Basanti Mishra Vs Commissioner of Land Records and Settlement,Cuttack

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ORISSA HIGH COURT : CUTTACK

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WP(C) No.647 of 2016

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An application under Articles 226 & 227 of the Constitution of

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India. *** Basanti Mishra .......…… Petitioner -VERSUS-

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Commissioner of Land Records and Settlement,Odisha, Cuttack and others ….. Opposite Parties

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Counsel appeared for the parties:

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For the Petitioner : Mr. S.K.Ray, Advocate For the Opposite Parties : Mr.Gyanalok Mohanty, S.C. (for the O.P. Nos.1 and 2) None (for the O.P. Nos.3 and 4)

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P R E S E N T:

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HONOURABLE

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MR. JUSTICE ANANDA CHANDRA BEHERA

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Date of Hearing: 01.07.2025 :: Date of Judgment : 23.07.2025

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WP(C) No.647 of 2016

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JUDGMENT

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ANANDA CHANDRA BEHERA, J.—

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1. This writ petition under Articles 226 and 227 of the Constitution of India, 1950 has been filed by the Petitioner against the Opposite Parties praying for quashing (setting aside) the final order dated 11.06.2015 (Annexure-2) passed in Revision Petition No.415 of 2008 by the Commissioner, Land Records and Settlement, Odisha, Cuttack (O.P. No.1).

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2. The case of the Petitioner is that, the case land was belong to Pravati Satpathy. The said Pravati Satpathy sold the case land to Damodar Satpathy and that Damodar Satpathy sold the case land to the Petitioner (Basanti Mishra) executing and registering the sale deed No.243 dated 28.01.1994. Accordingly, the Petitioner has been possessing the case land since 28.01.1994 purchasing the same from Damodar Satpathy, as the exclusive owner thereof. But, during the settlement operation, the settlement authorities recorded the case land in the name of Pravati Satpathy (who is her vendor’s vendor).

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WP(C) No.647 of 2016

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When, the R.o.R. of the case land was erroneously published

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in the name of the Pravati Satpathy, the Petitioner filed the Revision Petition No.415 of 2008 before the Commissioner, Land Records and Settlement, Odisha, Cuttack (O.P. No.1) U/s 15(b) of the OSS Act, 1958 praying for passing an order for the deletion of the name of the Pravati Satapathy from the R.o.R. of the case land.

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4. After hearing, the Commissioner, Land Records and Settlement, Odisha, Cuttack (O.P. No.1) dismissed to the said Revision Petition No.415 of 2008 of the Petitioner as per its final order dated 11.06.2015 (Annexure-2) directing for preparation of the R.o.R. of the case land neither in the name of the Petitioner nor in the name of Pravati Satpathy, but, in the name of the third party i.e. Government under Anabadi Khata.

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5. On being aggrieved with the said final order dated 11.06.2015 (Annexure-2) passed in Revision Petition No.415 of 2008 by the O.P. No.1, the Petitioner challenged the same by filing this writ petition praying for quashing that order dated 11.06.2015 (Annexure-2) passed in Revision Petition No.415 of 2008 on the ground that, the Commissioner, Land Records and

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WP(C) No.647 of 2016

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Settlement, Odisha, Cuttack (O.P. No.1) has exceeded its jurisdiction passing the impugned order vide Annexure-2 creating a third case other than the case of the Petitioner and the person named in the R.o.R. of the case land.

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6. I have already heard only from the learned counsel for the Petitioner and the learned standing counsel for the O.P. Nos.1 and 2, as none appeared from the side of the O.P. Nos.3 and 4 for participating in the hearing of this writ petition.

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7. It is the case of the Petitioner that, as, the R.o.R. of the case land was prepared erroneously by the Settlement Authorities in the name of her vendor’s vendor i.e. Pravati Satpathy, for which, the Petitioner had filed the Revision Petition No.415 of 2008 for correction of the record of the R.o.R. of the case land from the name of the Pravati Satpathy to her name (petitioner).

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8. Whereas, as per the impugned order dated 11.06.2015 passed in Revision Petition No.415 of 2008 vide Annexure-2, the Commissioner, Land Records and Settlement, Odisha, Cuttack (O.P. No.1) created a third case other than the case of the Parties giving direction for recording the case land in the name of the no Party to the revision i.e. Government without asking the Parties

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and without giving any opportunity to the Parties to say/answer in respect of the intention of the Commissioner, Land Records and Settlement, Odisha, Cuttack (O.P. No.1) for passing of the impugned order in favour of a third party i.e. Government. For which, the final order passed in Revision Petition No.415 of 2008 vide Annexure-2 has been passed by the O.P. No.1 without complying the principles of natural justice. Because, none of the claimants in respect of the case land including the Petitioner were given opportunity of being heard concerning the question raised in the mind of the O.P. No.1 for passing an order vide Annexure-2 creating a third case other than the case of the Parties for recording the case land in the name of the third party i.e. Government.

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9. When, only the legality and propriety of the recording of the case land in the name of the vendor’s vendor of the Petitioner i.e. Pravati Satpathy was under challenge in Revision Petition No.415 of 2008 and when, the petitioner had prayed for recording the case land in her name correcting the record thereof from the name of Pravati Satapathy, then at this juncture, the Commissioner, Land Records and Settlement, Odisha, Cuttack

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(O.P. No.1) had no authority or jurisdiction under law to make out a third case, which was not the case of the Petitioner or Pravati Satapathy before the O.P. No.1 in the Revision Petition No.415 of 2008.

