The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK Mamata Pani W.P.(C) No. 24541 OF 2023 …. Petitioner(s) Mr.S.K.Nayak,Adv. -versus- State of Odisha and others …. Opposite Party(s) Mr.S.Ghosh,AGA CORAM: JUSTICE BISWANATH RATH Order No. 03. 1. 2.
Decision
ORDER 22.08.2023 Heard learned counsel for the Parties. For small matter involved herein, on contest of both parties, this matter is taken up for final hearing at the stage of fresh admission. It is made clear that for the nature of proceeding remaining certiorari proceeding, the matter can be decided finally only in the involvement of argument of the parties. 3. Undisputed facts involved therein in as much as there is no dispute in re-opening of the Rent Objection Case No. 3800 of 2013 vide Misc. Case No.165 of 2016 as an outcome in W.P.(C) No.9595 of 2016, Annexure-6. 4. Taking this Court to the development taking place vide Annexure-9 in disposal of Mutation Case No.37689 of 2021, Mr. Nayak, learned counsel for the Petitioner contends, once there is adjudication in an objection case by the Competent Authority and looking to the manner of direction therein, there was no opportunity with the Tahasildar, Bhubaneswar to freshly initiate a mutation proceeding in order to work out the direction in the objection case hereinabove. It is in the above scenario, Mr. Nayak, contests the validity of the impugned order at Annexure-9 Page 1 of 6 // 2 // and seeks setting aside of the same. In the process of argument Mr. Nayak, learned counsel for the Petitioner also refers two judgments of this Court reported in 2022 (II) OLR- 667 and 2022 (II) CLR 1041 and seeks support of the case through both these judgments. 5. Mr. Ghosh, learned Additional Government Advocate however giving a contest to the claim of the Petitioner wanted to draw the attention of this Court in the order passed in the previous round of litigation particularly in W.P.(C) No. 8237 of 2014, reading through the order taken note at page-34 of the brief and then taking this Court to the final direction part of the Competent Authority available at page-38 of the brief contends, once the Competent Authority leaves the matter to the discretion of the Tahasildar, Bhubaneswar, there is no illegality on the part of the Tahasildar, Bhubaneswar in undertaking a fresh exercise through the mutation proceeding. In the process, Mr.Ghosh, learned Additional Government Advocate attempted to justify the impugned order at Annexure-9. 6. Considering the rival contention of the parties, this Court in disposal of the Writ Petition vide W.P.(C) No.8237 of 2014 as a previous round of litigation finds the order passed therein reveals as follows:- <In the light of the aforesaid affidavits and the fact situation of the case, we quash the impugned order under Annexure-7 passed by the Asst. Settlement Officer, Rental Colony, Bhubaneswar. Consequently, any final publication relating to the cases at hand are deemed to be quashed and direct that the Asst. Settlement Officer shall adjudicate the matter on its own merit after providing sufficient opportunity of hearing to the writ petitioner and all the parties concerned. We further direct that the concerned Tahasildar, if Page 2 of 6 // 3 // necessary, shall be intimated to provide relevant records and the Asst. Settlement Officer immediately thereafter shall call upon the parties to adduce their evidence required, if any. We also further direct that the concerned Asst. Settlement Officer shall complete the proceeding strictly in accordance with the Orissa Survey and Settlement Act, and the Rules framed thereunder. We also find from the affidavit of the Addl. Chief Secretary that settlement operation in respect of mouzas concerned at Bhubaneswar has been continuing since 1995. This Court expresses concerned regarding the same for the fact that in spite of lapse of 19 years, the settlement operation could not be completed. Therefore, we direct that the statutory authority shall proceed to complete the process with respect to the cases hereby remanded at the earliest. We further make it clear that the Asst. Settlement Officer shall conclude the proceeding strictly in accordance with law without being influenced in any manner by any observation made in this order. This Court expresses no opinion on the merits of the claim of the petitioners/parties concerned. the directions observation, this writ petition is disposed of. aforesaid With and Urgent certified copy of this order be granted on proper application. Free copy of this order be handed over to the learned counsel for the State for necessary communication and compliance.