The High Court
Case Details
Order No. 22. IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.16648 of 2011 Trilochan Jena and others …. Petitioners Mr. N. Lenka, Advocate Along with Mr. D.R. Bhokta, Advocate -Versus- Sub-Collector-cum-SDO, Bhubaneswar and others …. Opposite Parties Mr. P.K. Mohanty, ASC CORAM: MR. JUSTICE R.K. PATTANAIK ORDER 20.11.2024 1.
Legal Reasoning
the petitioners relies on the decision of this Court in Sarat Chandra Sahu Vrs. Commissioner of Land Records and Settlement, Orissa Cuttack 82 (1996) CLT 321 to further contend that the learned Commissioner, Consolidation Settlement, Bhubaneswar, Odisha could not have passed the impugned order under Annexure-8. Mr. Lenka, learned counsel relies on another decision in Smt. Bijaya Chatterjee Vrs. Commissioner, Land Records and Settlement, Orissa and others 2000 (II) OLR 349, wherein, the ratio decided in Sarat Chandra Sahu has been approved of with the conclusion that the revision cannot suffer a remand for a decision by learned Tahasildar for orders. Lastly, Mr. Lenka, learned counsel relies one more decision in the case of Anantadan Suna and others Vrs. Joint Commissioner, Settlement and Consolidation, Berhampur and others 2021 (I) OLR 871 with the submission that such a decision by learned Commissioner, Consolidation Settlement, Bhubaneswar, Odisha under Annexure-10 is not legally sustainable as he does not have the power to delegate the authority to exercise it by opposite party No.2. 4. In reply and response to the above, Mr. Mohanty, learned ASC for the State submits that the learned Commissioner, Page 2 of 6 Consolidation Settlement, Bhubaneswar, Odisha has merely directed for an enquiry to be carried out by opposite party No.2 to examine the correctness of the documents relied upon by the petitioners with the contention that it is not delegation of powers to opposite party No.2, rather, disposal of the revision for an enquiry by the said authority since the petitioners claim to be based on documents, such as, ‘Ekpadia’ etc., and hence, therefore, the impugned order under Annexure-10 is well justified and not to be interfered with and set aside. 5. Mr. Lenka, learned counsel for the petitioners submits that ‘Jamabandi’ was prepared and rent was received from predecessor- in-interest of the petitioners, however, the case land was ultimately settled with the Government post-vesting, as a result of which, the revision was filed before learned Commissioner, Consolidation
Arguments
Heard Mr. Lenka and Mr. Bhokta, learned counsels appearing for the petitioners and Mr. Mohanty, learned ASC for the State opposite parties. 2. Instant writ petition is filed by the petitioners challenging the correctness of the impugned order under Annexure-10 and consequential orders dated 20th May, 2011 and 29th June, 2010 under Annexures-6 and 8 in Mutation Case No.1623 of 2008 and Mutation Appeal No.71 of 2010 respectively and further to direct opposite party No.2 to correct the RoR and to receive the arrear rent from them in respect of the case land on the grounds stated. 3. Mr. Lenka, learned counsel for the petitioners submits that the petitioners approached the learned Commissioner, Consolidation Settlement, Bhubaneswar, Odisha in Revision Petition Case No.109 of 2004 in terms of Section 15(b) of the Orissa Survey and Settlement Act, 1958 (hereinafter referred to as ‘ the Act’) which Page 1 of 6 was disposed of by order dated 9th September, 2005 followed by order dated 24th September, 2007 with a direction to opposite party No.2 to examine the correctness of the documents filed by them and to conduct field enquiry and thereafter to decide the matter as per law. It is further submitted that such an order of the learned Commissioner, Consolidation Settlement, Bhubaneswar, Odisha is not legally tenable as he could not have exercised the jurisdiction in such manner with a remand for a field enquiry to be held by opposite party No.2 instead of disposing of the revision on merit. In support of such argument, Mr. Lenka, leaned counsel for
Decision
