Misc. Case No. 122 of 2005 · Orissa High Court
Case Details
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 10-Nov-2025 12:04:23 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.13030 of 2006 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950). Binika Service Cooperative Societies, Binika …. Petitioner(s) -versus- Tahasildar, Binika & Ors. …. Opposite Party (s) Advocates appeared in the case through Hybrid Mode: For Petitioner(s) For Opposite Party (s) : : Mr. N.C.Pati, Adv. Ms. Gayatri Patra, ASC CORAM: DR. JUSTICE SANJEEB K PANIGRAHI DATE OF HEARING:-30.10.2025 DATE OF JUDGMENT: -07.11.2025 Dr. Sanjeeb K Panigrahi, J. 1. The Petitioner has filed the present Writ Petition assailing the impugned order dated 28.12.2005 passed by the Tahasildar-cum- Executive Magistrate, Binika in Revenue Misc. Case No.122 of 2005. I. FACTUAL MATRIX OF THE CASE: 2. The brief facts of the case are as follows: (i) The Petitioner is a Cooperative Society registered under the Odisha Cooperative Societies Act, 1962, and has been functioning at Binika for several decades. (ii) The case land consists of seven plots under Consolidation Khata No. 905, which have been recorded in the name of the Cooperative Page 1 of 13
Legal Reasoning
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 10-Nov-2025 12:04:23 Department, while the ROR stands in the name of the Petitioner– Cooperative Society. (iii) Out of the aforesaid plots, Plot Nos. 742, 745, and 759 are being utilized by the Petitioner–Society for its office and godown, while Plot No. 746 has been allotted to a school pursuant to a resolution of the Society. The remaining plots are being used for other purposes connected with the activities of the Society. A building has been constructed over Plot No. 745 by the Petitioner–Society after availing a loan from the Government and incurring substantial expenditure. (iv) Certain plots, which were earlier recorded as agricultural land, have been converted to homestead with the permission of the Tahasildar, in accordance with the order passed in Case No. 6 of 2004 under Section 8-A of the Odisha Land Reforms Act, as reflected in Form No. 29. (v) While the matter stood thus, the Petitioner came to learn that certain proceedings had been initiated by the Tahasildar, Binika in respect of the disputed land. However, the then Tahasildar did not disclose the nature or details of the said proceedings, including the case number or any order passed therein. (vi) Subsequently, due to various allegations, the said Tahasildar was transferred. Thereafter, upon inquiry before his successor, the Petitioner came to know that Revenue Misc. Case No. 122 of 2005 had been initiated, and in that case, an order had been passed directing modification of the Record of Rights. By the said order, it was directed that, in place of the Cooperative Department, Consolidation Khata No. 905 be recorded under the Rakhit Khata of the Government. It was Page 2 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 10-Nov-2025 12:04:23 further directed that Plot No. 742 be recorded in the name of the Forest Department, Plot No. 745 in the name of Binika Primary School, Plot No. 759 in the name of the Petitioner–Society, and the remaining plots under the Rakhit Khata. (vii) The Petitioner, being aggrieved by the said order, as the same was passed without issuance of any notice to him and without affording an opportunity of hearing, has filed the present Writ Petition challenging the impugned order and the proceeding in Revenue Misc. Case No. 122 of 2005. II. SUBMISSIONS ON BEHALF OF THE PETITIONER: 3. Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions: (i) The Petitioner submitted that it was a Cooperative Society registered under the Odisha Cooperative Societies Act, 1962, and that the cause of action had arisen within the territorial jurisdiction of this Court, thereby entitling it to file the present Writ Petition. (ii) The Petitioner submitted that the then Tahasildar, Binika had not disclosed the nature or particulars of the proceeding, including the case number or any order passed therein. It was further submitted that, owing to various allegations, the said Tahasildar was transferred, and upon inquiry before his successor, the Petitioner came to know that Revenue Misc. Case No. 122 of 2005 had been initiated. In the said case, an order had been passed directing modification of the Record of Rights, whereby, in place of the Cooperative Department, Consolidation Khata No. 905 was ordered to be recorded under the Page 3 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 10-Nov-2025 12:04:23 Rakhit Khata of the Government. The order further directed that Plot No. 742 be recorded in the name of the Forest Department, Plot No. 745 in the name of Binika Primary School, Plot No. 759 in the name of the Petitioner–Society, and the remaining plots under the Rakhit Khata. (iii) The Petitioner further submitted that the entire proceeding in Revenue Misc. Case No. 122 of 2005 had been disposed of without issuance of any notice or affording a reasonable opportunity of hearing to the Petitioner. Such disposal was contrary to the principles of natural justice, and therefore, the impugned order as well as the proceeding were liable to be quashed. (iv) The Petitioner also submitted that it was not borne out from the record under which provision of