Dismissed

Ashok Ku.Sundaray v. State and Ors.

Orissa HC5 Feb 2021WP(C)/18862/2012

Case brief

AI extract

What is this about?

The petitioner challenged the omission to allot land to him and sought direction to maintain status quo and correct records. The High Court dismissed the writ petition, holding that the authority has no obligation to correct Records of Rights permanently and the petitioner came with a clean hand by concealing the eviction order.

What did the court decide?

The writ petition stands dismissed. No costs.

Ashok Ku.Sundaray Vs State and Ors. — Landlord and Tenant | Orissa HC (2021)

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CORAM: HON’BLE SHRI JUSTICE S.PUJAHARI

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W.P.(C) No.18862 of 2012

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Ashok Kumar Sundaray … Petitioner - Versus - State of Odisha & others … Opp. Parties

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O R D E R

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05.02.2021 In the wake of the pandemic Covid-19, the case is taken up through V.C.

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2. Heard learned counsel for the petitioner, learned counsel for the State and learned counsel for the B.D.A., Mr. B.K.Dash.

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3. This writ petition has been filed by the petitioner with a prayer to issue a writ of certiorari or any other appropriate writs to the Opposite Party No.3 (Director of Estates & Ex-Officio, Joint Secretary to Government, General Administration Department) to dispose of the application filed by him dated 14.07.2009 under Annexure-6 for allotment of the land, measuring an area of Ac.0.149 decs. in Hal Plot No.121(Pt.) appertaining to Khata No.276 of revenue Mouza-Aiginia under Bhubaneswar Tahasil in the district of Khurda, in his favour and also to correct the Record of Rights (R.O.R.), inasmuch as the title of the aforesaid land has been conveyed to the great grandfather of the petitioner by the owner thereof vide registered sale deed under Annexure-1 and since

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then the vendee and after him, his successor-ininterest including the petitioner, a great grandson of him, are in continuous possession of the same and till the aforesaid decision is taken, not to evict the petitioner and maintain status quo over the said land.

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4. According to the petitioner the aforesaid land corresponds to Sabik Plot No.110 appertaining to Sabik Khata No.155, measuring of an area of Ac.1.85 decimals recorded in the name of Krushna Chandra Mohapatra having Dafayat Right over 20 mango trees thereon, on Stitiban status. The said Krushna Chandra Mohapatra, however, in the year 1935 vide registered Sale Deed No.311 dated 23.01.1935, conveyed the said right in favour of Giridhari Sundaray, the great grandfather of the petitioner. Accordingly, in the Sabik R.O.R. in the year 1941, the land was mutated in the name of one grandson and four sons of Giridhari Sundaray, namely, Upendra Sundaray, Prahallad Sundaray, Dhanajaya Sundaray, Daitari Sundaray & Adhikari Sundaray and they continued to remain in possession of the same. However, in the year 1982, though they are in possession and having their houses therein, the land in question was recorded in the name of Government of Orissa as “Abada Jogya Anabadi, showing its

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Kisam as Bagayat-2. Due to the wrong recording, some persons encroached the portion of the land and as such, to protect the land, the legal heirs of Giridhari Sundaray partitioned the land among themselves in the year, 1992 and Tahasildar Bhubaneswar was also approached for necessary correction of R.O.R.

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5. The petitioner being the grandson of Dhanajaya Samantray continued to possess Ac.0.149 dec. of land in Hal Plot No.121 (Pt) appertaining to Khata No.276 of the said Mouza which was part of Sabik Plot No.110, though the same has been recorded in the name of State Government presently and now in the name of General Administration Department of the Sate of Odisha. For such wrong recording, O.P.P. Case No.86 of 2003 (L) was initiated against the petitioner by Opposite Party No.4 on recommendation of the Land Officer under the Odisha Public Premises (Eviction of Unauthorized Occupants) Act, 1972 (hereinafter referred to as “the OPP Act”). The petitioner accordingly filed his relevant documents and made prayer therein indicating the fact that he has acquired his occupancy right and accordingly, the proceeding under the OPP Act against him was misconceived. The said eviction proceeding was not taken up for

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years together and as such, the petitioner made an application on 14.07.2009 for allotment of the scheduled land in his favour and to correct the R.O.R. which is yet to be disposed of. For such inaction on the part of Opposite Party No.3, the petitioner is unable to get his building plan by the B.D.A. (Opposite Party No.5). The petitioner as continued possession on the same and have his right, title and interest over the same, he has filed this writ petition seeking the aforesaid relief.

