The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.17248 of 2023 Radhashyam Panda Petitioner Mr. Vivekananda Jena, Advocate …. -Versus- State of Odisha & Others …. Opposite Parties Mr. P.K. Rout, AGA CORAM: MR. JUSTICE R.K. PATTANAIK Order No. 01. 1.
Legal Reasoning
Heard learned counsel for the petitioner and Mr. Rout, learned AGA for the State-opposite party Nos. 1 to 3.
Decision
ORDER 26.06.2023 2. No notice need be issued to opposite party Nos. 4 to 8 since the matter is disposed of at the stage of admission. 3. Instant writ petition is filed at the behest of the petitioner challenging the impugned order dated 18th May, 2023 passed in L.E. Appeal No. 13 of 2023 by the learned Sub-Collector, Balasore- opposite party No.2 on the grounds inter alia that the same is not maintainable, inasmuch as, the appeal was admitted condoning an inordinate delay of 23 years. 4. Learned counsel for the petitioner submits that the petitioner was settled with Ac. 0.18 decimals of land from plot No. 863, Khata No. 391 of the concerned village pursuant to the order of opposite party No.3 in L.E. Case No. 86 of 1994 by order dated Page 1 of 5 20th March, 1999 and thereafter, the Record of Right was corrected and a new khata was prepared under stitiban status which corresponds to plot No. 863/1668 appertaining to Khata No. 302/242 so also the kissam of the said land was converted from Sarada to Ghara Badi vide OLR Case No. 79 of 2009 and while contending so, he refers to copies of the RoRs as at Annexure-2 series. It is further submitted that half-brother of opposite party Nos. 4 & 5 along with others preferred an L.E. Appeal No. 78 of 2008 before opposite party No.2 challenging order dated 20th March, 1999 under Annexure-1 series and therein, opposite party No.2 did not interfere with the settlement and dismissed it by order dated 24th October 2013 (Anneuxre-4). According to the learned counsel for the petitioner, opposite party No.3 thereafter initiated a proceeding in Demarcation Case No. 13 of 2022 and in a clandestine manner ignoring L.E. Appeal No. 72 of 2008 proceeded with it and the same was again challenged by the petitioner in W.P.(C) No. 16658 of 2022 which was disposed of by order dated 20th July 2022 with a direction to demarcate the land in question considering the objection received from him and accordingly, the demarcation was held in respect of Plot No. 863. It is alleged that opposite party No.3 then preferred an appeal in L.E. Appeal No. 139 of 2022 challenging the order dated 20th March, 1999 in L.E. Case No. 86 of 1994 which was also dismissed as not being maintainable by order dated 16th March, 2023 (Annexure-6). Thereafter, as according to learned counsel for the petitioner, opposite party Nos. 4 to 8 preferred an appeal challenging the original order dated 20th March, 1999 in L.E. Case No.86 of 1994 by filing L.E. Appeal No. 13 of 2023 after a lapse of 23 years and therein, the impugned order under Annexure-9 was passed. It is contended that all such aspects have not been examined by Page 2 of 5 opposite party No.2 when the orders in earlier appeals were well within the knowledge of opposite party Nos. 4 to 8 as half-brother of opposite party Nos. 4 & 5 had filed an appeal with others and so also another by the Tahasildar concerned. Notwithstanding such dismissal of appeals filed before, opposite party No.2 entertained the appeal at the instance of opposite party Nos. 4 to 8 and thereafter, admitted the same condoning a delay of 23 years, hence therefore, the impugned order under Annexure-9 is not tenable in law. In other words, according to the petitioner, the scheduled land was settled in 1999 which was challenged and twice the appeals have been dismissed but finally the dispute was reopened and ultimately, the appeal was admitted vide Anenxure-9 without considering all such aspects and also condoning delay of 23 years which is bad in law and thus, liable to be interfered with in the interest of justice. 5. Mr. Rout, learned AGA appearing for opposite party Nos. 1 to 3 submits that the land in question is a village road and it was illegally settled with the petitioner, the fact which was brought to the notice of opposite party No.2 and therefore, the appeal in L.E. Appeal No. 13 of 2023 was admitted condoning the delay. It is submitted that the scheduled land was not to be settled with the petitioner being used as a village road and therefore, opposite party No.2 did not err rather rightly admitted the appeal vide Anenxure- 9. In reply to the above, learned counsel for the petitioner submits that the orders in appeals dismissed have been overreached by Annexure-9 and that too when, it was well within the knowledge of opposite party Nos. 4 to 8 and also opposite party No.3 and the said aspect was not gone into by opposite party No.2 while admitting the appeal condoning such a long delay. It is also contended that the order dated 20th March, 1999 in L.E. Case No. Page 3 of 5 86 of 1994 has attained finality in view of the dismissal of appeals earlier and therefore, it was wrong on the part of opposite party No.2 to reopen and admitted it which amounted to review of the decisions made earlier. 6. 7. Gone through the impugned order as at Annexure-9. The reason which has been assigned by opposite party No.2 is that the order dated 20th March, 1999 was without jurisdiction and hence nullity in the eye of law and while concluding so, admitted the appeal stating it to be necessary in the interest of justice. The details of the enquiry held and report received from the R.I. and thereafter the appeals filed and disposed of and orders passed therein vide Annexure 4 & 6 are referred to by the learned counsel for the petitioner to satisfy the Court that opposite party Nos. 4 to 8 had the knowledge by the time L.E. Appeal No. 13 of 2023 was filed and therefore, opposite party No.2 was not right to entertain the appeal and admit the same. Considering Annexure-9, the Court is of the humble view that on earlier occasions, the settlement of the schedule land in favour of the petitioner was challenged and did not find favour with and for that matter, opposite party Nos. 2 ought to have taken cognizance of the same before entertaining the appeal. That apart, the appeal was admitted condoning a considerable amount of delay of 23 years and that too when opposite party Nos. 4 to 8 could not have been said to having no knowledge about the earlier proceedings and dismissal of appeals, so therefore, the Court is also of the view that all such aspects should have been examined by opposite party No.2 while admitting the appeal condoning the delay whatever occasioned in filing it. Having not done so, the Court is of the conclusion that the impugned order under Annexure-9 cannot be sustained in law. Page 4 of 5 Furthermore, the Court is also of the conclusion that all such aspects are to be examined by opposite party No.2 in L.E. Appeal No. 13 of 2023 before admitting the appeal which would rather serve the purpose and meet the ends of justice. 8. 9. Accordingly, it is ordered. In the result, the writ petition stands allowed. As a necessary corollary, the impugned order dated 18th May, 2023 under Annexure-9 passed in L.E. Appeal No. 13 of 2023 is hereby quashed with a direction to opposite party No.2 to consider as to if the appeal is to be admitted and after examining all such aspects discussed herein before to pass a final order after providing due opportunity of hearing to both the sides preferably within a period of six weeks from the date of receipt of a copy of this order. 10. A certified copy of this order be granted as per rules. (R.K. Pattanaik) Judge kabita Signature Not Verified Digitally Signed Signed by: KABITARANI MAJHI Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 27-Jun-2023 13:55:32 Page 5 of 5