Remanded

Dandapani v. Tutisa Majhi

Orissa HC11 Aug 2021OJC/16866/1997

Case brief

AI extract

What is this about?

The High Court of Orissa allowed a writ petition holding that an appellate order confirming a land restoration order was unreasonable and non-speaking. It set aside the order and remitted the matter for fresh adjudication with reasons.

What did the court decide?

Impugned order under Annexure-4 was set aside and matter remitted to the Additional District Magistrate for fresh adjudication of Regulation Appeal No. 5 of 1995.

Dandapani Vs Tutisa Majhi — Land Acquisition | Orissa HC (2021)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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OJC No.16866 of 1997

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Dandapani Dandasena and another

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…. Petitioners

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Mr. B. Panigrahi, Advocate

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-versus-

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Tutisa Majhi and others

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…. Opp. Parties

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Mr. Dillip Kumar Mishra, Additional Government Advocate (For Opposite Party Nos. 3 and 4)

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CORAM:

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JUSTICE K.R.MOHAPATRA

ORDER

Order No.

11.08.2021

This matter is taken up by hybrid mode.

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As prayed for, Mr. Panigrahi, learned counsel is permitted to place the matter on behalf of Mr. S. K. Padhi, learned counsel for the Petitioners.

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Petitioners in this writ petition, seek to assail the order dated 16^th July, 1997 (Annexure-4) passed by the Additional District Magistrate, Gajapati at Paralakhemundi-Opposite Party No.3 in Regulation Appeal Case No.5 of 1995, whereby he confirmed the order dated 30^th May, 1995 (Annexure-3) passed by Officer on Special Duty (LR), Paralakhemundi-Opposite Party No.4 in RMC No.43 of 1993 directing restoration of the land in question in favour of the petitioners therein together with imposition of a penalty of Rs. 500/- on the Petitioners (Opposite Party therein).

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Proceeding under Section 3(2) of the Odisha Schedule Areas Transfer of Immovable Property (by Scheduled Tribes)

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Page 1 of 6

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// 2 //

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Regulations, 1956 (for short, ‘Regulations’) was instituted on an application filed by Opposite Party Nos. 1 and 2 along with one Bidu Majhi for restoration of the land pertaining to Plot Nos.3 and 4 under Khata No.2 to an extent of area Ac.1.453 decimal and Ac.0.0890 decimal under mouza Rajakhama in the district of Gajapati (for short, ‘the case land’) on the ground that the father of Opposite Party No.1, namely, Dudu Majhi was the owner in cultivating possession of the case land and he mortgaged the same to one Nilakantha Dandasena for a consideration of Rs. 600/-. Although said Dudu Majhi returned the money, but said Nilakantha Dandasena managed to record the case land in the name of his wife, namely, Kandhuni Dandasena and others in the settlement operation. They came to know about the same when one Suku Bada Raita cultivated the case land. Hence, the application was filed for restoration of the case land in favour of the Petitioners therein.

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4.1 On being summoned, the Petitioners appeared and filed their objection stating that after death of Nilakantha Dandasena and his wife, Petitioner No.1, namely, Dandapani Dandasena, being the brother of late Nilakantha Dandasena succeeded the case land and for his legal necessity, has sold a portion of the case land to Petitioner No.2, namely, Suku Bada Raita. As such, they are in lawful possession over the case land. 4.2 The OSD (Land Reforms)-Opposite Party No.4 taking into consideration the oral evidence led on behalf of the parties and materials available on record, came to a conclusion that the present Petitioners are in unlawful possession over the case land and accordingly directed for restoration of the case land in favour of Opposite Party Nos.1 and 2 and Budu Majhi.

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Page 2 of 6

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// 3 //

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Assailing the same, the Petitioners filed Regulation Appeal No.5 of 1995, which was also dismissed vide order under Annexure-4. Hence, this writ petition has been filed.

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Mr. Panigrahi, learned counsel for the Petitioners submits that there is no material on record except the oral evidence led on behalf of Opposite Party Nos.1 and 2 to the effect that the said Dudu Majhi was the owner in possession over the case land. Although it has been alleged that the land was mortgaged in favour of Nilakantha Dandasena by Dudu Majhi, but there is no document to that effect. The same was also stoutly denied by the Petitioners in their objection as well as in evidence. On the other hand, settlement ROR prepared in favour of Kandhuni Dandasena was never challenged. Thus, the presumption attached to the said settlement ROR has not been dislodged in accordance with law. When the settlement ROR prepared by the competent authority stood in favour of the widow of Kandhuni Dandasena, the authorities under the Regulations could not have directed for restoration of the case land. The OSD (LR)-Opposite Party No.4, relying upon certain customs and usages stated to be prevailing in the locality, passed the order under Annexure-3 on presumption. The Appellate Authority, without delving into the merits of the case and without assigning any reason whatsoever, confirmed the said order. As such, the order passed by the Appellate Authority under Annexure-4 is unreasonable and a nonspeaking one. The same is also perverse being contrary to the materials on record. Accordingly, he prayed for setting aside the orders passed under Annexures-3 and 4.