law such a proceeding could have been initiated by the Tahasildar or any other Revenue Officer. It was contended that the Tahasildar had no authority or jurisdiction to initiate or decide such a proceeding. Hence, the impugned order was without jurisdiction and, therefore, liable to be quashed. (v) The Petitioner further submitted that the District Magistrate had never directed the Tahasildar to initiate any such proceeding, as would be evident from the order dated 26.12.2005. (vi) The Petitioner contended that the local R.I. had been residing in a small room as no Government quarter had been provided to him, whereas the house in question had been constructed by the Petitioner–Society. To the best of the Petitioner’s knowledge, the concerned R.I. had never submitted any report regarding the matter. Page 4 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 10-Nov-2025 12:04:23 (vii) The Petitioner submitted that the Tahasildar had not visited the spot in person, and that the alleged spot inspection was merely a paper exercise, having no nexus with the actual facts and circumstances of the case. (viii) The Petitioner submitted that the Government of Orissa, Department of Agriculture and Cooperation, vide its Resolution dated 01.12.2003, had decided to transfer all leasehold lands of the Societies, including the structures and the lands adjacent thereto, to the concerned Societies. It was further submitted that, as per the report of the R.I., Binika, the lands are not recorded in the name of the Co-operative Department, but are recorded in the name of the present Petitioner Co- operative Society. The Petitioner stated that the then Tahasildar intentionally cancelled the lease, despite the Record of Rights being recorded in the name of the present Petitioner Co-operative Society. (ix) The Petitioner submitted that it was revealed from the impugned order that the lease had been granted in the year 1950 in favour of the Petitioner–Society, and that such lease had not been granted by the Tahasildar. Hence, the Tahasildar had no authority to cancel or interfere with the said lease. The Tahasildar, instead of cancelling the lease, had directed that the disputed properties be recorded under the Government Rakhit Khata, which was without jurisdiction and unsustainable in law. (x) The Petitioner submitted that the impugned order was the outcome of the imagination of the Tahasildar, having no sanction or authority of law. It was further submitted that the Petitioner–Society was Page 5 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 10-Nov-2025 12:04:23 established for commercial purposes, as is evident from its by-laws. Therefore, the use of certain portions of some plots for commercial activities could not constitute a valid ground to record the entire Khata in favour of the Revenue Department. III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES: 4. The Learned Counsel for the Opposite Parties earnestly made the following submissions in support of his contentions: (i) The land in question has been recorded in the name of the Department of Cooperation, Government of Odisha, and in Revenue Misc. Case No. 122 of 2005, the Tahasildar, Binka, after due enquiry, directed that the land be recorded under the Rakhit Khata. It is relevant that, in the Record of Rights of 1965, the land was also recorded in the name of the Department of Cooperation, and the same position continued thereafter. (ii) The Petitioner–Society has no locus standi to challenge the order passed in Revenue Misc. Case No. 122 of 2005, in which the lands were directed to be recorded under the Rakhit Khata after due enquiry. Following a detailed field enquiry, it was ascertained that the Petitioner–Society had no right or entitlement to be recorded in respect of the disputed land, and accordingly, the name of the Department of Cooperation was deleted and the land was directed to be recorded in the Rakhit Khata. (iii) No document was produced by the Petitioner to establish that the land in question had ever been transferred in its name. During the 4th Settlement of 1965, the land stood recorded in the name of the Page 6 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 10-Nov-2025 12:04:23 Department of Cooperation, Government of Odisha. The plots under M.S. Khata No. 905 originally belonged to the Revenue Department, over which the Government Girls’ U.P. School, Binika, the Office of the Revenue Inspector, Binika, a Forest Department quarter, a Revenue quarter, and a Graingola house are situated. (iv) The field enquiry further revealed that a Forest Department quarter exists over Plot No. 742, which had been transferred to the Forest Department with the ex post facto sanction of the Revenue Department vide Letter No. GE 291/59-10123/R dated 03.03.1960 for the construction of forest quarters. Out of the seven plots claimed by the Petitioner–Society, it is in unauthorized occupation of only Plot No. 759. (v) The land under Plot No. 745 is being used by the Government Girls’ U.P. School, Binika. The Petitioner–Society executed a registered deed dated 30.11.1987, purporting to transfer a portion of 4th Settlement Plot No. 683 in favour of the Girls’ High School, Binika. However, since the Society is not the owner of the land, it had no authority to execute such a transfer. (vi) A notice for realisation of conversion charges was issued only in respect of Plot No. 747, measuring Ac. 0.030 dec., over which the Society had constructed a house. However, no premium or conversion charges were paid by the Petitioner in pursuance of the notice issued in O.L.R. Case No. 6 of 2004 under Section 8-A of the Odisha Land Reforms Act, 1960. Page 7 of 13 (vii) The present Revenue Misc. Case was initiated pursuant to Letter No. