CORAM MR. JUSTICE D.DASH MR. JUSTICE v. NARASINGH Date of Judgment
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.22392 of 2023 In the matter of an application under Articles 226 & 227 of the Constitution of India, 1950 and from the order dated 05.01.2023 passed by the learned Member, Board of Revenue, Cuttack in O.E.A. Revision Case No.7 of 2017. ---- …. Petitioner Engineers M/s.Z. & Construction Private Limited, its represented Managing Director, Sri Tapan Kumar Mohanty through -Versus- 1. State of Odisha, represented through the Collector, Khurda & others …. Opposite Parties Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Petitioner - M/s.Banshidhar Baug, M.R. Baug & G.R. Sahoo (Advocates) For Opp. Parties - Mr.G.N. Rout, Additional Standing Counsel for Opp. Parties 1, 2 & 46 CORAM MR. JUSTICE D.DASH MR. JUSTICE V. NARASINGH Date of Judgment : 24.09.2024 W.P.(C) No.22392 of 2023 Page 1 of 15 The Petitioner, by filing this writ Petition, has invoked the jurisdiction of this Court under Articles 226 & 227 of the Constitution of India praying therein to quash an order dated 05.01.2023 passed by the learned Member, Board of Revenue, Cuttack (Opposite Party No.2) in O.E.A. Revision Case No.7 of 2017 as at Annexure-3. 2.
Legal Reasoning
Brief facts germane for just adjudication reads as under:- The land in question, which is the subject matter of the above-noted revision case, was initially with the Ex-Intermediary as the owner. As per the case of the Petitioner, much before the vesting by virtue of the notification of the State Government, in exercise of the power conferred under Section 3 of the Orissa Estate Abolition Act, 1951 (for short, ‘the OEA Act’), the Ex-intermediary has leased out the land by way of unregistered permanent lease deed for agricultural purpose to one Tilottama Samal and Uchhaba Sahu. It is stated that after vesting, the lessee filed O.E.A. Vesting Case No.75 of 1959-60 before the Tahasidlar, Cuttack and the same was allowed directing fixation of rent in favour of the lessee, namely, Tilottama Sahu and Uchhaba Sahu. It is also the case of the Petitioner that although the rent was fixed in that Vesting Case, in the subsequent settlement, the land was recorded in favour of the Government. So, Revision Petition was filed before the learned Page 2 of 15 W.P.(C) No.22392 of 2023 Member, Board of Revenue for appropriate correction of the recording of the same in the settlement Record of Right. Such Revision Petition, being allowed, the land came to be recorded in the name of the lessee, namely, Tilottama and Uchhab in the record of right. They continued to possess the land as before. In the Record of Right under Hal Settlement published in the year 1989, the land in question stood recorded in the name of the lessees. The lessees, however, in the Hal Settlement, having mutually partitioned the land, separate Record of Rights were published in their name in respect of the land, which they got in the amicable partition in terms of their respective shares. The original lessee Tilottama, under different sale deeds, sold different parcels of land in total to the extent of Ac.1.160 decimals to six different persons by executing Registered Sale Deeds. This Petitioner is the bona fide purchaser of that Ac.1.160 decimals of land by a registered sale deed from those six purchasers from the original lessee Tilottama. The Petitioner- Company deals in real estate and develops the same. The Petitioner-Company, receiving the approval of the building plan from the concerned Authority, then constructed multi-storied building over the said land and by now, sold flats to several persons under registered sale deeds and those purchasers are in W.P.(C) No.22392 of 2023 Page 3 of 15 occupation of the flats, which they have purchased for due consideration. When the matter stood thus, one Sudhansubala Sahu, who had purchased some land from out of the land in question over which the Petitioner had put up the building from some imposters, filed one Civil Suit in the Court of the learned Civil Judge, Senior Division, Bhubaneswar numbered as T.S. No.29 of 2002. In that suit, the Petitioner placed the order passed in OEA Vesting Case No.75 of 1959-60 in favour of their vendor-lessee. That order passed in the OEA Vesting case was recognized as such in the said suit and the suit stood dismissed. In this way, after expiry of fifty-five years from the date of passing of the said passed in OEA Vesting Case No.75 of 1959-60, the Collector, Khurda, Opposite Party No.1 filed Revision Case No.7 of 2017 nomenclatured to be one under section 38-B of the O.E.A. Act to set aside the Record Of Right prepared on the basis of the order passed in OEA Vesting Case No.75 of 1959-60 and sought for appropriate direction for correction of the Record Of Right. The learned Member, Board of Revenue, receiving the said revision petition, admitted the same and directed for issuance of notice to the Opposite Parties including this Petitioner arraigned therein as Opposite Party No.4. W.P.