Settlement, Bhubaneswar, Odisha, however, it was disposed of with a remand followed by an enquiry by opposite party No.2. The contention is that such an enquiry could have been undertaken with the orders of learned court below instead of disposal of the revision with orders for opposite party No.2 to conduct the same. 6. In Sarat Chandra Sahu (supra), this Court held and observed in the following words, which is extracted herein below: “12. While quashing the order passed by the Commissioner, we also notice what the Commissioner has really not adjudicated the revision except giving a direction to the Tahasildar to cause an inquiry in respect of the genealogy. The revision was preferred, as admitted, under Section 15 of the Act. Under Section 15(b), the Commissioner has been given the Page 3 of 6 authority to decide the grievance of the parties in relation to final publication of record-of-rights. A statutory power by a statutory authority has to be exercised in a proper manner so that the litigants have a sense of satisfaction that their grievances have been appropriately dealt with. The Commissioner should have done well to address himself on the merits of the case. But, instead of doing so, he passed the order of remand. While we are of the view that the operative portion of the impugned order relating to remand is absolutely unsustainable, yet we feel in the interest of justice, the claim of the revisionist should be considered by the revisional authority within the parameter of revisional jurisdiction. As there has been no adjudication on that score, we feel it is appropriate that the Commissioner should rehear the matter and decide it afresh. To avoid delay, we direct the parties to appear before the revisional authority on 28.6.1996 on which date the Commissioner shall fix a date of hearing and dispose of the revision by the end of October, 1996.” 7. A similar view has been expressed by this Court in Smt. Bijaya Chatterjee (supra) and it has been held therein that the revision could not have been disposed of with a remand. Such view is reiterated once again in Anantadan Suna (supra). In fact, the revision filed by the petitioners seeking the record to be corrected in view of the possession in respect of the case land by virtue of and on the strength of ‘Hatapata’ and issuance of ‘Ekpadia’. For the purpose of enquiry, in the considered view of the Court, learned Commissioner, Consolidation Settlement, Bhubaneswar, Odisha Page 4 of 6 should have directed opposite party No.2 to accomplish it to facilitate the disposal of the revision on merit. 8. In view of the citations referred to herein before, the law is well settled that the revision filed is required to be disposed of without a remand. The Court is inclined to hold the view that the plea of the petitioners based on the relevant documents should have been duly examined by learned Commissioner, Consolidation Settlement, Bhubaneswar, Odisha who instead abdicated the responsibility with disposal of the revision simply directing opposite party No.2 to hold an enquiry to find out the veracity of the documents in question, an exercise, which is no different than a remand. Therefore, the conclusion of the Court is that mere disposal of the revision without considering it on merit followed by an order for an enquiry by opposite party No.2 would not serve the purpose and any such remand in view of the decisions cited is not contemplated under law, hence, therefore, the proceeding is required to be restored to file for a decision on merit. 9. In the meanwhile, the petitioners approached opposite party No.2 for mutation in Mutation Case No.1623 of 2008 which was disallowed followed by an order in Mutation Appeal No.71 of 2010 vide Annexure-8. However, the same are subsequent to the disposal of revision by the orders of learned Commissioner, Consolidation Settlement, Bhubaneswar, Odisha, which, in the considered view of the Court, are also liable to be set aside since the revision is restored to file for a decision according to law. 10. Hence, it is ordered. 11. In the result, the writ petition stands allowed. As a necessary corollary, the impugned order under Annexure-10 passed Page 5 of 6 in Revision Petition Case No.109 of 2004 by learned Commissioner, Consolidation Settlement, Bhubaneswar, Odisha is hereby set aside. At the same time, the orders in Mutation Case No.1623 of 2008 and Mutation Appeal No.71 of 2010 as at Annexures-6 and 8 respectively are also set aside with a direction to learned Commissioner, Consolidation Settlement, Bhubaneswar, Odisha to proceed with Revision Case No.109 of 2004 and to dispose it of on merit and if necessary to hold an enquiry with the orders to opposite party No.2 in that regard followed by an order at the earliest preferably within a period of three months from the date of receipt of a copy of this order. 12. Urgent certified copy of this order be issued as per rules. (R.K. Pattanaik) Judge TUDU Signature Not Verified Digitally Signed Signed by: THAKURDAS TUDU Designation: Sr. Stenographer Reason: Authentication Location: OHC,CTC Date: 22-Nov-2024 12:38:25 Page 6 of 6