Orissa High Court
Sarat Chandra Samal And Another vs State Of Odisha And Others on 6 February, 2017
Author: Biswanath Rath
Bench: Biswanath Rath
ORISSA HIGH COURT, CUTTACK.
W.P. (C) No.3618 of 2012
In the matter of an application under Articles 226 & 227 of
the Constitution of India.
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Sarat Chandra Samal & another ... Petitioners
Versus
State of Odisha & others ... Opposite parties
For Petitioners : Mr. Sarat Chandra Samal
(The petitioner No.1 appeared in person)
For opposite party Nos.1 & 2 : Mr. Sougat Dash,
Learned Additional Standing Counsel
For opposite party No.3 : M/s. D.P. Mohanty, R.K. Nayak,
T.K. Mohanty, P.K. Swain, M. Pal
For opposite party No.4 : M/s. Bhaktahari Mohanty (Senior Advocate),
D.P. Mohanty, R.K. Nayak, T.K. Mohanty
Mr. P. Prusty
PRESENT :
THE HONOURABLE MR. JUSTICE BISWANATH RATH
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Date of hearing: 12.01.2017 Date of Judgment : 06.02.2017
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Biswanath Rath, J.This writ petition has been filed seeking a direction for quashing the order under Annexure-10 passed by the Additional Commissioner, Settlement & Consolidation, Odisha, Cuttack in R.C. Case Nos.157 & 158 of 2003 in exercise of power under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land 2 Act, 1972 thereby allowing the revisions in a common order dated 22nd of September, 2011.
2. Short background involved in this case is that the Revision Case No.157 of 2003 pertains to the L.R. Plot No.1853(P) area Ac.0.06 decimals under L.R. Khata No.417 corresponding to Hal Settlement Plot No.1763(P) area Ac.0.06 decimals under Hal settlement Khata No.400 originally belong to Sunakar Rout, the father of the present opposite party Nos.3 & 4 and the Hal Settlement R.O.R. of the year 1976 has been published accordingly. In the initial stage of consolidation operation, the parcha was prepared and granted in favour of the opposite party Nos.3 & 4 in respect of corresponding suit L.R. Plot No.1853 (P) area Ac. 0.06 decimals under L.R. Khata No.417. The petitioners herein filed objection case bearing No.4060/92 before the Consolidation Officer, Chhatia for recording of the suit L.R. Plot No.1853(P) Area Ac 0.06 decimals of land in their favour on the basis of the registered deed of "Bibad Bhanjan Patra"
dated 27.1.1987. The opposite party Nos.3 & 4 though protested the claim of the present petitioners in the said objection case but the Consolidation Officer allowed the Objection Case in favour of the present petitioners and the opposite parties therein. Being aggrieved with the order dated 25.3.1995, the petitioners in the Objection Case i.e. present opposite party Nos.3 & 4 preferred appeal bearing appeal case No.83/95 before the Deputy Director, Consolidation, Range-I, Cuttack, which was dismissed vide order dated 29.10.1996. Petitioners therein i.e. the present private opposite parties being aggrieved by the said order filed the Revision Case No.157 of 2003 in the year 2003. Similarly, the case involved the Revision Case No.158 of 2003 is that the suit L.R. Plot No.1853(P) area Ac.0.03 decimals 3 with classification Gharabari under L.R. Khata No.417 claimed to be recorded in the name of the present private opposite parties along with their deceased mother Oshi Rout, W/o-Sunakar Rout in stitiban status. The suit L.R. Plot No.1853 corresponding to M.S. Plot No.1763 area Ac.0.20 decimals 'Gharabari' along with some other plots under M.S. Khata No.400 was recorded in the name of the father of the private opposite parties, Sunakar Rout, S/o- Anand Rout in stitiban status and the M.S. R.O.R. has been published on 23rd of August, 1976 accordingly. It is further revealed that M.S. Plot No.1763 corresponding to Sabik Plot No.1532 (P) alongwith three other plots total area Ac.0.93 decimals in Sikim Khata No.54 under Sabik Khata No.287 was recorded in the names of Bholanath Nanda, Sudarsan nanda, Rajkishore Nanda, sons of Jagabandhu Nanda, Dhusashan Nanda son of Madhusudan Nanda of Chhatia and note of possession has been reflected in the names of Madhu Samal son of Hadi Samal, Karuni Samal sons of Panu Samal, Raghu Samal son of Gobind Samal by caste 'Khandayat' of Nijagaon Dhulibag in the remark column of Sabik Sikim R.O.R. which was published in the year 1929. As per the said Sabik Record of Right and possession note, the opposite party No.1 Muralidhar