Srimant Kumar Das vs Addl. Commissioner
2023 Latest Caselaw 8744 Ori

          ORISSA HIGH COURT : C U T T A C K
                        W.P.(C) No.14376 of 2023
                 An application under Articles 226 & 227 of
                      the Constitution of India, 1950


Srimant Kumar Das                                              : Petitioner

                                     -Versus-

Addl. Commissioner, Addl. Revisional                           : Opposite Parties
Court No.III, under Member, Board of
Revenue, Odisha &Ors.


For Petitioner                                        : Mr. P.K. Mohanty,
                                                            Sr. Adv.
                                                        M/s.P. Mohanty,
                                                            P.K. Pasayat,
                                                            S.N. Dash, S.K. Sahu,
                                                            M. Patri
For Opposite Party Nos.1 to 4                         : Mr. U.K. Sahoo, ASC


                                     JUDGMENT

CORAM :

JUSTICE BISWANATH RATH Date of hearing & judgment:: 08.08.2023

1. Heard the submissions of the parties.

2. This Writ Petition involves the following prayer:-

"It is therefore, prayed that this Hon'ble Court may graciously be pleased to issue Rule Nisi, in the nature of writ of CERTIORARI and/or any other appropriate writ/writs, direction/directions and order/orders, calling upon the Opp.Parties No.1 to 4 to show cause as to why the impugned order dtd.29.11.2022 passed in Revision Case no.RP-1459/2015 of O.P.No.1 and the RoR vide Annexures- 5 & 6 shall not be quashed to the extent of the part of

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direction to record the status of the scheduled land as "PATTADAR"/Lease hold and further as to why it shall not be commanded in it's place to record such status as "Stithiban";

AND If the Opp.Parties fails to show cause and/or show insufficient and/or false cause, make the said Rule Nisi absolute, AND/OR, pass any other order as deemed proper,"

3. Factual background involved in this case appears to be; Opposite Party No.5 being a Scheduled Caste person was issued with the Patta/RoR by virtue of the settlement of the land in his favour in W.L. Case No.2719/73, an area of AC 1.000, in Mouza- Ogalapada, P.S./Tehsil- Jatni, Plot No.502/1193, Khata No.255/53, dtd.14.08.1974. A condition was made in the said RoR that for a period of five years there cannot be transfer of the land. Petitioner purchased an area of Ac. 0.250 from Opposite Party No.5 in RSD No.1195 of 1984, after obtaining necessary permission from the SDO, BBSR as per the order dated 11.04.1984 passed in Misc. Case No.6/1984, which is now as per the Hal Khata, Plot and Area corresponding to the mutation khata and plot as per the schedule given hereinabove but quite after five years restriction imposed under Annexure-1. Petitioner is remaining in peaceful possession of the land since the time of purchase of land. During such time, in course of the last settlement operation in the year 2013, before the Assistance Settlement of Janla Officer of Janla Mouza, at rental Colony, BBSR the Petitioner though submitted all the documents for mutation of land in his favour so also the 'Parcha', no final RoR was issued in his favour. Though before the settlement operation, the ADM, BBSR had also initiated Suo Motu Revision Case No.318/86 U/s.7-A(3) of the OGLS Act, 1962, but the same was remanded to the Addl. Tahasildar, BBSR vide WL-remand Case No.81/88 for re-

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adjudication, who ultimately passed the order holding the lease as legal. Since the ASO directed to record the land in Govt. khata as Abada Yogya Anabadi, the Petitioner filed appeal before O.P. No.2, but it turned futile, since the land was still shown to have been recorded in the RoR as Abad Yogya Anabadi in the name of the Govt., so the Petitioner had to move this Court through W.P.(C) No.28742 of 2013 seeking direction to O.Ps.2 & 3 to dispose of the appeal of the Petitioner and to record the land in the name of the Petitioner. The same was disposed of by the order dated 11.05.2015 permitting the Petitioner to file revision before the Commissioner of Settlement and land records. The land was recorded in the RoR in Govt. Khata as Abad Yogya Anabadi. For the liberty of the Court through the above noted Writ Petition, Petitioner filed revision U/s.15(b) of the OSS Act, 1958 vide R.P. No.1459 of 2015, which was also disposed of on 29.11.2022 vide Annexure-5 directing to record the suit land in favour of the Petitioner, however, not with stitiban status but as per the leasehold status till the Government brings out any amendment in OGLS Rules. Consequent upon the order dated 29.11.2022 the land was mutated vide Annexure-6 and the RoR was prepared in the name of the Petitioner but with the indication of the status of the land as "PATTADAR"/Leasehold. Being aggrieved with the said order the Petitioner approached this Court by way of this Writ Petition.

