Dismissed

Bijay Ch.Mohanty v. Joint Commnr.

Orissa HC1 Sept 2021OJC/3058/2002

Case brief

AI extract

What is this about?

The Court found reasonable doubts regarding the service of notice on petitioners in a land consolidation revision. The writ petition is disposed of directing the petitioners to recall the impugned order to secure a fresh hearing.

What did the court decide?

Writ petition disposed; petitioner directed to recall impugned order for fresh hearing with notice.

Bijay Ch.Mohanty Vs Joint Commnr. — Civil Procedure and Limitation | Orissa HC (2021)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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OJC No. 3058 of 2002

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Bijaya Chandra Mohanty and another

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…. Petitioners

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Mr. D.P.Dhal, Senior Advocate along with Mr. S.Mohapatra, Advocate

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-versus-

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Joint Commissioner, Consolidation, …. Opp. Parties Cuttack and others

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Mr. Dillip Kumar Mishra, Additional Government Advocate (For Opposite Party Nos.1 to 3)

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CORAM:

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JUSTICE K.R. MOHAPATRA

ORDER

Order No.

01.09.2021

This matter is taken up through hybrid mode.

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This writ petition has been filed assailing the order dated 30^th January, 1999 (Annexure-4) passed by the Joint Commissioner, Consolidation, Cuttack-Opposite Party No.1 in Revision No.42 of 1996.

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This Court, considering the submissions of learned counsel for the parties, vide order dated 19^th June, 2019, called for the lower court record. Accordingly, learned State Counsel was granted as many as three adjournments, i.e., on 2^nd July, 2021, 14^th July, 2021 and 4^th August, 2021 to get the case record from the revisional court. But today, Mr. Mishra, learned AGA expressed his helplessness submitting that he has not received the complete case record from the revisional court. Such

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conduct of the concerned Government Officer in not complying with orders of this Court is deprecated. This may be intimated to the Revenue Secretary to do the needful.

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Coming to the merit of the case, Mr. Dhal, learned Senior Advocate for the Petitioners submits that the Joint Commissioner, while adjudicating the revision, has proceeded in a most irregular manner; decided the matter without affording reasonable opportunity to the Petitioners to defend their case. It is his submission that Gopalpur Grama PanchayatOpposite Party No.4 filed Revision Case No.42 of 1996 under Section 36 of the Odisha Consolidation of Holding and Prevention of Fragmentation of Land Act, 1972 (for short, ‘Act’) assailing the order dated 29^th September, 1995 passed by the Deputy Director, Consolidation, Jajpur in Appeal Case No.87 of 1996 filed under Section 12 of the Act. Referring to the order dated 6^th May, 1998, Mr. Dhal, learned Senior Advocate submits that on that date, learned counsel for the Petitioner (Opposite Party No.4 herein) was present, but no one was present on behalf of the Opposite Parties (Petitioners herein). However, the case was adjourned to 18^th June, 1996 for orders, but the case was taken up on 22^nd June, 1996. However, on the request of learned counsel for the Petitioner (Opposite Party No.4 herein) notice in special messenger was directed to be issued on the Opposite Parties, (Petitioners herein). Order dated 22^nd July, 1998 reflects that the present Petitioners, after reading out the contents of the notice, allegedly refused to accept the same from the Process Server. Hence, the Joint Commissioner proceeded with hearing of the matter and passed the impugned order. It is his submission that at no point of time

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the Petitioners were ever offered or served with the notice of the Revision Case. Had the entire record of the Revision Case been produced before this Court, it would have been in a position to verify the same to come to a conclusion with regard to service of notice on the Petitioners.

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Mr. Dhal, learned Senior Advocate, however, submits that in view of the facts and circumstances of the case, the matter may be remitted to the Revisional Court to take a decision on the same. Referring to the ratio in the case of Alekh Chandra Rath and another Vs. Commissioner of Land Records and Settlement, Odisha and others , reported in 1989 (II) OLR 135, he submits that every Court has the power to recall its own order. As such, the impugned order may be set aside and the matter may be remitted back to the court of Joint Commissioner for fresh adjudication giving opportunity of hearing to the parties concerned.

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Mr. Mishra, learned AGA, referring to the incomplete records of the Court of Joint Commissioner, submits that the report of the Process Server clearly discloses that on 3^rd July, 1998, he offered the notice, but the Opposite Parties refused to accept the same, for which it was affixed on the front door of the house of the Petitioners in the presence of witness. He, however, submits that although it is reflected in order dated 3^rd April, 1998 that the Opposite Parties (Petitioners herein) had appeared through their Advocate and filed their Vakalatnama, but no such Vakalatnama is available on record. He, further submits that the notice on the present Petitioners pursuant to order dated 22^nd June, 1998 has been validly made sufficient due to refusal. Hence, the Joint Commissioner has committed

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no error in proceeding with the matter and pronouncing the impugned order.

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Taking into consideration the submissions made by learned counsel for the parties, this Court finds that there is a reasonable doubt with regard to service of notice on the present Petitioners). As such, it is very difficult to say as to whether notices were in fact served on the Opposite Parties (present Petitioners in Revision No.42 of 1996 or they were given reasonable opportunity to defend their case.

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7.1 Thus, in view of the above, this Court, disposes of the writ petition with a direction that in the event the Petitioners file an application for recall of the impugned order as at Annexure4 stating the grounds therein within a period of four weeks hence along with certified copy of this order, the Joint Commissioner, Consolidation, Cuttack-Opposite Party No.1 shall do well to consider the same in accordance with law giving opportunity of hearing to the parties concerned keeping in mind the ratio decided by this Court in the case of Alekh Chandra Rath (supra) and proceed with the matter in accordance with law.

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Mr. Mishra, learned AGA may return the records to the court of Joint Commissioner, Consolidation, Cuttack forthwith. A copy of this order may be served on Mr. Mishra, learned AGA for information and communication.

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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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Bijay Ch.Mohanty v. Joint Commnr.

Case brief

What is this about?

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Bijay Ch.Mohanty v. Joint Commnr.

Case brief

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