Samal in R.C. Case No.158/03 is entitled to get 1/3rd share, as per the grandson and branch of Madhu Samal whereas the father of the petitioners in the R.C. Case Nos.157/03 & 158/03 is entitled to get 2/3rd share of Karuni Samal and Raghu Samal by virtue of R.S.D. No.1628 dated 17.2.1964. In the said registered sale deed, the father of the opposite party Nos.3 & 4 purchased an area of Ac. 0.24 decimals 7 Kadi out of Sabik Plot No.1530 and 1532. In the Major Settlement, it has been recorded in the name of the father of the opposite party Nos.3 & 4 corresponding to M.S. Plot No.1758 area measuring Ac.0.03 decimals, 1759 area measuring Ac.0.05 decimals 4 and Plot No.1763 area measuring Ac.0.20 decimals under M.S. Khata No.400. Muralidhar Samal appearing as opposite party No.1 in R.C. Case No.158/03 filed objection Case No.4134/1992 where he prayed to record his name in respect of the area measuring acre 0.5 decimals of land out of L.R. Plot No.1853. The C.O., Chhatia denied the claim, for which an appeal was preferred. The appellate Court allowed the appeal vide Appeal Case No.86/1995 in favour of the Muralidhar Samal by his order dated 29.10.1996 giving rise filing of R.C. Case No.158 of 2003. Both the revisions were heard together and by the order under Annexue-10, the Revisional Authority allowed both the revisions by setting aside the order passed by the appellate authority both in appeal case Nos.83 & 86 of 1995. It be stated here that present writ petition has nothing to do with the R.C. Case No.158 of 2003 involving Appeal Case No.86 of 1995.
3. In assailing the impugned order vide Annexure-10 so far it relates to revision case No.157 of 2003 arising out of Appeal Case No.83 of 1995, the petitioner No.1 appearing in person and defending the case of all the petitioners raised the following points :
(1) The learned Consolidation Officer order dated 26.5.1997 passed in Appeal Case No.83/95 has accrued finality and binding to the parties since no appeal or Revision has been preferred by either parties.
(2) The Commissioner Consolidation failed to consider the point of Resjudicata and passed the order creating in consistent order that is final order passed by the Consolidation Officer dated 26.5.1997 and his order dated 22.9.2011. (3) Section 36 provides limitation to prefer Revision Section 37(i) is a suo-motto Revision and no limitation in that Deputy Director passed the order in appeal Case No.83/95 and 86/95 on 26.10.1996 and the Opp.party preferred Revision U/s.36 of the Act after the learned Consolidation Officer passed the order on 26.5.1997. Hence, the learned Commissioner should have dismissed the case on the point of limitation.
(4) Considering for the sake of argument but not admitting the Opp.parties have preferred Revision U/s.36 before the 5 Commissioner against the order of the Consolidation Officer dated 26.5.1997 passed in Remand Case No.83/95, the order passed by the learned Commissioner U/s.36 without jurisdiction as no appeal has been preferred for Remand Case (Annexure-9) passed by the Consolidation Officer to the Deputy Director against which order he has to sit in the Revision.
(5) The Opp.partis are estopped to claim Ac.0.06 of land for consolidation Plot No.1853/2341. In view of the Regd.
Compromise deed No.426 dated 27.1.1981 wherein their father has admitted right, title, interest in respect of the said land in favour of the petitioners."
In establishing his submission on the point of limitation, petitioner No.1 contended that admittedly, the appeals were disposed of on 26.10.1996 and the revisions were preferred in the year 2003. Referring to the provision for Revision under the Act, petitioner No.1 appearing in person submitted that since the statutory provisions gives 90 days time for filing of a revision under Section 36, the revision for being filed after seven years should not have been entertained and should have been dismissed on the ground of limitation alone. Further the revisions preferred under Section 36 not having accompanied any delay condonation application, the revision was otherwise not maintainable in the eye of law.
4. Considering that other points raised in the writ petition are dependent on the success of the parties on the question of limitation, this Court finds the question of limitation should be decided first and this Court accordingly proceeds to decide the question of limitation ahead of the other issues.
