Orissa High Court
Harihar Sahoo & Anr vs Lord Shri Jagannath Mahaprabhu Bije & ... on 16 January, 2023
Author: Biswanath Rath
Bench: Biswanath Rath
ORISSA HIGH COURT : C U T T A C K
W.P.(C) NO.22093 OF 2010
AFR In the matter of a Petition under Article 227 of the Constitution of India.
Harihar Sahoo & anr. : Petitioners
-Versus-
Lord Shri Jagannath Mahaprabhu Bije & ors. : Opp.Parties
For Petitioners : Mr.L.K.Moharana
For Opp.Parties : None
CORAM :
JUSTICE BISWANATH RATH
Date of hearing : 03.01.2023 & Date of Judgment :: 16.01.2023
1. This is a Writ Petition under Article 227 of the Constitution of
India impugning the order dated 3.11.2010 passed by the Civil Judge
(Sr.Divn.), Puri involving C.S. No.87/33 of 2010-2009, vide Annexure-7.
The impugned order involved appears to be in rejection of a Petition, vide
Annexure-6 seeking direction of the trial court impounding the
unregistered Hata Patta or lease deed dated 11.5.1937 at the instance of
the Plaintiff-Petitioners.
2. Background involving the case is the Plaintiffs brought C.S.
No.33/2009 even somewhere it is mentioned as C.S. No.87/33 of 2010-
2009 on the File of Civil Judge (Sr.Divn.), Puri seeking declaration of the
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right of occupancy or stitiban right of the Plaintiffs over the suit property,
granting decree of permanent injunction against Defendant Nos.1 to 3
restraining them from interfering in the peaceful possession of the
Plaintiffs over the suit property, from dispossessing them therefrom,
breaking the house thereon or from causing any waste or damage thereto
in any manner whatsoever and from impairing its value in any manner,
further for award of cost against the Defendants and grant of such other
reliefs as are deemed appropriate in the circumstances of the case.
3. Property involves in the Suit measuring an area of Ac.0.17
decimals is a part of a large patch of land over Sabik Plot No.1625, Sabik
Khata No.129, Mouza-Samang, Dist.-Puri, measuring an area of Ac.01.36
decimals claimed to be originally belong to Ex-intermediary Defendant
No.1 claiming to be lying fallow without any use. It is claimed, on the
request of one Fakir Sahoo S/o.Chai Sahoo, the late grandfather of the
Petitioners, the then Marfatdar of Shree of Defendant No.1, late Mahanta
Sri Jagannath Ramanuja Das executed an unregistered Hata Patta/lease
deed in favour of Fakir Sahoo on 11.5.1937 by inducting him as the
Rayat of the said property to carry out horticultural operations on
acceptance of Salami of Rs.200/- and fixed annual rent of Rs.2/-.
Possession of the suit property was also delivered to the Plaintiffs'
grandfather, since which time Fakir Sahoo, the grandfather was in
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possession and in enjoyment of the suit land by paying rent regularly. It is
claimed that Fakir Sahoo, the grandfather of the Plaintiff-Petitioners died
in 1950, consequent upon which his son, late Bareni Sahoo, the Plaintiffs'
father inherited the rayatis and the Plaintiffs being the legal heirs of late
Bareni Sahoo consequently remained in possession of the suit land. In
bringing the suit, reason shown to be in the Plaint that after the death of
their father, some employees of Defendant Nos.2 & 3 threatened to
dispossess the Plaintiff-Petitioners from the suit land following the order
dated 26.3.2004 passed in O.E.A (Suo Moto) Case No.267/2000,
consequent upon which the suit land claimed to have been settled for fair
and equitable rent with Defendant No.2.
It is claimed, the Petitioners' father coming to know the
development through the O.E.A. Proceeding preferred O.E.A. Appeal
No.5 of 2008 on the File of Additional District Magistrate, Puri, which
was claimed to be pending as on the date of filing of the suit. It is
claimed, even in spite of pendency of the O.E.A. Appeal, O.Ps.2 & 3
continued to threaten to interfere in the peaceful possession of the
Plaintiff-Petitioners resulting filing of the Civil Suit involved herein.
