Orissa High Court
Case Details
ORISSA HIGH COURT : C U T T A C K W.P.(C) NO. 14559 OF 2019 An application under Articles 226 & 227 of the Constitution of India. Sandhyarani Roul : Petitioner -Versus- Gourahari Roul & Ors. :Opposite Parties For Petitioner For Opp.Parties : Mr. D.P.Mohanty, Adv. Mr. R.K.Nayak,Adv. Mr.T.K.Mohanty,Adv. Mr.P.K.Swain,Adv. : Mr. M.Mohanty, Adv. Mr.K.C.Roul,Adv. Mr.S.Rath, Adv. (For O.P.No.1) J U D G M E N T CORAM : JUSTICE BISWANATH RATH Date of Hearing & Judgment : 08.05.2023 Biswanath Rath,J. This writ petition involves the following prayer: <The petitioner therefore prays that in view of the facts and circumstances stated above this Hon’ble Court may be graciously pleased to admit this writ application, call for records of the court below if necessary and after hearing the parties allow the same and issue an appropriate writ/direction or order quashing in Revision Petition No.155/1998 by the Opposite Party No.5 the Joint Commissioner, Settlement & Consolidation, Odisha Bhubaneswar, Annexure-8 thereby dismissing the Revision Case in full. the order dated 22.06.1998 passed And pass such other order or orders, as the Hon’ble court may deem fit and proper in the circumstances of the case. Page 1 of 7 // 2 // And for this the Petitioner shall as in duty bound ever pray.= 2.
Legal Reasoning
Background involving the case is that a proceeding under Section 37(1) of the O.C.H. & P.F.L. Act was brought to the competent forum vide Annexure-7 in the year 1998 registered as R.P. Case No. 155 of 1998. Thus, there is raising of question on entertainability of writ petition after so many years. 3. Reading through the cause title in the R.P. Case No. 155 of 1998, taking this Court to the genealogy brought at page-3 of the
Legal Reasoning
brief, Mr. Mohanty, learned counsel appearing for the Petitioner brings to the notice of this Court that even though the Petitioner herein is one of the co-sharers in the disputed property, the proceeding under Section 37(1) of the O.C.H. & P.F.L. Act was contested behind her back and finally decided in favour of the Petitioner therein vide Annexure-8. The order vide Anenxure-8 appears to have been passed on 22.06.1998. 4. Coming to answer as to the reason in bringing a Writ Petition 2019, Mr. Mohanty, learned counsel for the Petitioner taking to the background involved herein particularly to the notice of this Court that one of the party attempted to bring a review of the order herein being rejected, a Writ Petition was brought to this
Decision
Court in O.J.C. No. 7851 of 1999, which came to be disposed of on 09.08.2006 in the rejection of the application. It is made clear that Page 2 of 7 // 3 // the Writ Petition was filed by some other party not by the present Petitioner. Petitioner herein has not even enclosed the said writ petition. 5. It is at this stage, taking this Court to the documents from Annexures-1 to 5, attempt is made to establish that the property all through remained in the ancestors of the Petitioner. It is claimed only after coming to the know that there has been certain development through the proceeding under Section 37(1) of the O.C.H. & P.F.L. Act and after coming to the know that there has been further litigation through O.J.C. No. 7851 of 1999, the Petitioner applied for the certified copy of the Writ Petition along with the orders therein and also the documents appended therein. Taking this Court to the date of application being on 28.01.2019 and date of delivery on 02.02.2019, it is contended that after getting the order under Section 37(1) of the O.C.H. & P.F.L. Act as well as the development through documents supplied by the High Court, the Petitioner applied for a Nil Certificate of Encumbrance on Property vide Annexure-9 to find the position of the property, which copy was supplied to the Petitioner on 09.08.2019 and the Writ Petition came to be filed on 16.08.2019. It is for obtaining of the order behind back of the Petitioner, Mr. Page 3 of 7 // 4 // Mohanty, learned counsel for the Petitioner contended that the impugned order should be interfered with and the matter ought to be remitted back for reconsideration of the dispute in the involvement of the parties in the interest of justice. 