Allowed¶27

Padmalochan Nandi v. State of Odisha

Orissa HC19 Dec 2024WP(C)/19355/2022

Case brief

AI extract

What is this about?

OCH & PFL Act 1972 Section 25(4) delivery of possession; Section 25(1) application after Consolidation Scheme; maintainability; demarcation dropped for breach of peace; Tahasildar jurisdiction after closure of consolidation; Section 41(1) notification; writ allowed; order set aside; remand within eight weeks; W.P.(C) 19355/2022; Padmalochan Nandi v. State of Odisha; Orissa High Court 19.12.2024.

What did the court decide?

Writ petition allowed; impugned order dated 18th July, 2022 (Annexure-3) set aside; matter remanded to opposite party No.3 to consider the Section 25(4) application as per law, keeping in view the Court's observations, followed by an order at the earliest preferably within eight weeks from receipt of a copy of the order. ¶27

Padmalochan Nandi Vs State of Odisha — Orissa HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

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Issue for consideration

Whether a request for delivery of possession in terms of Section 25(4) of the Act is maintainable where no application under Section 25(1) of the Act was filed later to the Consolidation Scheme (objection urged by opposite party No.9). +1 more

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Court's answer

The maintainability defence of opposite party No.9 — absence of a Section 25(1) application subsequent to the Consolidation Scheme — should also be examined by opposite party No.3 while disposing of the application filed under Section 25(4) of the Act.

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Ratio / Principle

Opposite party No.3 ought to have considered the application filed under Section 25(4) of the Act for a decision according to law instead of passing the order dated 18th July, 2022 (Annexure-3) whereby the proceeding was simply dropped.

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Key takeaways

The impugned order dated 18th July, 2022 (Annexure-3) is set aside and the matter is remanded to opposite party No.3 for consideration of the Section 25(4) application in accordance with law, preferably within eight weeks from receipt of a copy of the order.ratio¶27

Detailed headnote1 paragraphs

Orissa High Court (R.K. Pattanaik, J.) — W.P.(C) No.19355 of 2022, decided 19.12.2024. Under the OCH & PFL Act, 1972, the petitioners' application under Section 25(4) for delivery of possession in Demarcation Case No.154 of 2022-23 was disposed of by opposite party No.3 merely dropping the demarcation (Annexure-3, dated 18.07.2022) on apprehension of law-and-order problems, without taking any decision on the request. The Court held the authority ought to have considered and decided the Section 25(4) application according to law; further directed that opposite party No.9's maintainability objection — that no application under Section 25(1) was filed later to the Consolidation Scheme — be also examined by the said authority while disposing of the Section 25(4) application. Annexure-3 was set aside and the matter remanded for fresh consideration as per law, preferably within eight weeks.

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C) No.19355 of 2022

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Padmalochan Nandi & others

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…. Petitioners

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M/s. S.K. Nayak, Advocate & Associates

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-Versus-

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State of Odisha & others

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…. Opposite Parties Mr. B. Nayak, AGA Mr. A.P. Bose, Advocate for O.P. No.9

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CORAM: MR. JUSTICE R.K. PATTANAIK

ORDER

19.12.2024

Order No.

Heard Mr. Nayak, learned counsel for the petitioners, Mr. Bose, learned counsel for opposite party No.9 and Mr. B. Nayak, learned AGA for the State.

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None appears for other opposite parties at the time of call.

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Instant writ petition is filed by the petitioners challenging the impugned order under Annexure-3 passed in connection with Demarcation Case No.154 of 2022-23 on the grounds stated therein.

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Mr. Nayak, learned counsel for the petitioners submits that an application of Section 25(4) of the OCH & PFL Act, 1972 (in short ‘the Act’) was filed by the petitioners and the same was disposed of vide Annexure-3 and dropped without any decision taken thereon, hence, therefore, the same is liable to be set aside with the matter being remitted back for a disposal according to law.

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Page 1 of 3

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Mr. Bose, learned counsel for opposite party No.9 submits that since no any application as per Section 25(1) of the Act was filed later to the Consolidation Scheme, a request for delivery of possession in terms of Section 25(4) thereof cannot be entertained, inasmuch as, no such foundation was laid while seeking such relief.

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Recorded the submission of Mr. Nayak, leaned AGA for the State.

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As per Section 25(1) of the Act, an application shall have to be made within the stipulated time after the Consolidation Scheme is published, when the delivery of possession is requested for. The procedure has been prescribed therein under Sub-Sections (2) and (3) of Section 25 of the Act. As per Sub-Section(4) of Section 25 of the Act, such power vis-a-vis delivery of possession is conferred on the Tahasildar having jurisdiction after closure of consolidation with the notification under Section 41(1) of the Act being published.

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Perused the impugned order as at Annexure-3 dated 18^th July, 2022.

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As per opposite party No.3, since there was every possibility of law and order situation and breach of peace, he proceeded to drop the demarcation, which is without considering the plea of the petitioners and request for delivery of possession visà-vis the schedule land. According to the Court, opposite party No.3 ought to have considered such an application filed under Section 25(4) of the Act for a decision according to law instead of such an order dated 18^th July, 2022 i.e. Annexure-3, whereby, the proceeding was simply dropped. In other words, the Court is of the conclusion that opposite party No.3 should be directed to consider

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Page 2 of 3

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the request for delivery of possession as has been pleaded for by the petitioners as per law. Considering the submission of Mr. Bose, learned counsel for opposite party No.9 with regard to maintainability of such an action before opposite party No.3, the Court is of the further view that such defence should also be examined by the said authority, while disposing of the application filed under Section 25(4) of the Act, as the same would serve the purpose and meet the ends of justice.

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10. Hence, it is ordered.

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In the result, the writ petition stands allowed. As a necessary corollary, the impugned order dated 18^th July, 2022 as at Annexure-3 is hereby set aside with the matter remanded back for a consideration by opposite party No.3 of the application filed under Section 25(4) of the Act as per and in accordance with law keeping in view the observations made and directions issued hereinabove, followed by an order at the earliest preferably within a period of eight weeks from the date of receipt of a copy of this order.

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Urgent certified copy of this order be issued as per rules.

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(R.K. Pattanaik) Judge

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Balaram

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Signature Not Verified

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Digitally Signed Signed by: BALARAM BEHERA Reason: Authentication Location: HIGH COURT OF ORISSA, CU TTACK Date: 19-Dec-2024 19:50:03

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Page 3 of 3

Padmalochan Nandi v. State of Odisha

Case brief

What is this about?

What did the court decide?

Padmalochan Nandi v. State of Odisha

Case brief

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