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6. Counter affidavit has been filed by Opposite Party Nos.2, 3 & 4 (General Administration Department) indicating the fact that the petitioner had no right over the land. According to them, though Krushna Chandra Mohapatra was given usufructuary right over 20 mango trees on the said land and as such, no right conferred on him on the land. The said Krushna Chandra Mohapatra transferred such right to Giridhari Sundaray vide the Sale Deed No.311 dated 25.01.1935. Thereafter, the trees having been destroyed, the right does not exist to be exercised and the land has been recorded in the name of the State in the recent settlement without anyone having right thereon. But, in recent past, the petitioner having made encroachment, the O.P.P. case was initiated wherein he was duly noticed and

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has appeared, so also thereafter necessary order of eviction has been passed against him in the said proceeding. The Opposite Parties, after settlement operation is over, have also no right to make correction of the R.O.R., if any. Then, when action was taken for eviction of the petitioner pursuant to the order in the O.P.P. Case, he has filed this writ petition and, therefore, the petition is without any substance and liable to be dismissed, more so, when the petitioner having an appellate forum, did not avail up the same knowing the fact that eviction order has been passed against him.

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7. Though the B.D.A. has been made a party but, no grievance against the B.D.A. having been made, the B.D.A. has not filed the counter affidavit, submits the learned counsel appearing for the B.D.A. 8. The petitioner, however, in the rejoinder filed stated that when he filed a revision i.e. Consolidation Revision Case No.11 of 2021, challenging such wrong recording of the land in the name of G.A. Department which is sub-judice. During the pendency of such Consolidation Proceeding, the eviction proceeding is liable to be quashed.

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9. As it appears from the aforesaid, the petitioner has sought for a direction to the Opposite Party (General Administration Department) to

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maintain status quo on the land till dispose of his petition for correction of R.O.R. in his name pursuant to his claim that the land is Stitiban land. It is well settled that after final publication of R.O.R., the Opposite Party, to whom the grievance has been made for correction of R.O.R., has no such authority to correct the R.O.R. Therefore, such a prayer of the petitioner to direct disposal of the said application dated 14.07.2009 made vide Annexure-6, is without any substance as there is no legal obligation on the Opposite Party to whom such application is made by the petitioner to consider such application. Further more, as it appears, the petitioner has come in a clean hand to this Court, inasmuch as in the O.P.P. proceeding though final order for eviction has been passed and suppressing the said fact, he has come to this Court indicating the fact that the proceeding is pending and as such, his representation be considered and till then, the status quo be maintained. Since the eviction proceeding has been disposed of and it is never alleged that in such proceeding there was any violation of principle of natural justice or procedure of law was not followed or initiation of the proceeding was without jurisdiction, therefore, in this writ petition such order also needs no interference. So far as the prayer that

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since the Revision Case is pending for correction of R.O.R in which the petitioner has filed, status quo to be maintained till disposal of the same, the same is also without any substance inasmuch as, by filing a litigation ventilating the grievance, petitioner cannot come to this Court seeking a direction to the authority concerned not to proceed in the eviction proceeding in exercise of statutory power. The petitioner also appears to have not approached the appellate authority against the order passed by Opposite Party No.4.

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10. Therefore, I am of the view that the prayer made in this writ petition is without any substance and as such, liable to be dismissed.

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Accordingly, the writ petition stands dismissed. No costs.

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But, the aforesaid shall not preclude the petitioner to ventilate his grievance in appropriate forum, if any, available to him.

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11. The parties may utilize the copy of this order in view of the High Court’s Notice No.4587 dated 25.03.2020.

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………………….. S.Pujahari, J.

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RKS

Ashok Ku.Sundaray v. State and Ors.

Case brief

What is this about?

What did the court decide?

Ashok Ku.Sundaray v. State and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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