6. Mr. Maheswar Mohanty, learned counsel for the Opposite Party taking again this Court to the genealogy and cause title in the R.P. Case No. 155 of 1998 attempted to submit that it is not a case decided without involvement of the interested parties, some of the ancestors having been involved in the proceeding under Section 37(1) of O.C.H. & P.F.L Act, it should be presumed that all the parties were involved in the proceeding under Section 37(1) of O.C.H. & P.F.L requiring no opening of the proceeding any further. Mr. M. Mohanty, learned counsel also took help of the attempt of the one of the co-sharers in O.J.C. No. 7851 of 1999 and submitted the present Writ Petition is barred by re- judicata. Mr. Mohanty, learned counsel however did not dispute that petitioner herein was althrough kept away from the litigation undertaken in the meantime. 7. Considering rival contention of the parties, this Court on perusal of the Petition under Section 37(1) of O.C.H. & P.F.L Act read together with disclosures in Annexures-1 to 5 finds, Petitioner Page 4 of 7 // 5 // undisputedly has interest in the property. There is also no denial that the Petitioner was never a party to the proceeding under Section 37(1) of O.C.H. & P.F.L. Act however in the disposed of writ petition. It is taking into account the application of res-judicata being raised by Mr. Mohanty, learned counsel for private Opposite Party for the discussion involving O.J.C.No.7851 of 1999, on perusal of the dispute involved in O.J.C. No. 7851 of 1999 decided on 09.08.2006, this Court finds, the Petitioner was neither the applicant there nor even an opposite party. Therefore, any development therein does not bind the Petitioner. Further coming to the question of bringing the Writ Petition with inordinate delay, this Court for the recording hereinabove that the Petitioner was never a party to either of the proceeding under Section 37(1) of O.C.H. & P.F.L Act or in the Writ Petition finds, Petitioner only after coming to know all such developments applied copy of the Writ Petition along with the other copies by making copy application to this Court on 28.01.2019 and obtained all such documents on 02.02.2019. It is here, this Court also finds, the Petitioner after getting the details of history of litigation involving the disputed property attempted to know the position of the property and in the process applies for a copy of Nil Certificate of Page 5 of 7 // 6 // Encumbrance on Property in Form No. 25 vide annexure-9 and obtained the certified copy of the same only on 09.08.2019. This Writ Petition was brought on 16.08.2019. This Court therefore satisfies with submission of learned counsel for the Petitioner involving the delay in bringing such litigation. 8. For this Court finds, proceeding under Section 37(1) of O.C.H. & P.F.L Act brought without involvement of the Petitioner and Annexures-1 to 4 at least prima facie establishing Petitioner has right over the disputed property and the decision vide Annexure-8 decided behind back of the Petitioner, the order at Annexure-8 remains unsustainable. 9. In the process, this Court interferes with the order at Annexure-8 and sets aside the same. However, for there is requirement of fresh disposal of the R.P. Case No. 155 of 1998, remitting the matter back to the Joint Commissioner, Settlement and Consolidation, Odisha and/or the Competent Authority for the time being, directs both the parties in contest to appear before the Competent Authority along with the certified copy this order on 27th May, 2023 and take a date of fresh hearing. At this stage of the matter, Mr.Maheswar Mohnaty, learned counsel appearing for the opposite party brings to the notice of the Court that presently the Page 6 of 7 // 7 // proceeding lies before the Additional commissioner, Consolidation & Settlement, Balasore. It may be open to the Petitioner herein to bring her objection to the proceeding under Section 37(1) of O.C.H. & P.F.L Act on the date of appearance itself. This Court since finds from Annexures- 1 to 4 that there are so many stake holders in the involvement of the property, parties on proper advice, private parties herein shall bring any other parties likely to be affected to the forum of consideration and the dispute shall be decided in the involvement of all such parties. 10. The Writ Petition succeeds but however with an order of remand. No cost. (Biswanath Rath) Judge Orissa High Court, Cuttack. The 08th May, 2023//sks. SUSIL KUMAR SWAIN Digitally signed by SUSIL KUMAR SWAIN Date: 2023.05.10 17:47:36 +05'30' Page 7 of 7