Allowed

Kamala Mohapatra v. Collector and D.M., Cuttack

Orissa HC11 May 2023WP(C)/11235/2023

Case brief

AI extract

What is this about?

Petitioner challenged orders under Section 15(b) O.S.S. Act regarding land status correction. Court held Commissioner should have corrected status directly without remitting to Tahasildar for conversion. Petitioner succeeded.

What did the court decide?

Impugned orders at Annexures 3 and 6 set aside; matter remitted to Revisional Authority to correct land status within one month and ensure Tahasildar updates record within further one month.

Kamala Mohapatra Vs Collector and D.M., Cuttack — Land Acquisition | Orissa HC (2023)

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ORISSA HIGH COURT : C U T T A C K

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W.P.(C) NO. 11235 OF 2023

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An application under Articles 226 & 227 of the Constitution of India.

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Kamala Mohapatra : Petitioner

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Versus -

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Collector & District Magistrate, Cuttack & Anr. :Opposite Parties

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For Petitioner : Mr. D.Mohapatra, Mr.M.R.
Pradhan, Mr.J.Barik, Mr.P.K.
Singhdeo & Mr.S.K.Rout,Adv.
For Opp.Parties : Mr. S.Ghose, AGA
J U D G M E N T
CORAM :
JUSTICE BISWANATH RATH

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Date of Hearing & Judgment : 11.05.2023

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Biswanath Rath,J. This writ petition involves the following prayer:

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<The petitioner therefore most humbly prays that this Hon’ble Court may graciously be pleased to issue rule Nisi calling upon the Opposite Parties (i) as to why the order passed by the Revisional Authority in Annexure-3 and consequential order passed by the Tahasildar in Annexure-6 shall not be quashed.(ii) as to why there shall not be a direction to consider the case of the petitioners in the light of the materials available on records and (iii) accordingly as to why there shall not be a direction to change the Kissam of the schedule land of the petitioners from GADIA Kissam to PURATAN PATITA and thereafter for consideration of the recording of the land as GHARABARI.

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Page 1 of 7

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// 2 //

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And if the Opposite Parties fail to show cause or show insufficient cause to make the said rule absolute by issuance of appropriate writ(s), order(s), direction(s) as this Hon’ble Court may deem fit and proper; And/or to pass such other order(s) as this Hon’ble court may deem just and proper under the facts and circumstances of the present case. And for this act of kindness the petitioner shall as in duty bound ever pray.=

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2. Principal ground of challenge to the impugned order appears

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to be once there is power provided to the Commissioner under the provision of Section 15(b) of the O.S.S. Act, 1958, it is only the Commissioner to discharge such power and he has no authority to remit the matter to the Tahasildar for involving Tahasildar’s exercise in such dispute. Second limb of argument appears to be even assuming the Tahasildar has worked out on the direction of the Commissioner, the Tahasildar should have confined the proceeding considering it ought to be a request for correction of record-of-right and in no circumstance there involved a case for conversion of land. Further argument advanced by Mr.Mohapatra, learned counsel for the petitioners appears to be Tahasildar while having remand exercise took the proceeding to be involving a request for conversion of land and therefore, there is inadvertent following of the previous judgment of this Court referred to therein. It is keeping the above legal position, Mr.Mohapatra, learned counsel sought for setting aside of the impugned order. Mr.Mohapatra, learned counsel also to satisfy his such submission

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brought to the notice of the order dated 27.07.2022 in W.P.(C)

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Page 2 of 7

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No.14368 of 2022 and the judgment dated 13.04.2023 involving W.P.(C). No.5042 of 2019 with W.P.(C).No.9426 of 2023 passed

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by this Court. Reading through the judgment and order referred to hereinabove, Mr.Mohapatra, learned counsel attempted to satisfy this Court that it was only for the Commissioner to discharge his exercise looking to the nature of the proceeding.

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Mr.Ghose, learned Additional Government Advocate however referring to the proceeding filed in R.P. Case No.248 of 2007 and Misc. Case No,.29 of 2021 involving R.P. Case No.248 of 2007, reading through the different orders at page -56 and 57 of the brief in his first limb of argument submitted that there is no proper assistance to the Court for there has been non-appearance of the contesting parties in several occasions. Further in reference to

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the judgment and order referred to hereinabove, Mr. Ghose, learned Additional Government Advocate contended that for the judgment and order came to exist subsequently, there was no occasion on the part of the Commissioner either to come to know such legal position or to refer such orders. Further, similarly the Tahasildar had also no occasion to go through the judgment and order passed on this particular aspect by this Court in the meantime. Taking this Court to the order involving previous round of litigation,

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Page 3 of 7

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Mr.Ghose, learned Additional Government Advocate contends the Tahasildar remain bound to give a lawful outcome. Mr. Ghose however submitted that there cannot be any dispute of the decision

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in W.P.(C).No.8797 of 2004 and O.J.C.No.6721 of 1999 not applying to the case at hand.

