Orissa High Court
Case Details
ORISSA HIGH COURT : C U T T A C K W.P.(C) NO. 15249 OF 2005 An application under Articles 226 & 227 of the Constitution of India. Gopal Krushna Pattjoshi and others : Petitioners -Versus- State of Orissa and others : Opposite Parties For Petitioners
Legal Reasoning
: Mr. S.Mantry, Adv. For O.Ps. : Mr. S.P.Panda, AGA J U D G M E N T CORAM : JUSTICE BISWANATH RATH Date of Hearing & Judgment : 10.07.2023 1. This Writ Petition appears to be challenging the orders at Annexure- 1, 2, 3, 3/A and 5 attached to the Writ Petition. Background as narrated in the Writ Petition appears to be, there exists registered partition between the Petitioners on 04.01.1972. When the parties were in enjoyment of specific properties in their possession on 16.05.1975, the O.L.R. Ceiling Case No. 15/74 was initiated against the Petitioner-1 where it has been found Petitioner-1 entitled to 18 Standard Acres according to members of his family. Total area with him was A.15.89 S.A. It is only on the Page 1 of 6 // 2 // above situation the O.L.R. Ceiling Case No. 15/74 was finally dropped by order of the Competent Authority dated 05.07.1995. It is while the matter stood thus there has been second round of Ceiling Case initiated against the Opposite Party No. 1 alleged to have been wrongly initiated against total land of A.108.58 decimals. Local Committee was consulted, there also involves local enquiry by the order dated 05.07.1995, R.O. allowed 14 S.A. for 7 members of P-1. So, A57.24 dec. was ordered to be vested with the Government. This order was assailed in O.L.R. Appeal Nos. 4, 5, 6 and 7/95. The appeal being allowed on 13.02.1996, the matter was remanded for fresh draft statement, hearing and disposal. Accordingly, fresh draft statement was drawn on 26.02.1998 carving out certain properties in favour of the particular parties’ dependant on the final outcome in the O.L.R. Case No. 01/94. Final statement in the above case was also signed, however in the meantime Petitioners being aggrieved preferred O.L.R. Appeal Nos. 02/03 and 3/03, all got dismissed vide Annexure-3 and 3-A. Petitioners erroneously moved the Writ Petition in W.P.(C) No. 5794/04 instead of a revision as provided for, which was permitted to be withdrawn allowing the Petitioners to exhaust appropriate remedy as a process of revision, which resulted in filing of the OLR Revision Case Nos. 4/94 and 5/94 and all were dismissed assailing the impugned orders at Annexure-1, 2, 3, 3A and 5. 2. Petitioners have the following grounds:- <1. In all the impugned orders, final order in Annexure-4 dropping OLR Ceiling Case No. 15/74 were illegally again consolidated that is, P1 is entiled to 18 S.A. but the available land with P1 was only A15.89 S.A. has not been considered. Therefore, the impugned orders cannot modify or review the same which is binding on State. 53 (1982) CLTI Para-4 & 5 Page 2 of 6 // 3 // No consultation with Local Committee U/s 43(1) (2) 2. after hearing afresh according to remand order in 4 appeals. 3. Findings in all impugned orders are based on materials prior to order of remand dated 13.02.96. No local enquiry, no consultation with Local Committee, no evidence or hearing after fresh D.S. signed on 16.02.03. 4. Cut off date of proceeding u/s. 52 is 31.08.89 and not 2.10.73 (vide 1998(1) OLR 115 para-3). So petitioner No. 2 being major, married and separated from petitioner No. 1 by 31.8.89 is entitled to separate ceiling and petitioner No. 1 is entitled to a separate ceiling on 31.08.89 Petitioner No. 1 has 6 members. So, he is entitled to 12 S.A. as rightly found in impugned orders. Petitioner No. 2 has 5 members, entitled to 10 S.A. Total S.A. is 22 S.A. But total S.A. as per annexure-4 is A15.89. So the impugned orders are liable to be set aside and O.L.R. Case No. 1/94 U/s. 52 is liable to be dropped. 5. Finding by O.P.4 that revisional jurisdiction under O.L.R. Act is analogous to S.115 CPC for which he is not entitled to consider facts, is contrary to law.= 3. In advancing his submission Mr. Satyabadi Mantry, learned counsel appearing for the Petitioners in reference to the grounds
Decision
taken in the written note of submission as well as the Writ Petition concentrating on the ground that once there was earlier proceeding vide O.L.R. Ceiling Case No. 15/74 against the Petitioner No.-1 disposed of in the surviving of the father of the Petitioners outcome being dropped the proceeding. For Mr. Mantry, learned counsel for the Petitioners on the self same issue, second successive proceeding, vide O.L.R. Ceiling Case No. 1/94 was not entertainable. There was no occasion for reopening the proceeding, vide O.L.R. Ceiling Case No. 1/94 in the year 1994. In the circumstance and as the successive proceeding is not maintainable, Mr. Mantry, learned counsel for the Petitioners claims interference in the impugned orders by this Court. 