Allowed

Anil Ku.Mohapatra v. State

Orissa HC4 Mar 2021WP(C)/4746/2003

Case brief

AI extract

What is this about?

The Supreme Court allowed the writ petition challenging a Revenue Divisional Commissioner's order that set aside a land settlement in favor of the petitioner and remanded the matter. The Court held that the respondent failed to provide adequate opportunity for hearing and the records were inadequate, setting aside the order for fresh disposal.

What did the court decide?

The impugned order dated 17th January, 2003 and the order dated 24th May, 2002 condoning delay were set aside. The Revision Case was restored to the RDC for fresh disposal.

Anil Ku.Mohapatra Vs State — Public Procurement and Tenders | Orissa HC (2021)

¶1

W.P.(C) No. 4746 of 2003

¶2

04.03.2021 1. Heard Mr. D. Panda, learned counsel for the Petitioner and Mr. S. Palit, learned Additional Government Advocate for the State-Opposite Parties.

¶3

This writ petition challenges the order dated 17^th January, 2003 passed by the Revenue Divisional Commissioner (Southern Division), (‘RDC’), Berhampur, District Ganjam in Revision Case No. 80 of 2001, whereby an order dated 16^th August, 1996 passed by the Collector, Ganjam was set aside and the matter was remanded to the Tahasildar, Aska (Opposite Party No.4) with a direction to take up the enquiry afresh to ascertain the rights of the parties.

¶4

The background facts are that the land in plot No. 971, Khata No. 215/109 to an extent of Ac.0.100 situated in Mouza-Pitalo within the Aska Notified Area Council (NAC) was recorded as Gramakantho Gharabari in a settlement operation. Acting on a report submitted by the Revenue Inspector (RI), Narendrapur, Opposite Party No.4 initiated Encroachment Case No. 386/86 against the present Petitioner on the ground that he was unauthorisedly occupying the land in question. A notice under Section 9 of the Orissa Land Settlement Act, 1962 (‘OLS Act’) was issued to the Petitioner on 12^th November, 1986.

¶5

Pursuant to the said notice, the Petitioner appeared before Opposite Party No.4 and prayed that the suit land be settled in

¶6

-2-

¶7

his favour by acknowledging his possession thereof. Thereafter, a Lease Case No. 1 of 1995 was initiated by the Opposite Party No.4 for settlement of the disputed land in favour of the Petitioner. This was done by inviting public objections and order dated 20^th June, 1995 the RI, Narendrapur was directed to submit a report as to whether the Petitioner was a landless and homesteadless person and as regard his annual income. Pursuant thereto the RI, Narendrapur stated to have submitted a report stating that the Petitioner was in possession of the suit land since 1989 and that his annual income was less than Rs.8000/-.

¶8

The Petitioner states that the Opposite Party No.4 also conducted a spot inquiry to verify the facts. He then by an order dated 12^th December, 1995 forwarded the case of the Petitioner to the Sub-Collector, Bhanjanagar for necessary approval by the Collector, Ganjam (Opposite Party No.3). The Sub-Collector, after perusing the case, by order dated 15^th July, 1996 recommended the case of the Petitioner for approval of house site on Gramakantha land. After going through the order passed by the Opposite Party No.4 and the Sub-Collector, Bhanjanagar, the Opposite Party No.3 by an order dated 16^th August, 1996 approved the proposed settlement in favour of the Petitioner. Consequently, the Record of Rights (RoR) was published in favour of the Petitioner recording the suit land in his favour having raiyati status. This was in terms of second proviso to

¶9

-3-

¶10

Section 7(2) of the Orissa Prevention of Land Encroachment Act, 1972 (‘OPLE Act’).

¶11

Opposite Party Nos. 5 (Ganga Nayak) and 6 (Tarini Ch. Nayak) filed an application under Section 7 (a) of the Orissa Government Lend Settlement Act, 1962 (‘OGLS Act’) before the RDC (Opposite Party No.2) questioning the order dated 16^th August, 1996 passed by Opposite Party No.3 claiming to be in possession of the suit land since 1955. They claimed that due to heavy floods in the river Rushikulya in 1990 their houses were washed away, but they were paying T.A. and penalty to the State Government. Along with the said application, an application under Section 5 of the Limitation Act, seeking condonation of delay, was also filed.

¶12

The above application was registered as Revision Case No. 80 of 2001. According to the Petitioner without notice to him, Opposite Party No.2 condoned the delay. It is submitted further that without giving the Petitioner an adequate opportunity to present his case, Opposite Party No.2 by the impugned order dated 17^th January 2003 allowed the aforementioned Revision Case, set aside the Collector’s order dated 16^th August, 1996 and remitted the case to the Opposite Party No.4 for a fresh inquiry.

