Narottam Rath Vs State and Anr.

Signature Not Verified

Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 17-Oct-2025 12:58:36

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C). NO.1608 OF 2014

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(An application under Articles 226 & 227 of the Constitution of India)

Narottam Rath

…… Petitioner

-Versus-

1. State of Odisha, represented through the Secretary, Department of Revenue, Secretariat, Bhubaneswar

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2. Assistant Settlement Officer, Khurda, Camp at Bhubaneswar, Rental Conoly, Bhubaneswar

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3. Additional Sub-Collector, Bhubaneswar, Khurda, Odisha

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.…… Opp. Parties

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Advocates appeared:

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For Petitioner : Mr. Gautam Misra, Senior Advocate being assisted by Mr. Jyoti Ranjan Deo, Advocate

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For Opp. Parties : Mr. Sabita Ranjan Pattnaik, Additional Government Advocate

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CORAM :

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MR. JUSTICE K.R. MOHAPATRA MISS JUSTICE SAVITRI RATHO

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-----------------------------------------------Heard and disposed of on 14.10.2025

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----------------------------------------------

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JUDGMENT

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By the Bench;

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1. This matter is taken up through hybrid mode.

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W.P.(C). No.1608 of 2014

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Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 17-Oct-2025 12:58:36

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2. Petitioner in this writ petition seeks to assail the order dated 31^st May, 2013 (Annexure-4) passed by Assistant Settlement Officer, Rental Conoly, Bhubaneswar-Opposite Party No.2 in Objection Case No.16409 of 2013. The Petitioner also assails the order dated 8^th August, 2013 (Annexure-8) passed by Additional Sub-Collector, Bhubaneswar-Opposite Party No.3 in Suit No.1437 of 2013, which was filed by the Petitioner assailing the order under Annexure-4. The Petitioner further prays for a direction to the Assistant Settlement Officer, Rental Conoly, BhubaneswarOpposite Party No.2 to issue ROR in respect of the land in question in favour of the Petitioner.

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3 . Mr. Misra, learned Senior Advocate appearing for the Petitioner submits that land pertaining to Plot No.582 in Khata No.541 of Village Patharagadia under Bhubaneswar Tahasil in Khurda District to an extent of Ac.2.000 dec. (for brevity ‘the case land’) was leased out in favour of Smt. Bilasini Biswal vide order dated 25^th October, 1979 by the Tahasildar, Bhubaneswar in WL Case No.1787 of 1978. Subsequently, a suo motu revision under Section 7-A (3) of the Odisha Government Land Settlement Act, 1962 (for brevity ‘the OGLS Act’) was initiated by the Additional District Magistrate, Bhubaneswar and the lease granted in favour of said Smt. Bilasini Biswal was cancelled vide order dated 20^th October, 1981 in Lease Revision Case No.246 of 1981. Assailing the same, said Smt. Bilasini Biswal moved this Court in OJC No.1375 of 1982, which was disposed of vide order dated 2^nd May, 1981 remitting the matter to the Additional District Magistrate, Bhubaneswar for fresh adjudication of the lease revision case providing opportunity of hearing to the parties. However, the

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Page 2 of 12

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Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 17-Oct-2025 12:58:36

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Additional District Magistrate, Bhubaneswar reiterated his earlier order by cancelling the lease in favour of Smt. Bilasini Biswal vide order dated 23^rd July, 1990. Being aggrieved, Smt. Biswal again moved this Court in OJC No.640 of 1998. This Court, vide order dated 2^nd February, 1998, disposed of the petition setting aside the order cancelling the lease and remitted the matter to the Additional District Magistrate, Bhubaneswar for fresh disposal. On remand, the Additional District Magistrate, Bhubaneswar confirmed the lease granted in favour of Smt. Bilasini Biswal vide order dated 5^th April, 1999. The said order was never challenged and attained finality. When the matter stood thus, the Petitioner purchased the case land from the lessee, namely, Smt. Bilasini Biswal vide RSD dated 26^th May, 2000 (Annexure-1) and was delivered with possession. Thereafter, the Petitioner approached the Tahasildar, Bhubaneswar for issuance of ROR in his favour. However, he was informed that the lease granted in favour of Smt. Bilasini Biswal, the lessee, was cancelled in Objection Case No.16409 of 2013. Be it stated here that by the time the Petitioner applied for issuance of ROR in his favour, settlement operation had already commenced in the area. During settlement operation ‘Yaddast’ of the case land was prepared in favour of the Petitioner acknowledging his possession over the case land and endorsing that the Petitioner was paying the rent regularly. Draft ROR (Parcha) under Section 12 of the Odisha Survey and Settlement Act, 1958 (for brevity ‘the Settlement Act’) was also prepared in the name of the Petitioner during March, 2013 (Annexure-3). But, the Assistant Settlement Officer for the reasons best known directed to record the case land in Government Khata (ROR). The Petitioner being unaware of the

