The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.5301 OF 2025 (An application under Articles 226 and 227 of the Constitution of India) ***** (1) Sarat Kumar Baral, S/o-Raj Kishore Baral (2) Bhagirathi Mohanty, S/o-Braramarbar Mohanty (3) Bhaskar Swain, S/o-Late Birabar Swain (4) Ambuja Swain, S/o-Late Upendra Swain (5) Sanatan Sahoo, S/o-Prafulla Sahoo (6) Narayan Sahoo S/o-Late Arjuna Sahoo (7) Purna Chandra Mohanty, S/o-Late Birabar Mohanty (8) Hrudananda Das, S/o-Anam Charan Sahoo (9) Prahallad Sahoo, S/o-Anam Charan Sahoo (10) Tankadhar Sahoo, S/o-Late Bhrambar Sahoo (11) Nrusingha Charan Sahoo, S/o-Late Gouranga Sahoo (12) Banamali Sahoo, S/o-Late Gouranga Sahoo (13) Hemant Swain, S/o-Late Birabar Swain (14) Babaji Charan Sahoo, S/o-Late Sarbeswar Sahoo (All are residents of Village/Po-Mangalpur P.S.-Sadar, Dist-Dhenkanal) …… Petitioners -Versus- (1) The State of Odisha represented by the Principal Secretary, Revenue Odisha, Cuttack, At/Po-Chandini Chowk, P.S.-Lalbag, Dist-Cuttack (2) The Collector & District Magistrate, Dhenkanal, At/Po/PS-Dhenkanal, (3) The Additional District Magistrate, Office of the Collectorate, Dhenkanal, At/Po/PS-Dhenkanal, (4) The Tahasildar, Dhenkanal, At/Po/PS-Dhenkanal, (5) Jayshree Singdeo, W/o-Shri Sailaja Sankar Deo, At-Banamali Prasad, PS-Dhenkanal, PO-Mangalpur, Dist-Dhenkanal, .…… Opp. Parties Advocates appeared: For Petitioners : Mr. Srinibash Satapathy, Advocate For Opp. Parties : Mr. Saurjya Kanta Padhi, Sr. Advocate Mr.Bibhu Prasad Das, Advocate W.P.(C) No.5301 OF 2025 Page 1 of 12 CORAM : MR. JUSTICE K.R. MOHAPATRA MR. JUSTICE MURAHARI SRI RAMAN ------------------------------------------------ Heard and disposed of on 04.07.2025 ---------------------------------------------- JUDGMENT By the Bench; 1. This matter is taken up through hybrid mode. 2. The Petitioners, in this writ application, seek to assail the order dated 2nd January, 2025 (Annexure-9) passed by the Additional District Magistrate, Dhenkanal (Opposite Party No.3)
Legal Reasoning
in Misc. Case No. 14 of 2024 (arising out of OEA Appeal No.17 of 2021), whereby an application under section 5 of the Limitation Act filed by the Petitioners along with the Memo of Appeal was rejected and thereby the OEA Appeal was dismissed being barred by limitation.
