Orissa High Court
Madhusmita Behera vs State Of Odisha on 16 January, 2026
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 8832 OF 2014
(An application under Articles 226 and 227 of the Constitution of India)
*****
Madhusmita Behera ...... Petitioner
-Versus-
1. State of Odisha, represented through
the Secretary, Department of Revenue,
Secretariat, Bhubaneswar
2. Assistant Settlement Officer, Khurda,
Camp at Bhubaneswar, Rental Colony,
Bhubaneswar
3. Settlement Officer, Jobra, Cuttack
4. The Tahasildar, Bhubaneswar
...... Opp. Parties
Advocates appeared:
For Petitioner : Mr. Pabitra Kumar Nayak, Advocate
For Opp. Parties : Mr. Ajodhya Ranjan Dash,
Additional Government Advocate
CORAM :
MR. JUSTICE K.R. MOHAPATRA
& MR. JUSTICE SANJAY KUMAR MISHRA
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Heard and disposed of on 16.01.2026
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JUDGMENT
By the Bench;
1. This matter is taken up through hybrid mode.
2. Petitioner in this writ petition seeks to assail the order dated 15th July, 2013 (Annexure-3) passed by the Assistant W.P.(C) No. 8832 OF 2014 Page 1 of 11 Settlement Officer, Rental Colony, Bhubaneswar in Objection Case No.10126/2013.
3. Mr. Nayak, learned counsel for the Petitioner submits that one Ganeswar Sahoo, being a landless person, applied for a piece of Government land to be settled in his favour. Accordingly, W.L. Case No.1057 of 1978 was initiated and vide order dated 30.10.1978, the Tahasildar, Bhubaneswar settled Hal Plot No.5928 of Hal khata No.2053 of village-Andharua to an extent of Ac.1.00 decimals (for brevity 'leasehold property') in favour of said Ganeswar Sahoo by way of a lease. A lease deed was also executed in his favour and RoR in respect of the leasehold property was also published in favour of the lessee. When the mater stood thus, the Additional District Magistrate, Bhubaneswar initiated a suo motu proceeding under Section 7-A (3) of the Odisha Government Land Settlement Act, 1962 (for brevity 'the OGLS Act') in Revision Case No.10 of 1982 and vide order dated 08.01.1988, cancelled the lease granted in favour of said Ganeswar Sahoo. By then the lessee, namely, Ganeswar Sahoo was dead. Thus, being aggrieved, his widow namely, Arnapurna Sahoo moved this Court in OJC No.13505 of 1999 before this Court. The said writ petition was allowed vide order dated 04.02.2000 by setting aside the order dated 08.01.1988 and remitting the matter back to the Additional District Magistrate, Bhubaneswar for fresh disposal of the Revision Case in accordance with law. Accordingly, the Additional District Magistrate, Bhubaneswar considered the Revision Case afresh and vide order dated 29.05.2000 upheld W.P.(C) No. 8832 OF 2014 Page 2 of 11 the lease granted in favour of said Ganeswar Sahoo, in WL Case No.10507 of 1978.
3.1. Thereafter, the widow and son of said Ganeswar Sahoo alienated Ac.0.027 decimals out of the leasehold property in favour of the Petitioner vide Registered Sale Deed dated 31st December, 2001. Accordingly, the Petitioner applied for mutation of the land in her name and mutation RoR was prepared in her name by creating a separate plot vide Plot No.2708/3274 under Khata No.645/148 to an extent of Ac. 0.027 dec. in mouza-Andharua under Bhubaneswar Tahasil in the district of Khordha (for brevity 'case land').
3.2. Thus, the Petitioner possesses the case land exercising her right, title and interest thereon. During current settlement operation, preliminary RoR under Section 12 of the Odisha Survey and Settlement Act, 1958 (for brevity, 'the Settlement Act') was prepared in the name of Government. Thus, the Petitioner filed objection. The said objection was registered as Objection Case No.10126/2013 and was heard along with Objection Case No.9577/13/2863. The Petitioner was never served with any notice of hearing of the said case. However, the Assistant Settlement Officer, Rental Colony, Bhubaneswar most illegally sat over the order passed in a lease case under the OGLS Act and impliedly set aside the lease granted in favour of the lessee, Shri Ganeswar Sahoo, which is without jurisdiction. Subsequently, the final RoR under Section 12-B of the Settlement Act in respect of the case land was published in the W.P.(C) No. 8832 OF 2014 Page 3 of 11 name of the Government on 21.11.2013. Thus, the Petitioner could not get any opportunity to file any Appeal under Section 12-A of the Settlement Act. Further, the order passed in the objection case, being without jurisdiction, the Petitioner without filing any revision under Section 15(b) of the Settlement Act has filed this writ petition. It is his submission that the impugned order being without jurisdiction, the writ petition against the said order is maintainable. In support his submission Mr. Nayak, learned counsel for the Petitioner relied upon the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others, reported in (1998) 8 SCC 1. He also relied upon the case of Assistant Commissioner of State Tax and others Vs. Commercial Steel Limited, reported in (2022) 16 SCC 447, wherein, it has been held as follows;
"10. The respondent has a statutory remedy under Section 107. Instead of availing the remedy, the respondent instituted a petition under Article 226. The existence of an alternative remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of the Constitution. But a writ petition can be entertained in exceptional circumstances where there is:
(i) a breach of fundamental rights;
(ii) a violation of the principles of natural justice;
(iii) an excess of jurisdiction; or
(iv) a challenge to the vires of the statute or delegated legislation".
