Misc. Case No. 40 of 1980 · Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK WP(C) No.6747 of 2025 An application under Articles 226 & 227 of the Constitution of India. *** Pradip Mohanty … Petitioner -VERSUS- State of Odisha & Others … Opposite Parties Counsel appeared for the parties: For the Petitioner : Mr. J.K.Majhi,Advocate. For the Opposite Parties : Mr. S.Nayak, ASC P R E S E N T: HONOURABLE MR. JUSTICE ANANDA CHANDRA BEHERA Date of Hearing: 10.03.2025 :: Date of Judgment : 19.03.2025 WP(C) No.6747 of 2025 Page 1 of 14 ANANDA CHANDRA BEHERA, J.— J UDGMENT 1. This writ petition under Articles 226 and 227 of the Constitution of the India, 1950 has been filed by the petitioner praying for quashing (setting aside) an order dated 22.03.2022 (Annexure 1) passed in Appeal Case No.310 of 2016 by the Additional Sub Collector, Bhubaneswar (Opposite Party No.3) and to issue a writ of mandamus directing the Assistant Settlement Officer (O.P. No.4) to record the case land i.e. A0.102 decimals of Sabik Plot No.51/1442 under Sabik Khata No.233/142 in Mouja Sampur jointly in the name of the petitioner along with his brother and sister and to grant other reliefs in his favour, to which, he (petitioner) is entitled under law. 2. The case of the petitioner is that, one Priyambada Mohanty W/o-Bhava Krushna Mohanty of Udyan Marg Bhubaneswar under Capital Police Station in the district of Puri (at present in the District of Khordha) was the owner of the property vide Sabik Plot No.51/1442, A2.00 Decimals under Sabik Khata No.233/142 in Mouja Sampur under Chandaka Police Station in the District of Puri (at present in the District of Khordha). WP(C) No.6747 of 2025 Page 2 of 14 3. The said A2.00 Decimals of land of Sabik Plot No.51/1442 under Sabik Khata No.233/142 in Mouja Sampur was settled in the name of Priyambada Mohanty in the year 1973 on the basis of an order passed by the competent revenue authority in W.L.L. case No.389 of 1971. 4. On the basis of above lawful settlement of A2.00 Decimals of land vide Sabik Plot No.51/1442 under Sabik Khata No.233/142 in Mouja Sampur through W.L.L. case No.389 of 1971 in the name of Priyambada Mohanty, she (Priyambada Mohanty) became the exclusive owner of the said land and possessed the same exclusively paying rent for the same to the Government/State. 5. While, Priyambada Mohanty was the exclusive owner and in possession over the above A2.00 Decimals of land of Sabik Plot No.51/1442 in Mouja Sampur, she (Priyambada Mohanty) was interested to sell A0.102 decimals of land out of her above A2.00 Decimals of land of Sabik Plot No.51/1442 for a consideration of Rs.800/- in order to meet her legal necessities, to which, the mother of the petitioner i.e. Sarat Prava Mohanty accepted and agreed to purchase on payment of the above consideration amount. WP(C) No.6747 of 2025 Page 3 of 14 Then, the owner of the property i.e. Priyambada Mohanty sought for permission as required under law from the competent revenue authority for selling her above A0.102 decimals of land out of A2.00 Decimals vide Sabik Plot No.51/1442 to the mother of the petitioner i.e. Sarat Prava Mohanty by filing Misc. Case No.40 of 1980. As per order dated 08.05.1980 passed in that Misc. Case No.40 of 1980, the Revenue Authorities granted permission in favour of Priyambada Mohanty to sell the above A0.102 decimals of land out of the A2.00 Decimals of land of Sabik Plot No.51/1442 to Sarat Prava Mohanty and issued such permission to the applicant/owner Priyambada Mohanty through memo No.2154. 6. Therefore, on the basis of the aforesaid lawful permission granted by the appropriate Revenue Authroities as per Order dated 08.05.1980 passed in Misc. Case No.40 of 1980, Priyambada Mohanty sold her A0.102 decimals of land out of the above A2.00 Decimals of land in Sabik Plot No.51/1442 under Sabik Khata No.233/142 in Mouja Sampur to the mother of the petitioner i.e. Sarat Prava Mohanty by executing and registering sale deed No.3559 dated 14.05.1980 receiving due consideration WP(C) No.6747 of 2025 Page 4 of 14 amount thereof i.e. Rs.800/- from her (Sarat Prava Mohanty) and delivered possession thereof. 