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Page 3 of 12

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Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 17-Oct-2025 12:58:36

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same had submitted application to issue ROR in his name. However, getting information from the office of the Tahasildar, Bhubaneswar that the lease in favour of Smt. Bilasisni Biswal was cancelled, the Petitioner sought for relevant information under the Right to Information Act, 2005 and ascertained that vide order dated 31^st May, 2013, in Objection Case No.16409 of 2013, the Assistant Settlement Officer, Bhubaneswar-Opposite Party No.2 directed to record the case land in the name of the Government instead of the Petitioner (Annexure-4). Assailing the same, the Petitioner filed an Appeal under Section 22(2) (b) of the Settlement Act before the Appellate Authority on 30^th July, 2013. The Additional Sub-Collector, Bhubaneswar, the Appellate Authority, dismissed the Appeal by one line order on the ground of limitation, i.e., on 8^th August, 2013 (Annexure-8). Both the orders under Annexure-4 and Annexure-8 are under challenge in this writ petition. Earlier, by a common judgment, a Co-ordinate Bench of this Court disposed of several writ petitions involving similar issue including the present one vide order dated 2^nd January, 2023. The said order was challenged by the State Government before Hon’ble Supreme Court in SLP(C) No.2716 of 2024 and a batch of cases (lead Case being SLP(C) No.26551 of 2023). Hon’ble Supreme Court disposed of the batch of SLP(C)s including SLP(C) No.2716 of 2024 vide order dated 17^th December, 2024 with the following direction:

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“ Delay condoned.

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Having heard learned counsel for the parties, we are of the considered view that the judgment needs to be quashed and set aside for the simple reason that instead of deciding each case individually, on its given fact, the High Court proceeded to club and decide all the matters by

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Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 17-Oct-2025 12:58:36

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presuming the facts to be common/identical and framing a common question of law.

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As such on this short ground alone, the judgment requires interference, we are of the considered view that each case had to be considered on its own merits.

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Whether the power exercised by the ASO under the provisions of Section 12 of the Orissa Survey and Settlement Act, 1958 were exercised prior to the finalisation of the Record of Rights or at a subsequent stage was not considered by the High Court. Also as to whether the aggrieved parties had exhausted their remedies as provided under Section 124 and/or Section 158 of the said Act was also not considered by the High Court. The High Court proceeded on the assumption that all the petitioners before the Court had leases in their favour, in relation to which no Record of Rights was required to be prepared in terms of Section 12 of the said Act.

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As such, on these grounds alone, without commenting on the merits of the issue and the contentions raised before us, we remand the matter to the High Court for consideration afresh.

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We hope and expect that each case would be considered and decided separately, though expeditiously. All rights and contentions inter se the parties are left open to be agitated before the High Court.

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The parties are directed to appear before the High Court on 15.1.2025. The parties undertake to fully cooperate in the proceedings before the High Court.

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The special leave petitions are disposed of as above. Pending application(s), if any, stands disposed of.”

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4. Thus, this writ petition is taken up for consideration.

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5 . Mr. Misra, learned Senior Advocate further submits that the lease of the case land granted in favour of Smt. Bilasini Biswal was confirmed by the Additional District Magistrate, Bhubaneswar vide order dated 5^th April, 1999 in Lease Revision Case No.246 of 1981. The said order was never challenged and thus attained finality. Thereafter the Petitioner purchased the case land vide RSD dated 26^th May, 2000 and was delivered with possession. Draft ROR under Section 12 of the Settlement Act was also prepared in the name of the Petitioner. But, subsequently, the Assistant Settlement

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Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 17-Oct-2025 12:58:36