Pursuant to notice in the Suit, O.P.1 though did not appear and the Suit
remained ex parte against O.P.1, O.Ps.2 & 3, the Defendant Nos.2 & 3
appeared and filed their written statement clearly denying the existence of
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Hata Patta in favour of the late grandfather of the Plaintiffs. Further
challenge is also made to the validity of unregistered Hata Patta/lease
deed dated 11.5.1937, if any, for restrictions under the provision of
Sections 33 & 35 of the Indian Stamp Act. It is while the matter stood
thus claiming foundation in the Civil Suit through such document, the
Plaintiffs filed a Petition in the trial court 24.6.2010 for impounding of
the unregistered Hata Patta/lease deed dated 11.5.1937 under Sections 33
& 35 of the Indian Stamp Act, for admission of the same as the evidence
for collateral purpose, copy of which appears to be at Annexure-6. O.Ps.2
& 3-Defendant Nos.2 & 3 made oral objection to the aforesaid Petition
and the trial court after hearing both the Counsel came to reject the
Petition, vide order dated 3.11.2010 impugned herein, vide Annexure-7.
4. Mr.Moharana, the Counsel appearing for the Plaintiff-Petitioners
challenged the aforesaid impugned order on the premises that the trial
court has wrongly accepted the objection of Defendant No.s2 & 3 without
considering that such Parties have no locus standi to object such Petition
not being the Ex-intermediaries nor even involved in the execution of
Hata Patta and/or lease deed. Mr.Moharana contended, for there is no
objection by Defendant No.1, the original Executor, there was no scope
for entertaining the objection of Defendant Nos.2 & 3. There is allegation
that the trial court has illegally accepted the contention of Defendant
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Nos.2 & 3 that the deed was forged one when particularly there is no
challenge to such deed. Counter to such proceeding is also questioned
taking their locus standi to have such objection. In reference to Sections
33 & 35 of the Indian Stamp Act 1899 (herein after called as "Act,
1899"), Mr.Moharana, learned counsel for the Petitioners contended,
there is failure of appreciating the provision indicated herein above by the
trial court. Further there is also allegation that there has been failure in
appreciating the provision at Section 17 of the Registration Act, 1908
(herein after called as "Act, 1908").
5. To support his case, Mr.Moharana, learned counsel for the
Petitioners also took support of a decision of Madras High Court in
Navinraj vrs. Cnanasekar & ors : (CRP (MD) No.1084 of 2012 and
M.P.(MD) No.1 of 2012 disposed of on 11.8.2015), decision of Orissa
High Court in Braja Sundar Nanda vrs. Pravabati Kar & ors : reported
in 2013 (II) OLR 651, decision of the Hon'ble Supreme Court in Avinash
Kumar Chauhan vrs. Vijay Krishna Mishra (Civil Appeal No.7530 of
2008 disposed of on 17.12.2008) and the decision in Ram Chandra Das
vrs. Hiralal Modi & ors. reported in AIR 1984 Ori. 21.
Referring to the above decisions, Mr.Moharana, learned counsel
for the Petitioners reading through particular Paragraphs therein
attempted to satisfy that the Plaintiffs have a clear case and have the case
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of impounding of the instrument involved and their right is very much
protected under the provision of Sections 33 & 35 of the Act, 1899. In the
above circumstance, Mr.Moharana contended, the impugned order should
be interfered with and set aside in allowing the Petition at Annexure-6.
6. From the order-sheet, this Court finds, in this Writ Petition there
was direction for issuing notice to the O.Ps. by order dated 24.12.2010
with grant of stay of further proceeding of the Civil Suit involved herein.
Office Note discloses, notice was issued to all these O.Ps. by fixing date
of appearance to 14.2.2011. Office Note further shows, A.Ds. from the
O.Ps. are not back. There is no return of such copies. There is accordingly
presumption that notice on the O.Ps. have been served. However, there is
no appearance on behalf of Defendant-O.Ps.
7. Looking to the Application at Annexre-6 herein and taking into
consideration of the impugned order at Annexure-7, heading of the
Petition reads as follows :-
"In the matter of a petition by the plaintiffs for impounding the
Unregistered Hata Patta or Lease Deed dt.11.05.1937 u/S 33 and
35 of Stamp Act."