Legal Reasoning
3. Mr.Satapathy, learned counsel for the Petitioners submits that the Petitioners are natives of village-Mangalpur. They are in occupation of land pertaining to Plot No.590, Khata No.9 to an extent of Ac.16.25 decimal of Kisam Taiala Dui situated in Mauza- Saptasajya under Dhenkanal Sadar Tahasil in the district of Dhenkanal (for brevity, ‘the case land’). They have planted cashew trees and are earning their livelihood from the usufructs. The Petitioners-villagers are in possession of the case land since 1944. As the rent of the case land was not settled, Bebandobasta Case No.784 (54) of 1997 was initiated on the file of Tahasildar, Dhenkanal Sadar. The Opposite Party No.5 clandestinely managed to record the case land in her name in the said Bebandobasta Case. The case land was W.P.(C) No. 5301 OF 2025 Page 2 of 12 originally recorded in the name of late Gaurendra Pratap Singhdeo under ‘Bebandobasta’ status. Thus, the Opposite Party No.5 being his daughter-in-law has no right to get the case land settled in her name. He further submits that the case land was recorded under ‘Jungle’ Kisam in the Sabik Record of Right. Thus, it could not have been settled in favour of the Opposite Party No.5 otherwise. No public notice or proclamation was made before settlement of the case land in favaour of Opposite Party No.5 under ‘rayati’ status. Since there was no public notice, the Petitioners did not have any occasion to know about the settlement. When the matter stood thus, the Opposite Party No.5 filed Civil Suit No.90 of 2012 in the Court of learned Civil Judge (Senior Division), Dhenkanal for a decree of permanent injunction against some of the Petitioners. On receipt of copy of the plaint, the Petitioners came to know about the settlement made in favour of the Opposite Party No.5 and filed an Appeal before the Sub-Collector, Dhenkanal, registered as OEA Appeal No.2 of 2013, challenging the order of settlement. In the Appeal Memo, the Petitioners have vividly described the reasons for delay in filing the Appeal challenging the order of settlement made in favour of Opposite Party No.5 vide order dated 15th March, 2003 passed by learned Additional Tahasildar, Dhenkanal in Bebandobasta Case No.784(54)/1997. Along with the Appeal Memo, Petitioners had also filed an application for condonation of delay providing sufficient cause for delay in filing the Appeal. When the Appeal was so pending before the Sub-Collector, Dhenkanal, Petitioners realized that the Appeal was not maintainable before the said forum. Thus, they filed OEA Appeal No.17 of 2021 before the Additional District Magistrate, Dhenkanal. The Additional District Magistrate, W.P.(C) No. 5301 OF 2025 Page 3 of 12 Dhenkanal considering the case of the Petitioners remitted the matter to the Additional Tahasildar, Dhenkanal for fresh adjudication of Bebandobasta Case No.784(54) of 1997 vide order dated 6th July, 2023. The Opposite Party No.5 being aggrieved by said order preferred W.P.(C) No.623 of 2024 before this Court, which was disposed of vide order dated 12th June, 2024 with the following direction:- “On perusal of the order sheet of OEA Appeal No.17 of 2021 and materials available on record, this Court finds that an application under Section 5 of the Limitation Act though filed by the Opposite Party Nos.5 to 18 for condonation of delay in filing the said appeal, but the same was not considered before disposal of the appeal on merit. Law is well settled that before condonation of delay, the appeal cannot be entertained on merit. As submitted by Mr. Dash, learned counsel for the Petitioner, there is delay of 6540 days in filing the appeal. Being conscious of the fact that the appeal is filed in delay, Opposite Party Nos.5 to 18 had also filed an application under section 5 of the Limitation Act. Thus, Additional District Magistrate was for under condonation of delay before taking of the appeal on merit. Hence, the entire proceeding in the appeal is vitiated. It further appears from the record that although the objection was filed by the Petitioner to the petition for condonation of delay and appeal memo, the same was not taken into consideration by Additional District Magistrate while adjudicating the appeal. legal obligation the petition to consider In that view of the matter, this Court feels that no fruitful purpose will be served by keeping the matter pending before this Court awaiting response from the Opposite Parties, who have not yet appeared. Moreover, it will cause further delay in disposal of the matter. In view of the discussions made above, we have no hesitation to hold that the entire proceeding in appeal is vitiated and in consequence thereof the impugned order under Annexure-1 is not sustainable and is accordingly set aside. The matter to Additional District Magistrate, Dhenkanal to adjudicate the matter afresh by taking up the limitation petition for condonation of delay giving opportunity of hearing to the parties concerned at the threshold. In the event, the delay is condoned, the Court is remitted W.P.