Bhramarbara Sahoo & Ors vs State Of Orissa
2021 Latest Caselaw 11321 Ori

              IN THE HIGH COURT OF ORISSA AT CUTTACK

                          O.J.C. NO.16656 OF 2001
AFR   In the matter of an application under Articles 226 & 227 of the
      Constitution of India

          Bhramarbara Sahoo & Ors.                ....            Petitioners



                                       -versus-


          State of Orissa, represented through    ....      Opposite Parties
          the Secretary, Revenue Office at
          Secretariat, Bhubaneswar & Ors.
          .

                For Petitioners:            Mr. B.N.Bhuyan, S.K.Panda,
                                                R.Ray, A.Samal &
                                                D.K.Parida

                For Opp.Parties:           Mr.U.K.Sahoo, ASC
                                                  (O.P.No.1)
                                           Mr.Prabhav Behera, on half of
                                             Mr.D.K.Mishra, S.C.Mohanty,
                                             G.K.Nayak & R.Mahalik,
                                                          (O.P.No.2)

                                   JUDGMENT

PRESENT:

THE HONOURABLE MR.JUSTICE BISWANATH RATH Date of Hearing & Judgment: 05.11.2021

1. This writ petition involves the following prayer:

"Under these circumstances the petitioners pray that your Lordships would be graciously pleased to

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admit this writ petition, call for the records from the Courts below and after hearing;

i) issue Rule NISI in the nature of a writ of mandamus and/or any other writ commanding the Opp.

Parties to show cause as to why the order passed by the Consolidation Officer, Gop-Kakatpur as per Annexure- 5 and that of the Commissioner, Consolidation, Bhubaneswar as per Annexure-7 shall not be quashed;

ii) If the Opp. Parties fail to show cause or show insufficient cause the said rule be made absolute against them by quashing Annexures-5 and 7;

iii) Any other writ/writs, order/orders, direction/ directions which would be deemed fit and proper in the present facts and circumstances of the case be also issued/passed;

iv) Cost of the writ application be awarded in favour of the petitioners;

v) Any other relief/reliefs to which the petitioners are found entitled be also passed in their favour;

And for this act of kindness the petitioner as in duty bound shall ever pray."

2. Undisputedly, the impugned order involved in four sets of

revision petitions involving Revision Petition Nos.101 of 1998 to

117 of 1998, appears to have been filed under Section 36 of the

Orissa Consolidation of Holdings and Prevention of Fragmentation

of Land Act, 1972 (for short "the Act, 1972) being aggrieved by the

appellate order involved therein whereas Revision Petition Nos.161

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of 1998 to 168 of 1998 appear to be direct applications under

Section 37(1) of the Act, 1972.

3. Mr.Bhuyan, learned counsel appearing for the

petitioners involved herein in challenge to the common order

under Annexure-7 in disposal of both the sets of revision

petitions under Section 36 and 37(1) of the Act, 1972 raises a

technical ground on the maintainability of the order at Annexue-

7 on the premises that for the nature of revisions, first set of

revisions under Section 36 of the Act, 1972 and other set of

revisions since proceeded under Section 37(1) of the Act, 1972,

the revisional authority should have decided two sets of revisions

independently and not together. Mr.Bhuyan, learned counsel for

the petitioners again taking to the scope of revision under

Section 36 as well as 37(1) of the Act, 1972 attempted to submit

that power of the revisional authority under both the provisions

are completely distinguishable. Measure of consideration of

both the revisions is also completely different. For the provision

under Section 36 of the Act, 1972, it is submitted that the

revisional authority is required to assess the order of the

appellate authority and give its finding undisputedly in exercise

of limited exercise of power whereas for the restriction in the

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provision under Section 37(1) of the Act, 1972, Mr.Bhuyan,

learned counsel for the petitioner submitted that law has been

fairly settled that this provision provides a suo motu power to the

revisional authority and in worse case there may be revision

under Section 37(1) of the Act, 1972 after final publication of

Record-of-Right where the parties did not get scope of objection

case and appeal as well as revision under Section- 9, Section-15

and Section-36 of the Act, 1972 respectively. It is in the above

premises, Mr.Bhuyan, learned counsel for the petitioners

submitted that the impugned order remains unsustainable and,

therefore, this Court should interfere in the impugned order and

set aside the same.

4. Mr.Sahoo, learned Additional Standing Counsel for the

State-opposite party referring to paragraph-2.0 at running page

107 of the brief though supported the findings in the revision

but, however, unable to dispute the legal provision and the

restriction with the revisional authority in such exercise being

raised by Mr.Bhuyan, learned counsel for the petitioners.

Mr.Prabhav Behera, learned counsel appearing on behalf of

Mr.D.K.Mishra, and others for opposite party no.2 also

supports the stand taken by the State counsel and claims for

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dismissal of the writ petition thereby upholding the order vide

Annexure-7.