Prayer portion of the Petition reads as follows :-
"Therefore, the plaintiffs pray that the court be pleased to
exercise its discretion U/S 33 read with Sec.35 of Stamp Act and
impound the unregistered Hata Patta or Lease Deed
dt.11.05.1937 before trial of the suit or commencement of the
hearing of the suit and accordingly the plaintiffs be directed to
deposit the required fees for stamp duty etc. after assessment to
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impound the said document and for which act of kindness they
shall as in duty bound ever pray"
8. Reading the above, this Court finds, there remains no dispute that
the Plaintiffs have prayed the trial court for impounding of unregistered
Hata Patta or lease deed dated 11.5.1937 in exercise of discretion under
Section 33 read with Section 35 of the Act, 1899. Keeping in view the
document involving the case and reliance of the provision of the Act,
1899, this Court finds, the provisions at Sections 33 & 35 of the Act,
1899 read as follows :-
"33. Examination and impounding of instruments. - (1)
Every person having by law or consent of parties authority to
receive evidence, and every person in charge of a public office,
except an officer of police, before whom any instrument,
chargeable, in his opinion, with duty, is produced or comes in the
performance of his functions, shall, if it appears to him that such
instrument is not duly stamped, impound the same.
(2) For that purpose every such person shall examine every
instrument so chargeable and so produced or coming before him,
in order to ascertain whether it is stamped with a stamp of the
value and description required by the law in force in 1 [India]
when such instrument was executed or first executed:
Provided that -
(a) nothing herein contained shall be deemed to require
any Magistrate of Judge of a Criminal Court to examine or
impound, if he does not think fit so to do, any instrument coming
before him in the course of any proceeding other than a
proceeding under Chapter XII or Chapter XXXVI of the Code of
Criminal Procedure, 1898 (5 of 1989);
(b) in the case of a Judge of a High Court, the duty of
examining and impounding any instrument under this section
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may be delegated to such officer as the Court appoints in this
behalf.
(3) For the purposes of this section, in cases of doubt, -
(a) [the [State Government]] may determine what offices
shall be deemed to be public offices; and
(b) [the [State Government]] may determine who shall be
deemed to be persons in charge of public offices.
ORISSA AMENDMENT
In Section 33 of the principal Act after Sub-section (1) the
following Sub-sections shall be inserted, namely :
"(1-a) If it appears to such person from the copy of an
instrument produced or coming in performance of his functions,
within three years from the date of registration of the instrument,
that such instrument is not duly stamped, he shall call for the
original instrument and if he is satisfied on production of the
instrument that it has not been duly stamped, impound the same
and the deficient amount on duty shall be payable by the person
liable to pay the duty.
(1-b) Where the original instrument is not produced such
person shall refer the copy of the instrument to the Collector for
determination of the market value of the property and the duty
payable thereon and the Collector may determine the market
value of the property and the duty as aforesaid in accordance
with the procedure provided for in sub-section (2) of Section 47-
A."
35. Instruments not duly stamped inadmissible in
evidence, etc. -No instrument chargeable with duty shall be
admitted in evidence for any purpose by any person having by
law or consent of parties authority to receive evidence, or shall be
acted upon, registered or authenticated by any such person or by
any public officer, unless such instrument is duly stamped :
Provided that -
(a) any such instrument 6 [shall] be admitted in evidence
on payment of the duty with which the same is chargeable, or, in
the case of any instrument insufficiently stamped, of the amount
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required to make up such duty, together with a penalty of five
rupees, or, when ten times the amount of the proper duty or
deficient portion thereof exceeds five rupees, of a sum equal to
ten times such duty or portion;
(b) where any person from whom a stamped receipt could
have been demanded, has given an unstamped receipt and such
receipt, if stamped, would be admissible in evidence against him,
then such receipt shall be admitted in evidence against him on
payment of a penalty of one rupee by the person tendering it;
(c) Where a contract or agreement of any kind is effected
by correspondence consisting of two or more letters and any one
of the letters bears the proper stamp, the contract or agreement
shall be deemed to be duly stamped;
(d) nothing herein contained shall prevent the admission of
any instrument in evidence in proceeding in a Criminal Court,
other than a proceeding under Chapter XII or Chapter XXXVI of
the Code of Criminal Procedure 1898 (V of 1898);
(e) nothing herein contained shall prevent the admission of
any instrument in any Court when such instrument has been
executed by or on behalf of the Government, or where it bears
the certificate of the Collector as provided by section 32 or any
other provision of this Act."