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 10-Nov-2025 12:04:23 9912 dated 24.11.2005 of the Additional District Magistrate, Subarnapur, directing the Tahasildar, Binika to take steps for eviction of the Service Co-operative Society from the disputed land as per law. Accordingly, the Tahasildar conducted a field enquiry and passed an order directing that the land be recorded in the name of the Government of Odisha. Plot Nos. 741 and 743, measuring Ac. 0.175 and Ac. 0.125 dec. respectively, are under the occupation of the Revenue Department. The office-cum-residence of the Revenue Inspector, Binika, and a residential quarter for the Tahasil staff have existed over Plot No. 741 since the ex-State period and continue to be occupied by the Revenue Inspector and Chowkidar. The inspection notes of the Sub-Divisional Officer, Sonepur, dated 10.01.1968, 22.12.1969, and 07.08.1975, record the existence of the R.I. Office and staff quarters over the said land. (viii) No document has been filed by the Petitioner to show that a lease was granted to it in 1950. During the ex-State period, Binika functioned as a Sub-Division with one Tahasil Office at Binka. The Binka Sub-Division was abolished in 1944, and a non-gazetted Tahasildar was posted there, continuing till 1956. Upon the introduction of the Tahasil system in 1963, Binika came under Rampur Tahasil, and it became a separate Tahasil in 1982. The Petitioner has filed no evidence to support its claim of lease grant in 1950. (ix) As per the Record of Rights, the Petitioner–Society was found in unauthorised possession of only Plot No. 759, measuring Ac. 0.360 dec. Page 8 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 10-Nov-2025 12:04:23 The Society had earlier filed Title Suit No. 10 of 1984 before the Subordinate Judge, Sonepur, against Rabindra Dandasana, claiming ownership and seeking a perpetual injunction. The suit was dismissed by judgment dated 18.01.1986, holding that the Petitioner was not the owner of the land, and recording the existence of the R.I. Office and Forest Department quarters on the disputed plots. (x) In view of the above facts and findings, it is submitted that the order passed by the Tahasildar, Binika in Revenue Misc. Case No. 122 of 2005 was lawful, based on due enquiry and existing records, and the writ petition is devoid of merit and liable to be dismissed. IV. EXAMINATION OF THE LEGAL MATRIX
Legal Reasoning
5. Heard learned counsel for the respective parties and duly perused the 6. 7. materials placed on record. The primary issue for consideration in the present case is whether the impugned order dated 28.12.2005 passed by the Tahasildar-cum- Executive Magistrate, Binika in Revenue Misc. Case No.122 of 2005 suffers from any infirmity warranting interference by this Court. It is trite law that the jurisdiction of this Court under Article 226 is supervisory in nature and is to be exercised only where there is a patent illegality, perversity in findings, or violation of the principles of natural justice causing substantial prejudice. The writ Court does not act as an appellate authority to re-appreciate evidence or to substitute its own conclusions for those of the fact-finding authority, unless the decision impugned is shown to be irrational or unsupported by material on record. Page 9 of 13 8. This position finds consonance in a host of judgments of the Supreme Court. In Sanjay Kumar Jha v. Prakash Chandra Chaudhary & Ors.1, the Supreme Court observed: Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 10-Nov-2025 12:04:23 “13. It is well settled that in proceedings under Article 226 of the Constitution of India, the High Court cannot sit as a court of appeal over the findings recorded by a competent administrative authority, nor reappreciate evidence for itself to correct the error of fact, that does not go to the root of jurisdiction. The High Court does not ordinarily interfere with the findings of fact based on evidence and substitute its own findings, which the High Court has done in this case. Even assuming that there had been any error in the computation of marks in respect of fixed and movable assets, the High Court could, at best, have remitted the case of respondent Prakash Chandra Chaudhary to the authorities concerned for reconsideration.” 9. Similarly, in Sarvepalli Ramaiah v. District Collector, Chittoor2, the Supreme Court held: “43. Judicial review under Article 226 is directed, not against the decision, but the decision-making process. Of course, a patent illegality and/or error apparent on the face of the decision, which goes to the root of the decision, may vitiate the decision-making process. In this case there is no such patent illegality or apparent error. In exercise of power under Article 226, the Court does not sit in appeal over the decision impugned, nor does it adjudicate hotly disputed questions of fact.” 10. Guided by the aforesaid principles, this Court has examined the Petitioner’s challenge.