Orissa High Court
Unknown vs State Of Odisha And Others) on 7 April, 2021
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
W.P.(C) No. 12649 of 2021
02. 07.04.2021 This matter is taken up through video conferencing
mode.
2. Heard Miss Deepali Mohapatra, learned counsel for the
Petitioner and Mr. Dillip Kumar Mishra, learned Additional
Government Advocate for the State-Opposite Parties.
3. The Petitioner in this writ petition seeks to assail the
order dated 18.09.2013 (Annexure-9) passed by the Assistant
Settlement Officer, Rental Colony, Bhubaneswar (now
functioning at Major Settlement, Jobra, Cuttack) in Objection
Case No.5947 of 2013.
4. Miss Mahapatra, learned counsel for the Petitioner
submits that the land pertaining to Sabik Plot No.502/1192
under Sabik Khata No.255/52 to an extent of Ac.1.000 decimals
in Mouza Ogalapada under Jatni Tahasil (for short, 'the case
land') was settled by the Tahasildar, Bhubaneswar in the name
of one Haribandhu Naik, son of Raghunath Naik of village
Ogalpada by order dated 15.07.1974 in W.L. Case No.2693 of
1973 complying the provisions of Odisha Government Land
Settlement Act, 1962 (for short, 'the Act'). Accordingly, ROR
in respect of the case land was issued. While the matter stood
thus, a suo motu proceeding under Section 7-A(3) of the Act
was initiated in Revision Case No.358 of 1986 by Additional
District Magistrate, Bhubaneswar and vide order dated
23.04.1987, he remitted the matter back to the Tahasildar,
Bhubaneswar for fresh enquiry and disposal of W.L. Case
No. 2693 of 1973. After remand, the Tahasildar, Bhubaneswar
initiated Lease Remand Case No. 188 of 1989 and upon hearing
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the parties and going through the records, confirmed the said
lease vide order dated 31.05.1990. But, in the interregnum Sri
Naik sold the case land to the present petitioner by virtue of the
registered sale deed dated 04.05.1983 after obtaining
permission from the competent authority vide order dated
12.04.1983 passed in Revenue Misc. Case No.493 of 1982.
After confirmation of the lease vide order dated 31.05.1990
passed by the Tahasildar, the petitioner applied for mutation of
the case land in his favour in Mutation Case No. 1600 of 1990
and mutation ROR in Khata No. 255/345, Plot No. 502/1192
measuring an area of Ac. 1.000 dec. (Annexure-5) was prepared
in the name of the petitioner. Thereafter, an amicable partition
was effected in the family by a registered deed of partition no.
1412 dated 27.05.2005 and an area of Ac. 0.500 dec. fell to the
share of the petitioner out of the case land.
5. During Settlement Operation, settlement authority
taking into consideration the family partition published the draft
ROR in the name of the present Petitioner (Annexure-8). But, a
suo motu objection case in Rent Objection Case No.5947 of
2013 was initiated and the Asst. Settlement Officer without
affording any opportunity to the petitioner vide order dated
18.09.2013 (Annexure-9) directed to record the land in the
name of the State Government. Subsequently, ROR under
Annexure-10 has been published in the name of the
Government. Thus, this writ petition has been filed assailing the
said order under Annexure-9 and ROR under Annexure-10.
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6. It is submitted by learned counsel for the Petitioner that
the Settlement Authority has no jurisdiction to sit over the lease
granted in favour of the Petitioner, which has been confirmed
by the Tahasildar, Bhubaneswar after due enquiry as directed
by the Additional District Magistrate, Bhubaneswar in exercise
of power under Section 7-A(3) of the OGLS Act. In support of
her case, Miss Mohapatra, 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 possible, on production of certified copy of this
order.
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The Writ Petition is accordingly disposed
of."
7. 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.
8. Mr. Mishra, learned Addl. Government Advocate for
the State 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 dated 21.07.2016 passed in W.P.(C)
No.516 of 2016. He, however, submits that the ROR in respect
of Ogalapada Mouza under Jatni tahasil has been finally
published under Section 12-B of Odisha Survey and Settlement
Act, 1958. Thus, reminding 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 best served, if
the Petitioner files a Revision under Section 15(b) of the Orissa
Survey & Settlement Act, 1958 for correction of the ROR under
Annexure-10.
9. Taking into consideration the submissions of learned
counsel for the parties and on perusal of the records, it appears
that the Assistant Settlement Officer, Rental Colony,
Bhubaneswar-opposite party No.6 has no jurisdiction to sit over
the lease granted in favour of Haribandhu Naik and subsequent
order passed by the revisional authority in Revision Case
No.358 of 1986 confirming the lease granted. Although there is
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force in the submission of Mr.Mishra, learned Addl.
Government Advocate to the effect that appropriate remedy for
the Petitioner after publication of the 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-9 is not
sustainable being without jurisdiction and accordingly the ROR
(Annexure-10) published pursuant to the same is also not
sustainable.
10. Accordingly, the order passed under Annexure-9 and
the ROR issued under Annexure-10 stand set aside. The Asst.
Settlement Officer, Major Settlement, Cuttack-Opposite Party
No.6 is directed to consider the case of the Petitioner in terms
of the revisional order passed by the Addl. District Magistrate,
Bhubaneswar in Revision Case No.358 of 1986 and pass
necessary order in accordance with law.
11. In order to avoid further delay in the matter, the
Petitioner is directed appear before the Assistant Settlement
Officer, Major Settlement, Cuttack on 10th May, 2021 along
with an authenticated copy of this order to receive further
instruction in the matter. On appearance and filing relevant
documents in support of his 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
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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.
12. As the restrictions due to the COVID-19 situation are
continuing, learned counsel for the parties may utilize a soft
copy of this order available in the High Court's website or print
out thereof at par with certified copy in the manner prescribed
vide Court's Notice No. 4587 dated 25th March, 2020.
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K.R. MOHAPATRA, J.
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