The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK WP(C) NO.365 OF 2013 Hemanta Dandasena & ors. …. Petitioners Mr.M.R.Dash, Adv -versus- State of Orissa & ors. …. Opposite Parties
Legal Reasoning
Mr.S.Ghosh, AGA Mr.P.K.Choudhury, Adv. CORAM: JUSTICE BISWANATH RATH
Decision
Order No. ORDER 25.1.2023 6. 1. The Writ Petition involves a challenge to the order of the Competent Authority in a proceeding initiated under Section 37(1) of the O.C.H. & P.F.L. Act, 1972. 2. The Petitioners have two faceted challenge to the impugned order herein. One being a 37(1) of the O.C.H. & P.F.L. Act proceeding should not have been initiated after lapse of one and half decades after 41 Notification is brought. Further once there was already an order by the A.C.O., if the same is not worked out, there is no contingency exercising power under Section 37(1) of the O.C.H. & P.F.L. Act. Page 1 of 5 // 2 // 3. Taking this Court to the background involving the case through Annexure-7, learned counsel for the Petitioners attempted to establish that the Petitioners’ earlier attempt questioning entertainability of the 37(1) proceeding, after such long lapse of time, this Court in disposal of W.P.(C) No.11040 of 2006 has a clear direction, vide Annexure-6 therein for de novo disposal of the Revision also attending to the question of delay ahead of decision on the main dispute involved therein. It is in the background establishing that Section 41 Notification was brought almost one and half decades behind the initiation of the 37(1) proceeding, taking this Court to the reasoning in allowing the Revision, learned counsel for the Petitioners contended, the Revision was clearly hit by law of limitation as well as the decision of the Court declaring entertainability of such proceeding after reasonable period. 4. There is no dispute at the Bar that in the earlier round of litigation, the A.C.O. in exercise of power under Section 9(3) of the Act has already directed the preparation of the map in the manner declared therein. It is for such order passed even long back, learned counsel for the Petitioners also questioned the entertainability of the 37(1) proceeding after lapse of so much time. 5. Mr.Ghosh, learned Additional Government Advocate appearing for the O.Ps. however not denying the involvement of the Page 2 of 5 // 3 // issue of limitation ahead of the decision on merit in the 37(1) proceeding, however taking this Court to the discussion part in the last but third paragraph of the impugned order attempted to convince the Court that there has been threadbare discussion on the delay aspect and there is reason by the Commissioner in bringing such application after lapse of so much time. Mr.Ghosh thus claimed dismissal of the Writ Petition. 6. Considering the rival contentions of the Parties, this Court finds, the Revisional Authority in considering the delay aspect as well as the merit involved therein in last but third paragraph came to observe as follows :- “The history of the case in brief is that the suit land in question is non-consolidable. A portion of Chaka Plot No.784 measuring Ac.0.020 dec. was under the physical possession of the petitioner since long from the time of his forefather. This fact was detected during the consolidation operation at the time of preparation of the land register and also admitted by the recorded tenant who gave his consent to record the said portion in the name of the petitioner. To update the land register in conformity with that of the field possession the ACO passed order to record the suit portion of land in the name of the petitioner basing on the consent of the recorded tenant. The said order of the ACO was not complied and given effect in land register and map by the subordinate staff and village was published U/s.22 of the OCH & PFL Act, 1972 and subsequently notified U/s.41(1) of the said Act. Non tamilling of order passed by the ACO is not at all the fault of the petitioner, rather negligence of the consolidation authority for which error committed and for such error the petitioner is no way guilty loose his land in final record rights over which the ownership of the petitioner has been declared and admitted in the initial stage Page 3 of 5 // 4 // the operation. This aspect has of thoroughly been adjudicated in this case during the disposal of the revision by this Court on order dt.07.06.2006.” 7. Considering the rival contentions of the Parties, the point involved on the question of delay and the discussion of the Revisional Authority, this Court finds, the 37(1) proceeding emanated for non-working out the direction involving the proceeding under Section 9(3) of the O.C.H. & P.F.L. Act. This Court here observes, the 37(1) proceeding did not decide anything else than the decision taken in the Section 9(3) proceeding and for the direction of the Section 9(3) Authority not worked out for a long time, there is no bar in bringing a Section 37(1) proceeding. For the opinion of this Court, in the event the Petitioners were aggrieved by the order passed in exercise of power under Section 9(3) of the Act, nothing prevented the Petitioners herein in preferring the statutory Appeal. Undisputedly, there was no preferring of Appeal by the Petitioners involving such order. At the same time, this Court observes, once there is adjudication of the Section 9(3) proceeding and a decision is taken in favour of the Parties involved, the same is binding on both the Parties therein. Undisputedly, there is also no Appeal and variation of such order. Technicalities raised herein should not come in the way of working out of such orders. In the circumstance, this Court finds delay in approaching the higher forum Page 4 of 5 // 5 // in working out the Section 9(3) order cannot take away the prospect of the adjudication in the 9(3) proceeding. 8. In the circumstance, this Court finds, there is no infirmity in the impugned order requiring to be interfered with. The Writ Petition thus stands dismissed. Interim order dated 5.2.2013 passed in Misc. Case No.307/2013 stands vacated. (Biswanath Rath) Judge M.K.Rout Page 5 of 5