The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.21552 of 2013 In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950. ……………… Padmalaya Puja Panda & Another …. Petitioners -versus- State of Odisha & Others …. Opposite Parties For Petitioners : M/s. S.P. Mishra. For Opp. Parties :
Legal Reasoning
M/s. Mr. B. Mohanty, Addl. Government Advocate PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------- Date of Hearing:27.09.2024 and Date of Judgment:27.09.2024 ---------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel appearing for the Parties. 3. The present Writ Petition has been filed inter alia challenging order dtd.13.05.2013 so passed in OSS Case No.399/2012 by the Member Board of Revenue-Opposite Party No.2 under Annexure-2. Vide the said order, the order passed by the appellate authority in Appeal Case // 2 // Nos.2627/1983 and 2070 of 2000 was set aside and a direction was issued to the Settlement Officer to treat the appeal as an appeal under Section-22(2) of the Orissa Survey Settlement Act and to dispose of the same as per the provisions of law by giving opportunity of hearing to all concerned. 4. Learned Senior Counsel appearing for the Petitioners contended that the order impugned was interfered with by this Court while issuing notice of the matter on 18.11.2013 with passing of an order of status quo in respect of the disputed land in question. 4.1. It is the case of the Petitioners that basing on the gift deed executed on 11.03.1961 under Annexure-1, the land in question was recorded in the name of the Petitioners by the learned Asst. Settlement Officer vide order dtd.25.05.1979. 4.2. It is contended that after such recording of the land in terms of order dtd.25.05.1979, Tahasildar, Nimapara challenging the order dtd.25.05.1979 filed Appeal Case No.2627/1983. 4.3. It is contended that learned Addl. Settlement Officer, Nimapara vide a common order passed on 20.05.1987, dismissed Appeal Case No.2627/1983 along with Appeal Case No.2070 of 2000. 4.4. It is further contended that after such dismissal of the appeal vide order dtd.20.05.1987, no further action was taken Page 2 of 8 // 3 // till the impugned proceeding was initiated under Section-32 of the Orissa Survey and Settlement Act, 1958 (in short Act) before the Member Board of Revenue in O.S.S. Case No.399/2012 under Annexure-2. 4.5. It is contended that by the time such a proceeding was initiated in O.S.S. Case No.399/2012, the recorded tenant was no more. But the revision in question was filed against a dead person. Not only that without issuing any notice to the Opposite party, who was no more there, the matter was taken up by the learned Member Board of Revenue-Opposite Party No.2 on 13.05.2013 and the impugned order was passed, by setting aside the common order passed on 20.05.1987 in Appeal Case No.2627/1983 and 2070 of 2000. 4.6. It is further contended that vide the impugned order Settlement Officer-Opposite Party No.3 was directed to take up the matter as an appeal under Section-22(2) of the Act and dispose of the same in accordance with law. 4.7. Learned Senior Counsel for the Petitioners contended that since the proceeding in OSS Case No.399/2012 was initiated against a dead person and accordingly the impugned order was passed on 13.05.2013 under Annexure-2, it is a nullity in the eye of law. Not only that such a proceeding was also initiated after more than 25 years of the passing of the order on 20.05.1987 in Appeal Case No.2627/1983 and it should not have been entertained in order to correct any fraudulent action. Page 3 of 8 // 4 // 4.8. In support of the aforesaid submission, learned Senior Counsel for the Petitioner relied on the decision of the Hon’ble Apex Court in the case of Gurnam Singh & Others vs. Gurbachan Kaur, reported in (2017) 13 SCC-414. Hon’ble Apex Court in Para-21 of the said judgment has held as follows:- “21. It is a fundamental principle of law laid down by this Court in Kiran Singh case that a decree passed by the court, if it is a nullity, its validity can be questioned in any proceeding including in execution proceedings or even in collateral proceedings whenever such decree is sought to be enforced by the decree-holder. The reason is that the defect of this nature affects the very authority of the court in passing such decree and goes to the root of the case. This principle, in our considered opinion, squarely applies to this case because it is settled principle of law that the decree passed by a court for or against a dead person is a “nullity” (see N. Jayaram Reddy v. LAO, Ashok Transport Agency v. Awadhesh Kumar and Amba Bai v. Gopal)”. 