Section 33 of the Act, 1899 when provides examination and impounding
of instrument, Section 35 provides instrument not duly stamped
inadmissible in evidence. It is at this stage, looking to the nature of
Petition at Annexure-6, this Court finds, even though there is reference of
Section 35 of the Act, the claim appears to be clearly seeking a direction
in exercise of power under Section 33 of the Act. In reading of the
impugned order, the Plaintiff-Petitioners herein have filed the Petition
and in the submission in consideration of such Petition keeping in view
the background in the suit urged, the Hata Patta dated 11.5.1937 since is
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an unregistered instrument cannot be received in evidence without
impounding the same before the trial commences and in consideration
process, they be directed to deposit the required fees of Stamp Duty etc.
O.Ps. appearing therein appear to have made objection to such request.
Their contention appears to be since the unregistered Hata Patta is
fabricated, antedated and manufactured and such document never seen
the light of the day prior to filing of the same in the trial court, law does
not permit in impounding such document unless existence of such
document is found to be established. It is here from the Plaint, this Court
finds, on the document involved herein on coming into light of such
document, the Plaintiffs have the following pleadings in Paragraphs-5 &
7 :-
"5. That the property in respect of which reliefs are sought in
this suit is a piece of horticultural land the details of which have
been furnished in schedule "A" below (hereinafter referred to as
"suit property" in question or property in suit in short throughout
the plaint). The aforesaid schedule - "A" forming subject matter
of the suit need be read as a part of the plaint.
7. That it will be pertinent to submit here that the defendant
deity No.1 (one) had intermediary interest in the sabik suit
holding or suit sabik khata and the properties therein including
the suit property which was abolished after coming into operation
of the provisions of Orissa Estates Abolition Act on 18.03.1974.
However the occupancy right or stitiban right of the father of the
plaintiffs over the suit property was neither affected nor touched
by any of the provisions of Orissa Estates Abolition Act and as
such he continued to hold the suit property as an occupancy
raiyat or stitiban tenant under the proforma defendant No.4(four)
or the state as a deemed tenant. Thus the right, title, interest-in
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and possession of the father of the plaintiffs was no way affected
or disturbed by the operation of the provisions of O.E.A. Act.
The father of the plaintiffs was a simple innocent, ignorant, meak
and mild person. He was also illiterate and could hardly write his
name that too with the dictation of others. Since he was
continuing to pay rent to defendant No.1 (one) for the use and
occupation of the suit property till vesting of the intermediary
interest of the said deity defendant he had absolutely no inkling
about the commencement of the settlement proceeding in the suit
mouza which started in or around 1965 and ended in 1987. The
father of the plaintiffs being ignorant of the settlement
proceedings and its camps which were held in phases at the
locality could not take any step to record his name in respect of
the suit property. This was more so as neither the defendant No.1
(one) and its agents had never interfered in the peaceful
possession over the suit property of the father of the plaintiffs
during that period of settlement proceedings nor the settlement
officials ever visited the locality. However the possession of the
suit property by the father of the plaintiffs appears to have been
reflected in the finally published settlement R.O.R. from the fact
that the suit property has been separately carved out as a plot in
the finally published current settlement R.O.R. bearing plot
No.79 having an area of Ac.0.170 (hundred seventy) decimals
under current settlement Khata No.35 (thirty five) of suit mouza.
Although the suit current settlement Khata and the properties
therein including the suit property and plot have been recorded in
the name of defendant No.1 (one) in "Bebandobasti" status or in
other words fair and equitable rent has not been settled for the
suit current settlement holding with defendant No.1 (one) after
vesting of the intermediary interest. It has and had no right, title,
interest therein after vesting. Be that as it may since settlement
entries neither creates title nor extinguish the same, the none
recording of the suit property in the name of the father of the
plaintiffs during settlement proceedings has no way affected his
right of occupancy or stitiban right therein. Thus the plaintiffs
father namely Bareni Sahoo S/o.Late Fakira Sahoo had right,
interest-in and possession over the suit property as an occupancy
raiyat or stitiban tenant."
