Remanded

Ramakanta Mohanty v. State of Odisha

Orissa HC8 Dec 2020WP(C)/6339/2019

Case brief

AI extract

What is this about?

The High Court set aside a revision order passed by the Commissioner of Consolidation & Settlement regarding land records. The Court held that the matter of jurisdiction to entertain the revision was not adjudicated by the Commissioner due to the petitioners' absence. Consequently, the matter was remanded for fresh adjudication, allowing the petitioners to raise maintainability issues.

What did the court decide?

Impugned order set aside and matter remitted to Commissioner for fresh adjudication with liberty to raise maintainability questions.

Ramakanta Mohanty Vs State of Odisha — Land Acquisition | Orissa HC (2020)

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W.P.(C) NO. 6339 OF 2019

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08.12.2020 Due to outbreak of COVID-19, this matter is taken up through Video Conferencing.

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Heard Mr. S.K. Pattnaik, learned counsel for the petitioners, Mr. S.K. Nayak, learned counsel for the opposite parties 3 & 4 and Miss Samapika Mishra, learned Addl. Standing Counsel for the State-opp. parties 1 and 2.

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The petitioners in this writ petition seek to assail the order dated 18.02.2019 (Annexure-4) passed by the Commissioner, Consolidation & Settlement, Kendrapara, Odisha, Cuttack-opp. party no.1 in Revision Case No. 126 of 2016, whereby he allowed the revision filed by opp. party no.3 under Section 37(1) of the O.C.H. & P.F.L. Act, 1972 (for short ‘Consolidation Act’).

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Mr. Pattnaik, learned counsel for the petitioners submits that since the notification under Section 5(1) of the Consolidation Act has been made in the village and the R.O.R. was published under Section 13(4) of the said Consolidation Act, it is deemed to have been published under Section 12-B of the Orissa Survey and Settlement Act, 1958 (for short ‘Settlement Act’). Thus, the Commissioner of Consolidation & Settlement had no jurisdiction to entertain the revision under Section 37(1) of the Consolidation Act. He further submits that the petitioners were not served with any notice of the said revision case for which they could

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not participate in the hearing of the revision. The opp. party no.3 suppressing the material facts to the effect that during consolidation operation, R.O.Rs. were prepared separately in the names of the petitioners on the basis of note of possession in 1930 Settlement R.O.R. managed to record his name by misleading the Commissioner to the effect that there was no partition. In support of his contention, he relied upon the decision of this Court in the case of Pradeep Kumar Behera –v- Commissioner of Land Records & Settlement, Odisha and others , reported in 2015 (1) CLR 816, wherein it has been held that the Commissioner, Consolidation & Settlement has no jurisdiction to entertain a revision under Section 37(1) of the Consolidation Act after publication of the R.O.R. under Section 13(4) of the Consolidation Act. He also relied upon the decision of this Court in the case of Sri

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Baranidhi Patnaik –v- State of Orissa and others , reported in 78 (1994) CLT 406, wherein it has been held that R.O.R. published under Section 13(4) of the Consolidation Act is deemed to have been published under Section 12-B of the Settlement Act. In that view of the matter, he prays for setting aside the impugned order under Annexure-4.

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Mr. Nayak, learned counsel for the opp. party no.3, on the other hand, submits that when the selfsame authority is conferred with the power under Section 15(b) of the Settlement Act as well as Section

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37(1) of the Consolidation Act, an order passed under Section 37(1) of the Consolidation Act cannot be nullified on the sole ground that the revision under the provisions of the Consolidation Act was not maintainable, as the authority is deemed to have exercised his power under Section 15(b) of the Settlement Act, while passing the said order, although it is nomenclatured to be an order under Section 37(1) of the Consolidation Act. He further submits that the petitioners were served with the notice of the revision case but they failed to contest the revision case. The Sabik R.O.R. of 1930 in respect of the land in question produced before the Commissioner, Consolidation & Settlement does not show that the petitioners were in possession over the said land. He, therefore, submits that there is no illegality in the impugned order under Annexure-4 and prays for dismissal of the writ petition. In support of his contention, he relied upon the decision of this Court in the case of Sudam Charan Kanungo –v- State of Orissa & others , reported in 1990 (I) OLR 22 , wherein it has been observed at paragraph-2 as follows:

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“2. xxx xxx xxxx

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As a matter of fact, it is well settled that no petition under Section 8(1) of the O.E.A. Act is contemplated to be decided as a his by the Tahlsildar between contesting parties. As the only power at the Tahasildar to settle the land with the Petitioner could be either under the Orissa Government land Settlement Act, 1962 or the Urban Land Settlement Rules, 1959 even though he purported to have

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passed orders as O.E.A. Collector, we are of the view that mere designation of the officer or his signing the order in a particular capacity would not change the nature of the order as long as he had power in another capacity to settle the Land. It might be that no such order was to have been passed in a vesting case but since the power was undoubtedly otherwise available to the Tahasildar who was also the O.E.A. Collector, the exercise of his power would be referrable back to the authority vested in him under the proper statute or order.”

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Miss Mishra, learned Addl. Standing Counsel for the State supports the impugned order passed by the Commissioner, Consolidation & Settlement, Odisha, Cuttack under Annexure-4 and submits that he is conferred with the power both under Section 37(1) of the Consolidation Act as well as Section 15(b) of the Settlement Act to deal with the revision after publication of the R.O.R. Thus, the impugned order should not be thrown out on mere technicalities, when it is otherwise sustainable on merit.

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Taking into consideration the submissions of learned counsel for the parties, this Court is of the considered view that maintainability of the revision is a question to be raised before the authority whose jurisdiction is under challenge. It appears that the petitioners having remained absent before the Commissioner of Consolidation & Settlement, Odisha, Cuttack could not raise such a question and the Commissioner has also not dealt with the matter in detail referring to the R.O.Rs. from 1930 Settlement to

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determine the flow of title. It further appears that R.O.R. in respect of Sabik Plot No. 231 under Khata No. 324 was exclusively recorded in the name of the ancestor of the petitioners, namely, Banamali Mohanty, which was neither produced nor could be taken into consideration by the Commissioner of Consolidation & Settlement, Odisha, Cuttack.

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As such, the impugned order under Annexure-4 is not sustainable in law and the same is set aside. 9. Accordingly, the matter is remitted back to the Commissioner, Consolidation & Settlement, Odisha, Cuttack-opp. party no.1 for adjudication of the aforesaid revision case afresh. The petitioners are at liberty to raise the question of maintainability of the revision along with other grounds before him for adjudication of the revision case. To avoid delay in disposal of the revision case, both the parties are directed to appear before the opp. party no.1 on 05.01.2020 to receive further instruction in the matter.

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With the aforesaid observation and direction, this writ petition is disposed of. 11. Authenticated copy of this order downloaded from the website of this Court shall be treated at par with certified copy in the manner prescribed in this Court’s Notice No.4587 dated 25.03.2020.

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K.R. Mohapatra, J.

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Ramakanta Mohanty v. State of Odisha

Case brief

What is this about?

What did the court decide?

Ramakanta Mohanty v. State of Odisha

Case brief

What is this about?

What did the court decide?

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