Orissa High Court
Md.Harun Rasid vs Md.Shakil & Ors on 27 September, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C). No.5527 of 2015
Md.Harun Rasid .... Petitioner(s).
Mr.H.K.Mund, Advocate
-versus-
Md.Shakil & Ors. .... Opposite Party(s)
Mr.S.Mishra, ASC
Mr.S.K.Rath, Advocate
CORAM:
JUSTICE BISWANATH RATH
ORDER
27.09.2022
Order No.
09 1. Heard learned counsel appearing for the parties.
2. This matter involves a decision of the competent authority in
exercise of power under the provision of Orissa Survey & Settlement
Act particularly under Section 15(b) of the Orissa Survey &
Settlement Act,1958. There is no dispute at Bar that opposite parties
have taken clear stand to support their case on the basis of Civil Court
decree finalized even in R.S.A. No.315 of 2004. It is thus accepted
that once Civil Court judgment and decree has brought on record and
coming to the rescue of the opposite parties, competent authority
should have first decided whether he still has any scope to interfere in
the matter? Thus in absence of consideration of material aspects, there
is no proper consideration involved herein.
3. Mr.S.K.Rath, learned counsel appearing for the private
opposite parties in his opposition to move of the petitioner contended
that there is no dispute that there has been reference of Civil Court
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decree by the petitioner. Taking this Court to the discussions at page
33 and 40 of the brief, Mr. Rath, learned counsel attempted to submit
that once lower authority has taken into consideration, there is
presumption that there is consideration on this aspect. Mr.Rath,
learned counsel however also submitted that the judgment and decree
involving Civil proceedings have no bearing in the dispute itself, he
thus objects the entertainability of the writ petition. Mr.Mishra,
learned Additional Standing Counsel taking support of the stand of
Mr.Rath, learned counsel also objects the entertainability of the writ
petition.
4. Considering the rival contentions of the parties, this Court finds
there is no dispute at the Bar that private opposite parties in the lower
appellate proceeding have clear indication of Civil Court judgment &
decree supporting. Apart from other documents also appearing at
page 39 & 40 of the brief. In the entire reading of the of the
impugned order, this Court finds there is absolutely no consideration
of the relevancy or irrelevancy of the Civil Court judgment and
decree involved by the authority concerned.
5. In the circumstance, this Court finds once a party take a plea
in the rescuing of his cases on the basis of some existing materials
the authority is duty bound to take into consideration of such plea
and give its finding either side but in accordance with law. In the
circumstance and for no dealing with the plea of the opposite parties
therein, this Court finds the impugned order at Annexure-5 is not
sustainable and thus ought to be interfered with. In the
circumstance, this Court interfering in the order at Annexure-5 sets
aside the same and remits the matter to the Additional
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Commissioner, Settlement & Consolidation, Sambalpur for re-
adjudication of the proceeding involved herein only to the limited
aspect, if the petitioner herein and the opposite party therein has any
right flowing through the Civil Court judgment and decree. Both
parties are directed to appear before the authority concerned on
12.10.2022 along with certified copy of this order to take date of
hearing. The fresh adjudication of the R.P.Case No.505 of 2013 in
the light of observation hereinabove shall be also completed at least
within a period of two months thereafter.
(Biswanath Rath)
sks Judge
