Orissa High Court
Lohit Padhan vs State Of Odisha & Others .... Opposite ... on 21 April, 2025
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
AFR IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P. (C) No.7703of 2017
Along with W.P.(C) Nos.16217,16219,16220,16319,
16320 & 16321 of 2018
Lohit Padhan .... Petitioner
Mr. S.J. Pradhan, Advocate
-Versus-
State of Odisha & others .... Opposite Parties
Mr. P.K.Ray, AGA
M/s. S.K.Jethy, Advocate & Associates
Mr. B.Bhuyan, Advocate
W.P.(C) No. 13145 of 2016
Lohit Padhan .... Petitioner
Mr.S.J.Pradhan, Advocate
-Versus-
Trinath Sahu & another .... Opposite Parties
Mr. P.K.Ray,AGA
M/s. S.K.Jethy, Advocate & Associates
Mr. B.Bhuyan, Advocate
W.P.(C) No. 17361 of 2015
Sanjukta Panda .... Petitioner
Mr. S.J. Pradhan, Advocate
-Versus-
Trinath Sahu & others .... Opposite Parties
Mr. P.K.Ray, AGA
M/s. S.K.Jethy, Advocate & Associates
Mr. B.Bhuyan, Advocate
Page 1 of 21
CORAM:
MR. JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT:21.04.2025
1.All the writ petitions are disposed of by the following judgment since a common question is involved.
2. In the above noted cases, the challenge is with regard to the orders in revision proceedings vis-a-vis the subject matter in question relatable to the plots included in the preparation of new consolidation Khata and plots and deductions therefrom and decisions not to recall the orders obtained by fraudulent means and also to cancel the consolidation RoRs issued in favour of the opposite parties with such other consequential directions in that regard.
3. The facts of each case are not separately discussed and narrated for the sake of brevity but reference of one in W.P.(C) No. 7703 of 2017 would suffice the purpose. The petitioner therein like others has challenged the order passed in Misc. Case No. 9 of 2015 by learned Additional Commissioner, Settlement and Consolidation, Sambalpur arising out of the Consolidation Revision Case No. 195 of 2013 filed under Section 37(1) of the Orissa Consolidation of the Holding and Prevention of Fragmentation of Land Page 2 of 21 Act, 1972 (hereinafter referred to as the 'OCH & PFL Act').Not only that, the challenge at the behest of the petitioner is also connected to the order dated 10 th April, 2013 in the revision proceeding itself. The petitioner pleads for cancellation of the consolidation RoRs and corrections effected in respect of the plots of consolidation Khata and preparation of new consolidation RoRs recorded in the name of one Trinath Sahu pursuant to the order dated 19th September, 2014 in Revenue Misc. Case No. 1013 of 2014. Further the challenge is to the orders passed in terms of Section 8-A of the OLR Act. The petitioner questions the orders in remand revision proceedings. In fact, all such orders towards correction of RoRs and preparation of new ones is pleaded by the petitioner, since there has been massive fraud and illegality committed and perpetuated in violation of the principles of natural justice and statutory law.