3.3. He, therefore, submits that this Court has jurisdiction to entertain a writ petition under Articles 226 and 227 of W.P.(C) No. 8832 OF 2014 Page 4 of 11 Constitution of India, although a statutory remedy under Section 15(b) of the Settlement Act was available to the Petitioner. He, therefore, prays for setting aside the impugned order under Annexure-3 and the Tahasildar, Bhubaneswar may be directed to correct the RoR in respect of case land in the name of the Petitioner.
4. Mr. Dash, learned Additional Government Advocate, on the other hand, relying upon the counter affidavit filed by the State submitted that since the final RoR under Section 12-B of the Settlement Act has already been published since 21.11.2013 in respect of mouza-Andharua where the case land situates, the only remedy available to the Petitioner was to file a revision under Section 15(b) of the Settlement Act to challenge the correctness of the entries made in the said final RoR. A writ petition for that reason is not maintainable. He also submitted that this writ petition was disposed of along with a batch of writ petitions including the case of Narottam Rath Vs. State of Odisha and others [W.P.(C) No.1608 of 2014, disposed of on 14th October, 2025] and a common order was passed. The said order was challenged before the Hon'ble Supreme Court in different SLP(C)s. All the SLP(C)s were taken up together and vide order dated 17th December, 2024, the Hon'ble Supreme Court disposed of all the SLP(C)s with the following direction:
"Delay condoned.
Having heard learned counsel for the parties, we are of the considered view that the judgment needs to be quashed and set aside for the simple reason that instead of deciding each case individually, on its W.P.(C) No. 8832 OF 2014 Page 5 of 11 given fact, the High Court proceeded to club and decide all the matters by presuming the facts to be common/identical and framing a common question of law.
As such on this short ground alone, the judgment requires interference, we are of the considered view that each case had to be considered on its own merits.
Whether the power exercised by the ASO under the provisions of Section 12 of the Orissa Survey and Settlement Act, 1958 were exercised prior to the finalisation of the Record of Rights or at a subsequent stage was not considered by the High Court. Also as to whether the aggrieved parties had exhausted their remedies as provided under Section 12A and/or Section 15B of the said Act was also not considered by the High Court. The High Court proceeded on the assumption that all the petitioners before the Court had leases in their favour, in relation to which no Record of Rights was required to be prepared in terms of Section 12 of the said Act.
As such, on these grounds alone, without commenting on the merits of the issue and the contentions raised before us, we remand the matter to the High Court for consideration afresh.
We hope and expect that each case would be considered and decided separately, though expeditiously. All rights and contentions inter se the parties are left open to be agitated before the High Court.
The parties are directed to appear before the High Court on 15.1.2025. The parties undertake to fully cooperate in the proceedings before the High Court.
The special leave petitions are disposed of as above.
Pending application(s), if any, stands disposed of."
4.1. He, therefore, submitted that the writ petition should be dismissed and the Petitioner be relegated to file a revision under Section 15(b) of the Settlement Act for redressal of her W.P.(C) No. 8832 OF 2014 Page 6 of 11 grievances. He further submitted that the Assistant Settlement Officer, Rental Colony, Bhubaneswar upon verification of the record has passed a reasoned order. The Petitioner has not filed any Appeal against the said order under Section 12-A of the Settlement Act. Thus, the writ petition is not maintainable. Hon'ble Supreme Court while disposing of the SLPs also emphasized that the High Court while examining the matter should find out whether the aggrieved parties had exhausted the remedies as provided under Section 12-A and/or Section 15(b) of the Settlement Act or not. The Petitioner having not exhausted statutory remedies as stated above, the writ petition is not maintainable and is liable to the dismissed.
5. Heard learned counsel for the parties. Perused the materials placed before us.
6. The factual submission made by Mr. Nayak, learned counsel for the Petitioner was not disputed by Mr. Dash, learned Additional Government Advocate. He only assails the maintainability of the writ petition on the ground that the Petitioner has an efficacious statutory remedy under Section 15(b) of the Settlement Act and that the Petitioner has not exhausted the statutory remedies available to her. Hon'ble Supreme Court while remitting the matter observed that this Court on previous occasions did not consider as to whether the power under Section 12 of the Settlement Act was exercised prior to finalization of Record of Right. It was also not examined by the High Court as to whether the Petitioner had exhausted the W.P.(C) No. 8832 OF 2014 Page 7 of 11 remedy under Sections 12-A and 15(b) of the Settlement Act or not.