(C) No.22392 of 2023 Page 4 of 15 The Petitioner, receiving the notice, filed an application on 08.01.2019 for taking up the question of maintainability and limitation as preliminary issues before proceeding for final decision thereby assailing the very initiation of the Revision Case. The Petition is still pending. In that revision proceeding, the Opposite Party Nos.3 to 45 have been arraigned, as purchasers and being the legal heirs of original lessee. It is stated that within the period from 1989 till 2017, several transactions in respect of the land in question have taken place. Persons have purchased the land either from the original lessee or their legal heirs and have constructed the residential building and residing therein. Similarly, the present Petitioner arraigned therein as Opposite Party No.4 in the said revision petition, after purchase for valuable consideration as noted, having proceeded further has constructed a multi-storied building and also sold number of flats to different persons, who are in occupation of those flats as their owners. The OEA Revision Case No.7 of 2017is still not ready for final hearing as many of the Opposite Parties therein, have not yet entered appearance. However, on 05.01.2023, the learned Member, Board of Revenue passed an order of status quo in the nature of injunction W.P.(C) No.22392 of 2023 Page 5 of 15 restraining the Opposite Parties of that Revision Petition from making any transfer of the land, forming the subject matter of that revision. As it reveals from the order, the same was passed simply pursuant to the submission of the learned Standing Counsel when no application to that effect had even been filed either by Opposite Party No.1 or any other Opposite Party and that order has been communicated to all concerned, which is now impugned in this Writ Petition. 3. The Petitioner states that said order of restraint dated 05.01.2023 passed by the learned Member, Board of Revenue without any reason is wholly without jurisdiction dehors any such provision of the OEA Act. In a revision, in exercise of the powers under section 38-B of the OEA Act, such an order is not permissible to be passed, as there is no provision, which authorizes/empowers/clothes the learned Member, Board of Revenue the jurisdiction to pass the impugned order.
Legal Reasoning
4. Heard Mr.B.Baug, learned counsel for the Petitioner and Mr.G.N.Rout, learned Additional Standing Counsel for the State- Opposite Party Nos.1 and at length. We have carefully gone through the averments taken in the Revision Petition giving rise to OEA Revision Case No.7 of 2017 (Annexure-1) filed by the Opposite Party No.1 (State represented W.P.(C) No.22392 of 2023 Page 6 of 15 by the Collector, Khurda) before the learned Member, Board of Revenue. We too have diligently read the orders, which have been passed by the learned Member, Board of Revenue in that OEA Revision Case No.7 of 2017. 5. Admittedly, the land in question belonged to Patia Estate recorded in the name of Raja Madhusudan Dev as per record of right of the year 1931. The entire Patia Estate was thereafter taken over by Raja of Kanika through an auction sale in the year 1932 and subsequently, the property was taken over by Sailendra Bjanjadeo, the Raja of Kanika in the year 1935. The Patia Estate stood vested in the State in the year 1952 after coming into force of the OEA Act and in view of the notification. The rent roll pertaining to Patia Estate has been submitted to the State Government by Raja Kanika in the year 1962. The said land vested in the State Government as per the provision contained in OEA free from all incumbrances. When in the Record of Right published in the year 1974, the land stood recorded in the name of Government under Rakhita Khata. One of lessees Uchhaba Sahu filed an application under section 6 read with section 15-D of the Orissa Survey and Settlement Act, 1957 before the learned Land Reforms Commissioner, Board of Revenue for recording of the same under Hal Plot Nos.5 & 6 measuring an area of Ac.3.59 & 4.65 Page 7 of 15 W.P.(C) No.22392 of 2023 respectively and Ac.0.450 from plot no.309 under Hal Rakhit Khata No.472 in consonance with the order passed in OEA Vesting Case No.75/1959-60 and Vesting Case No.44 of 1968-69. That application stood numbered as Revision Petition No.3178 of 1975. The Opposite Party No.1, the Collector, Khurda now in the Revision Petition filed under section 38-B of the OEA Act before the learned Member, Board of Revenue, alleges that the orders passed in Vesting Case No.75 of 1959-60 and 44 of 1968-69 are forged and, therefore, all consequential actions/orders in respect of the lands are nonest in the eye of law and cannot be detrimental to the interest of the State vis-(cid:224)-vis in respect of those lands. In that Revision, other irregularities have also been pointed out to derive strength to the claim of the State over the land. The Revision, having been filed in the year 2017, on 05.01.2023 an order has been passed directing the maintenance of status quo in respect of the land in question and restraining further sale and purchase transaction and correction of Record of Right till disposal of the Revision. 6.