4. Briefly the facts of the cases are as follows. As it is alleged, someone impersonating himself as Trinath Sahu son of Krupasindhu Sahu, being the only legal heir, filed an application under Section 37(1) OCH & PFL Act in the year 2013 for exchange of land before learned Additional Commissioner, Consolidation and Settlement, Sambalpur registered as Consolidation Revision Case No. 195 of 2013 Page 3 of 21 and therein, the request was for deduction and inclusion of consolidation plots in exchange and managed to obtain an order, whereafter, Revenue Misc. Case No. 1013 of 2014 was filed and as a consequence, new and separate RoRs were prepared. In the year 2014, said person named Trinath Sahu filed an application under Section 8-A of the OLR Act for conversion of the plot in question to Gharabari which was registered as OLR Case No. 236 of 2014 and it was followed by a direction to deposit the amount for such conversion and accordingly, such deposit was made and the conversion of the kisam of the land was allotted and it was for and in respect of consolidation plot Nos. 432 & 439 situate under Consolidation Khata No. 228/647 of the concerned Mouza. The above developments, according to the petitioner, were at the instance of a non-existent person and not by the real recorded tenant. In the meanwhile, opposite party No.3 sold the entire Chaka land to the named opposite parties through registered sale deeds whereafter on 21st January, 2015, the purchasers filed revisions, as a result of which, necessary orders were passed for correction and preparation of new RoRs. In fact, pursuant to the orders in such revisions by learned Additional Commissioner & Consolidation and Settlement, Sambalpur, the correction Page 4 of 21 of records was carried out with the issuance of RoRs prepared in the names of the respective opposite parties. Subsequent thereto, the petitioner in W.P.(C) No. 17361 of 2015 filed Misc. Case No. 7 of 2015 arising out of Revision Case No. 195 of 2013 before learned Additional Commissioner Consolidation and Settlement, Sambalpur alleging fraud in the preparation of new Record of Rights, wherein, notice was issued to opposite party No.3 and therein, the reply was that he is the son of one Dinabandhu Sahu, son of late Krupasindhu Sahu and Panibudi Sahu @ Padhan died issueless and had not filed the revision of 2013 and in any case, was in no way connected to consolidation Khata No.131 of the Mouza in question and the proceeding was disposed of acknowledging such fraud having taken place but declined to take any such action due to want of jurisdiction to review or recall the order passed therein. With a similar relief, the petitioner alleging fraud filed Misc. Case No. 9 of 2015 corresponding to Consolidation Revision Case No. 195 of 2013 and therein as well, learned Additional Commissioner, Consolidation & Settlement, Sambalpur did take judicial notice of the fraud, however, refrained from dealing with it in view of an interim order in W.P.(C) No. 17361 of 2015 and held and concluded that the matter Page 5 of 21 should be kept in abeyance till any such directions issued by this Court. Likewise, alleging misrepresentation, fraud and impersonation with such other grounds, opposite party No. 11 and opposite party Nos. 23, 24 & 25 moved the Consolidation Authority and the court of learned Additional Senior Civil Judge, Sambalpur and in so far as the Consolidation Revision Case No. 561 of 2016 is concerned, a proceeding therein was again directed to be kept in abeyance till disposal of W.P. (C) Nos. 13145 of 2016. The suit instituted by the other opposite parties in C.S. No. 443 of 2015 was disposed of on 21st April, 2023 and restrained the defendants therein including opposite party No. 3 from entering into and disturbing the peaceful possession vis-à-vis the said schedule property in possession of the plaintiffs, namely, opposite party Nos. 23 & 24 and 25 and the Pro-forma opposite parties declaring an agreement to sale dated 22nd January, 2013 between defendant Nos. 1 & 2 as void and illegal. Against the aforesaid backdrop of facts, the petitioner and equally others in the connected cases alleged fraud committed by a non-existent person, namely, Trinath Sahu claiming as the son of Krupasindhu Sahu and a late Panibudi Sahu @ Padhan of Village- Bahidarnuapalli, P.S. Ainthapalli, Tahasil/District- Sambalpur and obtained the orders of the Page 6 of 21 Consolidation Authorities in respect of the lands managed in exchange claiming himself as the sole surviving legal heir and ownership in respect thereof and hence, the relief has been sought for to restore the record status quo ante canceling the consolidation RoRs in the names of opposite party Nos. 12 to 22 issued as per Annexure-7 series.
5. Heard Mr. Pradhan, learned counsel for the petitioners, Mr. Ray, learned AGA for the State, Mr. Bhuyan, learned counsel for opposite party No.3 assisted by Mr. Jethy, learned counsel and his associates.