¶13

Apart from grounds questioning the jurisdiction of the RDC to entertain the revision petition, Mr. Panda, learned counsel

¶14

-4-

¶15

appearing for the Petitioner urged that the impugned order had been passed by the RDC without affording the Petitioner an adequate opportunity of being heard.

¶16

In paragraph 13 of the petition, it is stated that the Petitioner appeared before the RDC on 23^rd August, 2002 pursuant to the notice issued to him on 24^th May, 2002 and sought time. The case was then adjourned to 4^th October, 2002. Then, it was further adjourned to 22^nd November, 2002 when the Petitioner prayed for time. It is stated that the case was then posted to 20^th December, 2002 for orders.

¶17

The Petitioner also states that he was not supplied with the copy of the written notes of argument filed by Opposite Party Nos. 5 and 6 before the RDC and therefore could not refute their contentions.

¶18

Notice was issued in present writ petition way back on 29^th May, 2003 on which date an interim order was passed staying the impugned order. That interim is continuing since then.

¶19

In the counter affidavit filed by Opposite Party Nos. 2, 3 and 4, it is stated that the averments in the aforementioned paragraph 13 of the petition are baseless and that the order has not been passed behind the back of the Petitioner as he has attended the court.

¶20

-5-

¶21

A perusal of the impugned order of the RDC reveals that the submission of the Petitioner in opposition to the revision petition has not even been discussed by the RDC. Also it is seen from the record of proceedings before the RDC that on 14^th May, 2002 the extraordinary delay of four years was condoned without notice to the Petitioner. Thereafter, on 20^th August, 2002 the Government Prosecutor (GP), Ganjam as well as counsel for the Petitioner herein stated that they had not received the relevant papers and both sought an adjournment. Thereafter, on 22^nd November, 2002 the GP again stated that he was not prepared ‘for want of necessary documents’.

¶22

As far as the Petitioner is concerned, his request for further time was refused by the RDC stating that he was allowed time on a previous occasion. It thus appears that even the GP did not have the necessary papers. Interestingly in the impugned order the RDC notes that the Opposite Party Nos. 5 and 6 ‘were not diligent in taking steps to make records in their favour till 2001’. It is further noted that the Opposite Party No.3 appeared ‘to have taken no action from his side on the basis of the possession note in the impugned RoR’. The RDC also noted that ‘there is no record to indicate if they (Opposite Party Nos. 5 and 6) continued possessing the suit land till the encroachment case was booked against Opposite Party No.2 (the present Petitioner) in 1986’. He also notes that the claim of the

¶23

-6-

¶24

Opposite Parties 5 and 6 ‘regarding possession of the suit land beyond 1976 needs thorough enquiry’.

¶25

In the considered view of the Court, the RDC could have easily sought for the complete papers instead of simply remanding the matter to Opposite Party No.4 for a fresh inquiry. He could have insisted upon the complete records be produced before him by Opposite Party No.3, who passed the order dated 16^th August, 1996, which was challenged before the RDC. It does appear that sufficient opportunity was not granted to the Petitioner or even the GP to present their respective cases. The records produced by Opposite Party Nos. 5 and 6 appeared to be inadequate to substantiate their case.

¶26

In the circumstances the Court is of the view that the Revision Petition filed by Opposite Party Nos. 5 and 6 herein along with the application for condonation of delay, should once again to be considered by the RDC, in accordance with law.

¶27

Accordingly the impugned order dated 17^th January, 2003 and the earlier order dated 24^th May, 2002 of the RDC condoning the delay in filing the revision petition are hereby set aside. The Revision Case No. 80 of 2001 along with the application for condonation of delay in filing it, are restored to the file of the RDC for a fresh disposal, in accordance with law.

¶28

-7-

¶29

The matter will now be listed before the RDC on 3^rd May, 2021 on which date the Petitioner and the Opposite Party Nos. 5 and 6 shall remain present before the RDC through their counsel. If Opposite Party Nos. 5 and 6 are not present, the RDC will proceed in the matter only after issuing a notice to them.

¶30

The writ petition is disposed of in the above terms.

¶31

( Dr. S. Muralidhar ) Chief Justice

¶32

A.Dash/PS

¶33

( B.P. Routray) Judge

Anil Ku.Mohapatra v. State

Case brief

What is this about?

What did the court decide?

Anil Ku.Mohapatra v. State

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Sudhir Kumar Rout Vs State and Ors.

Kishore Gountia Vs State of Odisha

Ghanashyam Sahoo Vs State

Ajit Ku.Baral Vs State and Ors.

Biren Ku.Rout Vs Bm,Icici Bank Ltd.

Narahari Jena Vs State and Ors.