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Officer, Bhubaneswar impliedly cancelling the lease granted in favour of Smt. Bilasini Biswal, the vendor of the Petitioner, directed to record the land in the name of the Government. It is his submission that the Assistant Settlement Officer, Bhubaneswar acted without jurisdiction in sitting over the order confirming the lease granted in favour of Smt. Bilasini Biswal in Lease Revision Case No.246 of 1981. Since the Assistant Settlement Officer, Bhubaneswar is a creature of the Settlement Act, he/she could not have taken a decision contrary to the order passed by the Additional District Magistrate, Bhubaneswar in Lease Revision Case No.246 of 1981 under OGLS Act and directed to record the case land in favour of the Government. Relying upon the ratio in Vijay Krishna Poultry Pvt. Ltd. Surya Nagar, Unit No.VII, Bhubaneswar represented through its Director, P. Vivek vrs. State of Orissa and others (W.P. (C) No. 8774 of 2019 disposed of on 18^th June, 2021) and Whirlpool Corporation vrs. Registrar of Trade Marks, Mumbai and others; (1998) 8 SCC 1 , it is submitted that the Authorities under the Settlement Act cannot sit over settlement made under the OGLS Act. Ample provision is available under the OGLS Act to cancel a lease granted under the said Act. The settlement made under OGLS Act in favour of the lessee, namely, Smt. Bilasini Biswal was also tested in suo motu Lease Revision Case No.246 of 1981 initiated under Section 7-A (3) of the OGLS Act and ultimately, the Additional District Magistrate, Bhubaneswar confirmed the lease in favour of the Lessee, namely, Smt. Bilasini Biswal and the said order attained finality. The Petitioner purchased the case land thereafter when the lease was valid. It appears that the Assistant Settlement Officer,

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Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 17-Oct-2025 12:58:36

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Bhubaneswar and the Additional Sub-Collector, Bhubaneswar conveniently avoided the settlement made under the OGLS Act and directed to record the land in favour of the State Government. Thus, the impugned orders under Annexures-4 and 8 are without jurisdiction and are void ab initio as held in Vijay Krishna Poultry Pvt. Ltd. (supra) and Whirlpool Corporation (supra) .

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5.1. It is, however, submitted that in Vijay Krishna Poultry Pvt. Ltd. (supra), this Court relied upon the different case laws including the ratio in the case in Lily Nanda vrs. State of Odisha reported in 2018 (I) OLR 559 , against which an Intra Court Appeal in WA No.535 of 2018 was filed by the State Government. A coordinate Bench of this Court while dismissing the Appeal vide order dated 9^th November, 2022 held that the said order shall not be treated as precedent for other case. However, the ratio in Vijay Krishna Poultry Pvt. Ltd. (supra) does not get diluted by not relying upon the Lily Nanda (supra) as this Court relied upon several other case laws to come to a finding that the Assistant Settlement Officer, Bhubaneswar, who is a creature of Settlement Act cannot nullify the lease granted under the provisions of the OGLS Act. Thus, the impugned order under Annexure-4 being void ab initio is liable to be set aside. The order passed by the Appellate Authority is equally unsustainable as the same is cryptic and non-speaking. The Additional Sub-Collector, Bhubaneswar rejected the Appeal in a one-line order on the ground of limitation without providing any opportunity of hearing to the Petitioner.

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5.2 . Mr. Misra, Senior Advocate further submits that in the meantime, the final ROR under Section 12-B of the Settlement Act has already been published in the name of the Government pursuant

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Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 17-Oct-2025 12:58:36

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to the order under Annexure-4 passed by the Assistant Settlement Officer, Bhubaneswar. Since the order under Annexure-4 is void ab initio , any order passed/action taken in pursuance thereof is also equally non est in the eye of law. Hence, the writ petition is maintainable under Articles 226 and 227 of Constitution of India as held by this Court in Vijay Krishna Poultry Pvt. Ltd. (supra) and Whirlpool Corporation (supra) . He, therefore, prays for a direction to set aside the impugned orders under Annexures-4 and 8 and direct the settlement Authorities to publish the ROR in favour of the Petitioner.

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6. Mr. Pattnaik, learned Additional Government Advocate, at the outset, on instruction, submits that since it is a certiorari proceeding under Article 227 of the Constitution of India and relevant records and information are available on record, no counter affidavit is required to be filed by the State. Further, he opened his argument with a submission that since the ROR under Section 12-B of the Settlement Act has already been published on 21^st November, 2012, i.e., prior to filing of the writ petition, no relief can be granted herein. The Petitioner has an efficacious statutory remedy under Section 15 (b) of the Settlement Act to challenge the correctness of the entries made in the final ROR. Hence, writ petition is not maintainable and is liable to be dismissed. Referring to the observations of Hon’ble Supreme Court in the SLP(C)s, as aforesaid, he further submitted that while remitting the matter to this Court, it is observed by Hon’ble Supreme Court that this Court is required to examine as to whether power exercised by the ASO under Section 12 of the Settlement Act was exercised prior to finalization of the ROR or at any subsequent stage. As observed by

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Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 17-Oct-2025 12:58:36

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Hon’ble Supreme Court, it is also to be examined whether the aggrieved parties had exhausted their remedy as provided under Section 12-A and/or Section 15(b) of the Settlement Act. Since the Petitioner has not exhausted the remedy under Section 15(b) of the Settlement Act, the writ petition being not maintainable is liable to be dismissed.

