Durga Charan Nayak vs State Of Odisha And Ors
2023 Latest Caselaw 3399 Ori

A.F.R.         ORISSA HIGH COURT : C U T T A C K
                                 W.P.(C) NO.5042 OF 2019
                                                 &
                                  W.P.(C) NO.9426 of 2023
                              Applications under Articles 226 & 227 of
                                  the Constitution of India.


         Durga Charan Nayak                                                : Petitioner

                                             -Versus-

         State of Odisha and ors.                                  :Opposite Parties


               For Petitioner                        : Mr. B. Bhuyan, Adv.

               For O.Ps.                             : Mr. U.K.Sahoo, ASC

                                             JUDGMENT

CORAM :

JUSTICE BISWANATH RATH

Date of Hearing & Judgment : 13.04.2023

1. The W.P.(C) No. 5042 of 2019 involves the following

prayer:-

<It is therefore, prayed that this Hon9ble Court may graciously be pleased to admit this writ petition, issued notice to the opp. Parties and after hearing allow the same by setting aside the Minutes of the meeting dt. 19.11.2018 of the Jalasaya Committee under the Chairmanship of the Revenue Divisional Commissioner (Central Division), Cuttack vide Annexure-1 and direct the Tahasildar, Sadar, Cuttack for correction of Kisam of plot NO. 1755, Ac.0.13 dec. of Mutation Khata No. 1038/979 of Mouza-Gopalpur

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to Sarada from Jalasaya as per the sabik Settlement and 1973 Settlement records.

And/or any other order(s)/direction(s) as your Lordships deem fit and proper.

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

Whereas the Second Writ Petition vide W.P.(C) No.

9426 of 2023 involves the following relief:-

<It is therefore prayed that this Hon9ble Court may graciously be pleased to admit this Writ Petition, call for the records from the court below and after hearing, set aside the order dt. 04.05.2016 passed by the Joint Commissioner, Settlement and Consolidation, Odisha, Cuttack in R.P. No. 431/2012 and further pleased to pass an order directing the Tahasildar, Sadar, Cuttack (O.P. No.4) to correct the classification of Plot No. 1755, Ac 0.13 dec. of Hal Khata No. 89 ( Mutation Khata No. 1038/979) as per schedule below.

And/or any other order(s)/ direction(s) as this Hon9ble Court deem fit and proper.

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

2. There is no dispute at Bar that the decision in the first Writ

Petition shall however be guiding the second case involved herein.

This Court makes it clear in the first Writ Petition, the Petitioner

has challenged that part of the order of the Competent Authority

passed in R.P. No. 431 of 2012 recommending the case of the

Petitioner to the Committee for changing the classification of land

from Jalasaya-Eka to Sarada, even after coming to hold that there

has been mistakes crept in the preparation of Record of Rights

involved therein.

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The Second case involved herein is the outcome by the

Committee set for the purpose in working out the direction of the

Joint Commissioner, Settlement and Consolidation, Board of

Revenue, Cuttack.

3. Undisputed fact remains to be in the 1931 settlement under

Khata No. 356, Plot No. 1224, Ac0.52 dec. remained as Sarada

classification as clearly borne in Annexure-4. It is in the 1973-74

Hal settlement, it became Khata No. 463, Plot No. 1799 remained

under Sarada-Eka classification, however with the reduction of

land to Ac0.49 dec. even clearly reveals from Annexure-5. It is in

the further preparation of Record of Rights in the consolidation

operation in 2003-2004, Annexure-7 has been brought on record, it

was disclosed therein that the above plot has been numbered as Plot

No. 1755 in Jalasaya-Eka status. It is being aggrieved by this

arbitrary change in the preparation of Record of Rights vide

Annexure-7, Petitioner came to prefer an application under Section

15(b) of the O.S.S. Act on the file of Joint Commissioner,

Settlement and Consolidation, Odisha, Cuttack vide R.P. No. 431

of 2012.

4. This matter was heard on contest and disposed of vide the

impugned order at Annexure-9. Mr. Bhuyan, learned counsel for

the Petitioner in the above admitted factual background, reading

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through the order attempted to convince that in spite of the

Commissioner coming to hold that preparation of Record of Rights

vide Annexure-7 is an error apparent on the face of the record at

the side of the public Authority, however taking to the direction

part therein it was alleged that for the observation of the

Commissioner in the pre-paragraph at Page-14 that the recording

therein was a mistake on the part of the Public Authority, looking

to the nature of the claim through Section 15(b) of the O.S.S. Act

application, the Commissioner remaining under wrong impression

that the matter involving the change in status wrongly took aid of

Judgment dated 11.10.2012 in O.J.C. No. 6721 of 1999 and thereby

inadvertently referred the matter to the committee involving change

in classification of land.

5. Taking this Court to the judgment of this Court in W.P.(C)

No. 14368 of 2022, an attempt is also made to cover the direction

therein to the case at hand.

6. Mr. Sahoo, learned Additional Standing Counsel in his

opposition took this Court to the counter plea of the Opp. Party No.

6 in Paragraph-4, further reading through Paragraphs-7 and 11

attempted to bring to the notice of this Court the decision of the

R.D.C. involving the case involved herein and attempted to justify

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the decision of the Committee. There is, however, neither denial to

the preparation of Record of Rights involving selfsame land vide

Annexure-4 and 5 but in the preparation of Record of Rights vide

Annexure-7, there has been reflection in change of the status of

very same land nor there is any denial that in the proceeding under

Section 15(b) of the O.S.S. Act rightly also observing the above

before its concluding paragraph. There is also no dispute at Bar that

the judgment of this Court in W.P.(C) No. 14368 of 2022 has a

bearing to this case.