(C) No. 5301 OF 2025 Page 4 of 12 may proceed with the appeal on merit considering the objection and other materials to be produced and providing opportunity of hearing to the parties concerned. xxx xxx xxx” Pursuant to the direction of this Court, the Additional District Magistrate took up OEA Appeal No.17 of 2021 afresh along with the petition for condonation of delay. 4. Mr. Satapathy, learned counsel drew our attention to the petition for condonation of delay filed along with the Appeal Memo in OEA Appeal No.17 of 2021. The said petition reads as under:- “The humble petition on behalf of the appellants:- Most respectfully begs to state as follows:- 1. That, the appellants have filed this appeal to set aside the impugned land settlement order passed by the Additional Tahasildar in B.B. Case No.784(54)/97. 2. That, the appellants are poor and illiterate men, they do not know the process and procedure of law. They are in continuous possession of the case land. They are always busy in their labour works to maintain their livelihood, otherwise their family must have in starvation hence they could not get time to prefer the appeal in time. When the respondent and her men and agents tried to dispossess appellants they came to know about the illegal settlement of case land in the name of the respondent and prefer the appeal. When on serious illegality and fraud an order has been passed that order can be set aside at any time, procedural law like limitation will not come as a bar to set aside that order. P R A Y E R Therefore, it is prayed that would be kind enough to condone the delay in filing the appeal in the larger interest of justice. xxx xxx” xxx 5. The Additional District Magistrate pursuant to the direction of this Court took up the petition for condonation of delay, i.e., Misc. Case No.14 of 2024 and passed the impugned order dated 2nd January, 2025 (Annexure-9). W.P.(C) No. 5301 OF 2025 Page 5 of 12 6. Mr. Satapathy, learned counsel for the Petitioners submits that the impugned order under Annexure-9 is cryptic and non- speaking. The grounds taken by the Petitioners in their Appeal Memo as well as limitation petition were not taken into consideration while rejecting the petition. 6.1 Reiterating his submission, Mr. Satapathy, learned counsel for the Petitioners submits that when the Opposite Party No.5 practicing fraud managed to record the case land in her favour, the delay should not come on the way to consider the OEA Appeal on merit as fraud vitiates everything. It is his submission that the Petitioners were not aware about the order of settlement as it was made without following due procedure of law. They came to know about the same only when they received summons in Civil Suit No.90 of 2012 from the Court of the learned Civil Judge (Senior Division), Dhenkanal along with a copy of the plaint. Thus, the delay of 6540 days as pointed out by learned Additional District Magistrate will not come on the way to entertain the Appeal on merit. He, therefore, prays for setting aside the order dated 2nd January, 2025 (Annexure-9) passed by the Additional District Magistrate in remitting the matter for fresh adjudication of Misc. Case No.14 of 2024 for condonation of delay providing opportunity of hearing to the parties. 7. Mr. Padhi, learned Senior Advocate appearing along with Mr. Das, learned counsel for the Opposite Party No.5 submits that the Additional District Magistrate, Dhenkanal has committed no error in rejecting the petition for condonation of delay. The Petitioners have not shown any cause much less any sufficient cause to condone the inordinate delay of 6540 days in filing the OEA W.P.(C) No. 5301 OF 2025 Page 6 of 12 Appeal before the Additional District Magistrate, Dhenkanal. It is his submission that length of delay may not be a ground for consideration. But the Petitioners should have shown sufficient cause for condonation of such inordinate delay. The Petitioners have made mere excuses in the petition for condonation of delay to the effect that they are poor and ignorant about the procedure of law. They also stated that they were busy in earning their livelihood; thus, they could not prefer the Appeal in time. Those cannot be grounds for condonation of delay. Although it is elaborately submitted by Mr. Satapathy, learned counsel for the Petitioners that they came to know about the settlement of case land in favour of Opposite Party No.5 upon receipt of summons in Civil Suit No.90 of 2012, but in the petition for condonation of delay, they took a plea that when the Opposite Party No.5 and her henchmen tried to evict them from the case land, they came to know that the case land has been settled in her favour practicing fraud. 