Decision
For proper appreciation, the impugned order is reproduced hereinbelow:- ”05.01.2023. Mr.K.K.Das, the learned Standing Counsel for the State is present on behalf of the petitioner (Collector, Khurda). The learned Advocate for O.P. No.06(a), 06(c), 06(d), 07(a), 07(b), 08(a), 08(b), 08(f), 11, 12 Page 8 of 15 W.P.(C) No.22392 of 2023 & 34 and the learned Advocate for O.P. No.4 are present. The learned Advocate for intervenor Nilambar Gouda is also present. The learned Standing Counsel for Petitioner (Collector, Khurda) is advised to substitute O.P. No.30 as informed to have expired by the learned Advocate for O.P. No.4. The learned Advocate for intervener Nilambar Gouda has not filed extra copies of his intervention petition for being considered to be impleaded as a party in this case. He is required to file extra copies of intervention petition of intervener Nilambar Gouda on the next date. Correct address of O.P. No.15, 16, 06(b) & 06(c) has not been filed by the petitioner (Collector, Khordha). Notice to be served to them by beat of drums on the suit land through the Tahasildar concerned. Also issue fresh notice to O.P. No.26, 28, 29 & 32 by registered post in their new correct address as submitted previously by the Tahasildar, Bhubaneswar. The learned Advocate for OP No.06(a), 06(d), 06(e), 07(a), 07(b), 08(a), 08(b) & 08(f) states to have filed written objection by having objected the present revision on grounds of maintainability. The learned Advocate for O.P. No.4 has also objected the present revision on grounds of maintainability. The case is heard analogously with O.E.A. No.23 of 2015, which has been filed by two private individuals. The learned Standing Counsel for petitioner prayed in preventing further for passing status-quo order W.P.(C) No.22392 of 2023 Page 9 of 15 transaction of the suit land involved till disposal of the case for avoiding complication of identifying subsequent purchasers in respect of the suit land. Accordingly, order is passed to maintain status quo in respect of the suit land as no further sale purchase transactions and correction of RoRs are to be made till disposal of the present revision. Secretary, Board of Revenue to write letters to I.G.R. Odisha, Sub-Registrar, Bhubaneswar, Cuttack, Khorda and the Tahasildar, Bhubaneswar and also intimate the Additional Chief Secretary, Revenue & D.M. Department, Government of Odisha regarding the status quo order passed in the case. the Collector, Khurda Secretary, Board of Revenue shall also write a letter to for early submission of substitution petition in substituting the deceased. O.P. No.30 as reportedly dead and on maintainability of the present revision by sending Collector, Khordha the copies of written objections filed by the Opp. Parties in this case. is posted Case maintainability.” to 18.04.2023 for hearing on 7. At this stage, it would be profitable to take note of the provision contained in Section 38-B of the OEA Act which reads as under:- “38-B. Revision:- (1) The Board of Revenue may, on its own motion or on a report from the Collector, call for and examine the record of any proceeding in which any authority sub-ordinate to the Board of Revenue has made any decision or passed an order under this Act (not being a decision against Page 10 of 15 W.P.(C) No.22392 of 2023 which an appeal has been preferred to the High Court or the District Judge under section 22) for the purpose of satisfying itself as to the regularity of such proceeding or the correctness, legality or propriety of such decision or order and if in any case it appears to the Board of Revenue that any such decision or order ought to be modified, annulled, reversed or remitted, it may pass orders accordingly; 2. The Board of Revenue shall not – (i) xx xx xx (ii) revise any decision or order under this section without giving the parties concerned an opportunity of being heard in the manner.” The above provision deals with the power conferred on the learned Member, Board of Revenue either on his own motion or on a report from the Collector to call for and examine the record of any proceeding in which any authority below, has taken any decision or passed any order in seisin of a proceeding under the OEA Act against which no appeal has been preferred to the High Court or the District Judge under section 22 of the Act. The learned Member, Board of Revenue, arriving at a satisfaction as to the irregularity in the proceeding or against the correctness, legality or propriety of such decision or order, may direct for annulment or reversal of said order or may remit the matter to the Authority below for a decision afresh by a denovo enquiry as provided in law. W.P.