Orissa High Court
Bhramarbara Sahoo & Ors vs State Of Orissa on 5 November, 2021
Author: Biswanath Rath
Bench: Biswanath Rath
IN THE HIGH COURT OF ORISSA AT CUTTACK
O.J.C. NO.16656 OF 2001
AFR In the matter of an application under Articles 226 & 227 of the
Constitution of India
Bhramarbara Sahoo & Ors. .... Petitioners
-versus-
State of Orissa, represented through .... Opposite Parties
the Secretary, Revenue Office at
Secretariat, Bhubaneswar & Ors.
.
For Petitioners: Mr. B.N.Bhuyan, S.K.Panda,
R.Ray, A.Samal &
D.K.Parida
For Opp.Parties: Mr.U.K.Sahoo, ASC
(O.P.No.1)
Mr.Prabhav Behera, on half of
Mr.D.K.Mishra, S.C.Mohanty,
G.K.Nayak & R.Mahalik,
(O.P.No.2)
JUDGMENT
PRESENT:
THE HONOURABLE MR.JUSTICE BISWANATH RATH Date of Hearing & Judgment: 05.11.2021
1. This writ petition involves the following prayer:
"Under these circumstances the petitioners pray that your Lordships would be graciously pleased to Page 1 of 9 // 2 // admit this writ petition, call for the records from the Courts below and after hearing;
i) issue Rule NISI in the nature of a writ of mandamus and/or any other writ commanding the Opp. Parties to show cause as to why the order passed by the Consolidation Officer, Gop-Kakatpur as per Annexure- 5 and that of the Commissioner, Consolidation, Bhubaneswar as per Annexure-7 shall not be quashed;
ii) If the Opp. Parties fail to show cause or show insufficient cause the said rule be made absolute against them by quashing Annexures-5 and 7;
iii) Any other writ/writs, order/orders, direction/ directions which would be deemed fit and proper in the present facts and circumstances of the case be also issued/passed;
iv) Cost of the writ application be awarded in favour of the petitioners;
v) Any other relief/reliefs to which the petitioners are found entitled be also passed in their favour;
And for this act of kindness the petitioner as in duty bound shall ever pray."
2. Undisputedly, the impugned order involved in four sets of revision petitions involving Revision Petition Nos.101 of 1998 to 117 of 1998, appears to have been filed under Section 36 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short "the Act, 1972) being aggrieved by the appellate order involved therein whereas Revision Petition Nos.161 Page 2 of 9 // 3 // of 1998 to 168 of 1998 appear to be direct applications under Section 37(1) of the Act, 1972.
3. Mr.Bhuyan, learned counsel appearing for the petitioners involved herein in challenge to the common order under Annexure-7 in disposal of both the sets of revision petitions under Section 36 and 37(1) of the Act, 1972 raises a technical ground on the maintainability of the order at Annexue- 7 on the premises that for the nature of revisions, first set of revisions under Section 36 of the Act, 1972 and other set of revisions since proceeded under Section 37(1) of the Act, 1972, the revisional authority should have decided two sets of revisions independently and not together. Mr.Bhuyan, learned counsel for the petitioners again taking to the scope of revision under Section 36 as well as 37(1) of the Act, 1972 attempted to submit that power of the revisional authority under both the provisions are completely distinguishable. Measure of consideration of both the revisions is also completely different. For the provision under Section 36 of the Act, 1972, it is submitted that the revisional authority is required to assess the order of the appellate authority and give its finding undisputedly in exercise of limited exercise of power whereas for the restriction in the Page 3 of 9 // 4 // provision under Section 37(1) of the Act, 1972, Mr.Bhuyan, learned counsel for the petitioner submitted that law has been fairly settled that this provision provides a suo motu power to the revisional authority and in worse case there may be revision under Section 37(1) of the Act, 1972 after final publication of Record-of-Right where the parties did not get scope of objection case and appeal as well as revision under Section- 9, Section-15 and Section-36 of the Act, 1972 respectively. It is in the above premises, Mr.Bhuyan, learned counsel for the petitioners submitted that the impugned order remains unsustainable and, therefore, this Court should interfere in the impugned order and set aside the same.
4. Mr.Sahoo, learned Additional Standing Counsel for the State-opposite party referring to paragraph-2.0 at running page 107 of the brief though supported the findings in the revision but, however, unable to dispute the legal provision and the restriction with the revisional authority in such exercise being raised by Mr.Bhuyan, learned counsel for the petitioners. Mr.Prabhav Behera, learned counsel appearing on behalf of Mr.D.K.Mishra, and others for opposite party no.2 also supports the stand taken by the State counsel and claims for Page 4 of 9 // 5 // dismissal of the writ petition thereby upholding the order vide Annexure-7.
