The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.17268 of 2012 In the matter of an application under Articles 226 and 227 of the Constitution of India. ……………… Srinibas Naik …. Petitioner -versus- Sub-Collector, Talcher and Another …. Opposite Parties For Petitioner : Mr. P.K. Ghosh, Advocate For Opp. Parties : Mr. S.K. Jee, AGA PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY ----------------------------------------------------------------------------- ---- Date of Hearing:26.06.2025 and Date of Judgment:26.06.2025 ----------------------------------------------------------------------------- --- Biraja Prasanna Satapathy, J.
Legal Reasoning
1. Heard Mr. P.K. Ghosh, learned counsel for the petitioner and Mr. S.K. Jee, learned Addl. Govt. Advocate for the State. 2. The present Writ Petition has been filed inter alia challenging the order of remand passed by the Sub- // 2 // Collector-O.P. No.1 vide his order dated 29.06.2012 in Misc. Cert. Appeal No.10 of 2011 under Annexure-15. Vide the said order, O.P. No.1 remanded the matter to the Tahasildar, Talcher-O.P. No.2 to re-decide the issue with regard to entitlement of the petitioners to get the benefit of Legal Heir Certificate as being the legal heirs of one late Janji Naik. 3. It is contended that basing on the Enquiry Report submitted by the then R.I. under Annexure-4, legal heir certificate was issued in favour of the petitioners by the then Tahasildar, Talcher under Annexure-5 in Misc. Certificate Case No.3865 of 1999. It is contended that after issuance of such legal heir certificate, when the same was cancelled by the self-same Tahasildar vide order dated 31.12.1999 under Annexure-6, the matter was carried to this Court by filing OJC No.1596 of 2000. 3.1. It is contended that vide order dated 07.12.2001 under Annexure-7, this Court while disposing the Writ Petition, quashed order dated 31.12.1999, so passed by Page 2 of 13 // 3 // the Tahasildar, with an observation that it is open for the Govt. to take re-course to any other provision for cancellation of such certificate if the same is a fraud or mis-representation. 3.2. It is contended that basing on such order passed by this Court under Annexure-7, Tahasildar, Talcher passed a further order on 24.05.2002 under Annexure- 8, by upholding the legal heir certificate issued in favor of the petitioners under Annexure-5. Not only that a fresh legal heir certificate was also issued in favour of the petitioners under Annexure-11 as per the order passed in Misc. Certificate Case No.5339 of 2011 on 23.08.2011. However, subsequently, basing on a letter issued by the authorities of MCL on 23.09.2011, the appeal was filed by O.P. No.2 in the Court of Sub- Collector, Talcher-O.P. No.1 in Misc. Cert. Appeal No.10 of 2011 under Annexure-12. However, prior to such initiation of the proceeding basing on the approach made by the petitioner in OJC No.13623 of 1999, this Court vide order dated 30.10.2008 under Page 3 of 13 // 4 // Annexure-9 directed to consider the claim of the petitioners therein to get the benefit of Rehabilitation from the authorities of MCL. 3.3. It is contended that since the certificate issued under Annexure-5 was upheld by the self-same Tahasildar vide order dated 24.05.2002 under Annexure-8 and a fresh certificate was also issued under Annexure-11, basing on a letter issued by the authorities of MCL, no appeal could have been filed in Misc. Cert. Appeal No.10 of 2011 under Annexure-12 by O.P. No.2. 3.4. It is further contended that without proper appreciation of the certificate issued under Annexure-5 so confirmed vide order under Annexure-8 and the orders passed by this Court under Annexure-7 as well as under Annexure-9 and so also the 2nd legal heir certificate issued under Annexure-11, O.P. No.1 vide the impugned order remanded the matter to the Tahasildar to take a fresh decision with regard to Page 4 of 13 // 5 // entitlement of the petitioners to get the benefit of legal heir certificate being the legal heirs of late Janji Naik. 3.5. It is accordingly contended that since the certificate issued under Annexure-5 was upheld by the Tahasildar-O.P. No.2 vide his order under Annexure-8 and with issuance of a fresh certificate under Annexure-11, there was no occasion to file the appeal challenging the legal heir certificate so issued in favour of the petitioners basing on a letter issued by the authorities of MCL. It is also contended that such an appeal at the instance of O.P. No.2 is not maintainable.
