Delhi High Court
Basudev Nayak vs Joint Commissioner on 3 January, 2014
Author: A.K.Rath
W.A. No.105 of 2013
BEFORE
HON'BLE THE CHIEF JUSTICE MR.A.K. GOEL
HON'BLE DR. JUSTICE A.K.RATH
For the appellant : Mr.Rajkishore Sahoo,
Advocate.
.
02. 3.1.2014 ORDER
(Dr. A.K. Rath, J.)
Challenge is made to the order dated 26.3.2013
passed by the learned Single Judge in WP(C) No.3942 of 2013,
whereby and whereunder the learned Single Judge quashed the
order dated 31.10.2011 passed by the Additional Commissioner,
Settlement & Consolidation, Cuttack in Revision Case No.456 of
2006 vide Annexure-8 as well as the order dated 17.1.2013
passed in Remand Revision Case No.456 of 2006 by the
Additional Sub-Collector, Cuttack under Annexure-10 and
remitted the matter back to the Joint Commissioner of Settlement
& Consolidation, Orissa, Cuttack for reconsideration of Revision
Case No.456 of 2006 on merits after giving opportunity of being
heard to the parties.
2. Appellants are the successors-in-interest of late
Padmabati Nayak. Respondent no.4 filed Revision Case No.373
of 1986 against Padmabati. The said revision was dismissed as
not maintainable by order dated 17.8.1988. Thereafter respondent
nos.4 and 5 filed Revision Case No.456 of 2006.
3. Mr.Sahoo, learned counsel for the appellants
submits that by the time Revision Case No.456 of 2006 was filed,
Padmabati was already dead and the notice issued to Padmabati
was returned un-served with endorsements by the process server
that she died in the meantime. But then the Addl. Commissioner,
Settlement and Consolidation, Cuttack by order dated 31.10.2011
remanded the matter to the Additional Sub-Collector-cum-C.O
Circle, Cuttack Sadar. He further submits that in the order dated
31.10.2011, it was observed that opposite party-Padmabati was
found absent on repeated calls despite sufficient notice and thus
the order is without application of mind. Mr.Sahoo further
submits that after remand, the matter was taken up by the C.O.
Petitioners were substituted as legal heirs of Padmabati. Pursuant
to issuance of notice, the petitioners appeared before the C.O.
and filed the writ application challenging the orders under
Annexure-8 and 10 respectively.
4. In course of hearing of the writ application, learned
counsel for the opposite parties 4 and 5 admitted that the order
dated 31.10.2011 in Revision Case No.456 of 2006, vide
Annexure-8, was passed against a dead person. Taking note of
the submission of the respective counsel for the parties, learned
Single Judge quashed the order dated 31.10.2011 passed by the
Additional Commissioner, Settlement and Consolidation, Cuttack
in Revision Case No.456 of 2006, vide Annexure-8, and the
order dated 17.1.2013 passed by the Additional Sub-Collector,
Cuttack in Remand Revision Case No.456 of 2006, Annexure-10.
Thereafter, the matter was remitted back to the Joint
Commissioner of Settlement & Consolidation, Orissa, Cuttack.
In the absence of any perversity or illegality of the order passed
by the learned Single Judge, it is not possible on our part to
interfere with the same.
6. In course of hearing, Mr. Sahoo cited the decision
of the apex Court in the case of Mansaram v. S.P.Pathak and
others, AIR 1983 SC 1239 and the decisions of this Court in the
cases of Gulzar Khan v. Commissioner of Consolidation and
others, 1993 (II) OLR 194, Bruti Pradhan & another v.
Rampriya Pradhan (died) Prasanna Pradhan & others, 2011 (I)
CLR 923, Sri Pratap Patnaik v. Commissioner, Consolidation
and Settlement, Orissa, Bhubaneswar & others, 2009 (II) CLR
869, Shri Abhaya Charan Mohanty v. State of Orissa and others,
2003 (Supp.) OLR 882 and Jogendra Jena and another v.
Krushna Jena and another, 2012 (I) CLR 902.
7. It is open to the appellants to cite all those
decisions before the Joint Commissioner of Settlement &
Consolidation, Orissa, Cuttack. Since the learned Single Judge
granted time to the appellants to appear before the Joint
Commissioner of Settlement & Consolidation, Orissa, Cuttack on
30.4.2013, we extend the said date and direct the appellants to
appear before him by 31st January, 2014. After their appearance,
the Joint Commissioner of Settlement & Consolidation, Orissa,
Cuttack shall hear the matter afresh on merits after giving an
opportunity to the parties.
With the aforesaid observation, the writ appeal is
disposed of.
....................... .........................
Judge Chief Justice
pks
