Orissa High Court
(An Application Under Articles ... vs Collector And District ... on 16 August, 2023
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 18-Aug-2023 18:50:44
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) NO.10243 OF 2015
(An application under Articles 226 and 227 of the
Constitution of India)
****
Smt. Khirode Kumari Devi .... Petitioner
-versus-
Collector and District Magistrate, .... Opp. Parties
Ganjam and others
Advocate for the Parties
For Petitioner : Mr. Dayananda Mohapatra, Advocate
For Opposite Parties : Mr. Ajodhya Ranjan Dash,
Additional Government Advocate
Mr. Budhadev Routray, Senior Advocate
being assisted by Mr. S.K.Samal, Advocate
(For intervener)
Mr. Goutam Mishra, Senior Advocate
Being assisted by Mr.P.K.Lenka, Advocate
(For intervener)
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Heard and disposed of on 16.08.2023
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CORAM:
JUSTICE K.R. MOHAPATRA
JUDGMENT
W.P.(C) NO.10243 OF 2015 & W.P.(C) No.28685 of 2013
1. This matter is taken up through hybrid mode.
2. Order dated 27th December, 2012 passed by the
Additional Commissioner, Settlement and Consolidation in
SRP No.557 of 2011 (Annexure-4) is under challenge in both
the Writ Petitions.
W.P.(C) NO.10243 OF 2015
Signature Not Verified
Digitally Signed
// 2 //
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 18-Aug-2023 18:50:44
3. Mr. Mohapatra, learned counsel for the Petitioner
submits that the ancestors of the Petitioner had purchased the
land in question from the Cantonment way back in the year,
1905 vide Sale Deed No.1892 dated 27th November, 1905.
Since then, the predecessors of the Petitioner and after them,
the Petitioner is in occupation of the said land exercising her
right, title and interest over the same. The land in question
pertains to Plot No.522 under Khata No.373 to an extent of
Ac.4.030 decimal out of Ac.4.750 decimal (for brevity 'the
case land'), which correspond to Sabik Survey No.400. In the
current Settlement, the Record of Right was prepared in the
name of Government of Odisha. Thus, after publication of the
final ROR under Section 12-B of the Survey and Settlement
Act, 1958 (for short, 'the Settlement Act'), the Petitioner
preferred SRP No.557 of 2011 detailing the flow of title and
mistake committed by the Settlement Authorities in recording
the case land in the name of the Government. The revisional
Court without recording its independent opinion on the
submission and grounds taken by the Petitioner, dismissed the
same vide order under Annexure-4. Hence, this writ petition
has been filed.
4. It is submitted that the Petitioner had earlier moved this
Court in W.P.(C) No.28685 of 2013 assailing the self-same
order impugned herein, which was dismissed for non-
prosecution on 30th January, 2015. Since the Government
taking undue advantage of wrong recording proceeded with the
construction, the Petitioner filed the present Writ petition.
W.P.(C) NO.10243 OF 2015
Signature Not Verified
Digitally Signed
// 3 //
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 18-Aug-2023 18:50:44
However, in the meantime, W.P.(C) No.28685 of 2013 has
already been restored and is listed along with this writ petition
for adjudication. It is his submission that Christian Catholic
Church, Berhampur has filed CS No.273 of 2003 (renumbered
as CS No.28 of 2012) claiming right, title and interest over the
case land. Initially, the Petitioner was not made a party to the
said suit. However, two applications, one under Order 1 Rule
10 CPC and another under Order VI Rule 17 CPC were filed
by said Christian Catholic Church, Berhampur to amend the
plaint and to implead the present Petitioner as a party to the
suit. The said applications were rejected. Assailing the same,
Christian Catholic Church, Berhampur filed two CMPs, i.e.,
CMP No.128 of 2016 and CMP No.129 of 2016. Both the
CMPs were allowed vide order dated 5th May, 2022 and 9th
May, 2022 respectively allowing both the applications under
Order 1 Rule 10 CPC and Order VI Rule 17 CPC filed by the
Christian Catholic Church, Berhampur. Thus, the Petitioner
has been impleaded as party to the aforesaid suit. It has also
filed its written statement in the said suit.
5. Be that as it may, since the findings of the Settlement
Authorities are staring at the Petitioner, it would be difficult on
his part to contest the suit. The Petitioner has a statutory right
under Section 15(b) of the Settlement to challenge the wrong
preparation of the ROR in the name of the State Government.
Thus, the Revisional Forum is under legal obligations to
consider the case of the Petitioner on its own merit and pass
necessary orders. Since order under Annexure-4 is a cryptic
W.P.(C) NO.10243 OF 2015
Signature Not Verified
Digitally Signed
// 4 //
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 18-Aug-2023 18:50:44
and non-speaking one, the same should be set aside and the
matter should be remitted to the revisional Court for fresh
adjudication in accordance with law giving opportunity of
hearing to the parties.
6. It is further submitted that although the Petitioner has
been impleaded as a party to the suit, but her right under
Section 15(b) of the Settlement Act cannot be taken away. In
the event, she succeeds in the revision under Section 15(b) of
the Settlement Act, it would help him to pursue her right in the
suit itself. Thus, pendency of the suit does not affect the right
of the Petitioner to pursue the revision under Section 15 (b) of
the Settlement Act. He, therefore, prays for setting aside the
order under Annexure-4 and to remit the matter to the
revisional Court for fresh adjudication in accordance with law.
