Subash Ch.Samantaray Vs State and Ors. — Writ and Judicial Review | Orissa HC (2026)

Subash Ch.Samantaray Vs State and Ors. — Writ and Judicial Review | Orissa HC (2026)

What the court decided

AI extract

Outcome

Writ petition allowed: orders under Annexure-8 and 9 and subsequent orders/action, including publication of the RoR in the Government's name for the case land, set aside; Tahasildar, Bhubaneswar directed to record the land purchased by the Petitioner in his name within eight weeks from production of certified copy of the judgment, under Rule 34 of the Odisha Survey and Settlement Rules, 1962, and to supply the corrected RoR forthwith; no order as to costs.

Issue for consideration

Maintainability of the writ petition under Articles 226 and 227 of the Constitution of India notwithstanding the availability of a statutory remedy under Section 15(b) of the Settlement Act. +2 more

Court's answer

A writ petition under Articles 226 and 227 of the Constitution is maintainable, although a statutory remedy under Section 15(b) of the Settlement Act was available to assail the correctness of the entries in the final RoR under Section 12-B, because the underlying order being without jurisdiction is non-est.

Ratio / Principle

No document shows that notice was issued or served on the Petitioner fixing a hearing date in Rent Case No.2831 of 2013; no separate order was passed in the Rent Case filed by the Petitioner, which was rejected ex parte on 15th July, 2013 alongside Suo Motu Rent Case No.10147 of 2013 and was not considered on its own merit.

Key takeaways

Since the lease granted in favour of Jogi Khadualsingh in WL Case No.584 of 1959-60 under the Government Settlement Act was never cancelled or determined, the Assistant Settlement Officer and the Appellate Authority, being creatures of the statute under the Settlement Act, had no jurisdiction to sit over that lease; the impugned orders under Annexures-8 and 9 are therefore without jurisdiction.ratio¶55
The order passed by the Settlement Authority directing to record the case land in favour of the State Government is without jurisdiction; an order which is without jurisdiction is non-est in the eye of law, and any action taken or order passed pursuant thereto, including publication of the RoR in the Government's name, is equally bad, without jurisdiction, and cannot sustain.ratio¶64

Detailed headnote1 paragraphs

Orissa High Court, Cuttack — W.P.(C) No.2802 of 2014 (K.R. Mohapatra & S.K. Mishra, JJ.) — heard and disposed of on 01.07.2026; fresh adjudication on remand effected by the Hon'ble Supreme Court's common judgment dated 17.12.2024 disposing of SLP(Civil) No.2641 of 2024, filed against this Court's 02.01.2023 batch disposal with Narottam Rath v. State of Odisha. Holds: (i) a writ under Articles 226/227 is maintainable notwithstanding the availability of a revision under Section 15(b) of the Odisha Survey and Settlement Act, 1958, because the orders (Annexures-8/9) rejecting the purchaser's Rent Case No.2831/2013 ex parte (no notice issued or served, no separate consideration on merits) and recording the land as 'Abada Jogya Anabadi' Government khata were passed without jurisdiction — the lease to Jogi Khedualsingh in W.L. Case No.584 of 1959-60 under the Odisha Government Land Settlement Act, 1962 was never cancelled or determined, and authorities created under the Settlement Act could not sit over it; an order without jurisdiction is non-est and consequential RoR publication equally unsustainable; (ii) relegation to Section 15(b) would serve no purpose and prejudice the Petitioners, litigating since 2013; accordingly Annexure-8/9 and consequential action stand set aside; (iii) the Tahasildar is directed under Rule 34, Odisha Survey and Settlement Rules, 1962, to record the purchased land in the Petitioner's name within eight weeks and supply the corrected RoR. Followed Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1 and Godrej Sara Lee Ltd., 2023 SCC OnLine SC 95; relied on Vijay Krishna Poultry Pvt. Ltd., W.P.(C) No. 8774 of 2019; noted Lily Nanda, 2018 (I) OLR 559 stood set aside in W.A. No.535 of 2018; counsel had urged reliance on Bharati Satpathy, WP(C) No.9775 of 2014. Writ allowed; no costs.

