The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) NO. 35174 OF 2023 K. Sabitri Achari …. Mr. Ashutosh Mishra, Advocate Petitioner -versus- Collector, Kalahandi and others …. Opp. Parties Mr. Swayambhu Mishra, Additional Standing Counsel CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 22.01.2024 3. 1. This matter is taken up through hybrid mode. 2. The Petitioner in this writ petition prays for a direction to cancel the Land Right Certificates (LRCs) issued in favour of Opposite Party Nos.3 to 6. 3. Mr. Mishra, learned counsel submits that the Petitioner being a landless person has occupied a piece of Government land and has allowed the Opposite Party Nos.3 to 6 to stay there along with her. The Opposite Party Nos.3 to 6 are Government Teachers. The Petitioner being a landless person is entitled to a Land Right Certificate (LRC) under the provisions of the Odisha Land Rights to Slum Dwellers Act, 2017 (for short ‘the Act, 2017’). Admittedly, the Opposite Party Nos.3 to 6 are not entitled to any Land Right Certificate, but, by playing fraud, they managed to obtain the Land Right Certificates in their favour in respect of the land in occupation of the Petitioner. The Opposite Party Nos.3 to 6 are only allowed to stay over the land in question along with the Petitioner. When the Petitioner Page 1 of 4 // 2 // came to know about the same, she applied information under the Right to Information Act, 2005. After getting information, the Petitioner made a grievance petition before the Collector, Kalahandi-Opposite Party No.1 for redressal of her grievances. The Revenue Divisional Commissioner, Southern Division, Berhampur vide his Letter No. 532 dated 25th January, 2023 (Annexure-4) also directed the Collector, Kalahandi to redress the grievance of the Petitioner. Till date, instruction given under Annexure-4 has not been acted upon. As such, finding no other alternative, the Petitioner has filed this writ petition. 4. The matter was listed on 14th November, 2023 on which date Mr. Mishra, learned Additional Standing Counsel submitted that the Petitioner has a right of appeal under Section 8(1) of the Act, 2017 assailing issuance of Land Right Certificates in favour of Opposite Party Nos.3 to 6. Mr. Mishra, learned Additional Standing Counsel produces a copy of gazette notification dated 25th November, 2017 issued by the Government of Odisha notifying that respective Revenue Divisional Commissioners are designated as Appellate Authority under the Act, 2017. He, therefore, submits that the writ petition should not be entertained as the Petitioner has efficacious remedy under the Act. 5. Mr. Mishra, learned counsel for the Petitioner, however, submits that since a fraud has been played by Opposite Party Nos.3 to 6 in getting the Land Right Certificates, the Collector, Kalahandi, who has granted it, can recall its own order in view of the case law cited in Roshan Deen –v- Preeti Lal, reported in AIR 2002 SC 33, in which it is held as under: Page 2 of 4 // 3 // “19. Learned Single Judge seems to have entertained a notion that once a Commissioner happened to pass an order, however illegal, unjust or inequitable it be, or even if the Commissioner was convinced that the order was wangled from him by playing a fraud on him he would be helpless and the parties thereto would also be helpless except to succumb to such fraud. It was in this context that the decision cited before the learned Single Judge of the High Court required consideration by him. In United India Insurance Co. Ltd. v. Rajendra Singh this Court had held thus: “Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly-discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim.” He, therefore, submits that when an order is obtained by practising fraud, the authority, who passed the order, has the power to recall its own order. By moving the R.D.C., Berhampur, the Petitioner will lose a forum. As such, the Collector, Kalahandi may be directed to redress the grievance of the Petitioner by recalling the Land Right Certificates issued in favour of Opposite Party Nos.3 to 6. 6. Considering the submissions made by learned counsel for the parties, this Court is of the considered opinion that there is no dispute to the legal position set out by the Hon’ble Supreme Court in Roshan Deen (supra), as relied upon by learned counsel for the Petitioner. It further appears that the Petitioner alleged that the Opposite Party Nos.3 to 6 being Government Teachers have obtained Land Right Certificates. Page 3 of 4 // 4 // Information to that effect was obtained by the Petitioner under the R.T.I. Act. In view of the allegation that fraud has been practised by Opposite Party Nos.3 to 6 to get the Land Right Certificates, this Court is of the considered opinion that said Opposite Party Nos.3 to 6 should be given an opportunity of hearing in the matter. It appears that the matter requires appreciation of facts by receiving evidence and allegation of the Petitioner also requires adjudication. 7. Since Land Right Certificates have already been issued in favour of Opposite Party Nos.3 to 6, as submitted by Mr. Mishra, learned counsel for the Petitioner and that the Petitioner has a remedy under Section 8(1) of the Act, 2017, which is efficacious one, this Court is not inclined to entertain the writ petition at this Stage. 8. Accordingly, this writ petition is disposed of with an observation that the Petitioner is at liberty to move the Appellate Authority under Section 8(1) of the Act, 2017 for redressal of her grievances. If such an appeal is filed within a period of three weeks hence, the Appellate Authority without insisting upon the period of limitation may adjudicate the appeal on its own merit, giving opportunity of hearing to the parties concerned. Urgent certified copy of this order be granted on proper application. Signature Not Verified bks Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Jan-2024 19:04:17 (K.R. Mohapatra) Judge Page 4 of 4