7.1 Mr. Padhi, learned Senior Advocate relies upon the decision in the case of Office of the Chief Postmaster General and others Vrs. Living Media India Limited and another, AIR 2012 SC 1506, wherein, Hon’ble Supreme Court has categorically observed that while considering the petition for condonation of delay, the Courts should take into consideration the grounds stated in the petition for condonation of delay and whether the same are sufficient to condone such delay or not. 8. It is the submission of Mr. Padhi, learned Senior Advocate that the settlement made in favour of Opposite Party No.5 was in accordance with law as would be apparent from the order-sheet in Bebandobasta Case No.784 (54) of 1997 (Annexure-7). Due W.P.(C) No. 5301 OF 2025 Page 7 of 12 procedures have been followed and public objection was invited. Vide order dated 22nd February, 2003, the Additional Tahasildar, Dhenkanal has categorically stated that although notice was duly served and objections were called for, no objection was received from any quarter. Opposite Party No.5 is the daughter-in-law of the tenant, late Gaurendra Pratap Singhdeo, the original recorded tenant under Bebandobasta status. Thus, no error has been committed by Additional Tahasildar, Dhenkanal in settling the case land under rayati status in favour of the Opposite Party No.5 vide order dated 15th March, 2003 in Bebandobasta Case No.784 (54) of 1997. It is further submitted that settlement in favour of Gaurendra Pratap Singhdeo was never challenged by the Petitioners. The Bebandobasta case was only initiated for settlement of rent. Thus, the Petitioners being rank outsiders have no locus standi to challenge the order of settlement of rent in favour of Opposite Party No.5 under rayati status. He, therefore,
Decision
prays for dismissal of the writ petition. Heard learned counsel for the parties. Perused the materials 9. on record. 10. Upon hearing learned counsel for the parties and on perusal of the record, it is apparent that assailing the order of settlement of rent in respect of the case land dated 15th March, 2003 in favour of Opposite Party No.5 in Bebandobasta Case No.784 of 1997, the Petitioners preferred Appeal before the Sub-Collector, Dhenkanal in OEA Appeal No.2 of 2013. The said Appeal is stated to be still pending. 11. Mr. Satapathy, learned counsel for the Petitioners fairly submits that the Appeal being not maintainable before the said forum, an application/memo was filed before the Sub-Collector, W.P.(C) No. 5301 OF 2025 Page 8 of 12 Dhenkanal for withdrawal of the said Appeal. However, no order on the said application/memo has yet been passed by the Sub-Collector, Dhenkanal. In that process, delay of 6540 days has occurred in preferring the Appeal. However, the Petitioners being advised, filed appeal being OEA Appeal No.17 of 2021 before the Additional District Magistrate, Dhenkanal challenging the order of settlement. Although it is submitted by Mr. Satapathy, learned counsel for the Petitioners that the Petitioners came to know about the settlement of the case land in favour of Opposite Party No.5 when they received summons in Civil Suit No.90 of 2012, but no such averments has either been made in the Appeal Memo (OEA Appeal No.17 of 2021) filed before the Additional District Magistrate, Dhenkanal or in the petition for condonation of delay. On the other hand, it is stated by the Petitioners in the petition for condonation delay that when the Opposite Party No.5 and her henchmen tried to evict/dispossess them from the case land, they came to know about the settlement made in favour of Opposite Party No.5. It further appears from the submission of Mr. Satapathy, learned counsel that the Petitioners have alleged fraud against the Opposite Party No.5 in getting the case land settled in her favour. Law is well-settled that the fraud has to be alleged specifically. No specific averments/ allegations have been made in the Appeal Memo with regard to act of fraud allegedly played by Opposite Party No.5 in settling the case land in her favour. 12. Perusal of the Appeal Memo in OEA Appeal Case No.17 of 2021 and Misc. Case No.14 of 2024 filed for condonation of delay does not make out any case for condonation of delay, inasmuch as, no ground as submitted by Mr. Satapathy, learned W.P.(C) No. 5301 OF 2025 Page 9 of 12 counsel for the Petitioners before this Court was raised before the Additional District Magistrate, Dhenkanal either in the Appeal Memo or in the petition for condonation of delay. Thus, the Additional District Magistrate, Dhenkanal, had no occasion to deal with such contentions as raised by the Petitioners before this Court. 