Orissa High Court
Sarat Chandra Rout And Another vs Sarat Chandra Samal And Others on 2 February, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. No. 458 of 2017
Sarat Chandra Rout and another .... Appellants
Mr. Prafulla Kumar Rath, Advocate
-versus-
Sarat Chandra Samal and others .... Respondents
Mr. S. Mohanty, Advocate for Respondent No.1
Mr. Debakanta Mohanty, A.G.A. for State
CORAM:
THE CHIEF JUSTICE
JUSTICE M.S. RAMAN
ORDER
02.02.2023
Order No.
05. 1. The challenge in the present writ appeal is to an order dated 6th
February, 2017 passed by the learned Single Judge allowing
W.P.(C) No.3618 of 2012 filed by the present Respondent Nos.1 &
2 and thereby setting aside an order dated 22nd September, 2011
passed by the Additional Commissioner, Settlement &
Consolidation, Odisha in R.C. Case Nos.157 & 158 of 2003 under
the Orissa Consolidation of Holdings and Prevention of
Fragmentation of Land Act, 1972 (OCH&PFL Act).
2. The challenge in the present writ appeal is also to the subsequent
order dated 31st October, 2017 passed by the learned Single Judge
dismissing the review petition being No. RVWPET No.33 of 2017
filed by the present Appellants thereby declining to review the
above judgment dated 6th February, 2017.
3. While directing notice to issue in the present writ appeal on 4th
February, 2019 this Court stayed the aforementioned judgment
dated 6th February, 2017 and order dated 31st October, 2017 passed
by the learned Single Judge.
4. This Court has heard the submissions of Mr. Prafulla Kumar
Rath, learned counsel appearing for the Appellants and Mr. S.
Mohanty, learned counsel appearing for the Respondent No.1.
5. The background facts are that during a consolidation operation in
relation to the properties in L.R Plot No.1853 (P) of an area of
Ac.0.06 decimals in L.R Khata No.417 in village-Haripur, PO-
Samsarpur, PS-Mahanga, District-Cuttack a draft Record of Rights
(RoR) was prepared in the name of the present Appellants. The
Respondent Nos.1 & 2 then filed an objection to the draft RoR
being Objection Case No.4060 of 1992 contending that the property
in question should be recorded in their favour on the basis of a
'Bibad Bhanjan Patra' dated 27th January, 1981. The Consolidation
Officer (CO), Chhatia allowed the objection case in favour of
Respondent Nos.1 & 2 against which, the present Appellants
preferred Appeal Case No.83 of 1995 which came to be dismissed
on 29th October, 1996 by the Deputy Director, Consolidation,
Range-1, Cuttack. The aforementioned order of the Deputy Director
was challenged by the present Appellants by filing Revision Case
No.350 of 1997 in the Court of the Commissioner, Consolidation,
Cuttack.
6. By virtue of a notification dated 24th December, 2002 of the
Revenue Department, Government of Odisha, the aforementioned
Revision Case No.350 of 1997 stood transferred to the Court of the
Additional Commissioner, Settlement & Consolidation and got re-
numbered as Revision Case No.157 of 2003. The connected
Revision Case 349 of 1997 was re-numbered as R.C. No.158 of
2003. A transfer notice was also sent to the present Appellants.
7. By the judgment dated 22nd September, 2011 the said R.C.
No.157 of 2003 came to be allowed by the Additional
Commissioner, Settlement & Consolidation, Cuttack thereby setting
aside the order dated 29th October, 1996 passed by the Deputy
Director, Consolidation in Appeal Case Nos.83 and 86 of 1995. In
effect, the order of the CO dated 25th March, 1995 in Objection
Case No.4060 of 1992 was also set aside and it was held that the
plot in question would stand recorded in favour of the present
Appellants.
8. Aggrieved by the above order dated 22nd September, 2011 in
R.C. Nos.157 and 158 of 2003, Respondent Nos.1 & 2 filed
W.P.(C) No.3618 of 2012 before the learned Single Judge.
9. One of the contentions raised by the Respondent Nos.1 and 2
before the learned Single Judge was that the aforementioned
revision cases were themselves barred by limitation. It was
submitted that since the appeals were disposed of on 26th October,
1996 and the revision cases were preferred in 2003, it was well
beyond the period of 90 days limitation period under Section 36 of
the OSS Act. The specific contention was that "the revision for
being filed after seven years should not have been entertained and
should have been dismissed on the ground of limitation alone". It
was pointed out that there were no applications for condonation of
delay accompanying the revision cases.
10. The learned Single Judge has after setting out Section 36 of the
Act, concluded that "there is no dispute that the impugned order
was passed by the Appellate Authority in the year 1997 and the
Revision Case No.157 of 2003 has been preferred in the year 2003
and, therefore, there is a definite delay of seven years in preferring
the revision".
11. Clearly, the above conclusion was based on an erroneous noting
of the factual position, viz., , that the revision cases were initially
filed in 1997 and was numbered as R.C. Case Nos. 349 and 350 of
1997 which was later transferred to the Court of the Additional
Commissioner and at that stage, re-numbered as R.C. Nos.157 and
158 of 2003.
12. In view of the above erroneous noting of the fact, the learned
Single Judge fell in error in setting aside the order dated 22nd
September, 2011 of the Additional Commissioner. Thereby, the
learned Single Judge had no occasion to examine the correctness of
the said order on merits.
13. The review petition filed by the present Appellants pointing out
the above factual error was also dismissed by the learned Single
Judge by the second impugned order dated 31st October, 2017.
14. Having heard learned counsel for the parties, the Court is
satisfied that there is an error apparent on the face of the impugned
order dated 6th February, 2017 of the learned Single Judge which
ought to have been corrected by allowing the review petition filed
against it by the present Appellants.
15. In that view of the matter, both the impugned judgment dated
6th February, 2017 as well as the order dated 31st October, 2017
passed by the learned Single Judge allowing W.P.(C) No.3618 of
2012 and dismissing RVWPET No.33 of 2017 are hereby set aside.
The order dated 6th February, 2017 will stand recalled and W.P.(C)
No.3618 of 2012 is restored to the file of the learned Single Judge
for being dealt with on merits. The said writ petition will now be
listed before the Roster Bench of the learned Single Judge on 17th
April, 2023 on which date, the parties will appear. The learned
Single Judge is requested to proceed with hearing the writ petition
on merits and endeavour to dispose of the writ petition as
expeditiously as possible.
16. The writ appeal is disposed of in the above terms.
(Dr. S. Muralidhar)
Chief Justice
(M.S. Raman)
Judge
S. Behera