In Paragraph-9, the Plaintiffs have admitted the development through the
O.E.A. Case involving the very same property. In O.E.A.(Suo Motu)
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Case No.267 of 2000 and the matter was stated to be pending in O.E.A.
Appeal No.5 of 2008 on the File of Additional District Magistrate, Puri
even at the time of filing of the suit. Paragraph-12 clearly mentions the
cause of action when Defendant Nos.1 to 3 on the basis of the order, the
O.E.A. Authority threatened to dispossess the Plaintiffs. There is however
no information coming from either side on any development in O.E.A.
Appeal at this stage.
9. Filing written statement, vide Annexurfe-5, Defendant Nos.2 & 3
in Paragraph-7 have the following pleadings :-
"7. That Civil Court has no jurisdiction to try the suit as it is
barred u/S.39 of the O.E.A. Act read with Section 9 of C.P.C."
In Paragraph-13, the Defendants have the following plea :-
"13. That it is not admitted that Sabik Plot No.1625 (Sixteen
hundred twenty five) under Khata No.129 (One hundred twenty
nine) of sabik mouza Samanga was belonging to defendant No.1
(one) and was lying follow with wild growth. It is false to say
that the suit land was a part of a ditch and was not useful. It is a
black lie to aver that the grand father of plaintiff namely Fakir
Sahu of Markandeswar Sahi approached the then Mahanta of
Dakhina Parswa Math to induct him as a rayat in respect of suit
property or to hold same as a rayat to carry out horticulture
operation on payment of rent to the defendant No.1 (one). It is
false to suggest that since the defendant No.1 (one) derived no
income from the suit sabik plot the then Mahanta and marfatdar
of deity defendant No.1(one) in course of his prudent
Management accepted the proposal of the grand father of the
plaintiffs and inducted in the suit property as a rayat to carry out
horticulture operation thereon, in acceptance of salami of
Rs.200/- (Rupees two hundred) with a fixed annual rent of Rs.2/-
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(rupees two) only. And it is not true that the then Mahant of
Dakhina Parswa Math delivered possession of suit property by
making demarcation to said Fakir Sahu. It is outright false and
fabricated allegation that the induction of Fakira Sahu was not
only evidence by delivery of possession of the said property to
him but also by a contemporaneous document that is through an
unregistered deed of lease dt.11.5.1973 (Eleventh May Nineteen
hundred seventy three) executed by the then Mahanta of Dakhina
Parswa Math, Endowment. And it is not accepted that the said
Mahant was the sebayat Marfatdar of the deity no.1 (one). It is
false to say that Fakira Sahu continued to possess the suit land by
carrying out horticulture operation thereon and raised seasonal
vegetables therein as a rayat. It is not true that said Fakira Sahu
continued to pay fixed annual rent to the deity defendant No.1
(one) to its alleged sebayat marfatdar the ten Mahanta of Dakhina
Parswa Math. Said Fakir Sahu was never a settled rayat of village
nor he was acquired any right, title as an occupancy rayat over
the suit land in question as alleged in the plaint. It is not true that
Fakira Sahu died in around 1950 (nineteen hundred fifty). It is
also not true that Fakira Sahu had one son Bareni Sahu. Fakira
Sahu had other sons and daughter at the time of his death. The
alleged Bareni Sahu had not inherited the suit property as an
occupancy rayat as alleged in para 5 (five) of the plaint. It is also
not admitted that the alleged Bareni Sahu have been paying rent
to the then Mahant of Dakhina Parswa Math till the vesting of the
state under provisions of O.E.A. Act. If any such rent receipts
will be produced those receipts should be treated as forged
manufactured, antedated documents and the signatures of
Mahanta if found place the same signatures should be treated
forged and fraudulent. The principle is correct that occupancy
rayat right will not vest along with the vesting of the
intermediary Estate. But is to be scrutinized and assessed if the
alleged rayat right is admitted and not a disputed by the ex-
intermediary and that must be on or before the date of vesting.
