Orissa High Court
WP(C)/11926/2020 on 1 June, 2020
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
W.P.(C) No.11926 of 2020
02. 01.06.2020 Due to outbreak of COVID-19, this matter is
taken up through Video Conferencing.
Heard Mr. B.P. Samal, learned counsel for the
petitioner and Mr. P.K. Panda, learned Additional
Government Advocate for the State-opposite parties.
The petitioner in this writ petition assails the
order dated 26.11.2019 (Annexure-2) passed by the
Sub-Collector, Kendrapara in R.P. Misc. Appeal Case
No.22 of 2015.
Mr. Samal, learned counsel for the petitioner
submits that opposite party no.4, namely, Jadumani
Behera filed a Revision Case in R.P. No.148 of 1999
under Section 15(b) of the Odisha Survey &
Settlement Act, 1958 (for short 'the Act') for correction
of R.O.R. in respect of Hal Plot No.915 under Hal
Khata No.495 to an extent of Ac.0.24 decimals
corresponding to Sabik Plot No.652, Sabik Khata
No.154 of Mouza-Parakula under Marshaghai Tahasil
in the district of Kendrapara on the basis of a
registered sale deed. Surprisingly, the Commissioner,
Land Records & Settlement, Odisha, Cuttack vide his
order dated 08.01.1999 (Annexure-1), i.e., on the very
day of filing of revision petition, disposed of the same,
i.e. R.P. No.148 of 1999 remitting the matter back to
the Tahasildar, Marshaghai for adjudication of the
case in accordance with law. He further submits
that although the Commissioner who had no
power under Section 15(b) of the Act to remit the
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matter back to the Tahasildar, Marshaghai for
disposal of the matter on merit, the Tahasildar,
Marshaghai without issuing any notice to the
petitioner, who is the recorded tenant, disposed of the
Remand R.P. Case No.148 of 1999 directing to record
the case land in favour opposite party no.4. When the
petitioner came to know about the same, he preferred
appeal, i.e. R.P. Misc. Appeal No.22 of 2015 before the
Sub-Collector, Kendrapara. Although the Sub-
Collector, Kendrapara initially issued notice to the
opposite party no.4, who has been arrayed as
respondent, on the question of limitation but
subsequently, holding that he has no jurisdiction to
entertain the appeal, dismissed the same for which
this writ petition has been filed. He further submits
that while disposing of the revision, i.e. R.P. Case
No.148 of 1999 filed under Section 15(b) of the Act,
the Commissioner held as follows:
".......An appeal against the order of the
Tahasildar lies before the Sub-Collector under
para 92 of the Mutation Manual read with Rule
42 of the O.S. & S. Rules and revision lies before
the Board of Revenue under para 111 of the
Mutation Manual read with Section.32 of the
O.S. & S Act."
As such, the Sub-Collector, Kendrapara could
not have refused to entertain the appeal on merit
taking the plea that he has no jurisdiction. Hence, he
prays for setting aside the order under Annexure-2
and remitting the matter back to the Sub-Collector,
Kendrapara for disposal of the appeal on merit.
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Mr. Panda, learned Additional Government
Advocate for the State-opposite parties, on the other
hand, submits that against the order passed under
Annexure-2 in R.P. Misc. Appeal Case No.22 of 2015,
the petitioner has a remedy under Section 32 of the
Act to prefer a revision before the Member, Board of
Revenue, Odisha, Cuttack. Hence, this writ petition is
not maintainable.
Taking into consideration the submissions of
learned counsel for the parties and the materials
available on record, this Court feels that the matter
should be heard by the Sub-Collector, Kendrapara on
its own merit. As no fruitful purpose will be served by
keeping the matter pending awaiting appearance of
opposite party No.4 and in view of the nature of the
order proposed to be passed, this Court dispenses
with the notice to opposite party no.4 for time being.
Accordingly, this writ petition is disposed of with
a direction that in view of the observation of the
Commissioner as quoted above and since the
Tahasildar has disposed of the case exercising his
power under Rule 38 of the Odisha Survey &
Settlement Rule, 1962, an appeal under Rule 42 of
the said Rules lies to the Sub-Collector, Kendrapara.
As such, he cannot refuse to entertain the same on
merit observing that he has no jurisdiction. Thus, the
impugned order dated 26.11.2019 passed by the Sub-
Collector, Kendrapara in R.P. Misc. Appeal Case
No.22 of 2015 under Annexure-2 is set aside and the
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matter is remitted back to the Sub-Collector,
Kendrapara to dispose of the appeal on its own merit
giving opportunity of hearing to the parties concerned.
Since this writ petition is disposed of without
issuing any notice to the opposite party no.4, he is at
liberty to move this Court for variation of this order, if
he feels aggrieved. The petitioner may also move the
Sub-Collector, Kendrapara for any interim direction
for protection of his right during pendency of the
Appeal.
Urgent certified copy of this order be granted on
proper application.
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K.R. MOHAPATRA,J.
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