6. Mr. Pradhan, learned counsel for the petitioners has reiterated the facts narrated hereinbefore and contended that a large scale fraud has been committed by someone claiming himself as the son of Krupasindhu Sahu and PanibudiSahu @Padhan and obtained the orders in exchange of consolidation plots and creation of new Record of Rights followed by conversion of kisam of such plots as per the OLR Act further followed by the disposals in favour of the purchasers, the fact which was brought to the notice of learned Additional Commissioner, Settlement & Consolidation, Sambalpur but it was not entertained due to want of jurisdiction to review or recall all such orders passed earlier. The contention of Mr. Pradhan, learned Page 7 of 21 counsel is that the Consolidation Authority does possess the powers to recall and revoke the orders as massive fraud was manifestly established. Even in absence of any such statutory jurisdiction for review, the further contention is that in view of clear mischief and fraud alleged and prima facie proved, the Consolidation Authority could have recalled the orders as such power is inherent.
7. A counter affidavit is filed by opposite party No.4 and it is pleaded that one Trinath Sahu represented himself as the sole successor of the recorded tenant in respect of consolidation Khata No. 131 and applied for modification of Chaka with the deletion of an area of Ac.3.50 decimals out of consolidation plot No.1302 in lieu of same extent of land in respect of consolidation plot No. 432 & 439 recorded under the said Khata and accordingly, the revision was allowed and subsequent action was followed for correction of RoR. It is further pleaded that the revision was disposed of in 2013 and with the filing of Misc. Case No.7 of 2015, review was asked for but it was denied by an order dated 10th April, 2013 for the reason that there is lack of authority either to review or recall any such order. Furthermore, the pleading is that since a part of case land in dispute is a subject matter of W.P.(C) No.17361 of 2015, the revisional court did not consider it proper to Page 8 of 21 interfere with the Record of Rights. Mr. Ray, learned AGA for the State would submit that opposite party No.4 acted upon the application filed under Section 37(1) of the OCH & PFL Act and it was followed by an order and rightly in absence of any such jurisdiction to recall and in view of the matter to be subjudice in W.P.(C) No.17361 of 2015, no decision was taken to interfere concerning the case land, a part of the disputed holding.
8. Recorded the submissions of Mr. Jethy and Mr. Bhuyan, learned counsel for opposite party No.3. Mr. Jethy, learned counsel for opposite party No.3 contends that the revision was filed by one Trinath Sahu and there is no one in the same name as the son of Krupasindhu Sahu and Panibudi Sahu @ Padhan as both of them died issueless long back. The submission of Mr. Jethy, learned counsel is that opposite No.3 is neither the owner nor a co-sharer or co- owner in respect of Consolidation Khata No.130 and not even connected to consolidation Khata No. 112 of the Mouza. It has been pleaded on record and claimed that the consolidation revision of the year 2013 was not filed by opposite party No.3 nor he ever participated therein or was before the court of learned Additional Sub-Collector, Sambalpur, ACO, Kantapalli Camp, Sambalpur and as such not related to consolidation Khata No. 228/627 which Page 9 of 21 stands recorded in the name of Trinath Sahu son of Krupasindhu Sahu of village Bohidarnuapalli and the aforesaid Khata is a fraudulent act of someone and as a result, he has been victimized with a criminal case registered against him in 2013. The further contention of Mr. Jethy, learned counsel is that one Sudhansu Sekhar Behera appears to be involved as he has committed fraud in many other cases. The claim is that opposite party No.3 filed an affidavit before learned Additional Commissioner, Settlement & Consolidation, Sambalpur in Misc. Case No. 9 of 2015 corresponding to Consolidation Revision Case No. 195 of 2013 and also in Misc. Case No. 7 of 2015 filed by the petitioner in W.P.(C) No.17361 of 2015, wherein, he has specifically stated not to be the son of Krupasindhu Sahu but of one Dinabandhu Sahu. As per such claim, the fraud was clearly denied by opposite party No.3, rather, the involvement of someone else is alleged.
9. In course of hearing, Mr. Pradhan, learned counsel for the petitioners produced the copies of the sale deeds, wherein, the executant, namely, Trinath Sahu signed in Odia in contrast to the signatures found in the application under Section 37(1) of OCH & PFL Act and elsewhere, before the authorities below in order to satisfy and suggest the fraud having been committed by a non-existent person Page 10 of 21 claiming to be the sole surviving legal heir of the original recorded tenant, who died issueless.