7. Accordingly, since 14.05.1980 the mother of the petitioner i.e. Sarat Prava Mohanty being the exclusive owner of her above purchased A0.102 decimals of Sabik Plot No.51/1442 possessed the same exclusively. Subsequent thereto, mother of the petitioner i.e. Sarat Prava Mohanty died leaving behind the petitioner, his younger brother Prakash Chandra Mohanty and his sister Prativa Mohanty as her successors. For which, the aforesaid purchased A0.102 decimals of Sabik Plot No.51/1442 in Mouja Sampur of Sarat Prava Mohanty devolved upon her three children i.e. Pradip Mohanty (petitioner) along with Prakash Chandra Mohanty and Prativa Mohanty. Accordingly, since the death of the mother of the petitioner, the petitioner along with his above brother and sister are possessing the said purchased A0.102 decimals of Sabik Plot No.51/1442 in Mouja Sampur of their mother jointly being the joint owners of the same. Therefore, except the petitioner, his brother Prakash Chandra Mohanty and Prativa Mohanty, no other person including the State/Government had/has any interest on their WP(C) No.6747 of 2025 Page 5 of 14 above A0.102 decimals of Sabik Plot No.51/1442 in Mouja Sampur, which is the case land in this writ petition. 8. During the course of settlement operation, he (petitioner) approached Assistant Settlement Officer (O.P. No.4) for recording their above A0.102 decimals of Sabik Plot No.51/1442 in Mouja Sampur in their names jointly, but, the O.P. No.4 did not record the same in their names jointly. For which, he (petitioner)
Legal Reasoning
challenged the same by preferring an appeal vide Appeal Case No.310 of 2016 under Section 22(2)(b) of OSS Act, 1958 before the settlement Officer, Cuttack at Jobra, but that Appeal Case No.310 of 2016 was transferred to the Additional Sub Collector, Bhubaneswar (O.P. No.3) for adjudication. The Additional Sub- Collector, Bhubaneswar (O.P. No.3) disallowed the said appeal on dated 22.03.2022 assigning the reasons that, “the order of the Tahasildar has not been enquired by the Senior Officer in the rank of Secretary implementing the order of the Hon’ble High Court passed in OJC No.9449 of 1993, for which, under the above circumstances, I am not inclined to proceed ahead in the matter and disallowed the appeal indicating that, it is open to WP(C) No.6747 of 2025 Page 6 of 14 the appellant to seek relief under Section 32 of the OSS Act, 1958”. 9. On being aggrieved with the said final order dated 22.03.2022 (Annexure 1) passed in Appeal Case No.310 of 2016 by the O.P. No.3, he (petitioner) challenged the same by filing this writ petition praying for quashing the said final order dated 22.03.2022 (Annexure 1) passed in Appeal Case No.310 of 2016 by the O.P. No.3 and to direct the Assistant Settlement Officer (O.P. No.4) to record their A0.102 decimals of Sabik Plot No.51/1442 in Mouja Sampur in the names of the petitioner along with his brother and sister jointly on the ground that, the impugned order i.e. Annexure-1 passed by the O.P. No.3 is not a speaking order and the case land of this writ petition is separate and different from the case land, which was the subject matter of O.J.C. No.9449 of 1993. Because, the case land in this writ is in Mouja Sampur, whereas, the properties involved in O.J.C. No.9449 of 1993 are in Mouja Patia. The O.P. Nos.3 and 4 should not have refused to record the case land jointly in the name of the petitioner along with his brother and sister, on the basis of the unchallenged orders passed in W.L.L. Case No.389 of 1971 and Misc. Case No.40 of 1980 as well as the undisputed sale deed WP(C) No.6747 of 2025 Page 7 of 14 No.3559 dated 14.05.1980 in favour of the petitioner. For which, direction is required to be given to the Opposite Parties to record the case land jointly in the name of the petitioner, his brother and sister after quashing the orders of refusal for the same passed by the O.P. Nos.3 and 4 including Annexure-1. 