IN THE HIGH COURT OF ORISSA AT CUTTACK

W.P.(C) No.2802 OF 2014

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

1. Subash Chandra Samantaray (Deceased) 1(a). Sri Alok Kumar Samantaray 1(b). Sri Deepak Kumar Samantaray 1(c). Sri Ashok Kumar Samantaray

…… Petitioners

-Versus-

1. State of Odisha, represented through the Principal Secretary, Revenue and Disaster Management Department, Bhubaneswar

2. The Addl. District Magistrate, Bhubaneswar

3. The Tahasildar, Bhubaneswar

4. The Settlement Officer, Cuttack Major

Settlement, Cuttack

5. The Addl. Sub-Collector-cum-Addl. Settlement Officer , Bhubaneswa r

6. The Asst. Settlement Officer , Bhubaneswar Settlement Camp, Bhubaneswar

.….. Opp. Parties

Advocates appeared:

For Petitioners : Mr. Sanjay Kumar Samantaray, Advocate

For Opp. Parties : Mr. Swayambhu Mishra , Additional Standing Counsel

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CORAM :

MR. JUSTICE K.R. MOHAPATRA & MR. JUSTICE SANJAY KUMAR MISHRA

---------------------------------------------------Heard and disposed of on 01.07.2026

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

JUDGMENT

By the Bench;

1. This matter is taken up through hybrid mode.

2. Petitioners in this writ petition seeks to assail the order dated 5^th October, 2013 (Annexure-9), passed by the Additional Settlement Officer-cum-Additional Sub-Collector, Bhubaneswar in Appeal Case No.2173 of 2013 confirming the undated order passed by the Tahasildar, Bhubaneswar in Rent Case No.2831 of 2013 passed in Suo Motu Rent Case No.10147 of 2013.

3. The case of the Petitioners as reveals from the writ petition is that one Jogi Khedualsingh of Village-Jagannath Prasad made an application for settlement of a piece of Government land. Accordingly, W.L. Case No.584 of 195960 was initiated on the file of the Tahasildar, Bhubaneswar and Sabik bi-Plot No.2708/5031 of Khata No.645/340 to an extent of Ac.1.000 decimals in Mouza-Andharua under Bhubaneswar Tahasil in the district of Khordha (erstwhile district Puri), (for brevity, ‘the case land’), was settled in his name. Record of Rights was also issued in the name of lessee namely, Jogi Khedualsingh. Due to his legal necessity, the lessee sold the land in favour of one Sri Sudarsan Sahoo, son

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of Chakradhar Sahoo vide Registered Sale Deed No.1382 dated 20^th March, 1996 through his Power of Attorney Holder Sri Siba Prasad Samantasinghar. Said Sri Sudarshan Sahoo sold Ac.0.054 decimals of the land out of the case land in favour of one Smt. Soudamini Dixit vide Registered Sale Deed No.1246 dated 30^th March, 1999 and delivered possession to her. Thereafter, said Smt. Soudamini Dixit transferred her purchased land in favour of one Sri Subash Chandra Ray, Son of Sisir Kumar Ray vide Registered Sale Deed No.2014 dated 21^st May, 1999 and delivered possession to him. Further, the said Sri Subash Chandra Ray sold the land in favour of one Sri Nirmal Kumar Maharathi, son of Mahendra Maharathi vide Registered Sale Deed No.11131014426 dated 26^th November, 2010 through his Power of Attorney Holder Smt. Sephalika Mishra and delivered physical possession to him. Subsequently, the wife of said Nirmal Kumar Maharathi while in peaceful possession of the said land, transferred the case land in favour of Petitioner vide Registered Sale Deed No.11131015758 dated 31^st December, 2010 and delivered possession of the land in favour of Sri Subash Chandra Samantaray (now dead and represented by his legal heirs). Accordingly, the Petitioner exercising his right, title and interest over the same was possessing the land on and from the date of purchase till death. During settlement operation, the land in question was recorded in the Abada Jogya Anabadi Khata in the name of the State Government. Accordingly, the Petitioner filed Rent