10. On the question of recall of orders on the ground of fraud, Mr. Pradhan, learned counsel for the petitioners refers to the following decisions, such as, Sambhu Prasad Vrs. Kailash Chandra Das (1993) 76 CLT 517(FB); Ganesh Chandra Sahoo Vrs. State of Orissa & others in W.P. (C) No. 11784 of 2009 disposed of on 21st July, 2022; and Gadadhar Nayak Vrs. State of Odisha & others in OJC No. 3092 of 1996 dated 21st July, 2022 and host of other citations with the contention that with any Court or Tribunal, for that matter, has the inherent jurisdiction to revoke orders, if fraud is alleged and established even in absence of any specific provision to deal with such a situation. The contention is that the power to respond and to restore in case where fraud has been employed inherently lies with Authority as the effect of any such fraud vitiates the decision and consequential actions that followed suit. The further contention is that when such deceit is clearly acknowledged by the Authority, who exercised the revisional jurisdiction as per the OCH & PFL Act, it was incumbent upon him to declare the earlier order as nullity, since vitiated by fraud.
Page 11 of 2111. In Smith Prasad (supra), this Court, while considering the jurisdiction of a Tribunal, whether, it has inherent powers or otherwise referring to celebrated judgment of the Apex Court in A.R. Antulay Vrs. R.S.Nayak AIR 1988 SC 1531 held and concluded that every Court has inherent power to recall its order, if by any wrong done injury is caused to a suitor and therefore, it is to be conceded that the power is available not only for a Court but also a Tribunal, inasmuch as, it is well established principle of law that no injury should be caused to anybody by an act of a Court or such other Authority.
12. In Ramesh Chandra Sahoo (supra), a similar conclusion was reached at with a reference to another decision of the Apex Court in Indian Bank Vrs. Satyam Fibres (India) Pvt. Ltd (1996) 5 SCC 550. According to the Court, it is apposite to reproduce the relevant extract of the above decision and the same is hereunder:
"6. What is a power to recall? Inherent power to recall its own order vesting in Tribunals or Courts was notices in Indian Bank Vrs. Satyam Fibres (India)(P) Ltd:(1996) 5 SCC 550, vide para 23, this Court has held that the Courts have inherent power to recall and set aside an order:
(i) obtained by fraud practised upon the Court,
(ii) when the Court is misled by a party, or Page 12 of 21
(iii) when the Court itself commits a mistake which prejudices a party.
In A.R. Antulay v.R.S. Nayak; AIR 1988 SC 1351, (vide para 130), this Court has noticed motions to set aside judgments being permitted where,
(i) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all and was shown as served or in ignorance of the fact that a necessary party had died and the estate was not represented,
(ii) a judgment was obtained by fraud,
(iii) a party has had no notice and a decree was made against him and such party approaches the Court for setting aside the decision ex debito justitiae on proof of the fact that there was no service.
7. In Corpus Juris Secundum(Vol.XIX) under the Chapter "Judgment Opening and Vacating"(paras.265 to 284, at pp.487-510), the law on the subject has been stated. The grounds on which the Courts may open or vacate their judgments are generally mattes which render the judgment void or which are specified in statutes authorizing such actions. Invalidity of the judgment of such a nature as to render it void is a valid ground for vacating it at least if the invalidity is apparent on the face of the record. Fraud or collusion in obtaining a judgment is a sufficient ground for opening or vacating it. A judgment secured in violation of an agreement not to enter a judgment may be vacated on that ground. However, in general, a judgment will not be opened or vacated on grounds which could have been pleaded in the original action. A Page 13 of 21 motion to vacate will not be entered when the proper remedy is by some other proceedings, such as by appeal. The right to vacation of a judgment may be lost by waiver or estoppel. Where a party injured acquiesces in the rendition of the judgment or submits to it, waiver or estoppel results.
