The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 18090 of 2021 Jadu Nayak @ Jadumani Nayak Petitioner Mr. Ramakanta Mohanty, Senior Advocate …. -Versus- State of Odisha & Others …. Opposite Parties Ms. Samapika Mishra, ASC W.P.(C) No. 18094 of 2021 Bela Nayak & Others Petitioners Mr. Ramakanta Mohanty, Senior Advocate …. -Versus- State of Odisha & Others …. Opposite Parties Ms. Samapika Mishra, ASC W.P.(C) No. 18098 of 2021 Lata Nayak & Others
Legal Reasoning
Petitioners Mr. Ramakanta Mohanty, Senior Advocate …. -Versus- State of Odisha & Others …. Opposite Parties Ms. Samapika Mishra, ASC W.P.(C) No. 18106 of 2021 Raghunath Nayak Petitioner Mr. Ramakanta Mohanty, Senior Advocate …. -Versus- State of Odisha & Others …. Opposite Parties Ms. Samapika Mishra, ASC Page 1 of 8 W.P.(C) No. 18108 of 2021 Raghunath Nayak & Others Petitioners Mr. Ramakanta Mohanty, Senior Advocate …. -Versus- State of Odisha & Others …. Opposite Parties Ms. Samapika Mishra, ASC CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT: 07.08.2023 1. Since a common question of law is involved, all the writ
Decision
petitions have been clubbed together and are disposed of by the following order. 2. Instant writ petitions are at the behest of the petitioners assailing the correctness, illegality and judicial propriety of the impugned orders under Annexures-1 and 2, whereby, decision of opposite party No.4 confirming settlement vide Annexure-4 later to the order under Annexure-3 of opposite party No.3 was set aside on the grounds inter alia that the same are palpably wrong, illegal and without jurisdiction. 3. Essentially, the petitioners have approached this Court challenging the impugned order dated 25th March, 2021 under Annexure-1 passed in OPLE (R) Case No. 1 of 2020. In fact, the order of opposite party No.2 in OPLE (R) Case No.1 of 2005 dated 16th June, 2005 was interferred with and set aside by this Court in W.P.(C) Nos. 12275, 12276,12278 and 12279 of 2005 with a direction for fresh adjudication after considering the objection of the petitioners, whereafter, the impugned order under Annexure-1 was passed setting aside the settlement vide Page 2 of 8 Annexures-3 and 4 while exercising jurisdiction under Section 12(2) of the OPLE Act and in that connection, opposite party No.2 condoned a delay of 24 days. In the facts and circumstances of the case, opposite party No.2 concluded that the revision is maintainable, even after three years and reiterated the earlier decision under Annexure-2 in OPLE (R) Case No. 1 of 2005. The ground of challenge is that such delay could not have been condoned by opposite party No.2 and it was beyond jurisdiction. Furthermore, the petitioners contend that since revision was entertained after expiry of three years which is the limitation under Article 137 of the Limitation Act condoning the delay, the same was not permissible, inasmuch as, opposite party No.2 did not have any such jurisdiction to do so and as a corollary, the impugned order under Annexure-1 is not tenable in law and hence, orders under Annexures 3 and 4 are to be confirmed. 4. Heard Mr. Mohanty, learned Senior Advocate appearing for the petitioners and Ms. Mishra, learned ASC for the State. 5. Mr. Mohanty, learned Senior Advocate submits that opposite party No.2 acted with material irregularity and in excess of jurisdiction and condoned the admitted delay when he is a creature of statute and as such, the scheme of the OPLE Act does not provide for condonation of delay while invoking jurisdiction under Section 12(2) thereof beyond three years as per Article 137 of the Limitation Act. While contending so, a decision of this Court in Sarojini Mallick Vrs. State of Orissa and Others 2005 (I) OLR 666 has been referred to by Mr. Mohanty, learned Senior Advocate for the petitioners. It is further contended that since no limitation is prescribed for exercising jurisdiction under Section 12 (2) of the OPLE Act and as in view of the decision in Sarojini Mallick (supra), revision is maintainable within the period of three years as prescribed in Article 137 of the Limitation Act, the delay Page 3 of 8 which had occasioned in the present case, it could not have been condoned. In support of such contention, the following decisions, such as, G.K. Raghunath Vrs. The Secretary to the Govt., Ministry of External Affairs and Another 2002 (1) A.P.L.J 159 (HC); C. Shivanna Vrs. C. Narayana Gowda and Others 1995 SCCOnLine Kar 41; Majji Sannemma @ Sanyasirao Vrs. Reddy Sridevi and Others (Civil Appeal No.7696/2021 Dated 16th December, 2021); Gopal Sardar Vrs. Karuna Sardar (2004) 4 SCC 252; Om Prakash Vrs. Ashwani Kumar Bassi (2010) 9 SCC 183; Joint Collector, Ranga Reddy District and Another Vrs. D. Narsing Rao and Others besides Noharlal Verma Vrs. District Cooperative Central Bank Limited, Jagdalpur (2008) 14 SCC 445 are also referred to by Mr. Mohanty, learned Senior Advocate for the petitioners. 