5. Considering the rival contentions of the parties, this

Court takes note here the provisions under Section 36 and 37(1)

of the Orissa Consolidation of Holdings and Prevention of

Fragmentation of Land Act, 1972;

36. Revision-(1) The Consolidation Commissioner may, on an application by any person aggrieved by any decision of the Director of Consolidation within ninety days from the date of the decision, revise such decision and for the said purpose, he may call for and examine the records;

(2) All orders passed under this section shall be final and shall not be void in question in any Court of law.

37. Power to call for records- (1) The Consolidation Commissioner may call for and examine the records of any case decided or proceedings taken up by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings or as to the correctness, legality or propriety of any order passed by such authority in the case or proceedings and may, after allowing the parties concerned a reasonable opportunity of being heard make such order as he thinks fit.

(2). The power under Sub-section (1) may be exercised by the Director of Consolidation in respect of authorities subordinate to him.

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Reading both the provisions and taking into

consideration the submission of Mr.Bhuyan, learned counsel for

the petitioners and counter objection by the counsels

representing contesting opponents, this Court finds for the

provision at Section 36 of the Act, 1972, there should not be

any dispute or doubt that such a revision power is exercised

involving orders in objection case ended up in appeal involved

therein involving a limited exercise of power by the revisional

authority, whereas revision under Section 37(1) of the Act,

1972 is a direct revisional provision being exercised by the

Commissioner as a revisional authority. Looking to the settled

position of law decided in the cases of O.J.C.Nos.3029, 6489

and 6490 of 1999, this Court finds considering the scope of

revision under Section 37(1) of the Act, 1972, this Court has

already settled the scope of revisional authority here is very

very restricted and limited and there is clear distinctions

between both the provisions categorically observing therein that

revision under Section 37(1) of the Act, 1972 is a suo motu

revisional power where the revisional authority calls for record

for examining the orders of the lower authority. The other

opinion appearing in such exercise shows there may be a

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revision under Section 37(1) of the Act, 1972 after a final

publication under Section 41 of the Act, 1972 where there is no

further scope of objection or appeal and revision also.

6. This Court further looking to the plea of the parties in

the revision under Section 37(1) of the Act, 1972 available

herein, finds the sole ground of filing of revision, petitioners

involved therein cannot get a scope to object in the objection

proceeding, for the opinion of this Court, nothing prevented to

such parties to even either prefer appeal under Section 19 of the

Act, 1972 and or prefer revision under Section 36 of the Act,

1972 taking leave of the authority if at all they were aggrieved

by the orders in objection raised or in the appeal involved

therein, as the case may be. For not satisfying any such

contingency, this Court finds there should have been a separate

consideration of the provision under Section 37 of the Act,

1972 after entering into the question of entertainability of

Revision Case No.161 of 1998 to Revision Petition No.168 of

1998 filed under Section 37 of the Act, 1972 and deciding such

revisions independently. It is in this view of the matter, this

Court finds, taking both the sets of revisions under Section 36

of the Act, 1972 as well as Section 37(1) of the Act, 1972

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together not only becomes bad but there is also gross abuse of

power being exercised by the revisional authority.

6. In the circumstances, this Court finds impugned order

vide Annexure-7 ought to be declared bad as not maintainable

in the eye of law. However, keeping in view the above

observation, the first set of litigations since requires

considering the validity of the appellate order, interfering in

this part of order involving Revision Nos.101 of 1998 to 117 of

1998, this Court remits the Revision Nos. 101 of 1998 to 117

of 1998 and directs the Commissioner, Consolidation, Orissa to

decide Revision Petition Nos.101 of 1998 to 117 of 1998 in

exercise of power under Section 36 of the Act, 1972 afresh.

Further, Revision Petition Nos.161 of 1998 to 168 of 1998, for

the observation of this Court since not entertainable in the eye

of law, 2nd set of revision Nos.161 of 1998 to 169 of 1998

deemed to have been dropped as not entertainable and leaving

the petitioners involved therein to approach under any other

available provision. Considering there is also involvement of a

civil proceeding culminated vide S.A.No.98 of 1986, this Court

grants liberty to both sets of counsel to bring such aspect to

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the notice of the revisional authority during process of remand

hearing.

7. With this observation and direction, the order at

Anenxrue-7 sets aside. Revision Nos. 101 of 1998 to 117 of

1997 are remitted back with a direction to the revisional

authority to decide this set of revisions independently and

keeping in view the direction given hereinabove. Parties are

also at liberty to produce the certified copy of this judgment at

least within a period of 10 days with their appearance before

revisional authority and the revisions indicated hereinabove are

directed to be disposed of afresh in terms of the direction

made hereinabove within a period of six months thereafter.

8. In the result, the writ petition succeeds but to the extent

hereinabove. However, there is no order as to cost.

(Biswanath Rath) Judge

Orissa High Court, Cuttack The 5th day of November, 2021/sks.