5. Considering the rival contentions of the parties, this Court takes note here the provisions under Section 36 and 37(1) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972;
36. Revision-(1) The Consolidation Commissioner may, on an application by any person aggrieved by any decision of the Director of Consolidation within ninety days from the date of the decision, revise such decision and for the said purpose, he may call for and examine the records;
(2) All orders passed under this section shall be final and shall not be void in question in any Court of law.
37. Power to call for records- (1) The Consolidation Commissioner may call for and examine the records of any case decided or proceedings taken up by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings 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 he thinks fit.
(2). The power under Sub-section (1) may be exercised by the Director of Consolidation in respect of authorities subordinate to him. Page 5 of 9
// 6 // Reading both the provisions and taking into consideration the submission of Mr.Bhuyan, learned counsel for the petitioners and counter objection by the counsels representing contesting opponents, this Court finds for the provision at Section 36 of the Act, 1972, there should not be any dispute or doubt that such a revision power is exercised involving orders in objection case ended up in appeal involved therein involving a limited exercise of power by the revisional authority, whereas revision under Section 37(1) of the Act, 1972 is a direct revisional provision being exercised by the Commissioner as a revisional authority. Looking to the settled position of law decided in the cases of O.J.C.Nos.3029, 6489 and 6490 of 1999, this Court finds considering the scope of revision under Section 37(1) of the Act, 1972, this Court has already settled the scope of revisional authority here is very very restricted and limited and there is clear distinctions between both the provisions categorically observing therein that revision under Section 37(1) of the Act, 1972 is a suo motu revisional power where the revisional authority calls for record for examining the orders of the lower authority. The other opinion appearing in such exercise shows there may be a Page 6 of 9 // 7 // revision under Section 37(1) of the Act, 1972 after a final publication under Section 41 of the Act, 1972 where there is no further scope of objection or appeal and revision also.
6. This Court further looking to the plea of the parties in the revision under Section 37(1) of the Act, 1972 available herein, finds the sole ground of filing of revision, petitioners involved therein cannot get a scope to object in the objection proceeding, for the opinion of this Court, nothing prevented to such parties to even either prefer appeal under Section 19 of the Act, 1972 and or prefer revision under Section 36 of the Act, 1972 taking leave of the authority if at all they were aggrieved by the orders in objection raised or in the appeal involved therein, as the case may be. For not satisfying any such contingency, this Court finds there should have been a separate consideration of the provision under Section 37 of the Act, 1972 after entering into the question of entertainability of Revision Case No.161 of 1998 to Revision Petition No.168 of 1998 filed under Section 37 of the Act, 1972 and deciding such revisions independently. It is in this view of the matter, this Court finds, taking both the sets of revisions under Section 36 of the Act, 1972 as well as Section 37(1) of the Act, 1972 Page 7 of 9 // 8 // together not only becomes bad but there is also gross abuse of power being exercised by the revisional authority.
6. In the circumstances, this Court finds impugned order vide Annexure-7 ought to be declared bad as not maintainable in the eye of law. However, keeping in view the above observation, the first set of litigations since requires considering the validity of the appellate order, interfering in this part of order involving Revision Nos.101 of 1998 to 117 of 1998, this Court remits the Revision Nos. 101 of 1998 to 117 of 1998 and directs the Commissioner, Consolidation, Orissa to decide Revision Petition Nos.101 of 1998 to 117 of 1998 in exercise of power under Section 36 of the Act, 1972 afresh. Further, Revision Petition Nos.161 of 1998 to 168 of 1998, for the observation of this Court since not entertainable in the eye of law, 2nd set of revision Nos.161 of 1998 to 169 of 1998 deemed to have been dropped as not entertainable and leaving the petitioners involved therein to approach under any other available provision. Considering there is also involvement of a civil proceeding culminated vide S.A.No.98 of 1986, this Court grants liberty to both sets of counsel to bring such aspect to Page 8 of 9 // 9 // the notice of the revisional authority during process of remand hearing.
7. With this observation and direction, the order at Anenxrue-7 sets aside. Revision Nos. 101 of 1998 to 117 of 1997 are remitted back with a direction to the revisional authority to decide this set of revisions independently and keeping in view the direction given hereinabove. Parties are also at liberty to produce the certified copy of this judgment at least within a period of 10 days with their appearance before revisional authority and the revisions indicated hereinabove are directed to be disposed of afresh in terms of the direction made hereinabove within a period of six months thereafter.
8. In the result, the writ petition succeeds but to the extent hereinabove. However, there is no order as to cost.
(Biswanath Rath) Judge Orissa High Court, Cuttack The 5th day of November, 2021/sks.
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