8. In our opinion a Tribunal or a Court may recall an order earlier made by it if
(i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent,
(ii) there exists fraud or collusion in obtaining the judgment,
(iii) there has been a mistake of the Court prejudicing a party, or
(iv) a judgment was rendered in ignorance of the fact that necessary party had not been served at all or had died and the estate was not represented.
The power to recall a judgment will not be exercised when the ground for re-opening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed. The right to seek vacation of a judgment may be lost by waiver, estoppel or acquiescence.''
13. In Gadadhar Nayak (supra), the view of this Court is in following words:
Page 14 of 21"41. After analyzing the facts and circumstances involved in the present case, the question that arises now is when can it be said that a person is guilty of playing fraud upon the Court? In this context it would be fruitful to refer to the landmark judgment of the Hon'ble Supreme Court of India in the matter of S.P.Chengalvaraya Naidu vs. Jagannath reported in (1004) 1 SCC 1. In paragraph 6 of the said judgment it has been observed as follows:
'6. The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the court. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. Jagannath was working as a clerk with Chunilal Sowcar. He purchased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own volition, executed the registered release deed(Ex. B-15) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the Appellants had paid the total decretal amount to his mater Chunilal Sowcar.
Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non-production and even non- mentioning of the release deed at the trial is tantamount to playing fraud on the court. We do not agree with the observations of the High Court that the Appellants-Defendants could have Page 15 of 21 easily produced the certified registered copy of Ex.B-15 and non-suited the Plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.''
14. In Satyam Fibres (India) Pvt. Ltd. (supra), the Apex Court observed as follows:
"21. In Smith v. East Elloe Rural Distt. Council[1956 Ac 736: (1956) 1 AII ER 855: (1956) 2 WLR 888] the House of Lords held that the effect of fraud would normally be to vitiate any act or order. In another case, Lazarus Estates Ltd. vs. Beasley[(1956) 1 QB 702 :(1956) 1 AII ER 341:(1956) 2 WLR 502] (QB at p.712), Denning, L.J.said:
No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.''
15. In Ram Chandra Singh Vrs. Savitri Devi & others (2003) 8 SCC 319, the Apex Court held that a fraudulent misrepresentation can also be construed as fraud in law and it is profitable to refer to the observations made therein and the same are as follows:
''18. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or Page 16 of 21 recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad.''
16. In Meghmala Vrs. G.Narasimha Reddy & others (2010) 8 SCC 383, the Hon'ble Supreme Court held as herein below:
'28. It is settled proposition of law that where an Applicant gets an order/office by making misrepresentation or playing fraud upon the competent authority, such order cannot be sustained in the eye of the law, "Fraud avoids all judicial acts, ecclesiastical or temporal."(Vide S.P.Chengalvaraya Naidu v. Jagannath (1994) 1 SCC 1: AIR 1994 SC 853]. In Lazarus Estates Ltd. v. Beasley [(1956) 1 QB 702 :( 1956) 2 WLR 502: (1956) 1 All ER 341 (CA)] the Court observed without equivocation that : (QB p.712) "No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything."
17. On the point of recall of an order or its revocation, Mr. Pradhan, learned counsel for the petitioners would submit that in case a judgment is obtained by fraud, a Court or a Tribunal as the case may be has the authority to do ex debito justitiae and may exercise powers, if the proceeding Page 17 of 21 culminating into such an order suffers from inherent lack of jurisdiction; or there exists proof of fraud or collusion; or a mistake of the Court causing prejudice to a party; or a decision was rendered in ignorance of the fact that a necessary party was not noticed at all or he had died and the estate was not duly represented. In case of deception practiced, it affects solemnity, regularity and orderliness of the proceeding and would certainly amount to abuse of process of Court, hence, each such Court, as according to Mr. Pradhan, learned counsel, has inherent powers to set aside an order or decision obtained by fraud. A series of decisions are cited in support of such contention and the Court is not inclined to burden the judgment since the law on the point of jurisdiction to act upon or react to a situation actuated by fraud and duly proved has only been restated. As such with a conclusion that no any order can be allowed to stand, if it has been a product of fraud. It is a reminder to one and all to bear in mind the words of wisdom of the House of Lords that effect of fraud would normally vitiates any act or order as held in the case of Smith Vrs. East Elloe Rural District Council & others (1956) 2 WLR 888 referred to in Satyam Fibres (India) Pvt. Ltd. (supra) and Lord Denning's catchword -'fraud unravels everything'.