Decision
It is accordingly contended that the impugned order is not sustainable in the eye of law. 4. Learned Addl. Govt. Advocate on the other hand contended that the legal heir certificate issued under Annexure-5, was issued in favour of the petitioners basing on the report submitted by the then R.I. on 02.11.1999 under Annexure-4. However, subsequently when it came to the knowledge of the Tahasildar that petitioners are not entitled to get the benefit basing on Page 5 of 13 // 6 // such report of the R.I, the legal heir certificate so issued was cancelled vide order dated 31.12.1999 under Annexure-6. 4.1. Even though this Court vide order dated 07.12.2021 in OJC No.1596 of 2000, set aside the order dated 16.11.1999 and Tahasildar vide his order dated 24.05.2002 under Annexure-8 held the certificate to have been issued rightly, but when the petitioners raised their claim to get the benefit of Rehabilitation from the authorities of MCL, authorities of MCL found that petitioners are in fact not the legal heirs of late Janji Naik and accordingly they forwarded a letter on 23.09.2011 to the Tahasildar to that effect. 4.2. Basing on such letter issued by the authorities of MCL who have to pay the compensation to the petitioners, the appeal was filed by the Tahasildar in Misc. Cert. Appeal No.10 of 2011 under Annexure-12. 4.3. It is contended that O.P. No.1 after hearing the parties concerned, has remanded the matter to the Tahasildar vide the impugned order dated 29.06.2012 Page 6 of 13 // 7 // under Annexure-15 to re-decide the issue with regard to the entitlement of the petitioners to get the benefit of legal heirs certificate so issued in their favour under Annexure-5 and further issued under Annexure-11. It is accordingly contended that since the matter has only been remanded and petitioners will be given due opportunity of hearing by the Tahasildar prior to taking of a fresh decision, no interference is called for. It is also contended that in absence of any order of remand, O.P. No.2 is also competent to review his own order as provided under Rule 7 of Odisha Miscellaneous Certificate Rules 1984, for taking a fresh decision with regard to the certificate issued under Annexure-5 as well as under Annexure-11. 4.4. With regard to maintainability of the appeal at the instance of O.P. No.2 and so raised, it is contended that since the petitioners without raising any objection and on being noticed appeared and participated in the appeal, after disposal of the appeal, petitioners are not permitted to question the maintainability. In support of Page 7 of 13 // 8 // the aforesaid submission, reliance was placed to the following decisions:- 1. Hon’ble Apex Court in the case of Deepak Tandon and Another Vrs. Rajesh Kumar Gupta reported in (2019) 5 SCC 537 held as follows in Para-15.1 and 15.4:- “15.1. First, it is not in dispute that the respondent (opposite party) had not raised the plea of maintainability of the appellants’ application under Section 21(1)(a) of the 1972 Act in his written statement before the Prescribed Authority. xxxx xxxx xxxx 15.4. Fourth, it is a settled law that if the plea is not taken in the pleadings by the parties and no issue on such plea was, therefore, framed and no finding was recorded either way by the trial court or the first appellate court, such plea cannot be allowed to be raised by the party for the first time in third court whether in appeal, revision or writ, as the case may be, for want of any factual foundation and finding.” 2. Reliance was also placed to a decision of the Hon’ble Apex Court in the case of Panchugopal Barua and Others Vrs. Umesh Chandra Goswami and Others reported in (1997) 4 SCC 713. Hon’ble Apex Court in Para-9 has held as follows:- Page 8 of 13 // 9 // “9. ……………….. The Court on the basis of the above facts and circumstances observed that it was not open to the party to change his case at the appellate stage and since the plea of licence or its irrevocability had not been raised before the trial court, the same could not have been raised in the High Court and upheld the judgment of the High Court refusing the permission to raise such a plea at the appellate stage for the first time. 5. Having heard learned counsel for the parties and considering the submissions made, this Court finds that petitioners were initially issued with legal heir certificate vide Annexure-5 as per the order passed under Misc. Cert. Case No.3865 of 1999. The said certificate was issued relying on a report submitted by the R.I. on 02.11.1999 under Annexure-4. However, it is found that subsequent to such issuance of the legal heir certificate on 16.11.1999, the said certificate was cancelled by the Tahasildar vide his order dated 31.12.1999 under Annexure-6. 