5. Sri B.H. Mohanty, learned Senior Counsel appearing for the opposite party No.4 opposing the stand taken by the petitioner on the question of limitation submitted that once the revision has been decided on merit, the question of limitation cannot be gone into 6 subsequently and it will be presumed that the delay in preferring the revision has been automatically condoned.
6. Learned State Counsel supporting the contentions of the learned Senior Counsel for the opposite party No.4 submitted that for the submission raised by Sri Mohanty, learned Senior Counsel and for the reasons assigned by the revisional authority, there is no scope for interfering in the impugned order otherwise.
7. Considering the rival contentions of the parties, this Court finds, the question of limitation being a question of law cannot be brushed aside merely on the ground that the revisions have been decided on merit. Provisions at Section 36 of the Act, 1972 read as follows :
"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:
Provided that no such order shall be passed without giving the parties concerned a reasonable opportunity of being heard.
(2) All orders passed under this section shall be final and shall not be void in question in any Court of law."
8. Reading of the aforesaid provision leaves no doubt that a revision should have been filed within 90 (ninety days) from the date of the order by the person preferring revision. There is no dispute that the impugned order was passed by the appellate authority in the year 1997 and the Revision Case No.157 of 2003 has been preferred in the year 2003 and therefore, there is definite delay of seven years in preferring the revision. Revision preferred being a statutory revision 7 ought to have been filed accompanying a delay condonation application. Now looking to the law of land involved on the question of limitation, even going to the extent where no limitation is provided what should be the reasonable period in preferring the further litigation, the law of land reads as follows:-
"What is the reasonable period has engaged the attention of different Courts including the Hon'ble Apex Court. The Hon'ble Apex Court in the case of State of Gujurat vrs. Patel Raghav Nath & others, AIR 1969 SC 1297 interpreting Sections 65 and 211 of the Bombay Land Revenue Code, held that where no period of limitation is prescribed, the revision power must be exercised within few months of the date of the Collector's order. This decision was followed with approval in the case of Mansaram vrs. S.P. Pathak & others, AIR 1983 SC 1239 with observation that when power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner and that exercise of the power in a reasonable manner inheres a concept of its exercise within a reasonable time. A Full Bench of this Court observed in the case of Laxminarayan Sahu vrs. State of Orissa & others, 71 (1991) CLT 322 following the case of Mansram vrs. S.P. Pathak (supra) that there can be no manner of doubt to hold that the powers not only to be exercised in a reasonable manner but it should be exercised within a reasonable time. In the case of S.B. Gurubaksh Singh vrs. Union of India, AIR 1976 SC 1115, the Hon'ble Apex Court held, reasonable time is always dependent upon the fact of each case. In the case of Santoshkumar Shivgonda Patil & others vrs. Balasaheb Tukaram Shevale & others, 2009 AIR S.C.W. 6305, law has been made clear that the revisional power can be exercised at any time but it cannot be construed to be exercised beyond reasonable time. The 8 Hon'ble Apex Court there held, law does not expect a settled thing to be unsettled after a long lapse of time. This view has already been followed in the case of Labanyabati Devi & others vrs. Member, Board of Revenue & others, 1993 (II) OLR-365. This view has been reiterated again in Sri Abhaya Charan Mohanty vrs. State of Orissa, 2003 (Suppl.) OLR 882 and Smt. Sarojini Mallick vrs. State of Orissa & others, 2005 (I) OLR 666."
9. Thus, apart from the Statutory restriction in preferring the revisions under the Act, the above decisions also make it clear that a matter should be filed within a reasonable period. Now coming back to the case at hand, this Court finds, even though 90(ninety) days time has been prescribed for preferring a revision but it appears, the revision has been filed after seven years and even in absence of an application for condonation of delay. Pleadings clearly discloses that there remains no doubt that the parties were not aware of the orders passed in the appeals. Thus the delay in filing the revision is not condonable.
10. Under the circumstances, this Court finds, the revision No.157 of 2003 arising out of Appeal Case No.83 of 1995 was not only filed after a long lapse of seven years but was also filed without having an application for condonation of delay. Consequently, the Revision Case No.157 of 2003 was not maintainable for being hit by the provisions contained in Section 36 of the Act, 1972 and also remaining contrary to the Law of the land. As a result, while allowing this writ petition, this Court sets aside the impugned order vide Annexure-10 to this petition so far it relates to the Revision Case No.157 of 2003.
911. The writ petition stands allowed. Parties to bear their respective costs.
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Biswanath Rath, J.
Orissa High Court, Cuttack.
The 6th day of February, 2017/Ayas.