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Considering the rival contentions of the parties, attaining to the validity of the order under Annexure-3 & 6, this Court refers to the pleadings of the petitioner based on hal record-of-right appears to be a clear case of bringing in change in the status of the land mentioned in sabik khata and in no circumstance, there involves any case for conversion. Facts as borne through the pleading undisputedly establishing petitioner herein is subsequent purchaser. Plot No.1563, Plot No.1481 and Plot No.1483 originally recorded as <Puratana Patita=. In sabik there has been recording of status of above land as <Gadia=, compelling the vendor of the petitioner brought a Section 15(b) of O.S.S. Act proceeding on the file of Revisional Authority. Looking to the record of right and discussions involving hal record vis-à-vis sabik record, this Court finds there should not be any doubt that there was inadvertent mentioning of status of the land in the further preparation of record and as such Section 15 (b) application should

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Page 4 of 7

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have considered the limited aspect in bringing in correct status of land dependant on hal record-of-right.

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In the circumstance, looking to the nature of dispute brought under Section 15(b) of the O.S.S. Act, this Court finds even considering the case of the petitioner, the Commissioner vide page46 & 47 has come to observe as follows:

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<On verification of documents filed by the petitioners and the submissions made by the learned Counsel for the petitioners, it is revealed that the Hal Plot No.465, area Ac0.112 dec. and Plot No.911, area Ac.0.348 dec. stands recorded in the names of Abhaya Chandra Mohanty, Son of Dinabandhu Mohanty under Hal Khata No.34 with stitiban status. It is further contended that the original Hal recorded tenant namely Abhaya Chandra Mohanty died leaving behind his three sons namely Petitioner No.1, 2 and Proforma Opp.Party No.2 namely Dr.Anil Chandra Mohanty, Asit Chandra Mohanty and Ananda Chandra Mohanty, Sons of Late Abhaya Chandra Mohanty. It is further contended that the counsel for the petitioners by adducing the true copy of Sabik settlement Record-of-Right in the year 1931, that the classification in respect of Hal Plot No.465 & 911 which corresponds to Sabik Plot No.1481 & Sabik Plot No.1483 under Sabik Khata No.1563 as a <Puratana Patita=,but while the Hal settlement Record-of-Right finally published on 13^th March, 1992. The classification of Hal Plot No.465 and 911 has been wrongly recorded as <Gadia= in column 9 (nine) instead of <Puratana Patkita= in the impugned Hal ROR No.34. Hence, this revision.=

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It is here taking into account the observation of the

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Commissioner, this Court finds the commissioner even after coming to conclude there was wrong recording on the status of the

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land involved herein and maintained it to be <Puratana Patita=, there involves change in kissam of the property in sabik record-ofright bringing it to be puratana Patita from recording Gadia. The Revisional Authority should have stop his exercise here simply directing bringing in record-of-right with change in status of land to <Puratana Patita=. Further reading of the observation, this Court

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Page 5 of 7

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again finds the Revisional Authority coming to his direction remitted the matter to the Tahasildar for consideration keeping in view the judgment of this Court in W.P.(C) No.8797 of 2004 and O.J.C.No.6721 of 1999, this Court finds there is mis-application of the judgment referred to therein to the case at hand. Deciding such issue, this Court in both the order dated 29.07.2022 in W.P.(C).No.13468 of 2022 and the judgment dated 13.04.2023 in W.P.(C).N0.5042 of 2019 has already come to hold there is no application of the judgment vide W.P.(C).No. W.P.(C) No.8797 of 2004 as well as O.J.C.No.6721 of 1999 to this nature of case.

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In the circumstance, this Court sets aside the direction part at end of page -46 and continuing till page- 47 of the brief at Annexure-3. It is for the aforesaid finding the impugned order at Annexure-6 is declared as bad and in total non-application of mind and thus also is sets aside. This Court accordingly remits the matter back to the Revisional Authority for giving the rightful declaration bringing in the status of the disputed land involved herein from <Gadia Jalasaya= to <Puratana Patita= by completing his exercise within a period of one month from the date of communication of this order by the petitioners There should also be consequent direction to the concerned Tahasildar to bring the

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Page 6 of 7

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corrected record-of-right within a further one month time. For this Court records the submission of Mr.Mohapatra, learned counsel for the petitioners that there has been subsequent sale and vendor is not co-operating presently, in such event, it may be open to the

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petitioner herein to pursue the litigation in R.P. Case No.248 of 2007. It is open to the Revision Petitioner to bring to the notice of

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the Commissioner the decision of this Court vide W.P.(C).No.5042 of 2019 dtd.13.04.2023 and W.P.(C).No.14368 of 2022 dtd.29.07.2022 respectively.

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In the result, the writ petition succeeds however, there is no order as to cost.

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(Biswanath Rath)
Judge

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Orissa High Court, Cuttack. The 11^th day of May, 2023//sks.

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Page 7 of 7

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Digitally signed by SUSIL KUMAR SWAIN

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SUSIL KUMAR SWAIN

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Date: 2023.05.12 16:22:42 +05'30'

Kamala Mohapatra v. Collector and D.M., Cuttack

Case brief

What is this about?

What did the court decide?

Kamala Mohapatra v. Collector and D.M., Cuttack

Case brief

What is this about?

What did the court decide?

What the court decided

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