Allowed

Sisir Kumar Bohidar v. Addl.Dist.Magistrate

Orissa HC18 Mar 2019WP(C)/12044/2003

Case brief

AI extract

What is this about?

The petitioner challenged an order of the Additional District Magistrate which revised a Sub-Collector's dismissal of an appeal. The court held that under the OPLE Act, revision against a Sub-Divisional Officer lies to the Collector, not the ADM. Consequently, the order was set aside as passed without jurisdiction.

What did the court decide?

The order of the Additional District Magistrate at Annexure-5 is set aside as passing it without jurisdiction.

Sisir Kumar Bohidar Vs Addl.Dist.Magistrate — Landlord and Tenant | Orissa HC (2019)

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ORISSA HIGH COURT : C U T T A C K

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W.P.(C) NO.12044 OF 2003

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In the matter of an application under Articles 226 & 227 of the Constitution of India.

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Sisir Kumar Bohidar : Petitioner -VersusAdditional District Magistrate, Bolangir & others : Opp. Parties

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For petitioner : M/s.R.Rath, S.P.Mishra & R.K.Panda For O.Ps.1 to 3 : Mr.U.K.Sahoo, Additional Standing Counsel For O.P.4 : None

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PRESENT:-

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THE HONOURABLE MR. JUSTICE BISWANATH RATH

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Date of hearing : 26.02.2019 & Date of Judgment : 18.03.2019

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Biswanath Rath, J. This writ petition involves a challenge to the order

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dated 22.9.2003 under Annexure-5 involving Misc. Revision No. 14/2003.

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Short background involved in the case is that the petitioner hails from Bolangir District and encroached the land bearing plot no.248/1404 involving Holding No.851 measuring an area Ac.0.016. This land was subsequently settled and mutated in

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the name of the petitioner, vide Nazul Encroachment Case No.1/1980. Upon settlement of the above land in favour of the petitioner, R.O.R. was prepared after observing all legal formalities by the then Tahasildar, consequent upon a demand of Salami in the year 1981 in consideration of the settlement of the land measuring Ac.0.016, vide Nazul Encroachment Case No.1/1980, the petitioner deposited the required amount and he was granted a receipt upon deposit of the Salami bearing RR No.191123 dated 18.76.1981 with clear indication that the deposit is being made by the petitioner. Consequently, a corrected R.O.R. was also issued in favour of the petitioner showing to be in peaceful possession of the land since 1981. The petitioner noticed a clerical mistake in the R.O.R. to the extent mentioning correction is made pursuant to the Mutation Case No.1/1980 instead of Nazul Encroachment Case No.1/1980. On the petitioner’s application necessary correction was made. Upon correction of the R.O.R. the petitioner claimed to be a Rayat in respect of the disputed property. It further appears, the order in the Nazul Encroachment Case No.1/1980 was challenged by one Prafulla Kumar Singh Deo in Encroachment Appeal No.5/1980. This appeal was dismissed in 1980 itself. The facts further disclose that after a gap of two decades, the O.P.4, a stranger having purchased a plot of land near the disputed plot started claiming the

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disputed plot to be Rasta. It is further alleged that O.P.4 being an influential person in the locality went on harassing the petitioner. Ultimately it landed in a complain to O.P.1. Based on the complain by O.P.4, O.P.1 wrote an official letter dated 11.1.2001 to the Tahasildar indicating therein that the A.D.M. has ordered for registering the Misc. Case on the basis of preliminary enquiry report and in the same communication also directed the Tahasildar to hear both the parties and submit the case record to the District Office through the Sub-Collector for necessary recommendation to the Member, Board of Revenue for cancellation of Pata. Based on such direction, the Tahasildar, Bolangir registered Revenue Misc. Case No.11/2001 and subsequently, on 26.11.2001 after hearing the petitioner and the O.P.4 gave its finding that there is no adverse evidence to believe that the Pata issued in favour of the petitioner is un-genuine and accordingly observed that the complain of O.P.4 is not correct, vide Annexure-3. In the meantime, O.P.4 filed an appeal before the Sub-Collector, Bolangir involving the order at Annexure-3 registered as Misc. Appeal No.2/2001. The Sub-Collector ultimately dismissed the appeal filed by O.P.4 as not maintainable, vide Anenxure-4. Challenging the order involving Annexure-4, O.P.4 filed Misc. Revision No.14/2003 before the Additional District Magistrate, Bolangir, O.P.1, who disposed of the Revision in favour

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of O.P.4 setting aside the order passed by the Sub-Collector in Misc. Appeal No.2/2001 and remanded the matter back to the appellate court to decide it afresh.

