Orissa High Court
Rajkishore Bag And Others vs Om Prakash Agrawal And Others on 3 March, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. No.376 of 2010
Rajkishore Bag and others .... Appellants
Mr. S. K. Mund, Advocaete
-versus-
Om Prakash Agrawal and others .... Respondents
Mr. P. K. Rath, Respondent No.1 and AGA
CORAM:
THE CHIEF JUSTICE
JUSTICE A. K. MOHAPATRA
ORDER
03.03.2022
Order No.
17. 1. This writ appeal is directed against an order dated 14th
December, 2009 passed by the learned Single Judge in W.P.(C)
No.9885 of 2009 filed by Respondent No.1.
2. While directing notice to issue in the present appeal on 3 rd
February, 2011, this Court stayed the operation of the impugned
order.
3. The case of the Appellants is that the land in Khata No.56 of
Mouza-Junagarh was originally recorded in the name of their
grandfather late Radhakrushna Domb. Their case is that the land
was 'Jagiri' land and was possessed by late Radhakrushna Domb
for holding the office of 'Badyakar' i.e. a village office.
Thereafter, according to them, the land vested in the Government
of Orissa upon abolition of the village office. Subsequently, Sri
Kartikeswar Bag, the father of the present Appellants and the son
of late Radhakrushna Domb applied for settlement of the land in
his favour and in Maffi Misc. Case No.21 of 1969-70, the
Tahasildar, Dharamgarh by an order dated 25th December, 1970
settled the land in favour of the late Kartikeswar Bag.
4. The case of Respondent No.1 i.e. the writ Petitioner was that
he had purchased lands from the same Khata number from late
Kartikeswar Bag by sale deeds dated 22nd February, 1965 and
16th December, 1969. During revenue collection in 1973, the
Tahasildar found Respondent No.1 to be in possession of the
aforementioned lands. Accordingly, he initiated a Mutation Case
No.1095 of 1973 and by an order dated 20th August, 1973
allowed the Mutation Case. According to Respondent No.1,
despite the Mutation Case being allowed, the Record of Rights
(ROR) was not corrected. After the bifurcation of the Tahasil
and formation of the Tahasil of Junagarh, the Tahasildar,
Junagarh corrected the RoR in favour of Respondent No.1 on
14th July, 2008.
5. The further case of Respondent No.1 was that 35 years after
the original mutation being allowed, the legal heirs of
Kartikeswar Bag applied to the Tahasildar, Junagarh objecting
the correction of the ROR. Upon this, the Tahasildar by an order
dated 29th June, 2009 cancelled the correction of the ROR.
Challenging the said order, W.P.(C) No.9885 of 2009 was filed
by Respondent No.1 against the State Authorities without
impleading the present Appellants as parties.
6. By the impugned order, the learned Single Judge allowed the
writ petition and quashed the order dated 29 th June, 2009 of the
Tahasildar, Junagarh.
7. This Court has heard the submissions of Mr. S. K. Mund,
learned counsel appearing for the Appellants and Mr. P. K. Rath,
learned counsel appearing for the Respondent No.1.
8. The first ground urged by Mr. Mund was that the impugned
order had been passed without impleading the present Appellants
as parties although they were directly affected and it was on their
application that the mutation was cancelled by the Tahasildar,
Jhunagarh. He further pointed out the review petition filed by the
present Appellants before the learned Single Judge was
dismissed by an order dated 25th October, 2010 and, therefore,
the present appeal was filed.
9. Relying on the observations of the Supreme Court of India in
Prabodh Verma v. State of Uttar Pradesh AIR 1985 SC 167, it
is submitted by Mr. Mund that the learned Single Judge ought
not to have proceeded to hear the writ petition in question
without impleading the present Appellants.
10. Mr. Rath, learned counsel appearing for Respondent No.1,
on the other hand, submits that since the present Appellants were
not made parties in the writ petition, they could not have
maintained the review petition before the learned Single Judge.
He submits that even the present appeal could have been filed
only with the leave of the Court, which was not done. According
to Mr. Rath, the only option available to the Appellants was for
them to have filed an application before the learned Single Judge
seeking recall of the order dated 14th December, 2009 and for
being impleaded in the writ petition.
11. The fact of the matter is that the order dated 29th June, 2009
passed by the Tahasildar in Mutation Case No.1095 of 1973
were as a result of the application filed by the present
Appellants. They were therefore obviously necessary and proper
parties to the writ petition. As observed by the Supreme Court in
Prabodh Verma (supra) "A High Court ought not to hear and
dispose of a writ petition under Art. 226 of the Constitution
without the persons who would be vitally affected by its
judgment being before it as respondents or at least some of them
before it as respondents in a representative capacity if their
number is too large to join them as respondents individually,
and, if the petitioners refuse to so join them, the High Court
ought to dismiss the petition for non-joinder of necessary
parties."
12. When the Appellants filed the review petition, the learned
Single Judge could have easily treated it as an application for
recall since the failure to hear them before passing the impugned
order was clearly an error on the face of the record. The learned
Single Judge was in error therefore in simply dismissing the
review petition.
13. On the above short ground, without expressing any view
whatsoever on the merits of the respective contentions of the
parties, the Court is of the view that the present Appellants ought
to have been impleaded by the Respondent No.1 in W.P.(C)
No.9885 of 2009. The impugned order dated 14th December,
2009 passed by the learned Single Judge without hearing the
present Appellants is erroneous in law.
14. Consequently, the impugned order dated 14th December,
2009 of the learned Single Judge is hereby set aside and W.P.(C)
No.9885 of 2009 is restored to the file of the learned Single
Judge. The said petition will now be listed before the learned
Single Judge on 18th April, 2022 on which date both the present
Appellants, who stand impleaded under order of this Court as
Opposite Parties 3 to 6 therein, will appear through their counsel
ready with their para-wise reply to the writ petition after serving
advance copy thereof on Respondent No.1, who is the Writ
Petitioner. It would be open to Respondent No.1 to file his
rejoinder thereto within the time granted to him for that purpose
by the learned Single Judge.
15. Considering that the writ petition is over a decade old, the
learned Single Judge is requested to endeavour to dispose it of
within a period of six months.
16. Till disposal of the writ petition, the present Appellants as
well as Respondent No.1 herein (the writ Petitioner) shall
maintain status quo in respect of the lands in question.
17. Leaving all the contentions of the parties open to be urged
before the learned Single Judge in accordance with law and
directing the parties to extend full cooperation to the learned
Single Judge by not seeking unnecessary adjournment, the writ
appeal is allowed in the above terms.
18. An urgent certified copy of this order be issued as per rules.
(Dr. S. Muralidhar)
Chief Justice
(A. K. Mohapatra )
Judge
M. Panda
