A division bench of the Orissa High Court comprising of Justice Arindam Sinha and Justice Sashikanta Mishra allowed a writ petition while setting aside a Tahasildar’s order on account of material irregularity.
The Tahasildar found that original allottee was entitled for settlement sanctioned earlier and ordered to submit the case for confirmation. There should have been a confirmation.
Facts:
The petitioners are purchasers from original allottee. Said allottee was a Jawan, who was entitled to settlement of 5 acres of land. The settlement was made initially at village Shyampur in Bhubaneswar Tahasil and thereafter exchanged to village Sundarpur. There was purported revision from the order of settlement on exchange. The settlement was set aside. Original allottee challenged the same by writ petition and by order dated 6th December, 1991 there was direction upon the Tahasildar to reconsider the matter. The Tahasildar initiated remand case and disposed of it on 19th April, 1994 holding that original allottee is entitled for settlement sanctioned earlier and ordered to submit the case record for confirmation.
Original allottee again filed writ petition, disposed of by order dated 4th May, 2009 redirecting him to the Tahasildar with direction upon the office to consider the application in accordance with law. Pursuant thereto the waste land (WL) misc. case went in favour of original allottee. The Additional Tahasildar, by order dated 6th December, 2010, directed correction of the RoR. It is thereafter that the Tahasildar initiated misc case no.17 of 2012 to recall said order dated 6th December, 2010 directing correction of the RoR. This was disposed of on 24th May, 2012 by recalling said order dated 6th December, 2010. Accordingly, pursuant to direction made in order dated 8th January, 2018 passed by this Court in WP(C) no.22696 of 2012 and further order made in the misc cases, impugned order came to be made.
The petitioners’ contention:
The Sub-Collector acted in excess of jurisdiction by converting the confirmation proceeding, to be appeal against said order dated 19th April, 1994 of the Tahasildar. The office had no authority to do so in face of order dated 6th December, 1991 made in his clients’ first writ petition, by which order for setting aside the settlement was quashed and matter restored to the Tahasildar to reconsider. When, thereafter, the Tahasildar found that original allottee is entitled for settlement sanctioned earlier and ordered to submit the case for confirmation, there should have been confirmation. In the circumstances, impugned order should be set aside and quashed.
Observations of the Court:
The court was inclined to infer that the Tahasildar accepted the forwarded copy to be genuine relying on the original letter addressed to original allottee, under cover of which it was forwarded. There was no dispute regarding genuineness of aforesaid forwarding letter dated 6th February, 1971. There was no adjudication on whether the document could be relied upon as secondary evidence. In the circumstances, original allottee having been given to think that there was no dispute on genuineness of the document, led to his omission to secure production of the original. He sold away when order of the Additional Tahasildar was subsisting.
It was his position taken on State having had theretofore accepted the letter as genuine. As such State was thereafter estopped from questioning the document in the confirmation proceeding, culminating in impugned order. The authority could not have found dispute on genuineness of the document, to conclude that due to failure of non-production of authenticated records, eligibility criteria of original allottee remains under cloud. Since the authority committed error of law in the finding of fact, interference by judicial review has to be made.
Thus, the impugned order was illegal and was made with material irregularity.
Decision:
The impugned order was set aside and quashed. The writ petition was allowed and disposed of.
Case: M/S Green Square Infratech Pvt. Ltd. and another vs State of Odisha and others
Citation: WP(C) No. 8953 of 2021
Coram: Justice Arindam Sinha and Justice Sashikanta Mishra
Pronounced on: 02.11.2022
Read Judgment @Latestlaws.com:
Picture Source :