6. Ms. Mishra, learned ASC for the State-opposite parties referring to the Counter Affidavit submits that there has been no illegality committed by opposite party No.2 in condoning the delay and all such aspects have been gone into while upholding the decision to unsettle the orders under Annexures-3 and 4. In response to the above, Mr. Mohanty, learned Senior Advocate with reference to the rejoinder affidavit would submit and reiterate that opposite party No.2 ignoring the settled principles of law contumaciously condoned the delay and cancelled the settlement allowed in favour of the petitioners. Ms. Mishra, learned ASC while advancing an argument on the point of limitation refers to a decision of this Court in Bachana Kumari Dei Vrs. State of Orissa and Others reported in 2022 SCC OnLine Odisha 1018, which is with reference to the provisions of OEA Act. One more decision in the case of State of Orissa and Others Vrs. Brundaban Sharma and Another 1995 Supp. (3) SCC 249 is cited from the side of the State, which is again an authority on exercise of the revisional power under Section 38-B of the OEA Act. With the above Page 4 of 8 submission, Ms. Mishra, learned ASC contends that the impugned order under Annexure-1 is in accordance with law. 7. In Brundaban Sharma (supra), the Apex Court held that when the revisional power was conferred to effectuate a purpose is to be exercised in a reasonable manner which inheres the concept of its exercise within a reasonable time and absence of limitation is an assurance to exercise the power with caution and circumspection or to prevent miscarriage of justice or violation of the provisions of the Act or abuse of power by the authority. The intent and purpose of the OEA Act with the absence of any provisions vis-à-vis the limitation for exercising revisional power has been taken judicial notice of by this Court in Bachana Kumari Dei (supra). In so far as the present case is concerned, opposite party No.2 purportedly exercised jurisdiction under Section 12(2) of the OPLE Act on the direction of the Revenue Divisional Commissioner (ND), Sambalpur. As to Section 12(2) of the OPLE Act, the Collector may revise a decision or order made under Sub- Section (1) or under Section 7 or Section 8-A thereof. With respect to Section 12(3) of the OPLE Act, it relates to the exercise of revisional power by the Revenue Divisional Commissioner, who may call for and examine records of any proceeding under the said Act, in which no appeal or revision lies if it appears that the authority below exercised jurisdiction not vested by law or failed to have exercised jurisdiction so vested or while acting in the exercise of jurisdiction to have contravened some express provision of law affecting the decision on merits or where such contravention has resulted in serious miscarriage of justice and after providing the parties a reasonable opportunity of being heard to pass order as deemed fit. In fact, opposite party No.2 said to have received direction from the Revenue Divisional Commissioner (ND), Sambalpur later to which the revision was entertained and disposed of vide Annexure-2, which was Page 5 of 8 reconsidered leading to the passing of the impugned order under Annexure-1. So far as the exercise of jurisdiction under Section 12(2) or (3) of the OPLE Act is concerned, no limitation has been prescribed. As to the authority of the Revenue Divisional Commissioner under Section 12(3) of the OPLE Act, which is a suo moto revision, the same may be entertained within a reasonable time though there is no time limit prescribed. The decisions, which have been referred to by Mr. Mohanty, learned Senior Advocate apart from Sarojini Mallick (supra) have reiterated the principles which are to be followed at the time of condonation of delay. The legal position enunciated with reference to limitation is that delay may be condoned subject to sufficient cause shown. It is well settled law that whenever a court is vested with the discretionary power, it must be exercised taking into account and consideration the facts and circumstances of a particular case and one of the requirements is that there was sufficient cause as indicated in Section 5 of the Limitation Act. 8. Mr. Mohanty, learned Senior Advocate refers to a decision in Om Prakash (supra) to contend that opposite party No.2 since the creature of a statute could not have condoned the delay exercising any