10. I have already heard from the learned counsel for the petitioner and the learned Additional Standing counsel for the Opposite Parties. 11. On the basis of the Rival submissions of the learned counsels of both the sides, the crux of this writ petition is that, “Whether the settlement authorities including the O.Ps have powers, jurisdiction and authorities under law to disallow the prayer of the petitioner for joint recording of the case land i.e. A0.102 decimals of Sabik Plot No.51/1442 under Sabik Khata No.233/142 in Mouja Sampur as per R.S.D. No.3559 dated 14.05.1980 on the basis of the unchallenged orders passed by the appropriate revenue authorities in W.L.L. Case No.389 of 1971 and permission to sell Misc. Case No.40 of 1980 on the ground of non-conducting an enquiry by the senior officer of the state in the WP(C) No.6747 of 2025 Page 8 of 14 rank of Secretary as per judgment dated 29.01.1996 passed in O.J.C. No.9449 of 1993”? 12. The law concerning the legal effect of the unchallenged final orders passed in W.L.L. Case No.389 of 1971 and Misc. Case No.40 of 1980 as well as the contents of the undisputed registered sale deed No.3559 dated 14.05.1980 in respect of the case land in favour of the petitioner till the variation/modification/alteration of the orders passed in W.L.L. Case No.389 of 1971 and Misc. Case No.40 of 1980 on the basis of any enquiry as per the directions of the Hon’ble Courts passed on dated 29.01.1996 in O.J.C. No.9449 of 1993 has already been clarified by the Apex Court in a case between Ashok Sadarangani & Another Vrs. Union of India & Others reported in 2012 (2) CJD (SC) 102 that, “Court to follow the decision during the pendency of a reference to a larger Bench, because, pendency of a reference to a larger Bench does not mean that, all other proceedings involving the same issue would remain stayed till a decision was rendered in the reference. Till such time as the decisions cited at the Bar are not modified or altered in any way, they continue to hold the field”. WP(C) No.6747 of 2025 Page 9 of 14 13. In view of the propositions of law settled by the Apex Court in the ratio of the above decision, till the lawful variation/modification/alteration/cancellation of the orders passed in W.L.L. Case No.389 of 1971 and an order for permission to sell granted in Misc. Case No.40 of 1980 as well as till the setting aside of the sale deed No.3559 dated 14.05.1980 on the basis of any enquiry as per the judgment dated 29.01.1996 passed in O.J.C. No.9449 of 1993 by the Hon’ble Courts, the orders passed in W.L.L. Case No.389 of 1971 as well as order passed in Misc. Case No.40 of 1980 by the Revenue Authorities and also till the declaration of the sale deed No.3559 dated 14.05.1980 in favour of the petitioner in respect of the case land as void, the said documents shall continue to hold the field and the O.Ps are bound to obey/respect the same and to record the case land jointly in the name of the petitioner, his brother Prakash Chandra Mohanty and his sister Prativa Mohanty, but, they (Opposite Parties) have not done so. 14. That apart, as per the ratio of the decision in a case between Shyam Sundar Sahoo (dead) and after him, Parbati Sahoo and others Vrs. State of Orissa and others reported in 2008 (II) OLR 278 it has been clarified that, WP(C) No.6747 of 2025 Page 10 of 14 “the Settlement Officer has no jurisdiction whatsoever assumed the power of the civil Court and declared the sale deed void, because, the same is under the jurisdiction of competent Court of law”. 