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.22622 of 2023 In the matter of an application under Articles 226 & 227 of the Constitution of India, 1950 and from the order dated 22.03.2022 passed by the learned Member, Board of Revenue, Cuttack in O.E.A. Revision Case No.7 of 2017. ---- M/s.Z. Engineers & Construction Private Limited, represented through its Managing Director, Sri Tapan Kumar Mohanty -versus- 1. State of Odisha, represented through the Collector, Khurda & others …. Petitioner …. Opp. Parties Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Petitioner - M/s.Banshidhar Baug, M.R. Baug, G.R. Sahoo & H. Sahu (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.22622 of 2023 Page 1 of 13 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 23.03.2022 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-4 thereby. 2. Briefly stated, for the purpose, the case stands 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 made 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 Page 2 of 13 W.P.(C) No.22622 of 2023 the learned Member, Board of Revenue for appropriate correction of the recording in the settlement Record of Right. That 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 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 develop 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.22622 of 2023 Page 3 of 13 occupation of the flats, which they have purchased for valuable 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, had 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-six 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.22622 of 2023 Page 4 of 13 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 and thus the very initiation of the Revision Case was
Legal Reasoning
challenged. The Petition is still pending. In that revision proceeding, the Opposite Party Nos.3 to 45 have been arraigned, as the 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 as Opposite Party No.4 in the said revision petition, after purchase for valuable consideration, 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. When the matter stood thus, on 17.07.2018, one Nilambar Gouda, Opposite Party No.47 filed an application seeking intervention in the said Revision Case so as to raise common cause W.P.(C) No.22622 of 2023 Page 5 of 13 of action for public at large in support of the prayer made in the Revision Petition. The learned Member, Board of Revenue on 23.03.2022 noting the presence of the learned Additional Standing Counsel representing the Petitioner therein (Opposite Party No.1 herein) and the Opposite Party No.4, who is the present Petitioner has allowed said prayer of intervention, which has been impugned in this proceeding before us. 3. The Petitioner states that said order dated 23.03.2022 passed by the learned Member, Board of Revenue is wholly without jurisdiction dehors any such provision of in 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 as there is no provision, which authorizes/empowers/clothes the jurisdiction upon the learned Member, Board of Revenue to pass the impugned order in as much the provision being very clear that it should either be suo motu or on a motion being made by the Collector and none- else/individual has any right to invoke the Revisional jurisdiction.
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 at length. None appeared on behalf of Opposite Party No.47 when the matter was called. W.P.(C) No.22622 of 2023 Page 6 of 13 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 by the Collector, Khurda) before the learned Member, Board of Revenue. We too have diligently read the orders, which have passed by the learned Member, Board of Revenue in that OEA Revision Case No.7 of 2017. 5. The admitted position stands that 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 W.P.(C) No.22622 of 2023 Page 7 of 13 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 respectively and Ac.0.450 from plot no.309 under Hal Rakhit Khata No.472 in consonance with the the order passed in OEA Vesting Case No.75/1959-60 and Vesting Case No.44 of 1969-69. 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, it is said that all said consequent actions/order in respect of the lands are nonest in the eye of law and cannot stand detrimental to the interest of the State in respect of those lands. In that Revision, other irregularities have also been pointed out to provide support to the claim of the State over the land. The Revision, having been filed in the year 2017, on 23.03.2022 an order has been passed impleading the Opposite Party No.47 as party to that revision and thus to have his say in support of the motion made by the State-Opposite Party No.1. W.P.(C) No.22622 of 2023 Page 8 of 13 6.