such power invoking Section 5 of the Limitation Act. In so far as the limitation prescribed in OPLE Act is concerned, it relates to Section 13 thereof, according to which, no appeal shall be entertained after expiry of 30 days from the date of the decision or order complained of with the period excluded in obtaining a copy of the same but it may be admitted after the aforesaid period provided the appellant satisfies that he had sufficient cause for not preferring the appeal within that period. In other words, Section 13 of the OPLE Act applies to an appeal against a decision or order of the Tahasildar which lies to the Sub- Divisional Officer in terms of Section 12(1) of the Act. As far as Sub-Sections (2) and (3) of Section 12 of the OPLE Act are Page 6 of 8 concerned, no limitation has been prescribed, as already stated that Section 13 of the OPLE Act is applicable only to the appeals maintainable under Section 12(1) thereof. In fact, the Revenue Divisional Commissioner exercises the suo moto power of revision under Section 12(3) of the OPLE Act, whereas, the Collector exercises jurisdiction under Sub-Section (2) thereof, which is on an application of the aggrieved parties. The exercise of revisional power by the Revenue Divisional Commissioner shall have to be within a reasonable time even though there is no limitation specified. Similarly, for the jurisdiction exercisable by the Collector under Section 12(2) of the OPLE Act, no limitation stands prescribed. However, taking cognizance of the distinct revisional powers to be exercised by the authorities, this Court in Sarojini Mallick (supra) held that Article 137 of the Limitation Act would apply. That be so, a revision under Section 12(2) of the OPLE Act shall be maintainable within three years from the date of cause of action. According to the aforesaid decision, as no limitation has been prescribed for exercising power under Section 12(2) of the OPLE Act which is completely different from the jurisdiction exercisable under Sub-Section(3) thereof, the period so prescribed under Article 137 of the Limitation Act shall apply. In such a situation, in case of delay, the question is, whether, it may be condoned under Section 5 of the Limitation Act. It is contended that condonation by invoking Section 5 of the Limitation Act is not permissible in view of the Apex Court’s judgment in Om Prakash (supra). In the said decision, the Supreme Court held that the Rent Controller being a creature of statute and only acts in terms of power vested in him by the statute cannot therefore entertain an application under Section 5 of the Limitation Act, 1949 for condonation of delay since the East Punjab Urban Rent Restriction Act, 1949 does not prescribe any such power. It has been held therein that the competent authority has no other option except to pass an order of eviction Page 7 of 8 since it had no authority to condone delay in filing application for leave to contest. It was with reference to the said Act that the Apex Court held that as the statute does not provide any such power to extend the time for the tenant to submit an application later to the summons received from the Rent Controller, who is the competent authority created thereunder and hence, cannot entertain an application under Section 5 of the Limitation Act taking judicial notice of Section 13-B thereof about the right of the owner limited to once during his lifetime to obtain possession of the building for personal use. In the case at hand, admittedly, there is no limitation specified in Section 12(2) of the Act or for that matter Section 12(3) of the OPLE Act and when Article 137 of the Limitation Act is to be made applicable, the Court does not find any reason not to apply Section 5 of the Limitation Act, which is with reference to appeals or applications only. As regards, the delay in so far as the case of the petitioners is concerned, it was condoned by opposite party No.2. In fact, a delay of 24 days was noticed, which was condoned by opposite party No.2 purportedly in terms of Section 5 of the Limitation Act and apparently applying Article 137 with a limitation of three years prescribed. As Article 137 plays a part in view of the decision in Sarojini Mallick (supra), Section 5 of the said Act would certainly apply. So therefore, the conclusion is that the impugned orders under Annexures-1 and 2 suffer from no legal infirmity with regard to delay condonation which is the only issue under consideration. 9. Accordingly, it is ordered. 10. In the result, the writ petitions stand dismissed. Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Aug-2023 10:54:15 Balaram (R.K. Pattanaik) Judge Page 8 of 8