Page 18 of 2118. Having considered the facts pleaded on record and submissions of Mr. Pradhan learned counsel for the petitioners, Mr. Ray, learned AGA for the State, Mr. Jethy, learned counsel and Mr. Bhuyan, learned Senior Advocate for opposite party No.3, the Court is of the humble view that the revisional authority is not powerless when fraud was alleged. When it was claimed that someone impersonated and obtained the orders leading to the exchange of consolidation plots and conversion as per the OLR Act and followed by alienations, with such massive fraud having been brought to the notice of the authority concerned, it was to be duly enquired into with necessary directions in that regard as the law laid down clearly and conspicuously stipulates that a fraud vitiates the decision and also the action. The Court is of the further view that in absence of a statutory provision of review, the authority of the Court has the inherent jurisdiction to take action on account of fraud being alleged and prima facie established. A decision on merit cannot be reviewed. If a law permits review, as it is well known, scope of such jurisdiction is limited but where there is no such provision of review or recall for that matter, neither a Court nor Tribunal is possessed of any such powers to unsettle a decision. However, to say that a Court or Tribunal cannot even act and is totally handicapped when fraud is alleged and prima facie Page 19 of 21 proved is something incomprehensible for the reason that the power is always inherent to manage such unprecedented situations. In other words, when fraud is practiced and a decision is snatched away from a Court or an Authority, the same on being detected, shall have to be set at naught. For exercise of such a jurisdiction, it has to be held that the same is intrinsic. At the cost of repetition, it is exclaimed that the decision to review and recall an order on merit is one thing and exercise of jurisdiction acting upon a fraud perpetrated, while obtaining any order or decision is altogether different and in the former case, in absence of any specific provision, the Court cannot revoke it but in the latter situation, want of jurisdiction cannot be a plea because a power to respond is innate or in other words, inbuilt. In the case at hand, as rightly pointed out by Mr. Pradhan, learned counsel for the petitioners, on account of misrepresentation by impersonation, a large scale fraud with the exchange of Consolidation plots has taken place and thereafter, conversion and disposals in favour of the purchasers, who are undoubtedly at the receiving end being innocent and caught in the crossfire, unless otherwise proved. But then, when fraud has been prima facie acknowledged by the Authority, while exercising revisional jurisdiction, it was necessary to deal with the same as per and in accordance with law and Page 20 of 21 therefore, the conclusion is that it cannot remain aloof and could not be a mute spectator without any action when to deal with such an exigency, the power is always inherent.
19. Hence, it is ordered.
20. In the result, the writ petitions stand allowed. As a logical sequitur, the impugned orders arising out of and passed in connection with the revision proceedings by learned Additional Commissioner, Settlement and Consolidation, Sambalpur are hereby set aside with the consequential direction to hold a detailed enquiry as deemed just, proper and expedient vis-a-vis the alleged mischief, making it clear that such enquiry shall be conducted by himself without any remand and thereafter, to take appropriate decision followed by orders befitting the facts and circumstances of the cases, thereby, concluding the above exercise within a reasonable time period. As a consequence whereof, the interim order(s), if any, stand(s) vacated. In the circumstances, however, there are no orders as to costs.
(R.K.Pattanaik) Judge Signature Notkabita Verified Digitally Signed Signed by: KABITARANI MAJHI Designation: Secretary Reason: Authentication Location: OHC,Cuttack Date: 22-Apr-2025 19:31:35 Page 21 of 21