Decision
For proper appreciation, the impugned order is reproduced hereinbelow:- ”23.03.2022. Mr.K.K.Das, the learned Standing Counsel for the petitioner (Collector, Khurda) is present. The learned Advocate for the O.P. No.04 is present. The intervention petition filed by the intervenors is allowed. The petitioner (Collector, Khurda) is required to file correct address as O.P. No.15 & 16 for issue of notice. Ask Collector, Khurda to verify on the averment made by the learned Advocate for O.P. No.04 that the O.P. No.30 has died and give the names of his legal heirs for notice to them. Case is posted to 05.05.2022 for admission. Sd/-Member.” 7. At this stage, it would be profitable to take note of the provision contained in Section 38-B of the OEA Act 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 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 W.P.(C) No.22622 of 2023 Page 9 of 13 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 to act 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 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, upon arriving at a satisfaction as to the irregularity in the proceeding or 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 de-novo enquiry provided in law and as directed in that regard. 8. The provision confers wide power upon the Board of Revenue interfere with the order of any Authority below at any time. The power being so wide without being circumstanced with Page 10 of 13 W.P.(C) No.22622 of 2023 any period for limitation to be so exercised, it’s required to be exercised with utmost care and great circumspection. Undertaking such exercise, even if irregularity/illegality are noticed, while annulling or modifying the same, its affects in the field and ground realities are required to be kept in mind as otherwise it may cause grave injustice. Moreover, there being no limitation period for exercise of such power upon any other authority but only on the head of the Revenue hierarchy and for being so exercised only suo motu or on a motion being made by the Collector concerned, the legislative intent in not making any provision conferring any right to any individual either claiming any right or to espouse the public cause in that regard appears to be very clear that it was with a view to prevent flood gates that too at any time at the whims and desire of someone. The general principle of law is that a person who claims/asserts no right over the immovable property nor claims to be in any way connected with the same of being adversely effected by the final order has no locus standi in a legal/statutory proceeding so as to be a party and it is only in rare case, when the Court is of the view that said party’s presence would facilitate proper adjudication of the dispute, in arriving at a just and proper conclusion, he/she may be added as party to the proceeding. W.P.(C) No.22622 of 2023 Page 11 of 13 As such in terms of the provision of section-38(B) of the OEA Act, the Opposite Party No.47 had no right to invoke the revisional jurisdiction of the learned Member, Board of Revenue. When the revision has already been admitted on the basis of the motion made by the Collector as provided under the law, it is not fathomable for a moment as to how and why the Opposite Party No.47 would come to be arraigned as party to the proceeding, when he has absolutely no say in the matter that too when no useful purpose by his presence would be served. The Collector, having moved for initiation of the revision, the revision has been admitted and it is now for the learned Member, Board of Revenue to exercise the said power calling for the record and hearing all those likely to be affected by the final order in disposing the Revision. In that view of the matter, this Opposite Party No.47 has no locus-standi in the matter and has absolutely no say. The statute clearly does not permit such person like Opposite Party No.47 to be made a party to the revision so as to espouse the public cause in support of the same and the provision restricts the initiation of the proceeding in two ways; first one, suo motu and the second is on a motion being made by the Collector. The provision does not clothe the right upon an individual to make such move and that being so, the Revision W.P.(C) No.22622 of 2023 Page 12 of 13 being admitted, there is no scope for a person like, Opposite Party No.47 to be impleaded as a party to the revision. The learned Member, Board of Revenue as it appears without application of judicial mind and without assigning any reason has allowed the application of Opposite Party No.47 for his impletion as a party to the revision which is untenable. 9. For the aforesaid discussion and in the facts and circumstances; further keeping in view of the section-38(B) of the OEA Act, we are of the considered view that the learned Member, Board of Revenue has completely erred on fact and law in passing the impugned order for impleation of the Opposite Party No.47 of the said revision. Accordingly, the said impugned order dated 23.03.2022 is hereby quashed. Liberty is, however, is given to the Opposite Party No.47 to move for further appropriate order in the matter, if so advised. 10. The writ petition is accordingly disposed of, there shall however, be no order as to cost. (V. Narasingh), Judge. Basu (D. Dash), Judge. 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.22622 of 2023 Page 13 of 13