The self styled or self imposed rayat status of Fakir Sahoo on a
suit land on the basis of some forged document the above
principle is not attracted. The plaintiffs late father or grand father
were never occupancy rayat or occupancy tenants under the ex-
intermediary on or before the date of vesting. Therefore, they can
not take the advantage of the provision of law of O.E.A. Act that
the rayat right will not vest. All the allegations in the Para
7(seven) are imaginary, vague and concocted having no truth
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behind it. It is not within the knowledge of this defendant that the
father of the plaintiff was simple, innocent, ignorant a mick and
mild person and an illiterate person. It is highly improbable and
also ridiculous to aver that the late father of plaintiff have
absolutely no inkling about the commencement of proceeding
stated in the suit mouza in around 1965 and ended in 1987. It is
strongly denied that the father of the plaintiffs was ignorant about
the settlement proceedings which were held in phases in the
locality but could not take any step to record his name in suit
property respectfully. It is not true that the settlement officers had
never visited the suit village and the suit land in question. The
question of interfering in the alleged peaceful possession of the
plaintiff father of suit property by defendant No.1(one) does not
arise since defendant No.1(one) had never given the land to the
late father of the plaintiff to enjoys a rayat. Since till 1987
(Nineteen hundred eighty seven) as the plaintiffs late father was
not actually a rayat in respect of a suit property and was not in
possession of the same and no documents were in possession of
late father of the plaintiff. Therefore, steps were not taken in
settlement operation and also the settlement officials did not
record the possession or any type of right of the late father of
plaintiffs. It cannot be interfered from the carving of a separate
plot with an area of A 0.170 (One hundred seventy) decs bearing
Plot No.79 (seventy nine) that this was in possession of the
plaintiff's late father or late grand father or somebody as tenant
in respect of the property. It is not correct that the suit plot was
recorded in hal settlement in the name of defendant No.1(one) in
bebandobasta status. It is false to say that the plaintiff's father
Bareni Sahu had got right, interest and possession over the suit
property, as an occupancy rayat or sthitiban tenant."
10. Reading the aforesaid, this Court finds, there is strong objection to
creation and/or existence of Hata Patta. It is at this stage, for the
discussions of this Court herein above, for there is strong dispute to the
existence of Hata Patta by the appearing Defendants, there is no situation
applying the provision of Section-33 of the Act, 1899. This Court here
again finds a strange development questioning the entertainability of the
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suit even for there already existence of a dispute at the stage of Appeal
under the Orissa Estates Abolition Act, 1951 admitted to be at the
instance of the Defendants. Therefore, there existed a greater question to
be decided also as to the maintainability of the suit in view of the
development through the O.E.A. Proceeding.
11. Coming back to the claim of the Petitioners, vide Annexure-6, this
Court observes, unless the Plaintiffs establish the survivality of
unregistered Hata Patta or the lease deed dated 11.5.1937, the Petition
under Section 33 & 35 of the Act, 1899 remains premature.
12. It is at this stage, considering the citations cited by the learned
counsel for the Plaintiff-Petitioners, this Court finds, all the decisions are
at the second stage of the matter either involving undisputed registered
document or some cases involving probability of evidence after the
unregistered document is impounded under the provision of Section 33 of
the Act, 1899 and keeping in view the mandate through Section 35 of the
Act, 1899 reasoning in passing the impugned order. No decision is cited
at Bar comes to be rescue of the Petitioners herein.
13. For the observations herein above and as this Court has already
held, the Petition, vide Annexure-6 seeking impounding of the document
in serious objection, there is no illegality in rejecting such Petition. This
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Court, therefore, finds, there is no scope for interfering with the
impugned order in entertainment of the Petition at Annexure-6. However,
this Court keeps the issue of impounding open and to be claimed only
after existence of Hata Patta/lease deed is established in course of trial
and the suit is not affected by the development through the Orissa Estates
Abolition Act Proceeding.
14. The Writ Petition thus stands dismissed but however keeping the
scope of revival of such Application open subject to conditions also
indicated herein. No cost.
...............................
(Biswanath Rath, J.) Orissa High Court, Cuttack. The 16th January, 2023/M.K.Rout, A.R.-cum-Sr.Secy.
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