Reason: Authentication Location: Orissa High Court, Cuttackunder Section 15 of the Act to correct the record of rights has very power Date: 10-Sep-2024 17:52:26 wide jurisdiction. A land record which is wrongly prepared due to the mistake on the part of settlement authorities can undoubtedly be corrected by exercising the power under Section 15. In the instant case, it is not that the land allotted to the BDA and subsequently given to the Petitioners were the forest lands. But the fact remains that the area, due to change of the boundary line, is including some forest lands. So, if the boundary line is corrected in terms of the Sabik map, then it will exclude the forest lands. So, the question of changing of Kisam of Jungle (forest) would not arise in respect of the land.
13. As it is found from the report of the Tahasildar, mentioned in the impugned order, he has clearly stated that there is mismatch in Hal-Sabik map. The relevant portion is reproduced below:
"Hal Plot No.97 stands recorded in Khata No.2076 (Jungle Bibhag) classified as jungle which corresponds to sabik Plot No.87 of Sabik Khata No.424, but doesn't corresponds to Sabik Plot No.87/1264 or 87/1263 of Mouza-Sankarpur. The Hal Plot No.97(p) towards Southern side measuring an area of Ac.1.016 is under exclusive possession of BDA which has been leased out to M/s.Kriday Reality Pvt. Ltd for Housing Project. Further, on verification, it is seen that Sabik-Hal and Hal-Sabik co-relation in corresponds to Sabik Plot No.87/1264 and 87/1263 of Mouza- Sankarpur as per plot Index does not tally with the Hal Sabik superimposition of maps leading to mismatch in preparation of the South side boundary wall of Hal Plot No.97. It may be stated here that Sabik Plot No.87/1264 and 87/1263 stands recorded in Settlement ROR No.423 (Rakhita Anabadi) which is classified as Gochara. As such, the Southern side boundary line of Hal Plot W.P.(C) No.10091 of 2024 Page 5 of 7 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL No.97 need to be corrected to the extent so as to tally with Sabik Reason: Authentication Location: Orissa High Court, Cuttack Map plot No.87."
Date: 10-Sep-2024 17:52:26 Further, the Collector in his para-wise report has stated before the Commissioner that while preparing the map in respect of Plot No.97 some area/portion of Sabik Plot No.87 has been mistakenly added to Hal Plot No.97.
14. Therefore, it becomes clear from the record as well as the counter of the Opposite Parties that a mistake has been incorporated while preparing the map to include some parts of forest land and therefore, if the map is corrected, such forest lands would be excluded from plot no.97 in terms of the Sabik plot. Undoubtedly, the power to correct the record of settlement is vested with the revisional authority in terms of Section 15 of the OSS Act and therefore, the authority under Section 15 has the power to correct the record if any mistake is found in preparation of the same because once a case is made out to invoke the revisional power, the authority is bound to exercise the power. So, the finding of the revisional authority that permission of Ministry of Environment and Forest is required for correction of the Kisam, is found an error on record. It is true that the power vested by the provisions of the statute on an authority cannot be construed to divest the power from same authority, and the authority is duty-bound to exercise his power within his limits. Here, it is held that the Commissioner has the power under Section 15 of the OSS Act to correct the records whenever he finds a mistake in preparation of the same by the Settlement Authorities and he cannot leave his hands free on the guise of permission from another authority. Accordingly, the Revenue Authorities are directed to correct the map in respect of Hal Plot No.97 as per the W.P.(C) No.10091 of 2024 Page 6 of 7 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN mistakes BISWAL pointed out by the concerned authorities, within a period of two Reason: Authentication Location: Orissa High Court, Cuttack from today. The impugned order is set aside to this extent.
months Date: 10-Sep-2024 17:52:26
15. The writ petition is disposed of as allowed.
(B.P.Routray) Judge // C.R. Biswal, A.R.-Cum-Sr.Secy // W.P.(C) No.10091 of 2024 Page 7 of 7