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Objection Case No.2831 of 2013 enclosing relevant records with a prayer to correct the Record of Rights in his name in respect of the land, he has purchased. The Assistant Settlement Officer rejected the Objection Case vide ex parte order dated 15^th July, 2013 along with Suo Motu Rent Case No.10147 of 2013 and directed to publish the Record of Rights in the name of the State Government. Being aggrieved, the Petitioner preferred the Appeal Case No.2173 of 2013 before the Additional Sub-Collector-cum-Additional Settlement Officer, Bhubaneswar, who reiterated the findings in the Objection Case and dismissed the Appeal. As such, the Petitioner, being aggrieved, has filed the writ petition.

4. The writ petition was disposed of on 2^nd January, 2023 along with Narottam Rath Vs. State of Odisha & ors. and batch of writ petitions. The State Government challenged the common order passed in the batch of cases in different SLP(C)s. The Hon’ble Supreme Court vide common judgment dated 17^th December, 2024 disposed of all SLPs including SLP(Civil) No.2641 of 2024 filed against the judgment of this Court in the present writ petition of the Petitioner and remitted the matter to this Court for fresh adjudication of each of the writ petitions separately. Hon’ble Supreme Court observed in the common order that this Court at the time of adjudication of the writ petitions did not verify as to whether the power exercised by the Assistant Settlement Officer under the provisions of Section 12 of the Odisha Survey and Settlement Act, 1958 (for brevity, ‘the Settlement

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Act’) was prior to finalization of the Record of Rights or at a subsequent stage and it was also not verified as to whether the aggrieved parties had exhausted their remedies as provided under Section 12-A and/or Section 15(b) of the Settlement Act. Keeping in mind the aforesaid observations of Hon’ble Supreme Court, this Court proceeds to adjudicate the writ petition.

5. Mr. Samantray, learned counsel for the Petitioners submits that the Assistant Settlement Officer, while adjudicating the Rent Case No.2831 of 2013 filed by the Petitioner, did not issue any notice to him. He was not given any opportunity of hearing and to put forth documents in support of his case. Further, the Rent Case was taken up along with Suo Motu Rent Case No.10147 of 2013, wherein the Assistant Settlement Officer erroneously sat over the order passed in WL Case No.584 of 1959-60 initiated under the Odisha Government Land Settlement Act, 1962 (for brevity ‘the Govt. Settlement Act’), whereby the case land was settled in favour of the lessee , Jogi Khadualsingh. Since the Petitioner was not served with any notice and the objection filed by the Petitioner under Section 12 of the Settlement Act was not considered independently, the Petitioner did not have any opportunity to put forth his case. He, further, submits that the Assistant Settlement Officer, being a creature of the Settlement Act, cannot find fault with the order passed in WL Case No.584 of 1959-60, which was disposed of under the provisions of the Government

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Settlement Act’. The Appellate Authority in Appeal Case No.2173 of 2013 did not appreciate the same and reiterated the observations made in the order passed by the Assistant Settlement Officer. Hence, both the orders under Annexures8 & 9 are without jurisdiction and are liable to be set aside. 5.1. He relies upon the decision in case of Bharati Satpathy -versus- State of Odisha and others {WP(C) No.9775 of 2014 disposed of on 19^th December, 2025} , wherein this Court, taking into consideration several case laws and the provisions of the Settlement Act, came to a finding that the Writ Court under Articles 226 and 227 of the Constitution of India has jurisdiction to adjudicate upon the legality and veracity of the impugned order under Annexures-8 and 9 albeit a remedy under Section 15(b) of the Settlement Act is available to the Petitioners. He, further, submits that no fruitful purpose would have been served by availing the remedy under Section 15 (b) of the Settlement Act as in similar such cases, the Revisional Authority had confirmed the order passed under Sections-12 and 12-A of the Settlement Act. He, further, submits that in view of the ratio in Bharati Satpathy (supra) , the Petitioners should not be relegated to invoke the jurisdiction under Section 15 (b) of the Settlement Act and prays for setting aside the order under Annexures-8 and 9 and to issue direction to record the land in favour of the Petitioners on the basis of the Lease Patta granted in favour of Jogi Khadualsingh (lessee) and the Sale Deed executed in favour of the Petitioner.