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7. Heard learned counsel for the parties. Perused the materials placed before us.

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8. The factual submission made by Mr. Misra, learned Senior Advocate was not disputed by Mr. Pattnaik, learned Additional Government Advocate. He only assails the maintainability of the writ petition on the ground that the Petitioner has an efficacious statutory remedy under Section 15(b) of the Settlement Act. Hon’ble Supreme Court while remitting the matter observed that this Court on previous occasions did not consider as to whether the power under Section 12 of the Settlement Act was exercised prior to finalization of Record of Right. It was also not examined as to whether the Petitioner had exhausted the remedy under Section 12A of the Settlement Act or not.

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8.1. In the instant case , power under Section 12 of the Settlement Act was exercised prior to final publication of the Record of Right under Section 12-B of the Settlement Act. Further there was no occasion for the Petitioner to seek remedy under Section 12-A of the Settlement Act as the draft ROR under Section 12 of the Settlement Act was published in the name of the Petitioner.

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8.2. It is admitted case of both the parties that the final ROR under Section 12-B of the Settlement Act has already been

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Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 17-Oct-2025 12:58:36

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published in the name of the Government. Thus, the question arises as to whether the Petitioner should be relegated to work out the remedy under Section 15(b) of the Settlement Act by filing a properly constituted revision before the Member, Board of Revenue, Odisha.

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8.3. Admittedly, lease of the case land granted in favour of Smt. Bilasini Biswal in WL Case No.1787 of 1978 by the Tahasildar, Bhubaneswar under OGLS Act was confirmed by the Additional District Magistrate, Bhubaneswar vide order dated 5^th April, 1999 in lease Revision Case No.246 of 1981 initiated suo motu under Section 7-A (3) of the OGLS Act. The said order was not challenged and thus attained finality. There is ample provision under the OGLS Act to cancel a lease granted in favour of a beneficiary. Section 3(b) and Section 7 - A (3) of the OGLS Act makes elaborate provisions for cancellation of lease granted under the OGLS Act. There is no provision under the Settlement Act empowering the Authorities created under said Act to cancel a lease granted under the OGLS Act. The Assistant Settlement Officer, Bhubaneswar by ignoring the lease granted in favour of the Smt. Bilasini Biswal under OGLS Act directed to record the land in the name of the Government. After order dated 5^th April, 1999 was passed in Lease Revision Case No.246 of 1981 confirming the lease granted in favour of Smt. Bilasini Biswal, the Petitioner purchased the case land vide RSD dated 26^th May, 2000 and was delivered with possession. Thus, the Petitioner is a person aggrieved.

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8.4. By ignoring the order passed by the Authorities under the OGLS Act, the Assistant Settlement Officer, Bhubaneswar-

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Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 17-Oct-2025 12:58:36

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Opposite Party No.2 acted without jurisdiction in directing to record the case land in favour of the State Government. Thus, the order under Annexure-4 is void ab initio and non est in the eye of law. Thus, any action taken/order passed in pursuance thereof is also equally void and non est in the eye of law. Further in the case of Whirlpool Corporation (supra) it is held as under;

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“20. Much water has flown under the bridge, but there has been no corrosive effect on these decisions which, though old continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation.”

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8.5. Thus, relegating the Petitioner to file a revision under Section 15(b) of the Settlement Act will serve no purpose and the Petitioner will be further harassed in facing unnecessary litigations. Thus, this Court is constrained to hold that the argument advanced by Mr. Pattnaik, learned Additional Government Advocate is not acceptable in the facts and circumstances of the case.

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9. In view of the discussions made above, the impugned order under Annexure-4 and consequential orders under Annexure-8 are set aside. Since the settlement proceeding has already been over and the Tahasildar, Bhubaneswar is the custodian of the revenue records together with the fact that the concerned Tahasildar has the power under Rule 34 of Odisha Survey and Settlement Rules, 1962 to correct the entries in the ROR pursuant to the direction of a Court, it is directed that the Tahasildar, Bhubaneswar shall issue ROR of the case land in favour of the Petitioner, if moved by the

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Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, C UTT ACK Date: 17-Oct-2025 12:58:36

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Petitioner, preferably within a period of 30 days from the date of production of certified copy of his order.

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10. The writ petition is allowed to the aforesaid extent . In the facts and circumstances of the case, there shall be no order as to costs.

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(K.R. Mohapatra) Judge

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(Savitri Ratho) Judge

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High Court of Orissa, Cuttack The 14^th Day of October, 2025//Rojalin

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W.P.(C). No.1608 of 2014