5.1. However, when the order was set aside by this Court in its order dated 07.12.2021 in OJC No.1596 of 2000, O.P. No.2 confirmed the certificate so issued under Annexure-5 vide his order date 24.05.2002 under Annexure-8. Taking into account such Page 9 of 13 // 10 // confirmation of the legal heir certificate, petitioners approached this Court in OJC No.13623 of 1999 to get the benefit of Rehabilitation from the authorities of MCL. Not only that O.P. No.2 issued a fresh legal heir certificate in favour of the petitioners under Annexure- 11, as per order passed in Misc. Certificate Case No.5339 of 2011 on 23.08.2011. 5.2. However, on receipt of a letter from the authorities of MCL on 23.09.2011 that the petitioners are not the legal heirs of Lt. Janji Naik, Tahasildar-O.P. No.2 moved O.P. No.1 by filing Misc. Cert. Appeal No.10 of 2011 under Annexure-12. As found from the record, O.P. No.1 by giving due opportunity of hearing to the petitioner and the learned State Counsel, has remanded the matter with a direction on the Tahasildar to take a fresh decision with regard to the entitlement of the petitioners to get the legal heir certificate vide order dated 29.05.2012 under Annexure-15 so impugned in the present Writ Petition. Page 10 of 13 // 11 // 5.3. Since the matter has only been remanded and it is not disputed that petitioners will not be given opportunity of hearing prior to taking of a decision, as per the considered view of this Court, no illegality or irregularity can be found with the order of remand. It is also found that basing on the certificate issued under Annexure-5 so confirmed vide order under Annexure-8 when the petitioners raised their claim to get the benefit of Rehabilitation from the authorities of MCL and the said authorities found that the petitioners are not the legal heirs of Lt. Janji Naik, a letter was issued to that effect vide letter No.3183 dated 23.09.2011. Basing on such letter issued by the authorities of MCL, O.P. No.2 think it proper to file Misc. Cert. Appeal No.10 of 2011 under Annexure-12. 5.4. As found, O.P. NO.1 after giving due opportunity of hearing to the petitioners as well as learned State Counsel, has remanded the matter. Since there is dispute with regard to the status of the petitioners as being the legal heirs of Lt. Janji Naik, this Court in Page 11 of 13 // 12 // exercise of power conferred under Art. 226 of the Constitution of India, is unable to decide the issue so raised. Therefore, this Court is not inclined to interfere with the impugned order dated 29.06.2012 so passed by O.P. No.1 under Annexure-15. Not only that once the petitioners without raising any objection and on being noticed duly participated in the appeal, after disposal of the same, question of maintainability cannot be raised in view of the decisions in the case of Deepak Tondon and Panchugopal Barua as cited (supra). 5.5. While not inclined to interfere with the impugned order dated 29.06.2012 so passed in Misc. Cert. Appeal Case No.10 of 2011 under Annexure-12, this Court permits the petitioners to appear before the Tahasildar and participate in the proceeding. It is directed that petitioners may appear before the Tahasildar on or before 11.07.2025. On their appearance, O.P. No.2 shall take up the matter and decide the issue afresh by giving due opportunity of hearing to the petitioners as Page 12 of 13 // 13 // well as the authorities of MCL in the nature of a review. Such a fresh decision be taken within a period of 4 (four) months from the date of appearance of the petitioners in accordance with law, in which this Court expresses no opinion. 6. The Writ Petition stands disposed of with the aforesaid observation and direction. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 26th June, 2025/Basudev Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-Jul-2025 18:26:56 Page 13 of 13