(C) No.22392 of 2023 Page 11 of 15 The provision although clothes the learned Member, Board of Revenue with wide power to scrutinize the order of any Authority below for the above reasons at any time, yet the underlined principles are that such power is required to be exercised with utmost care and great circumspection. Undertaking such exercise even if irregularities/illegalities are noticed, while annulling or modifying the same, in our considered view the effects of the same in the field and ground realities are required to be very much kept in mind as otherwise it would be doing grave injustice; especially it is to be them viewed as to whether at such distance of time, the vehicle can again be smoothy taken with backward motion so as to be put at its starting point. To add to it, there being no limitation period for exercise of such power; the legislature keeping all the above in mind appears to have purposely not provided any such power upon the learned Member, Board of Revenue in empowering him to pass any interim order. The legislative intent in not making any provision in that regard appears to be very clear as in such cases, exercise of any such power pending the final adjudication may amount to final order in the revision before even arriving at a satisfaction as to the irregularity, illegality etc. and that too after long lapse of time with lot many changes/developments in the field due to W.P.(C) No.22392 of 2023 Page 12 of 15 efflux of time. In that view of the matter, we cannot take that said power remains with the revisional authority and so provided upon the learned Member, Board of Revenue by saying that the said power being not specifically denied; it would be taken to have been impliedly so permitted to be exercised. 8. True it is that for exercise of such power by the learned Member, Board of Revenue under section 38-B of the OEA Act, no such period of limitation has been prescribed. Yet in the present case, we find that an order for vesting of the land in question, which is now stated to be a forged one being said to have been passed in the OEA Vesting Case No.75 of 1959-60, said vesting order was also the matter for consideration before the Civil Court in T.S. No.29 of 2002. More importantly, when that order passed in the OEA Vesting Case No.75 of 1959-60 had no reflection in the Record Of Right published in the year 1974, the matter had been carried to the learned Land Reforms Commissioner, Board of Revenue in Revision Petition Case No.3178 of 1975 and therein the learned Land Reforms Commissioner has ruled in favour of the correctness of the same and thereby accepting and banking upon that order passed in OEA Vesting Case No.75 of 1959-60 correction of the entries in the Record of Rights had been ordered. This has again been accepted and so carried out in the Mutation Case No.64 of 1978. W.P.(C) No.22392 of 2023 Page 13 of 15 9. The OEA vesting order as it appears was not suppressed but has been projected as the weapon whenever in any proceeding, anything has been done to its contrary. During all these years indisputably several transactions have been made by the recorded tenants with others, who are third parties and so also changing the hands from them onwards as bona fide purchasers for value, which would be evident merely noticing upon the arraignment of the Opposite Parties in this Revision filed by the Opposite Party No.1, the Collector, Khurda. 10. Insofar as this Petitioner-Company is concerned; they having purchased the property measuring Ac.1.160 decimals have taken all the required approval from the concerned Authorities and put up multi-storied building. In the meantime, the Petitioner- Company has sold several flats to different persons by executing registered sale deeds on receipt of consideration and those persons are in occupation of their respective purchased flats as the owners. For the foregoing discussion and in the facts and circumstances, further keeping in view of section 38-B of the OEA Act, we are of the view that the learned Member, Board of Revenue had no jurisdiction to pass any such interim order affecting the rights over the property before finally deciding the Revision, which in the present case has been filed after fifty-five W.P.(C) No.22392 of 2023 Page 14 of 15 years since that vesting order, which has been filed before the Authorities on earlier occasions. Therefore, the impugned order to maintain status quo in respect of the land and restraint as to further sale and purchase and correction of the Record of Right even without assigning any reason whatsoever in respect of the land measuring Ac.1.160 decimals, which this Petitioner-Company has purchased and put up construction and has sold several portions to third parties, cannot be sustained. Accordingly, the impugned order dated 05.01.2023 passed by the learned Member, Board of Revenue, Cuttack (Opposite Party No.2) in O.E.A. Revision Case No.7 of 2017 as at Annexure-3 is hereby quashed to the extent as indicated above. 11. The writ petition is accordingly disposed of. There shall, however, be no order as to cost. (V.Narasingh), Judge. (D. Dash), Judge. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASST. REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 30-Sep-2024 16:39:33 W.P.(C) No.22392 of 2023 Page 15 of 15