12.1 The explanation offered, as stated above in the petition for condonation of delay, cannot be termed as ‘cause’ much less any ‘sufficient cause’ to condone the inordinate delay. These are mere excuses and not explanation. In the case of Krushna Chandra Behera Pradhan and another Vs. Government of Odisha, reported in 2024 (II) ILR-CUT-936, this Court relying upon the ratio in the case of Sheo Raj Singh (Dead) through Lrs. and others Vs. Union of India and another, reported in (2023) 10 SCC 531 has explained the difference between ‘explanation’ and ‘excuse’, which reads as under:- “7. From an analysis of the submissions made by learned counsel for the parties and on perusal of the record more particularly the ground taken in the petition under Order IX Rule 13 CPC under Annexure-6, it is crystal clear that those are not the explanations but mere excuses of the State Government. As held in Sheo Raj Singh (supra), there is a distinction between 'explanation' and 'excuses'. It is held therein that condonation of delay being a discretionary power available to Courts, exercise of discretion must necessarily depend upon sufficiency of the cause and degree of acceptability of the explanation, the length of delay being immaterial. Sometimes, due to want of sufficient cause being shown or an acceptable explanation being offered, delay of shortest range may not be condoned whereas in certain other cases delay of long period can be condoned if the explanation is satisfactory and acceptable. Of course, Courts must distinguish between is designed to give someone all of the facts and lay out a cause for something. It helps clearly the circumstances of a particular event and allows the person to point out that something that has happened is not his fault. Care must 'excuse'. Explanation 'explanation' and W.P.(C) No. 5301 OF 2025 Page 10 of 12 that length of delay however be taken to distinguish an 'explanation' from an 'excuse'. Although common people tend to see 'explanation' and 'excuse' in same parlance and struggled to find out the difference between the two, but the Court of law has the obligation to find out that distinction which though fine, is real. An excuse is often offered by a person to deny responsibility and consequences when under attack. It is sort of a defensive action. Calling something just an 'excuse' would imply that 'explanation' offered is believed not to be true. Thus, the Hon'ble Supreme Court has is not a matter of observed consideration but the explanation that is offered has a dominant role in considering the case of the parties in taking a decision for condonation of delay. The Hon'ble Supreme Court has also observed that a delay whatsoever minimal may be, should not be condoned on a mere excuse. In the instant case, on a bare perusal of the petition under Order IX Rule 13 CPC, it appears that the Government has admitted its negligence stating that for the negligence of the officials, the State should not suffer. The officials being employees of the State, State Government has a vicarious liability for the loss caused by its officials. Further, no explanation for condonation of delay much less any sufficient cause is offered in the petition under Order IX Rule 13 CPC, only because an ex-parte decree has been passed declaring right, title and interest of the Petitioners over a valuable piece of land, the same cannot be a ground to condone the inordinate and un- explained delay of more than 12 years.” (emphasis supplied) In the aforesaid case law, this Court relying upon the case of Sheo Raj Singh (supra), held that there is a distinction between ‘explanation’ and ‘excuse’. Explanation is designed to give someone all of the facts and lay out a cause for something. It helps clearly the circumstances of a particular event and allows the person to point out that something that has happened is not his fault. An excuse on the other hand is often offered by a person to deny responsibility and consequences when under attack. It is sort of a defensive action. Calling something just an 'excuse' would imply that 'explanation' offered is believed not to be true. In Sheo Raj Singh (supra), it has also been stated the length of delay W.P.(C) No. 5301 OF 2025 Page 11 of 12 being immaterial sometimes, due to want of sufficient cause being shown or an acceptable explanation being offered, delay of the shortest range may not be condoned whereas, in certain other cases, delay of long periods can be condoned if the explanation is satisfactory and acceptable. 13. On perusal of the case record more particularly the impugned order, it appears that the Additional District Magistrate pursuant to the direction of this Court, vide order dated 12th June, 2024 in W.P.(C) No.623 of 2024, took up the matter for condonation of delay and passed the impugned order. 14. Upon hearing learned counsel for the parties and on perusal of the record, we do not find any infirmity in the impugned order under Annexure-9 in refusing to condone the inordinate delay of 6540 days in filing the Appeal. 15. Accordingly, the writ petition, being devoid of merit, stands dismissed. In the facts and circumstances, there shall be no order as to cost. (K.R. Mohapatra) Judge (M.S. Raman) Judge Orissa High Court, Cuttack, Dated 4th July, 2025/Himansu Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 10-Jul-2025 14:55:45 W.P.(C) No. 5301 OF 2025 Page 12 of 12