= It is keeping in view the direction hereinabove, this Court finds, there should not be any doubt that the Assistant Settlement Officer, Rental Colony, Bhubaneswar involved herein was directed to undertake the objection exercise. On perusal of the order at Annexure-6, this Court finds, there has been adjudication of the proceeding in contest of the parties and there is final direction of the Competent Authority runs as follows:- Page 3 of 6 // 4 // the land sabik sabik khata 645/162 <Confirmation order of the ADM, Bhubaneswar mutated RoR of the Tahasildar, Bhubaneswar Yaddast record of the settlement Khanapuri Camp, copy of Jamabandi, Register, copy of percha field enquiry report of the court Amin, copy of RSD and PWR obtained from the settlement officer, Hal sabik co-relation …. etc. and found that the lease land is co-related in plot No.2723/3288 area under kisam Bajefasal in the mouza Andharua as per 1962 settlement. At present after careful considerations of the above in question documentary proofs, sanctioned by the Tahasildar, Bhubaneswar vide W.L. Case No. 409/78 in favour of Sri Sushashan Singh, lessee for an area of Ac.1.000 decimals out of sabik plot No.2723/3288 in the mouza Andharua is genuine in accordance with law, which does not arise at all to confuse the settlement decision. The lease land as valid as per orders of supreme Revenue Authorities viz Tahasildar, Bhubaneswar ADM, Bhubaneswar. The Asst. Settlement Officer is bound to carry out the orders of Revenue Authorities clarification of the govt. order No.43209/R dtd. 13.09.1990 and direction of the Hon’ble High Court, Odisha of during recordsunder section 19 and 21 of the OSS Act the above rent cases are re- 1958. All adjudicated and re-heard as per provisions under section 19, 21, 24, 33 and 34 of OSS Act 1958 and Rules 1962. The orders passed by my predecessor previously on Suo Moto rent objection cases hereby quashed in obedience to orders of the Hon’ble High Court Odisha passed in above mentioned W.P.(C) cases. Rent case is allowed in favour of the petition. The petitioner claim is found genuine and also is entitle to be recorded as permanent tenants of this suit land. Hence, the petitioner is allowed to settle the claimed land in the level of Tahasil as well as Settlement Office by producing of this court order in proper forum as per statute. preparation Page 4 of 6 // 5 // Verified the Amin enquiry report. It is found that, Sri Basudev Dash has enquire the field and reported that the all the petitioners are possessing the field separately of the purchase land.= 7. It is after the aforesaid observation and finding, it appears, the Assistant Settlement Officer has given direction in the manner the Record of Rights is required to be prepared. There is further direction of the A.S.O. at page-38 of the brief runs as follows:- <The final publication of the RoR and the maps in respect of mouza Andharua have already been made since 23.03.2014 as per statute, the A.S.O. Rental Colony is <functous officio= after final publication. All the records are available with the Tahasildar, Bhubaneswar, who is the competent Revenue Authority to rectify the records and RoR after final publication. He is requested to comply the orders/directions of the Hon’ble High Court basing on the orders passed by the A.S.O. Rental Colony as per provision 32 of the OSS Act 1958 on above said Rent objection cases to alleviate the petitioner at his level. The order pronounced in the open Court to-day.= Reading the aforesaid and keeping in view the extent of challenge by the State Counsel on the basis of such direction, this Court observes, there is clear finding of the Assistant Settlement Officer, Rental Colony that since he became functous officio in bringing out the fresh Record of Rights and as a consequence the Assistant Settlement Officer, Rental Colony under this constraint gave the direction therein to the Tahasildar, Bhubaneswar being the Competent Authority to prepare the Record of Rights after final publication of the same. Page 5 of 6 // 6 // 8. It is in the circumstances this Court finds, there is absolutely no scope with the Tahasildar, Bhubaneswar to initiate the proceeding vide Annexure-9, for which this Court finds, the proceeding in Mutation Case No. 37689 of 2021 makes vexatious and uncalled for. This Court declares the proceeding vide Misc. Case No.165 of 2016 as bad and without jurisdiction even. 9. For there is no challenge to the order at Annexure-6 passed by the Assistant Settlement Officer, Rental Colony, Bhubaneswar, the observation and directions therein ought to be worked out. This Court therefore, directs the Tahasildar, Bhubaneswar to work out the direction vide Annexure-6 in strict terms of the direction therein. 10. With this observation, the Writ Petition stands disposed of. S.Dash (Biswanath Rath) Judge Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Reason: Authentication Location: High Court of Orissa Date: 25-Aug-2023 16:49:04 Page 6 of 6