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6. Mr. Mishra, learned Additional Standing Counsel vehemently objects to such submission and contends that neither the Assistant Settlement Officer nor the Additional Settlement Officer-cum-Additional Sub-Collector, Bhubaneswar had acted without jurisdiction in exercising their power under the statute. The order passed by them may be erroneous but not without jurisdiction. He, further, submits that final Record of Rights in respect of the land purchased by the Petitioners was published on 21^st November, 2013. Thus, the Petitioners had a remedy under section 15(b) of the Settlement Act to move the Board of Revenue for correction of the entries in the final Record of Rights. He also drew attention of this Court to the relevant portions of the order passed by the Hon’ble Apex Court while remitting the matter to this Court and submits that the Petitioners should have availed the remedy under Section 15(b) of the Settlement Act. He, therefore, submits that the writ petition is not maintainable and is liable to be dismissed.

7. Heard learned counsel for the parties. Peruse the materials on record.

7.1. It is not disputed by the parties that the case land was originally leased out in favour of one Jogi Khadualasingh of Village-Jagannath Prasad under Government Settlement Act. It is also not disputed by the parties that he sold the case land in favour of one Sudarsan Sahoo, who transferred Ac.0.054 decimals out of Ac.1.000 decimal in favour of one Soudamini Dixit, wife of Maheswar Dixit. It was also not disputed that

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ultimately the Petitioner had purchased the land in question. Thus, when the Petitioner was in possession of the land, he had purchased, settlement operation started in VillageAndharua, where the lease hold property situates and the Assistant Settlement Officer recommended to record the case land in Government Khata under „Abada Jogya Anabadi‟ status. The Petitioner filed Rent Case No.2831 of 2013. There is no document to show that notice in the said Rent Case was either issued or served on the Petitioner fixing the date of hearing. Further, it appears from the order under Annexure-8 that the Rent Case filed by the Petitioner was taken up along with Suo Motu Rent Case No.10147 of 2013 initiated by the State Government and the Rent Case filed by the Petitioner was rejected vide order dated 15^th July, 2013. No separate order was passed in the Rent Case filed by the Petitioner. The Rent case filed by the Petitioner was not considered on its own merit. However, the Petitioners being aggrieved, preferred Appeal Case No.2173 of 2013 under Section 12-A of the Settlement Act, which was also dismissed reiterating the observations in the Rent Case. 7.2. It is submitted by Mr. Mishra, learned Additional Standing Counsel that final Record of Rights in respect of the case land had already been published in the name of the Government. He also raises an objection to the effect that the writ petition under Articles 226 and 227 of the Constitution of India is not maintainable as the Petitioners had a remedy under Section 15(b) of the Settlement Act. Thus, the question

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that arises for consideration is whether the present writ petition under Articles 226 and 227 of the Constitution of India is maintainable when the Petitioner had a remedy under Section 15(b) of the Settlement Act.

