Ajaya Kumar Kar vs State Of Orissa & Ors
2023 Latest Caselaw 1720 Ori

             ORISSA HIGH COURT : C U T T A C K

                       W.P.(C) No.20141 of 2022

                  An application under Article 226 & 227 of
                      the Constitution of India, 1950

Ajaya Kumar Kar                                    : Petitioner(s)


                         -Versus-

State of Orissa & Ors.                         : Opposite Party(s)

For Petitioner                              : M/s. S. Dash,
                                                   H. Moharana
For Opposite Parties                        : M/s. S. Ghose
                                                   Addl. Govt. Adv.



                               JUDGMENT

CORAM :

JUSTICE BISWANATH RATH

Date of hearing & judgment : 23.02.2023

1. Heard the submissions of learned counsel for respective parties.

2. This writ petition has been filed with the following factual backdrop:-

"By W.L. Case No. 971/73 an area of Ac. 0.488 decls of land relating to 1961-62 settlement of Mouza- Sankarpur, Khata No. 424/49, Plot No. 259/1343 leased out in favour of one Bishnu Nayak under OGLS Act, 1962. Bishnu Nayak/ Lease holder obtained permission of Revenue Officer, Bhubaneswar U/s 22(1) (b) and (4) of OLR Act for transfer of

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the above mentioned land. (Annexure-1/Page12). By Regd. Sale Deed No. 3607 dated 22.04.1983, the said Bishnu Nayak transferred the leasehold land in favour of one Ramesh Chandra Samantray. By Regd. Sale deed No. 3769 dated 25.04.1983 Ramesh Chandra Samantray sold an area of measuring Ac. 0.158 decls out of total area of Ac. 0.488 decls in favour of one Kishore Singh. (Annexure-2/Page-13-19). Purchased land of Kishore Singh mutated in his favour vide Mutation Khata No. 365/19, Plot No. 1343, and Area-Ac. 0.158 decls. By Regd. Sale Deed No. 4385 dated 24.07.1992 Kishore Singh sold Mutation Khata No. 365/19, Plot No. 1343/1383, Area- Ac. 0.158 decls to the Petitioner. (Annexure-3/Page-20-28). Purchased land of the Petitioner mutated in his favour through Mutation Case No. 6096 of 1992 and reflected in Mutation Khata No. 365/240 (Stitiban), Plot No. 1343/1383- Area Ac. 0.158 decls. Petitioner came to know that about order dated 16.07.2002 by which resumption of land order was passed by the Addl. Tahasildar, Bhubaneswar. W.P.(C) No. 1802 of 2005 was filed by the Petitioner challenging the order of resumption dated 16.07.2022. On 19.02.2005, the Hon'ble Court pleased to allow W.P.(C) No. 1802 of 2005 and quashed the order dated 16.07.2002 with a further direction to Addl. Tahasildar, Bhubaneswar to re-hear the matter giving opportunity to the Petitioner and upon verification of all relevant documents. On 23.08.2006 FORM- 'K' was issued in favour of the Petitioner in compliance of the order dated 25.02.2005 passed in W.P.(C) No. 1802 of 2005 (Annexure-4/Page-

29). Jamabandi Register stood corrected in favour of the Petitioner in respect of Khata No. 365/240, Plot No. 1343/1383 Area Ac. 0.158 decls. (Annexure-5/Page-30). Compliance of the order dated 25.02.2005 passed in W.P.(C) No. 1802 of 2005 duly reflected in Jamabandi Register on 23.08.2006. (Annexure-6/Page-31). Petitioner has deposited land

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Revenue up to 2015-16. (Annexure-7/Page-32). Local R.I. refused to accept the land revenue on the pretext of correction of record by Govt. On enquiry, Petitioner could know by order dated 12.07.2013 the Opp. Party No.3 in Appeal Case No. 2698 of 2013 directed to record the land in question in favour of Govt. under Anabadi status. It is reflected in the said order as hereunder:-

"It is not known to this Court as regards filling of any case before the Tdr, BBSR, if any, or not as per order of Hon'ble High Court in W.P.(C) No. 1802 of 2005."

3. Keeping in view the above factual aspect, learned counsel for Petitioner submits that impugned order vide Annexure-8 remains contrary to the direction of the Division Bench in W.P.(C) No.1802 of 2005.

4. In previous hearing of this matter this Court called for the aforesaid file to verify the implication of the order dated 19.02.2005 passed in W.P.(C) No.1802 of 2005. There is no dispute at Bar that order involving resumption of the land in favour of the Petitioner in W.L. Case No.971 of 1973 was interfered with and set aside by the Division Bench. There was of course a caveat; in the event the competent authority desires to enter into the conflicts, he/she has to first involve the Petitioner and decide the matter accordingly. There is clear statement at Bar that there has been no opening of such proceeding. This Court here finds, in W.P.(C) No.1802 of 2005 the Division Bench by its order dated 19.02.2005 has passed the following order:-

"Heard learned counsel for the petitioner and the learned Addl. Govt. Advocate.

By this writ petition, the petitioner seeks to challenge the order dated 16.07.2002 which has been passed by the Addl. Tahasildar, Bhubaneswar in W.L. Case No.971 of 1973 resuming the land records in the name of the petitioner in the record of right

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without giving him any notice or the opportunity of haring. It is in clear violation of the principle of natural justice. The petitioner's name was recorded way back in the year 1995 and therefore, he is the recorded owner in respect of the land in dispute. The impugned order was passed only on 16.07.2002 without giving the petitioner any opportunity of hearing before passing that order.

Under the circumstances, we allow this writ petition and quash the impugned order Annxure-9. However, it is open to the Opp. parties to give fresh notice to the petitioner in respect of the land of which he is the recorded owner as per the record of rights and after giving him the opportunity of hearing, pass final order afresh in this regard. It shall be the responsibility of the petitioner to produce the certified copy of this order before the Addl. Tahasildar- Opp. Party No.3 within seven days from today.

Urgent certified copy of this order be granted on proper application."

5. Keeping in view the contentions of the respective counsel and looking to the impugned order at Annexure-8, this Court finds, though the appellate authority has taken note of the development through W.P.(C) No.1802 of 2005, however, there has been wrong implication of the order passed by the Division Bench in W.P.(C) No.1802 of 2005. As a result this Court finds, there is wrong decision in Appeal No.2698 of 2013, which is not sustainable in the eye of law and accordingly while setting aside the impugned order at Annexure-8, this Court restores the preparation of the mutation record vide Annexure-5.

6. The Writ Petition succeeds. There is, however, no order as to costs.

...............................

(Biswanath Rath) Judge Orissa High Court, Cuttack.

The 23rd day of February, 2023// Ayaskanta Jena, Senior Stenographer