Dr.Rabindra Kumar Sahoo & Anr vs State Of Orissa & Ors
2022 Latest Caselaw 7101 Ori

          ORISSA HIGH COURT : C U T T A C K
                        W.P.(C) NO.9429 OF 2007
                   An application under Articles 226 & 227 of
                        the Constitution of India.


Dr.Rabindra Kumar Sahoo & anr.                      : Petitioners

                                -Versus-

State of Orissa & ors.                              : Opposite Parties


      For Petitioners                  : M/s.S.P.Mishra, Sr.Adv.,
                                         S.P.Mohanty, G.Majhi,
                                         A.K.Nanda & G.N.Rana

      For O.Ps.1 to 3                  : Mr.S.Ghosh, AGA

      For O.P.4                        : Mr.L.K.Moharana, Adv.

      For O.Ps.6(a) to 6(c), 7 & 8     : Mr.S.S.Mohanty & G.Sahu

                                JUDGMENT

CORAM :

JUSTICE BISWANATH RATH

Date of Hearing & Judgment : 6.12.2022

1. This case has a checkered history. On 7.1.1954, Mangara Oram,

S/o.Suna Oram sold Ac.0.16 decimals of land to the father of Petitioner

No.1 under RSD No.10/1954. On 18.1.1955, one Sukra Oram sold a

portion of his land, i.e., Ac.0.16 decimals of land jointly to the father of

the Petitioners by unregistered sale deed dated 18.1.1955. It appears, the

// 2 //

father of the Petitioners constructed their residential houses over the

same. Kalia Oram S/o.Mangara Oram in 1968 filed Misc. Case

No.25/1968 before O.P.3 under Regulation-2 of 1956, which matter came

to be dropped on the ground that the transaction involved therein was

prior to coming into force of Regulation-II of 1956. Misc. Case

No.139/1976 was again brought by Kalia Oram before O.P.3, which was

also dropped vide order dated 3.9.1977 on the ground that the proceeding

got hit by principle of Res Judicata. Kalia Oram again brought Revenue

Misc. Case No.3/1979 before O.P.3 alleged to be in suppression of

dismissal of earlier proceeding. This matter was again dropped, vide

order dated 4.1.1982. Being aggrieved, Kalia Oram preferred an Appeal

registered as Revenue Appeal No.4/1982. It is alleged, even though the

then O.P.2 at some point of time heard the Appeal but did not deliver the

order. It is only his successor delivered the order. Being aggrieved by

such illegal flaw, the Writ Application bearing O.J.C. No.3900/1987 was

brought to the High Court. Realizing the illegal flaw at the instance of the

Public Authority in handling the Appeal process, this Court by order

dated 12.11.1992 interfered in the appellate order and remanded the

proceeding in Revenue Appeal No.04/1987 for fresh hearing and

disposal. The appeal proceeding came to be freshly disposed of on

21.3.2007, vide Annexure-2 involving a remand order impugned herein.

// 3 //

2. Mr.S.P.Mishra, learned senior counsel appearing for the

Petitioners, non-Tribes taking this Court to the dispute involving the

earlier proceedings claimed that since the Appeal involves the very same

properties, the Appellate Authority ought to have considered on the

application of principle of Res Judicata applying there. It is for no such

consideration, reading through the observation of the Appellate

Authority, Mr.Mishra, learned senior counsel, claimed, the impugned

order becomes illegal.

3. Mr.L.K.Moharana, learned counsel for the contesting O.P.4, on the

other hand, taking this Court to the properties involved in the previous

proceedings claimed that in the last round of litigation, the Regulation-II

Proceeding involved in the Appeal disposed of, vide Annexure-2, did not

involve the property already involved in the Proceedings and claimed, the

matter was disposed of rightly. It is claimed, there is no material support

to the Petitioners in the Appeal Proceeding to claim application for

principle of Res Judicata.

4. This Court finds, there is rival contention of the Parties. One Party

when claims the Regulation-II Proceeding is ultimately undertaken in

Appeal exercise involved properties already involved in the previous

Regulation-II Proceedings, the other Party counters such submission and

claims, the Regulation-II Proceeding involved in the Appeal involved

herein did not involve the same property.

// 4 //

5. In course of hearing, on perusal of the pleadings available, this

Court since did not find any trace involving the property involved, in

number of previous round of litigation, on asking both sides, this Court

finds, both sides even failed in bringing any such material, more

particularly, at least establishing that there is particular property involved

in the previous round of litigation.

6. Considering the rival contentions of the Parties and on perusal of

pleadings in Appeal, this Court nowhere finds any material to satisfy the

Appeal again involved the properties already involved in the previous

litigations. Parties in contest even fail to throw light on this aspect

through material available on Record at least. In the circumstance, while

finding no scope to interfere with the appellate order, for a remand order

involved, this Court finds, both sides should not lose the scope of

agitating the grounds herein. This Court here finds, the moot question

required to be considered in the Regulation-II Proceeding as to "whether

the Proceeding involved in the Regulation-II Proceeding is hit by the

principle of Res Judicata ?" In absence of cogent material throwing light

on such issue, considering the Appellate Authority already remanded the

Proceeding for fresh adjudication, for the opinion of this Court, there will

be proper exercise in answering the question indicated herein above, if it

involved the exercise of the Original Authority, both Parties have no

objection to the same.

// 5 //

7. In the circumstance, this Court while declining to interfere with the

impugned order passed by the Appellate Authority and thereby

confirming the order of remand directing the Original Authority

undertaking the fresh exercise in Misc. Case No.3/1979 to freshly dispose

of the same but in the involvement of the Petitioner and the private O.Ps.

herein, for there is requirement of a greater question being answered by

the Original Authority, both the Parties are at liberty to bring further

materials to establish on the property involved aspect involving all the

concluded proceedings as well as involving the case at hand to satisfy

their case on the question framed herein. If necessary, there may be also

provision of recording of evidence of both the Parties.

8. This Court further observes, while determining the issue involving

Misc. Case No.3/1979, for there is pleading that there has been some

construction over the disputed property and Petitioners are in occupation

of such properties, the Original Authority shall also keep in mind the

direction of the Hon'ble Supreme Court in the case of Amarendra Pratap

Singh vrs. Tej Bahadur Prajapati & ors : reported in 98(2004) CLT 19

(SC) in working out the benefit ultimately.

9. In view of the direction herein above, both the Parties are directed

to appear before the Original Authority with a copy of this judgment on

19.12.2022. The further proceeding involving Misc. Case No.3/1979 shall

also be concluded at least within a period of four months from the date of

// 6 //

appearance of the Parties. It is also observed, if either of the Parties raises

any question for determination therein should file memo indicating such

question required to be decided. The Original Authority shall frame

appropriate Issues and the ultimate outcome shall also involve all such

Issues.

10. The Writ Petition though is dismissed but with directions herein

above. No costs.

(Biswanath Rath) Judge

Orissa High Court, Cuttack.

The 6th December, 2022/M.K.Rout, A.R.-cum-Sr.Secy.