4.9. Similarly, with regard to delay in initiating the proceeding, Mr. Mishra, relied on another decision of the Hon’ble Apex Court in the case of Joint Collector Ranga Reddy District & Another vs. D. Narsingh Rao & Others reported in (2015) 3 SCC-695. Hon’ble Apex Court in Para-31 &32 of the said decision has held as follows:- “31. To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third party rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run Page 4 of 8 // 5 // closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority. that 32. In the case at hand, while the entry sought to be corrected is described as fraudulent, there is nothing in the notice impugned before the High Court as to when was the alleged fraud discovered by the State. A specific statement in that regard was essential for it was a jurisdictional fact, which ought to be clearly asserted in the notice issued to the respondents. The attempt of the appellant-State to demonstrate issued within a the notice was reasonable period of the discovery of the alleged fraud is, therefore, futile. At any rate, when the Government allowed the land in question for housing sites to be given to Government employees in the year 1991, it must be presumed to have known about the record and the revenue entries concerning the parcel of land made in the ordinary course of official business. In as much as, the notice was issued as late as on 31st December, 2004, it was delayed by nearly 13 years. No explanation has been offered even for this delay assuming that the same ought to be counted only from the year 1991. Judged from any angle the notice seeking to reverse the entries made half a century ago, was clearly beyond reasonable time and was rightly quashed.” 4.10. Learned Senior Counsel for the Petitioners accordingly contended that since the impugned proceeding was initiated against a dead person and that too after about 25 years of
Decision
passing of the order in the appeal, the impugned order is not sustainable in the eye of law and it requires interference of this Court. 5. Even though notice of the writ petition has been issued since 18.11.2013 with passing of an interim order, no counter Page 5 of 8 // 6 // affidavit has been filed by the State. However, basing on the materials available on record, learned AGA contended that the proceeding under Section-32 of the Act was taken recourse to as it was found that the land has been wrongly recorded in the name of the deceased Opposite Party- Sri Puja Madan Mohan Panda Samanta. 5.1. It is contended that since the land was wrongly recorded in favour of the deceased- Opposite Party vide order dtd.25.05.1979 so upheld in order dtd.20.05.1987 in Appeal Case No.2627 of 1983 by committing fraud, there was no requirement to issue notice in OSS Case No.399 of 2012 so initiated under Section-32 of the Act as fraud vitiates everything. Member Board of Revenue- Opposite Party No.2 on being satisfied has rightly set aside order dtd.20.05.1987 so passed in Appeal Case No.2627/1983 and has directed Opposite Party No.3 to decide the matter as an appeal under Section-22(2) of the Act. It is accordingly contended that no illegality has been committed by Opposite Party No.2 while passing the order under Annexure-2. 6. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that basing on a registered gift deed executed in favour of one Sri Puja Madan Mohan Panda Samanta on 11.03.1961, vide order dtd.25.05.1979 of the Asst. Settlement Officer, the land was recorded in his name. Though Tahasildar, Nimapara challenging such an order passed on 25.05.1979 preferred Appeal Case No.2627/1983, but the same was dismissed by Page 6 of 8 // 7 // the Addl. Settlement Officer, Nimapara vide order dtd.20.05.1987. 6.1. After such dismissal of the appeal on 20.05.1987, no further action was taken by the State- Opposite Party till the impugned proceeding was initiated in OSS Case No.399/2012 purportedly under Section-32 of the Act. As found from the record, the said proceeding was initiated against Sri Puja Madan Mohan Panda Samanta, who was no more there. 6.2. It is also found from the record that without issuing any notice to the Opposite Party in OSS Case No.399/2012, the case was allowed vide the impugned order dtd.13.05.2013 under Annexure-2. Since the proceeding was initiated against a dead person with passing of the impugned order on dtd.13.05.2013 under Annexure-2, placing reliance on the decision of the Hon’ble Apex Court in the case of Gurnam Singh as well as Joint Collector as cited (supra), this Court is of the view that such an order is a nullity in the eye of law. 6.3. It is also found from the record that even though the proceeding in OSS Case No.399/2012 was initiated with delay of around 25 years, but no application was made to condone the delay. 6.4. In view of such material irregularity, which is apparent on the face of the record and not disputed by the State with filing of the counter affidavit, this Court is inclined to quash order dtd.13.05.2013 so passed by Opposite Party No.2 under Annexure-2 in OSS Case No.399/2012. However quashing of Page 7 of 8 // 8 // the impugned order will not disentitle the State-Opposite Parties from proceeding with the matter in OSS Case No.399/2012 in accordance with law and by following the principle of natural justice against the necessary and proper party. 7. Accordingly, the Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 27nd of September, 2024/Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 30-Sep-2024 17:36:18 Page 8 of 8