6.1. In the instant case, power under Section 12 of the Settlement Act was exercised prior to final publication of the Record of Right under Section 12-B of the Settlement Act. Further there was no occasion for the Petitioner to seek remedy under Section 12-A of the Settlement Act as the Petitioner was not served with any notice by the Assistant Settlement Officer in the Objection Case although it was initiated on the objection filed by the Petitioner to the preliminary Record of Right. The same is also manifest on a plain reading of the impugned order under Annexure-3. Thus, the Petitioner was in complete dark about the order passed in the Objection Case.
6.2. It is admitted case of both the parties that the final RoR under Section 12-B of the Settlement Act has already been published in the name of the Government. Thus, the question arises as to whether the Petitioner should be relegated to work out the remedy under Section 15(b) of the Settlement Act by filing a properly constituted revision before the Member, Board of Revenue, Odisha or not.
6.3. Admittedly, lease of the leasehold property was granted in favour of Shri Ganeswar Sahoo in WL Case No.1057 of 1978 by the Tahasildar, Bhubaneswar under OGLS Act. The said order was subsequently upheld by the Additional District Magistrate, Bhubaneswar vide order dated 29th May, 2000 in Revision Case No.10 of 1982 initiated suo motu under Section W.P.(C) No. 8832 OF 2014 Page 8 of 11 7-A (3) of the OGLS Act. The said order was not challenged and thus attained finality. There is ample provision under the OGLS Act to seek for cancellation/resumption of a lease granted in favour of a lessee. Section 3(B) and Section 7-A (3) of the OGLS Act make elaborate provisions for cancellation/resumption of lease granted under the OGLS Act. There is no provision under the Settlement Act empowering the Authorities created under the said Act to cancel a lease granted under the OGLS Act. The Assistant Settlement Officer, Bhubaneswar appears to have tested the validity of lease granted in favour of Shri Ganeswar Sahoo under the OGLS Act and directed to record the leasehold property including the case land in the name of the Government. After the order dated 29th May, 2000 was passed in Lease Revision Case No.10 of 1982 confirming the lease granted in favour of Shri Ganeswar Sahoo, the Petitioner purchased the case land vide RSD dated 31st December, 2001 and was delivered with possession. Thus, the Petitioner is a person aggrieved.
6.4. By observing that the lease granted in favour of Shri Ganeswar Sahoo was not scrutinized as directed by this Court in OJC No. 9449 of 1993 directed to record the land in favour of the Government ignoring the fact that the lease granted in favour of Shri Ganeswar Sahoo has already been scrutinized by the Additional District Magistrate, Bhubaneswar in Revision Case No. 10 of 1982, i.e., prior to the aforesaid direction of this Court. After remand by this Court in W.P. (C) No. 13505 of 1999, the Additional District Magistrate, Bhubaneswar vide his order W.P.(C) No. 8832 OF 2014 Page 9 of 11 dated 29.05.2000 held the lease granted in favour of Shri Ganeswar Sahoo to be valid. Thus, the Assistant Settlement Officer, Bhubaneswar-Opposite Party No.2 acted without jurisdiction in directing to record the case land in favour of the State Government. He impliedly sat over the order passed under the OGLS Act and cancelled the lease granted in favour of Shri Ganeswar Sahoo. Thus, the order under Annexure-3 is void ab initio and non est in the eye of law. Thus, any action taken/order passed in pursuance thereof is also equally void and non est in the eye of law. Further in the case of Whirlpool Corporation (supra) it is held as under;
"20. Much water has flown under the bridge, but there has been no corrosive effect on these decisions which, though old continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation."
6.5. Thus, relegating the Petitioner to file a revision under Section 15(b) of the Settlement Act will serve no purpose and the Petitioner will be further harassed in facing unnecessary litigations. Thus, this Court is constrained to hold that the argument advanced by Mr. Dash, learned Additional Government Advocate is not acceptable in the facts and circumstances of the case.
W.P.(C) No. 8832 OF 2014 Page 10 of 11
7. In view of the discussions made above, the impugned order under Annexure-3 is set aside. Since the settlement proceeding has already been over and the Tahasildar, Bhubaneswar is the custodian of the revenue records together with the fact that the concerned Tahasildar has the power under Rule 34 of Odisha Survey and Settlement Rules, 1962 to correct the entries in the RoR pursuant to the direction of a Court, it is directed that the Tahasildar, Bhubaneswar shall issue RoR of the case land in favour of the Petitioner, if moved by the Petitioner, preferably within a period of 30 days from the date of production of certified copy of this order.
8. The writ petition is allowed to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs.
(K.R. Mohapatra) Judge (S.K. Mishra) Judge Orissa High Court, Cuttack, Dated 16th January, 2026/Kanhu Signature Not Verified Digitally Signed Signed by: KANHU BEHERA Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack.
Date: 19-Jan-2026 13:24:35 W.P.(C) No. 8832 OF 2014 Page 11 of 11