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Challenging the order at Annexure-5, Sri R.Rath, learned counsel for the petitioner on reiteration of the facts narrated herein above and the stand of his client before the authorities below firstly contended that for the Tahasildar undertaking an exercise following the direction of O.P.1 and submitting the report to the O.P.1 does not give rise to filing an appeal. Sri Rath, learned counsel for the petitioner thus contended that the appellate authority has rightly dismissed the appeal as not maintainable. Secondly, assailing the order involving Misc. Revision No.14/2003, Sri Rath, learned counsel for the petitioner further contended that in the same premises the Revision is also not maintainable. Further looking to the revisional provision in the OPLE Act, a Revision under Section 12 of the OPLE Act lies to the Collector and not to the Additional District Magistrate. In the above background of the matter, Sri Rath, learned counsel for the petitioner contended that the order at Annexure-5 should be interfered and set aside.

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Mr. U.K.Sahoo, learned Additional Standing Counsel for O.Ps.1 to 3 on the other hand taking this Court to the observations of the revisional authority in Annexure-5 contended

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that the findings since based on materials, there is no infirmity in

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the impugned order leaving no scope for interference of this Court.

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A set of counsel though appeared for O.P.4, the

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private party but nobody attended the hearing proceeding.

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Considering the rival contentions of the parties and straightway the proceeding on the maintainability of the Revision in Annexure-5, this Court likes to note the provision at Section 12 of the OPLE Act.

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“12.Appeal and Revision- (1) An appeal from any decision or order made under this Act by the Tahasildar shall lie to the Sub-divisional Officer.

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(2) The Collector may revise a decision or order made by a Sub-divisional Officer under Sub-sec.(1) (or under Section 7 or Section 8-A)

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(3) The (Revenue Divisional Commissioner having jurisdiction) may call for and examine the records of any proceedings under this Act before any officer in which no appeal or revision lies and if such officer appears-

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(a) to have exercised a jurisdiction not vested

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in him by law ; or

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(b) to have failed to exercise a jurisdiction so

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vested ; or

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(c) while acting in the exercise of his jurisdiction to have contravened some express provision of law affecting the decision on the merits, where such contravention has resulted in serious miscarriage of justice, it may after giving the parties concerned a reasonable opportunity of being heard pass such order as it deems fit.

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(4) Pending the disposal of any appeal or revision the Sub-divisional Officer, the Collector the (Revenue Divisional Commissioner) as the case may be, may stay the execution of the decision or order appealed against or sought to be revised.”

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Looking to the provision at Sub-Section (2) of Section 12 of the OPLE Act makes it clear that the Collector may revise the decision of the Sub-Divisional Officer under Sub-Section (1) in exercise of power under the provision of the OPLE Act. Perusal of the order at Annexure-4 clearly appears that exercise of power was undertaken by the Sub-Collector, Bolangir. This Court is, therefore, of the view that the revision against the Sub-Divisional Officer, if any, was lying to the Collector and not to the Additional District Magistrate.

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In the circumstance, this Court observes, the order at Annexure-5 being passed by the authority without jurisdiction is not sustainable. This Court accordingly interfering with the order at Annexure-5 sets aside the same.

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The writ petition succeeds. In the circumstance,

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there is no order as to cost.

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Biswanath Rath, J.

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Orissa High Court, Cuttack. The 18^th day of March, 2019/mkr, secy.

Sisir Kumar Bohidar v. Addl.Dist.Magistrate

Case brief

What is this about?

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Sisir Kumar Bohidar v. Addl.Dist.Magistrate

Case brief

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What did the court decide?

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