Niranjan Ojha & Ors vs Background Involving The Case Is ...
2022 Latest Caselaw 1362 Ori

                 ORISSA HIGH COURT : C U T T A C K

                               OJC NO.14457 OF 1996

     In the matter of an Application under Articles 226 & 227 of the Constitution of India.



Niranjan Ojha & ors.                                      :   Petitioner

                                       -Versus-

Siba Prasad Sahoo since dead, his legal heirs,
Banita Sahoo & ors.                                       :    Opp.Parties


For Petitioner                         :       Mr.S.K.Dash, Adv.

For Opp.Party Nos.1 to 13              :       None

For Opp.Party Nos.14 to 16             :       Mr.R.P.Mohapatra, AGA

                        CORAM :
                        JUSTICE BISWANATH RATH

                      Date of hearing & Judgment : 16.02.2022


1.         Background

involving the case is that the land Register in

respect of L.R. Plot No.2525/2799 measuring an area Ac.0.02 decs. was

prepared in the name of the deceased father of Petitioner No.1, namely,

Dhaneswar Ojha and others based on the Record of Rights published by

the Major Settlement Authority. There was no objection to such

recording. However, O.Ps.1 & 2 raised objection under Section 9 of the

O.C.H. & P.F.L. Act, 1972 (herein after called as "Act, 1972) by way of

Objection Case No.889/1981 asking the Authority for changing the

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classification of the said Plot from Gharabari to Rasta and to note their

easementary right of pathway over the same by claiming that the said

piece of land is the only passage to approach their Plot No.2527 from the

public road. This Objection Case was disposed of by the Competent

Authority observing the right claimed by the Parties, particularly O.Ps. 1

& 2 had in fact no such easementary necessity but however directed the

land to be recorded as Sarbasadharan Khata. Being aggrieved by the

direction for particular recording, the Petitioners preferred an Appeal

before the Deputy Director of Consolidation registered as Consolidation

Appeal No.74 of 1982. In disposal of the said Appeal, the Appellate

Authority set aside the order of the Original Authority. Being aggrieved

by this order of the Appellate Authority, O.Ps.1 & 2 herein preferred a

Revision before the Commissioner, Consolidation. The Revisional

Authority while setting aside the order of the Appellate Authority in

finality of the Revision confirmed the order passed by the Original

Authority constraining the Petitioners to approach this Court by way of

O.J.C. No.711 of 1983. This Writ Application came to be disposed of on

contest by judgment of this Court on 12.1.1990 where this Court while

setting aside the orders passed by the Consolidation Authorities remitted

the matter to the Original Authority, i.e., Consolidation Officer to decide

// 3 //

the matter afresh but however preventing all the Parties to lead any fresh

evidence.

2. Mr.S.K.Dash, learned counsel for the Petitioners contended

here that looking to the nature of the direction, it appears, this Court in

remitting the matter for fresh disposal of the Consolidation Officer had

specifically formulated the Issue and asked the Consolidation Officer to

answer only in respect of such direction in fresh disposal of the

consolidation proceeding. It is pursuant to the remand order of this Court,

the original proceeding was commenced. In continuance of the original

proceeding and after remand order, it appears, O.Ps.3 to 13 herein in the

guise of Villagers filed an Application for their intervention in the main

proceeding. This Application having been rejected by the Consolidation

Officer, O.P.4, the order of O.P.14 was set aside in the Appeal and

O.Ps.3 to 13 in remand of the proceeding were added as O.Ps. In disposal

of Objection Case by order dated 14.2.1994, the Original Authority while

rejecting the claim of O.Ps.3 to 13 by final order also rejected the claim

of O.Ps.1 & 2 as finds place at Annexure-2. It is being aggrieved by order

dated 14.2.1994 passed by the Consolidation Officer, O.Ps.1 & 2 filed

Consolidation Appeal No.45 of 1994 on the file of O.P.5, Deputy

Director, Consolidation. Learned counsel for the Petitioners claimed, this

Appeal was only at the instance of O.Ps.1 & 2 and there was no challenge

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to such order any further by O.Ps.3 to 13 construed the claim of O.Ps.3 to

13 to come to an end with an order of rejection of their claim. It is in

hearing of the Appeal, Mr.Dash, learned counsel for the Petitioners taking

this Court to the appellate order contended that when the Appellate

Authority came to confirm the order of the Consolidation Officer in

respect of the claim of O.Ps.1 & 2 has involved itself in a third case,

particularly a case of none involved in the Appeal and thereby entering

into confusion in the closure of the Appeal remitted the matter to the

Consolidation Officer to come to find the status or title over the Parties

additional land of Ac.0.01 dec. awarded in favour of the Petitioners.