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Page 3 of 6

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// 4 //

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Mr. Mishra, learned AGA refuting the submissions of Mr. Panigrahi, learned counsel for the Petitioners, contends that the Officer on Special Duty (Land Reforms)-Opposite Party No.4, on a thorough scrutiny of the oral evidence as well as materials available on record, came to a conclusion that the case land originally belonged to Dudu Majhi, the predecessors of Opposite Party Nos.1 and 2. Opposite Party No.4 also came to the conclusion that the settlement ROR was obtained by practicing fraud. Hence, in order to protect the property of Scheduled Tribe community, the Opposite Party No.4, directed for restoration of the case land in favour of the Petitioners therein. Although the Appellate Authority has not discussed in detail the contentions of learned counsel for the parties, but being satisfied with the analysis made by Opposite Party No.4, by order under Annexure-4, confirmed the order under Annexure-3 passed by the OSD (LR)-Opposite Party No.4. It is further submitted that although RMC Case No.45 of 1993 was initiated by Tutisa Majhi, Jitendra Majhi and Bidu Majhi, but neither in the appeal nor in this writ petition, Bidu Majhi was made a party. Thus, both the appeal as well as the writ petition is incompetent and not maintainable. Thus, the writ petition is liable to be dismissed.

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On perusal of the impugned order under Annexures-3 and 4, it appears that Opposite Party No.4 has discussed the oral evidence led by the parties to the Revenue Misc. Case (RMC) No.45 of 1993, but the presumptive value of settlement ROR, which was never set aside or varied by the competent court of law, was not discussed by him. Although a plea was taken that the land was mortgaged by Dudu Majhi in favour of

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Page 4 of 6

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// 5 //

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Nilakantha Dandasena, but there is no document to that effect. Even if it is presumed that the case land was mortgaged in favour of Nilakantha Dandasena and subsequently Dudu Majhi has returned back the mortgaged value of Rs.600/-, but neither any particulars with regard to the date of mortgage nor the date of payment of such money is available on record. It further appears that the Officer on Special Duty (LR) has discussed about some customs and usages prevalent in that area during the relevant period and passed the impugned order under Annexure-3. Although the Petitioners assailed the order under Annexure-3 raising specific objections the Appellate Authority-Opposite Party No.3 failed to discuss the same. Only by recording his satisfaction with regard to discussions made by Opposite Party No.4, he passed the impugned order under Annexure-4 without recording any reason and analyzing the matter in detail.

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It is the duty of the authority under the Regulations to pass reasoned order and Annexure-4 appears to have lacking the same. The Appellate Authority under Annexure-4 has only recorded that the OSD (LR) after discussing the materials on record, has passed the impugned order under Annexure-3 and hence, he did not interfere with the same.

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Mr. Mishra, learned AGA raised an issue that Bidu Majhi, who was the Petitioner No.3 before the OSD(LR)Opposite Party No.4 (along with Opposite Party Nos. 1 and 2) was not made party neither in the appeal nor in the present writ petition. However, there is no material on record to verify the reason as to why Bidu Majhi was not made a party to the Appeal as well as in the writ petition and draw conclusion on

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Page 5 of 6

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// 6 //

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that. It also appears that no such plea was raised before the Appellate Authority. Thus, such a plea is not available to be taken in this writ petition.

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In view of the above, this Court is of the considered opinion that the impugned order under Annexure-4 being unreasoned and non-speaking one is not sustainable. Accordingly, the Order under Annexure-4 is set aside and the matter is remitted back to Opposite Party No.3-Additional District Magistrate, Gajapati (Appellate Authority) for fresh adjudication of Regulation Appeal Case No.5 of 1995 in accordance with law.

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The writ petition is allowed to the aforesaid extent. LCR be sent back immediately.

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Mr. Panigrahi learned counsel for the Petitioners undertakes to produce certified copy of this order within a period of three weeks hence, before the Opposite Party No.3Additional District Magistrate, Gajapati to receive further instructions in the matter.

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11.1 Since the penalty imposed by Opposite Party No.4OSD (Land Reforms), Parlakhemundi has already been deposited pursuant to order dated 25^th June, 1998, during pendency of the writ petition, no further order need be passed in that regard.

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Issue urgent certified copy of the order on proper application.

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(K.R. Mohapatra) Judge

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s.s.satapathy

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Page 6 of 6

Dandapani v. Tutisa Majhi

Case brief

What is this about?

What did the court decide?

Dandapani v. Tutisa Majhi

Case brief

What is this about?

What did the court decide?

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