15. As per the discussions and observations made above, when it is held that, the settlement authorities i.e. Opposite Parties had/have no power, authority or jurisdiction under law for refusing to record the case land in the name of the petitioner, his brother and sister jointly, but, they have refused to record the same in their names exercising their powers illegally only on the sole ground of passing of the judgment in O.J.C. No.9449 of 1993 way back in the year 1996 i.e. more than 29 years back on 29.01.1996 directing the State Government to enquire into the matter through a Senior Officer in the rank of Secretary and when, any enquiry has not been conducted as yet since 29.01.1996 even though, more than 29 years have been passed and when as per law, the orders passed in W.L.L. Case No.389 of 1971 and Misc. Case No.40 of 1980 as well as RSD No.3559 dated 14.05.1980 have not been declared illegal or invalid till yet, then at this juncture, in view of the principles of law enunciated by Apex Court in the ratio of the above decision in a case between PHR Invent Educational Society Vrs. UCO Bank & Others WP(C) No.6747 of 2025 Page 11 of 14 reported in (2024) 6 SCC 579, it is to be held that, this writ petition filed by the petitioner challenging the orders i.e. refusal for recording the case land jointly in the name of the petitioner, his brother and sister by the Opposite Parties is maintainable under law. 16. When, it has been held above that, it was/is the duty of the settlement authorities i.e. Opposite Parties to record the case land jointly in the name of the petitioner, his brother and sister, but, the settlement authorities i.e. O.Ps have not done so and when it is the submission of the learned Additional Standing Counsel for the State that, the Settlement Operation for Mouja Sampur (where, the case land is situated) is going on, then at this juncture, by applying the principles of law enunciated in the ratio of the above decisions of the Hon’ble Court and Apex Court, I find justification under law to quash all the orders of refusal passed by the Opposite Parties to record the case land in the name of the petitioner, his brother and sister including the order passed on dated 22.03.2022 (Annexure 1) in Appeal Case No.310 of 2016 by the O.P. No.3 and to direct the O.P. No.4 to record the case land purchased through RSD No.3559 dated 14.05.1980 i.e. A0.102 WP(C) No.6747 of 2025 Page 12 of 14 decimals of Sabik Plot No.51/1442 in Mouja Sampur jointly in the name of the petitioner, his brother and his sister. Therefore, there is merit in the writ petition filed by the petitioner. The same must succeed. 17. In result, the writ petition filed by the petitioner is allowed on contest. 18. All the Orders i.e. refusal to record the case land jointly in the name of the petitioner (Pradip Mohanty), his brother Prakash Chandra Mohanty and Prativa Mohanty passed by the Opposite Parties including the order dated 22.03.2022 (Annexure 1) passed in Appeal Case No.310 of 2016 by the Additional Sub Collector Cum Settlement Officer, Bhubaneswar (Opposite Party No.3) are quashed/set aside. 19. The Assistant Settlement Officer (O.P. No.4) is directed to record the case land i.e. A0.102 decimals of Sabik Plot No.51/1442 under Sabik Khata No.233/142 in Mouja Sampur in the District of Puri (at present in the District of Khordha) purchased through RSD No.3559 dated 14.05.1980 jointly in the name of the petitioner (Pradip Mohanty), his brother Prakash WP(C) No.6747 of 2025 Page 13 of 14 Chandra Mohanty and his sister Prativa Mohanty on production of the certified copy of this judgment by the petitioner before the Opposite Parties including O.P. No.4.
Decision
20. Accordingly, the writ petition is disposed of finally. (ANANDA CHANDRA BEHERA) JUDGE High Court of Orissa, Cuttack 19.03.2025// Binayak Sahoo Jr. Stenographer Signature Not Verified Digitally Signed Signed by: BINAYAK SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Mar-2025 13:51:28 WP(C) No.6747 of 2025 Page 14 of 14