7. Christian Catholic Church, Berhampur had filed I.A.
No.17644 of 2015 for intervention in the writ petition.
Likewise, St. Stephen Church, Berhampur had also filed an
application for intervention bearing I.A. No.1169 of 2016.
Both the intervention applications were considered and this
Court vide order dated 14th September, 2017, passed the
following order:-
"These applications have been filed for
intervention.
Learned counsel appearing for the intervenor
petitioners shall be head at the final disposal of the writ
application. They may file their respective counter
affidavits and advance their argument."
8. Mr. Mishra, learned Senior Advocate for St. Stephen
Church, Berhampur submits that since the Petitioner has
W.P.(C) NO.10243 OF 2015
Signature Not Verified
Digitally Signed
// 5 //
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 18-Aug-2023 18:50:44
already been made a party to the suit, she can assert her right in
the suit itself. Thus, at this stage, when the suit for declaration
of right, title and interest filed by Christian Catholic Church,
Berhampur in respect of the case land is pending for
adjudication, the present writ petition has become academic.
Entertaining the writ petition may also lead to conflict of
decisions. The order passed by the revenue authorities are
always subject to the decree to be passed in the civil suit in
respect of the self-same land and the settlement authorities are
bound by the decree of the Civil Court. Since the Petitioner has
never challenged the order passed in CMP No.128 of 2016 and
CMP No.129 of 2016 and the said orders have already attained
finality, and she has already been impleaded as a party to the
suit, entertaining this Writ petition may an abuse of process of
Court. He, therefore, prays for dismissal of the writ petition.
9. Mr. Routray, learned Senior Advocate for Christian
Catholic Church, Berhampur also reiterated the submission
made by Mr. Mishra, learned Senior Advocate for St. Stephen
Church, Berhampur and submits that the present writ petition
is not maintainable as W.P.(C) No.28685 of 2013 assailing the
self-same order under Annexure-4 is pending for
consideration. Since both the writ petitions have been taken up
for consideration, this Court, without entering into the
technicality should relegate the Petitioner to the Civil Court for
asserting her right, if any, over the case land. Mr. Mishra and
Mr. Routray, learned Senior Advocates also pray for dismissal
of both the writ petitions.
W.P.(C) NO.10243 OF 2015
Signature Not Verified
Digitally Signed
// 6 //
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 18-Aug-2023 18:50:44
10. Considering the rival contentions of the parties and on
perusal of record, it appears that both the writ petitions, i.e., the
present one and W.P.(C) No.28685 of 2013 have been filed
assailing the order under Annexure-4 hereto. The proceeding
before the Settlement authority is summery in nature. The
ROR published under Section 12-B of the Settlement Act
neither creates nor extinguishes the right of the parties. It is
only prepared for fiscal measures. Further, a civil suit, i.e., CS
No.273 of 2003 (CS No.28 of 2012) in respect of the case land
is pending before learned Civil Judge (Senior Division),
Berhampur in respect of the case land in which Christian
Catholic Church, Berhampur has claimed right, title and
interest over the same along with other reliefs. The Petitioner
as well St. Stephen Church, Berhampur is parties to the said
suit. It is submitted by learned counsel for the parties that the
Petitioner being impleaded as a Defendant has already filed its
written statement therein. In that view of the matter,
proceeding with the revision under Section 15(b) of the
Settlement Act will be a futile one, as it is summery in nature.
The grounds taken by the Petitioner to assert her right over the
case land can also be raised in the Civil Court following due
procedure of law. Further, entertaining two parallel
proceedings in respect of the same subject matter of dispute
may occasion in conflicting decisions.
11. Thus, entertaining the writ petition on merit will not
only be academic but also may lead to multiplicity of
proceedings for the self-same subject matter of dispute. The
W.P.(C) NO.10243 OF 2015
Signature Not Verified
Digitally Signed
// 7 //
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 18-Aug-2023 18:50:44
order passed by the Settlement authorities is always subject to
the decree/order to be passed by the Civil Court in respect of
the self-same subject matter of dispute. In that view of the
matter, this Court is not inclined to accept the submission of
Mr. Mohapatra, learned counsel for the Petitioner. The
Petitioner may have a statutory right under Section 15(b) of the
Settlement Act, but in view of pendency of the civil suit, it
would be futile for the Petitioner to assert her right before the
Settlement authorities.
12. Accordingly, the writ petition is disposed of with an
observation that the Petitioner, if so advised, may contest the
suit by filing his counter-claim in CS No.273 of 2003 (CS
No.28 of 2012) following due procedure of law.
13. In order to avoid further delay, the parties are directed
to appear before learned trial Court on 25th August, 2023, as it
is stated at Bar that the suit is posted to that date. Learned trial
Court shall also make an endeavour for early disposal of the
suit giving opportunity of hearing to the parties concerned.
14. In view of the order passed above, W.P.(C) No.28685
of 2013 is disposed of accordingly.
15. All the interim applications are disposed of
accordingly.
Issue urgent certified copy of the judgment on proper
application.
(K.R. Mohapatra)
Judge
s.s.satapathy
W.P.(C) NO.10243 OF 2015