4. Taking this Court to the grounds taken in the Writ Petition together with the order of this Court in W.P.(C) No.17697 of 2019 Mr. Mohanty, learned Senior Advocate appearing on behalf of the Petitioner claimed that the issue involved herein is already decided by the order of this Court in W.P.(C) No.17697 of 2019 and

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therefore, claims that the benefit granted therein should be extended to the Petitioner herein.

5. Mr. Sahoo, learned ASC, on the other hand, though did not dispute to the factual aspect herein, however, also contended that the principle requires to be decided here is already decided through the order of this Court in the above noted Writ Petition and accordingly, submitted that the order of this Court dated 30.03.2021 passed in W.P.(C) No.17697 of 2019 is squarely applicable to the case at hand.

6. Considering the rival contentions of the parties, this Court finds, there is no dispute at Bar that the order of this Court dated 30.03.2021 in W.P.(C) No.17697 of 2019 has clear application to the case at hand. It is, at this stage of the matter, this Court finds, Petitioner has sufficient foundation for a legal sale through number of documents and a permission of competent authority in sale of the disputed land as clearly taken down in the impugned order at Annexure-5:-

"4. The following documents have been filed by the petitioner to substantiate their claims.

(i) The copy of Sabik Khata No. 359 that corresponds to Mutation Khata No.255/53 which further corresponds Hal Khata No.592 of Mouza- Ogalapada.

(ii) Xerox Copy of the case record of WLL Case No.2719/1973.

(iii) Permission letter dtd 11-4-1984 issued by the Revenue office Bhubaneswar in Revenue Misc. case No-6/84 u/s 22 of the O.L.R Act to transfer such land in favour of the petitioner

(iv) Xerox Copy of the Certified copy of Khata No.255/53,Plot no.502/1193, area Ac 1.00 decimals, Kisam-Sarada-3 of Mouza-Ogalapada, in the name of Kashinath Nahak.

(v) Copy of W.L. remand case No-81/88 in the Court of Tanasildar, Bhubaneswar.

(vi) Xerox copy of the Certified Copy of the YADASTA No.1027 of Mouza-Ogalapada, having Plot No.1027, area Ac 0.250 decimals, to be recorded in the name of present petitioner- Srimanta Ku Das in Pattadar Status.

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(vii) Copy of the Appeal Case No.4621/1247/13

(viii) Regd. Sale deed No.1195 dtd 04.07.1984

(ix) Para-wise report from Settlement Office vide letter dtd 10.05.2022.

(x) Status report from Tahasildar, Jatni vide letter no. 2297 dtd. 28.04.2022.

(xi) Lease status report from the Office of the Addl. District Magistrate, Bhubaneswar vide Letter No.1599 dtd 02.05.2022.

(xii) Certified Order Copy of Honorable High Court of Odisha in W.P.(C) No. 2555 of 2014, for re- consideration of the Case of Chitralekha Mohanty having land in same Kahata Number-592."

In the above scenario this Court finds, there was sufficient material in establishing that there involves a valid sale transaction and taken place after restricted period of five years. The Commissioner failed in appreciating the materials already on record and thus the final direction remains unjustified. This Court looking to the history in preparation of record all through and as narrated hereinabove finds, the kisam of the land was already in stitiban status. This Court, therefore, while allowing this Writ Petition, while also keeping in view the direction contained in the above disposed of Writ Petition finds, the direction part in the impugned order at Annexure-5 to keep the status of the land in leasehold remains bad and thus interfering to the said extent only and in modification of the final part of the direction in maintaining the record of rights, directs for preparation of the record of rights involving the property involved herein to maintain the status of the land as stitiban. This Court while interfering in the impugned order at Annexure-5 to the above extent also interferes in the preparation of Record of Rights at Annexure-6 and directs the Tahasildar involved to bring a corrected Record of Rights in the light hereinabove within a period of six weeks from the date of production of a copy of this judgment.

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8. Writ Petition succeeds. No cost.

(Biswanath Rath) Judge

Orissa High Court, Cuttack.

The 8th day of August, 2023// Ayaskanta Jena, Senior Stenographer

Signature Not Verified Digitally Signed Signed by: AYASKANTA JENA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 14-Aug-2023 14:09:00