7. Considering the rival contentions of the Parties, this Court

for the undisputed recording at Annexures-4 and 5 and further on

perusal of the plea taken in the R.P. No. 431 of 2012 finds, the

Section 15(b) of the O.S.S. Act proceeding simply involved

correction of the classification of land on the premises of error

apparent on the face of the preparation of the subsequent Record of

Rights vide Annexure-7. This Court on perusal of development at

Annexures-4 and 5 finds, there is no doubt that there is error

apparent on the face of the record in preparation of Record of

Rights at Annexure-7.

8. In the circumstance, this Court finds, the Commissioner

misconstrued in appreciating that the R.P. No. 431 of 2012

involved an application for change of classification of the land by

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way of Original Application and thereby there is wrong application

of the judgment in O.J.C. No. 6721 of 1999 and W.P.(C) No. 8797

of 2004 and thereby there is wrong reference of the matter to the

Committee set up for considering and effecting the changes in

status of land from Jalasaya to that of other category. This Court

here appreciates the findings of the Commissioner at least till the

last part of direction which is taken note hereinabove as follows:-

<On verification of documents and submission made by the learned Advocate for the petitioner it is found that the sabik R.O.R. was published in the year 1931 in the names of Banchhanidhi Lenka and others in sthithiban status with kissam of land as Sarada of Plot No. 1224, Khata No.356 Ac.0.52 dec. From the sabik plot No. 1224 is concerned all the co-sharer are entitled to get ¼ th share each i.e. Ac.0.13 dec. out of Ac.0.52 dec. Ushamani Lenka the hal recorded tenant in respect of hal plot No. 1755 of Hal Khtat No. 1038/979, area Ac.0.13 dec. got the suit land through Regd. Gift Deed No. 998, dated 09.03.1938 from Krupasindhu Lenka. During Settlement operation in the year 1973 the suit plot was recorded in favour Baikuntha Lenka and other co-sharers in which Ushamani Bewa, W/o Brajabandhu Lenka one of the co-sharer. During Consolidation Operation the suit land has been recorded in the name of Ushamani Lenka W/o Brajabandhu Lenka in sthitiban status with classification- Jalasaya-Eka. Hence, the present petitioner claims to correct the classification as Sarada-Eka instead of Jalasaya-Eka. The petitioner being the legal successors in interest of deceased Ushamani Lenka and as per final decree in C.S.(I) No. 305/2009 passed by the Civil Judge(S.D) Cuttack which ended with compromise the petitioner9s mother namely Premalata Nayak got the suit land in 8Ja9 Kachha. Thereafter the petitioner mutated the suit land in 8Ja9 Kachha. Thereafter the Petitioner mutated the suit land in his favour before the learned Tahasildar, Cuttack Sadar and accordingly the R.O.R. was prepared in the names o the petitioner vide Khata No. 1038/979, Plot No. 1755, area Ac.0.13 dec. in sthitiban status with kisam Jalasaya-Eka. Hence, the present petitioner prayed for change the Kisam as Sarada-Eka instead of Jalasaya-Eka.=

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9. It is in view of clear disclosure at Annexures-4 and 5, the

previous preparation of the Record of Rights in 1931 as well as

1973-74, this Court finds, the Commissioner got justified in

observing in preparation of Record of Rights at Annexure-7 was on

the face of it wrong and contrary to the previous recordings. The

Commissioner however failed in appreciating that the R.P. No. 431

of 2012 was in limited nature only requiring a direction to bring the

status of land involved therein in terms of status of land already

shown vide Annexures-4 and 5 and it was never involved a request

to change the character of the land as a fresh case. In the

circumstance, this Court observes, there was absolutely no

application of either the judgment in O.J.C No. 6721 of 1999 and

W.P.(C) No. 8797 of 2004 to the case at hand and there is

misapplication of above decisions to the case at hand clearly

making the concluding direction of the Commissioner to the

Committee becomes bad and ought to be interfered and set aside.

10. In the circumstance, this Court finds, there was no occasion

on the part of the Commissioner in disposal of the R.P. No. 431 of

2012 to recommend the matter for a decision of the Committee to

change in the classification of land from Jalasaya-Eka to Sarada.

This Court sets aside the concluding part of the judgment/order at

Annexure-9 passed in R.P. No. 431 of 2012 and in allowing the

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R.P. No. 431 of 2012 directs for preparation of fresh Record of

Rights showing the classification of the land to be Sarada. Let the

necessary correction in the Record of Rights be made at least

within a period of one month from the date of communication of

this judgment. This Court here also finds support of the case of the

Petitioner through W.P.(C) No. 14368 of 2022.

11. For this Court setting aside the ultimate direction of the

Commissioner in R.P. No. 431 of 2012 on the footing, there is no

necessity to refer the matter to the Committee. This Court also sets

aside the order of the Committee in its meeting dated 19.11.2018.

Consequently the W.P.(C) 5042 of 2019 succeeds.

12. So far as the W.P.(C) No. 9426 of 2023, this Court since in

disposal of W.P.(C) No. 5042 of 2019 has already given direction

to the Tahasildar concerned to bring out corrected Record of Rights

in lieu of Annexure-7, there is no further direction necessary in the

case at hand, which is disposed of accordingly.

13. The Writ Petitions succeed. No cost.

(Biswanath Rath) Judge

Orissa High Court, Cuttack.

The 13th April, 2023/ Utkalika Nayak, Junior Stenographer