7.3. On perusal of the record, it appears that the lease granted in favour of Jogi Khadualsingh in WL Case No.584 of 1959-60 was never cancelled or set aside. It is also not available on record to show that the lease in question was ever determined. Further, the Assistant Settlement Officer while adjudicating the Rent Case No.2831 of 2013 filed by the Petitioner observed that there are lot of irregularities in the lease case while granting lease in favour of Jogi Khadualsingh. On the basis of such finding, the Assistant Settlement Officer proceeded to dismiss the Rent Case. In the Appeal under Section 12-A of the Settlement Act filed by the Petitioners (Appeal Case No.2173 of 2013), the Appellate Authority proceeded under the same footing and dismissed the Appeal. The land was settled in favour of Jogi Khadualsingh under the provisions of the Government Settlement Act and has not yet been cancelled or determined. Thus, the Assistant Settlement Officer and the Appellate Authority, who are the creatures of the statute under the provisions of the Settlement Act, had no jurisdiction to sit over the lease granted in favour of said Jogi Khadualsingh and pass the impugned order under Annexures-8 and 9 in view of the ratio in the case of Vijay Krishna Poultry Pvt. Ltd., Surya Nagar, Unit No.VII, Bhubaneswar represented

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through its Director, P. Vivek –v- State of Orissa and others (W.P. (C) No. 8774 of 2019, disposed of on 18th June, 2021) and Whirlpool Corporation –v- Registrar of Trade Marks, Mumbai and others; (1998) 8 SCC 1. Of course, while adjudicating the case of Vijay Krishna Poultry Pvt. Ltd. (supra) this Court amongst other relied upon the case of Lily Nanda –v- State of Odisha; 2018 (I) OLR 559 , which was subsequently set aside by this Court in an Intra Court Appeal, i.e., W.A. No.535 of 2018. However, in the case of Whirlpool Corporation (supra), the Hon’ble Supreme Court held as under:

“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.”

8. The ratio in the case of Whirlpool Corporation (supra) was subsequently followed in Godrej Sara Lee Ltd. –v- The Excise and Taxation Officer-cum-Assessing Authority and others; 2023 SCC OnLine SC 95 .

9. Thus, in view of the ratio in the case of Whirlpool Corporation ( supra ) and Godrej Sara Lee Ltd. ( supra ), we have no hesitation to hold that the order passed by the Settlement Authority directing to record the case land in

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favour of the State Government is without jurisdiction. An order, which is without jurisdiction, is non-est in the eye of law. As such, any action taken/order passed pursuant to the said order including publication of RoR in the name of the Government is also equally bad and without jurisdiction and thus cannot sustain. As such, a writ petition under Articles 226 and 227 of the Constitution is maintainable, albeit a statutory remedy under Section 15 (b) of the Settlement was available to the Petitioners to assail the correctness of entries in the final RoR in the name of the Government under Section 12-B of the Settlement Act.

10. The Petitioners are fighting out litigations since 2013. Thus, relegating the Petitioners to file a revision under Section 15(b) of the Settlement Act will serve no purpose, particularly in view of the observations here-in-above and on the other hand, it will certainly prejudice the Petitioners. Since the order basing upon which the final RoR has been published in favour of the State Government is held to be without jurisdiction, the same is not sustainable being non-est in the eye of law. Hence, the impugned orders under Annexure-8 and 9 and subsequent orders passed/action taken including publication of the RoR in favour of the Government in respect of the case land, stand set aside.

11. In view of the discussions made above, the Tahsildar, Bhubaneswar has no other option than to correct the RoR in the name of the Petitioner in respect of the land he has purchased, under Rule 34 of the Odisha Survey and

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Settlement Rules, 1962. Even if the final RoR in respect of the case land has already been published in the name of the Government, but the Tahasildar, Bhubaneswar is competent to correct the same in the name of the Petitioner pursuant to the direction of a competent Court of law. Consequently, the Tahasildar, Bhubaneswar is directed to record the land purchased by the Petitioner in his (Petitioner’s) name within a period of eight weeks from the date of production of certified copy of this judgment and supply the corrected RoR to the Petitioners forthwith.

12. 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.

Urgent certified copy of this judgment be granted on proper application.

(K.R. Mohapatra) Judge

(S.K. Mishra) Judge

Orissa High Court, Cuttack, Dated 1^st July, 2026/Kanhu

Signature Not Verified

Digitally Signed Signed by: KANHU BEHERA Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 06-Jul-2026 18:29:16

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