4. Mr. Panda, learned Addl. Government Advocate, however in reference to the counter affidavit apart from the stand taken therein Page 3 of 6 // 4 // also contends that there is no material to establish that the earlier proceeding not only involved property involved in the second proceeding nor there is any assertion or material to disclose that such ground was taken in the second round of litigation under the provision of the O.L.R. Act. 5. Considering the grounds raised herein and keeping in view the developments in the O.L.R. Ceiling Case No. 1/94, this Court finds, the Revisional Court on this issue has the following observation:- <Secondly, the revision petitioners mainly claim bar of the present case in the basis of res-judicata. Their stand point is that the order of the Tahasildar, Dharmagarh in OLR case no. 1/94 is hit by res-judicata as the same matter had already been dealt by the then Tahasildar, Dharmagarh in OLR case no. 14/74 wherein the Ceiling Proceeding was dropped in favour of the father and grand-father of the petitioners of the revision case no. 4/2004 and 5/04 respectively. In this regard it is pertinent to note that the Ceiling case vide OLR case no. 14/74 had been started against the father of the petitioner of revision case no. 4/04. After obtaining relevant information from various sources and after consultation with the local committee, it came to light that the present petitioner of revision case no. 4/04 (Son of Sri Rasikraj Pattjoshi against whom the OLR Ceiling case no. 14/74 had been instituted) was in possession of Ac. 138.33 dec. of land for which no return had ever been filed by the land owner (present petitioner in case no. 4/04) which then gave rise to the ceiling case bearing no. OLR case no. 1/94 in the Court of Tahasildar, Dharmagarh as per provisions of Sec-42 of OLR Act. Therefore, the cases 14/74 & 1/94 do not involve the same parties. Hence Principle of res- judicata is not applicable here. Further, perusal of lower Court records reveals that the petitioners have never raised the issue of res-judicata throughout the proceeding of the case (1/94) from the date of institution of the case i.e. 23.8.94 to the date of passing of the impugned order of the Sub-collector, Dharmagarh i.e. 13.2.04. Rather the petitioner of Case No. 4/04 against whom the Ceiling case no. 1/94 had been instituted, had admitted the Order of the Tahasildar, Dharmagarh passed on 05.7.95 by exercising his option of indicating the parcel of land to be retained by him. Hence, to raise the issue of res-judicata at this stage is not at all tenable in the eye of law. Page 4 of 6 // 5 // to Now coming the subject matter of the Ceiling proceedings, it is found from the lower court records that the draft statement was originally published by the Tahasildar, Dharmagarh on 3.3.2003. Local enquiry had been held by the Tahasildar on 24.5.95, 19.10.2001 and 26.4.2002 according to the provisions of law. The local committee had also been consulted with on 10.11.94 which is reflected vide order sheet dt. 05.7.95 in Ceiling case no. 1/94. The surplus land holder- the present petitioner of revision case no. 4/04 – exercised his option indicating the parcel of land to be retained by him in accordance of the order of the Tahasildar passed on 5.7.95. Some outsiders challenged the order of the Tahasildar in OLR appeals no. 4,5,6,7 and 8/95 before the Sub-Collector, Dharmagarh on the ground that some of the their land were wrongly included in the Ceiling proceeding of 1/94. According to the order of the appellate court, those land were excluded and fresh draft statement was prepared after due local enquiry and consultation with the local committee. Finally order was passed by the Tahasildar, Dharmagarh on 6.10.2003 confirming the draft statement which was published earlier on 3.3.2003. The order of the Tahasildar was confirmed by the appellate court on 13.2.2004. One of the grounds taken in the revision petition is that the petitioner of the revision case no. 5/2004 (Bhagirathi) should have given a separate ceiling as major, married & separated son. However, as per the registered partition deed dt. 4.1.72, Bhagirathi was only 4 years old. The petitioner itself says that Bhagirathi become major in 1986 and got married in 1987. Therefore he (Bhagirathi) cannot be treated as separated from his father on the date of the partition deed. An area of 31.13 dec. of land was allotted to Bhagirathi as per the deed. Hence this extent of land has rightly been included in the total holding of Bhagirathi’s father, Sri G.K. Pattjoshi, petitioner of revision case no. 4/04. Besides, presidential Act of 1973 (the provisions of which were included in the OLR Act) was introduced on 2.10.73; but the cutoff date for counting of families i.e. 26.9.70 remained un-affected. So the claim of a separate ceiling for Bhagirathi is legally untenable. Moreover, the land acquitted by Sri G.K. Pattjoshi, revision petitioner of revision case no. 4/04, by succession consequent upon the death of his father has also been duly incorporated in the draft and final statement. Lastly, it is alleged by the petitioners that local enquiry and consultation with local committee had not been done by the Tahasildar, Dharmagarh. However, this point has never been raised by the petitioners earlier-i.e. before publishing of draft statement. Even this has not been mentioned in the appeal petition filed by the petitioner in the appellate court. So, at present, this plea of the petitioners cannot be entertained.= Page 5 of 6 // 6 // 6. Considering the above, this Court finds, there has been a lawful consideration and all issues raised by the Petitioners and their decisions only after due deliberation besides there is also three Courts already holding the same view. For concurrent findings of fact by three Courts under the provision of the O.L.R. Act, the Writ Petition otherwise has also no merit, which is dismissed accordingly. (Biswanath Rath) Judge Orissa High Court, Cuttack. The 10th July, 2023///Utkalika Nayak/// Junior Stenographer. Signature Not Verified Digitally Signed Signed by: UTKALIKA NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: High Court of Orissa Date: 12-Jul-2023 12:38:48 Page 6 of 6