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10. It is the settled propositions of law that, any Court or Authority during adjudication of any matter cannot create a third case, which is not the case of the Parties.

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11. On this aspect, the propositions of law has already been clarified by the Hon’ble Courts and Apex Court in the ratio of the following decisions:-

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(i) In a case between Deepak Ananda Patil Vrs. State of Maharashtra and others reported in (2023) 11 SCC 130 in Para No.18 that,

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If the adjudicatory body is going to rely on any material, evidence or document for its decision against a party, then, the same must be brought to his notice and he be given an opportunity to rebut it or comment thereon. It is regarded as a fundamental principle of natural justice that, no material ought to be relied on against a party without giving him an opportunity to respond to the same. The right of being heard may be of little value if the individual is kept in the dark as to the evidence against him and is not given an opportunity to deal with it. The right to know the material on which the authority is going to base its decision is an element of the right to defend oneself. If without disclosing any evidence to the party, the authority takes it into its consideration and decides the matter against the party, then, the decision is vitiated for it amounts to denial of a real and effective opportunity to the party to meet the case against him.

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(ii) In a case between Rudramohan Mohapatra Vrs. LIC of India and others reported in 2007 (1) OLR 57 in Para No.8 that,

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Practice and Procedure—A court of fact is not entitled under law to make out a third case ,which is not the case of either of the parties before it.

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(iii) In a case between Lal Bahadur Prasad & Others Vs. Surendra Singh & Others reported in 2014 (1) CCC 44 (Patna) in Para Nos.12 to 16 that,

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Court cannot make a third case on the basis of evidence produced by defendants in support of a fact, which was never put forth in pleading.

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(iv) In a case between Venugopal Padayachi (dead) through LRs Vs. V. Pichaikaran reported in 2018(4) CCC 165 (SC) that,

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High Court making out a new case not set up by any party, not permissible.

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(v) In a case between Bachhaj Nahar Vs. Nilima Mandal & Others reported in IV (2008) Civ.L.T. 276 (SC) in Para Nos.9, 10 &12 that,

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the Court cannot make out a case not pleaded by the Parties. The Court should confine its decision to the question raised in the pleadings.

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(vi) In a case between Banambar Das Vrs. Pitambar Das and others reported in 2010 (I) OLR 700 in Para No.5 that,

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whenever an order is passed to the detriment of a party, that party must be given a reasonable opportunity to show cause and being heard.

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(vii) In a case between Dawood Vrs. Zubaida reported in 2010 (4) CCC (Kerala) 229 that,

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no one should be visited with an adverse consequence unless he has been given an effective and reasonable opportunity to be heard to show cause against such an adverse order.

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(viii) In a case between Chanchal Kumar Bera @ Chanchal Bera and others Vrs. Additional Commissioner Settlement and Consolidation Balasore, District: Balasore and others reported in 2025 (I) OLR 861 in Para No.8 that,

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any Court or authority during adjudication cannot create a third case, which is not the case of either party.

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12. When, on the basis of the final order dated 11.06.2015 (Annexure-2) passed in Revision Petition No.415 of 2008 by the

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O.P. No.1, the O.P. No.1 has created a third case without giving

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any opportunity to the Parties to meet the intention of the O.P. No.1 to say/answer about the creation of such third case for preparation of the R.o.R. of the case land in the name of no party to the revision i.e. Government, then at this juncture, by applying the principles of law enunciated in the ratio of the aforesaid decisions, it is held that, the impugned order dated 11.06.2015 passed in Revision Petition No.415 of 2008 vide Annexure-2 by the O.P. No.1 is not sustainable under law.

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13. For which, there is justification under law for making interference with the same through this writ petition filed by the Petitioner.

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14. Therefore, there is merit in the writ petition filed by the Petitioner. The same must succeed.

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15. In result, the writ petition filed by the Petitioner is allowed.

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16. The impugned order dated 11.06.2015 vide Annexure-2 passed in Revision Petition No.415 of 2008 by the Commissioner, Land Records and Settlement, Odisha, Cuttack (O.P. No.1) is quashed (set aside).

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17. The matter vide Revision Petition No.415 of 2008 is remitted back to the Additional Commissioner of Land Records and Settlement, Odisha, Cuttack-1 functioning at Collectorate, Jajpur for disposal of that Revision Petition No.415 of 2008 same afresh as per law after giving opportunity of being heard to the Parties and others, if any, in full compliance of the principles of natural justice for meeting all the questions raised in the same.

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18 . Registry is directed to communicate the copy of this judgment immediately to the Additional Commissioner, of Land Records and Settlement, Odisha, Cuttack-1 functioning at Collectorate, Jajpur immediately for the fresh disposal of Revision Petition No.415 of 2008 within three months from the date of communication of this judgment.

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19. Accordingly, the writ petition is disposed of finally.

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(ANANDA CHANDRA BEHERA)

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JUDGE

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High Court of Orissa, Cuttack 23.07.2025// Binayak Sahoo Jr. Stenographer

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Signature Not Verified

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Digitally Signed Signed by: BINAYAK SAHOO Reason: Authentication Location: High Court of Orissa, C utta ck Date: 24-Jul-2025 16:07:04