Taking this Court to the clear direction of this Court in disposal of the

Writ Application and the end direction of the Appellate Authority,

Mr.Dash, learned counsel for the Petitioners contended that the Appellate

Authority not only exceeded the limitation in the disposal of the

Objection Case for the end direction of this Court but the Appellate

Authority even entered into a third case. It is here learned counsel for the

Petitioner objected to such finding of the Appellate Authority being

contrary t5o even direction of the High Court in disposal of the Writ

Petition. This part of the finding of the Appellate Authority in his

challenge in the Revision and the Revisional Authority dismissed the

Revision No.650/1995without appreciating the challenge by the

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Petitioners on the Appellate Authority's order being contrary to the

direction of this Court. Taking this Court to the direction part of this

Court, learned counsel for the Petitioners contended that once the High

Court has remitted the matter giving specific direction and the manner of

disposal, the Appellate Authority has no business to exceed the same. It is

contended that after confirming the order of the Consolidation Authority,

the Appellate Authority ought to have stopped its hand there. It is in the

circumstance, Sri Dash, learned counsel for the Petitioners contended,

both the appellate order and the Revisional order become bad for being

contrary to the direction of this Court. It is in the above view of the

matter, learned counsel for the Petitioners requested this Court for

allowing the Writ Application thereby setting aside the particular part of

the Appellate Authority's order and setting aside the revisional order in

allowing the Writ Application.

3. Mr.R.P.Mohapatra, learned Additional Government Advocate

appearing for O.Ps.14 to 16 even though attempted to justify the order

appellate order and the revisional order but unable to differ from the

claim of the Petitioners that once the High Court has directed the Original

Authority to adjudicate the proceeding in a particular manner, there was

no scope for the Appellate Authority or the Revisional Authority to

// 6 //

decide contrary and/or beyond the scope available under the remand

order.

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

of the remand order of this Court in disposal of O.J.C. No.711 of 1983,

this Court finds, the Division Bench of this Court in remand of the matter

to the Original Authority has specifically framed the question of

determination, i.e., "as to whether O.P.Nos.1 and 2 have any right of

easement of necessity over Plot No.2799". This Court here also finds,

while remitting the matter, this Court in the said judgment has also come

to observe that fresh adjudication of the matter will have a clear

restriction and to decide such question within the available materials. It

be stated disposal of the Writ Application, this Court had made it clear

that its judgment will not in any way restrict any member of the Public to

agitate the question regarding the land being a public road if they are

otherwise entitled to do so. It is for this observation only, it appears, there

has been Application for Intervention by private Opp.Party Nos.3 to 13

but however the claim of the Intervenors having been rejected by the

Original Authority and being confirmed by the Appellate Authority, there

is no such issue surviving.

5. It is coming back to the Issue involved, particularly, the

challenge to the Appellate Authority's order in exceeding its exercise to

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the direction part of this Court, this Court reading through the observation

herein above and the end part of the direction in the judgment and

particularly keeping in view the decision of the Original Authority, the

Consolidation Officer, vide Annexure-2 finds, there is no difficulty in the

exercise of jurisdiction by the Consolidation Officer, which is well within

the restriction by this Court in disposal of the Writ Application. However

in reading the appellate order under Annexure-3 challenged herein above,

particularly to the extent if the Appellate Authority is justified in entering

into the third case and giving a direction to the trial court to find out the

status and title over the extra measuring Ac.0.01 dec. of land awarded to

the Respondents, the present Petitioners, this Court for the discussions

herein above finds, the Appellate Authority was restricted to exercise its

jurisdiction only on the Issue remitted by this Court. It is thus observed,

the direction with regard to the Consolidation Officer finding the status

and title over the extra land of Ac.0.01 dec. awarded to the present

Petitioners was a non-Issue and there has been unnecessary entering into

such issues by the Appellate Authority. This Court finds, the observation

and/or direction with regard to finding out the status and title over the

extra measuring Ac.0.01 dec. of land being unwarranted not sustainable.

Here taking into consideration the allegation also involving the

Revisional Authority, for the observation of this Court herein above, this

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Court finds, the Revisional Authority failed in exercise of its duty in

deciding a very important issue involved therein. For this Court already

setting aside the particular part of the appellate order, the revisional order

must go.

6. It is thus while confirming the part of the order of the Appellate

Authority in confirmation of the order of the Consolidation Officer, this

Court interferes with the part of the direction issued by the Appellate

Authority to examine the status and title over the extra measuring Ac.0.01

dec. of land awarded to the present Petitioners. This Court also sets aside

the judgment under Annexure-4.

7. The Writ Application thus succeeds. There is however no order

as to cost.

Sd./-

...............................

(Biswanath Rath, J.)

Orissa High Court, Cuttack.

The 16th February, 2022/M.K.Rout, A.R.-cum-Sr.Secy.

True Copy

A.R.-cum-Sr.Secy.