Kumaresh Chandra Nayak vs The Collector
2021 Latest Caselaw 8500 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK
                                W.P.(C) No.21200 of 2018
               Kumaresh Chandra Nayak               ....            Petitioner
                                           Mr.Asok Mohanty, Sr. Advocate
                                         -versus-
               The Collector, Jajpur and others ....             Opp. Parties
                                    Miss. P. Naidu, Advocate for O.P. No.4
                                    Mr. S.S. Rao, Sr.Advocate for O.P. No.6
                                Mr. H.S. Mishra, Sr. Advocate for O.P. No.3

                        CORAM:
                        THE CHIEF JUSTICE
                        JUSTICE S.K. SAHOO
                                     ORDER

Order No. 13.08.2021 I.A. No.4141 of 2019

06. 1. This matter is taken up through video conferencing mode.

2. This is an application by Sri Bhagyadhar Biswal, Opposite Party No.3 in W.P.(C) No.21200 of 2018 seeking recall of the judgment dated 20th December, 2018 passed by this Court disposing of the aforementioned writ petition. The present application has been filed pursuant to the leave granted by the Supreme Court of India by an order dated 11th February, 2019 in SLP (C) No.4029-30 of 2019.

3. The background to the present application is that W.P.(C) No.21200 of 2018 was filed by the Petitioner Kumaresh Chandra Nayak, a member of the Shree Ananta Gopal Bhakta Samaja Seva Sangha, challenging an order dated 24th November, 2018 passed by the Collector, Jajpur (O.P. No.1) restraining him from entering the temple premises of Chhatia

Bata and to offer prayers. In the said writ petition the Sub- Collector, Jajpur was arrayed as Opposite Party No.2 and the present Applicant as Opposite Party No.3. The Commissioner of Endowments was Opposite Party No.4. Opposite Parties 5 to 8 were the sons of late Rama Chandra Dash who claimed to be manimas/trustees.

4. Even when the aforementioned writ petition was listed first on 19th December 2018 for hearing, a caveat petition had been filed on behalf of the present Applicant i.e. Opposite Party No.3. He was represented by Sri Manoj Kumar Mishra, learned Senior Advocate. The order passed on 19th December 2018 reads as under:

"Mr. Ashok Mohanty, learned Senior Advocate enters appearance on behalf of the petitioner. Mr. Manoj Kumar Mishra, learned Senior Advocate submits that he has instruction to appear on behalf of the private opposite parties nos.5 to 8. Let a copy of the writ petition be served on Mr. Manoj Kumar Mishra, learned Senior Advocate as well as on Mr. A.K. Nath, learned counsel appearing for the Endowment Commissioner, opposite party no.4 in course of the day. List this matter tomorrow (20.12.2018) indicating the names of Mr. Ashok Mohanty, Mr. Manoj Kumar Mishra, learned Senior Advocates as well as Mr. A.K. Nath in the cause list."

5. Although the above order mentioned that Mr. Manoj Kumar Mishra was appearing on behalf of Opposite Parties 5 to 8, he was in fact appearing for Opposite Party No.3, i.e., the present

Applicant. Accordingly, I.A. No.248 of 2019 was filed by Opposite Party No.3 before this Court seeking correction of the above order dated 19th December, 2018 to reflect that Sri Manoj Kumar Mishra was appearing for Opposite Party No.3 and not Opposite Parties 5 to 8. That application was allowed by a separate order dated 22nd January, 2019.

6. In the meanwhile the writ petition was disposed of along with another connected W.P.(C) No.21202 of 2018, by a common order dated 20th December, 2018. The impugned order of the Collector dated 24th November, 2018 was set aside and a direction was issued to the parties to appear before the Commissioner of Endowments who after giving hearing to the parties was expected to take "appropriate step in accordance with law as expeditiously as possible."

7. SLP (C) No.3844 of 2019 was filed in the Supreme Court by the present Applicnat, i.e., Bhagyadhar Biswal in which the following order dated 11th February, 2019 was passed by the Supreme Court:

"SLP(C) No.4029-30 of 2019 These special leave petitions have been filed against the judgment and order dated 20.12.2018 passed by the High Court, by which the High Court disposed of the writ petitions.

The grievance of the petitioner is that the High Court has set aside the order of the Collector dated 24.11.2018 without issuing any notice to the present petitioner who was impleaded as one of the respondent. We are of the view that the petitioner

may file an application before the High Court praying for recall/modification of the order. We further observe that in event the petitioner files an application before the High Court, the same may be considered and decided in accordance with law expeditiously.

The special leave petitions are disposed of."

8. It is seen that the ground on which the Supreme Court granted the Petitioner liberty to file an application in this Court for recall of the order dated 20th February, 2018 was the averment of the present Applicant i.e., Opposite Party No.3 that the High Court had by the order dated 20th December, 2018 set aside the Collector's order "without issuing any notice" to the present Petitioner "who was impleaded as one of the Respondents". It is in the above circumstances, that the Supreme Court permitted the present Applicant to file an application before this Court praying for recall/modification of the order dated 20th December, 2018.

9. It appears that the fact that the present Applicant, who was Opposite Party No.3 in the writ petition did appear on the very first day of the petition, i.e. 19th December, 2018 as well as the subsequent date i.e., 20th December, 2018 and was heard on both occasions was perhaps not brought to the notice of the Supreme Court. In any event, the present Applicant i.e. Opposite Party No.3 had filed a caveat and had appeared on both occasions, i.e. 19th and 20th December, 2018. There was no occasion, therefore, for Opposite Party No.3 to contend before

the Supreme Court that no notice was issued to him and no hearing was given. The order dated 22nd January, 2019 to correct the appearance of the learned counsel for the present Applicant as appearing in the order dated 19th December, 2018 is a further confirmation of the fact that Opposite Party No.3 was present through Advocate when the orders dated 19th and 20th December, 2018 were passed by this Court.

10. Consequently no ground is made out for recall of the order dated 20th Decvember, 2018. Since the only ground on which the recall application was permitted to be filed by the Supreme Court was the erroneous contention of the present Applicant that no notice was issued to him and that he was not heard before the order dated 20th December, 2018 was passed, no further ground can be permitted to be urged.

11. The application is accordingly dismissed.

12. An urgent certified copy of this order be granted as per rules.

(Dr. S. Muralidhar) Chief Justice

(S.K. Sahoo) Judge KC Bisoi