Orissa High Court
Lokanath Banchhor & Ors vs Joint Commissioner on 31 January, 2023
ORISSA HIGH COURT : C U T T A C K
W.P.(C) No.4928 of 2013
An application under Article 226 & 227 of
the Constitution of India, 1950
Lokanath Banchhor & Ors. : Petitioner(s)
-Versus-
Joint Commissioner, : Opposite Party(s)
Settlement & Consolidation,
Sambalpur & Anr.
For Petitioner : Mr. A.P. Bose
For Opposite Parties : Mr. U.K. Sahoo,
Addl. Standing Counsel
JUDGMENT
CORAM :
JUSTICE BISWANATH RATH
Date of hearing & judgment : 31.01.2023
1. Appearance memo filed in Court today be kept on record.
2. Heard the submissions of learned counsel for respective parties.
3. Factual background involved herein appears to be; apart from a
sale transaction issue involving the right title & interest of parties was
undertaken by the authorities under the Orissa Estate Abolition Act
claiming to be decided by the order vide Annexure-1 in favour of the
vendor of the Petitioners. Consequently there has been preparation of the
record of rights at Annexure-2. It is claimed that while the matter stood
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thus a suo motu O.E.A. proceeding has been opened and decided by the
order vide Annexure-3 taking out the right of the vendor of the
Petitioners. At this stage it appears, on advise of a counsel in the locality
Petitioners approached the authority under the O.C.H. & P.F.L. Act in a
Section 37(I) proceeding by pursuing their remedy arising out of the order
at Annexure-3 claiming to be passed in non-consideration of the
development vide Annexures-1 & 2 and without authority as well. This
Section 37(I) proceeding appears to have been dismissed by the order
vide Annexure-5 in the year 2007 resulting filing of the present writ
petition being entertained is taken up here for final disposal.
4. It is, in the above background of the matter, taking this Court to the
existing materials at Annexures-1 & 2 Mr. Bose, learned counsel for
Petitioners contended that had the Petitioners been noticed or the vendors
of the Petitioners been noticed in the suo motu O.E.A proceeding, result
in Annexure-3 would have been otherwise. Further in his challenge to the
order at Annexure-5 Mr. Bose, learned counsel for Petitioners contended
that since a jurisdictional issue involving an order at Annexure-3 was
there, the Joint Commissioner, Settlement & Consolidation failed in
deciding such disputes and there has been mechanical dismissal of the
Section 37(I) proceeding.
5. Mr. Sahoo, learned State Counsel on the other hand in his
opposition to the claim of the Petitioners and attempting to support the
orders vide Annexures-3 & 5 submitted that even assuming that the
Petitioners are affected by the ex parte order at Annexure-3, nothing
prevented the Petitioners to approach appropriate forum at appropriate
time and in no circumstances the Section 37(I) proceeding would have
been invited and accordingly entertainability of the writ petition has been
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objected seriously on the premises of no challenge to the order at
appropriate time.
6. Considering the rival contentions of the parties, this Court finds,
Petitioners have established to have source of right to them over the
disputed property for their vendor getting right title & interest over the
property vide Annexures-1 & 2. This Court, however, surprisingly finds,
the proceeding is a suo motu proceeding even in spite of existence of an
order claimed to have been passed U/s.6 & 7 of the O.E.A. Act. On
perusal of the order sheet at Annexure-3 this Court finds, there has been
direction for issuance of notice to the Opposite Parties therein and the
order dated 13.04.1988 indicates that there has been service of notice.
There has also been recording of nonappearance of some of the parties.
7. Be that as it may, even assuming that initiation of suo motu
proceeding was bad, however the order therein cannot be termed to be
illegal at this stage on account of non-consideration of the development at
Annexures-1 & 2. For the reasons indicated therein there was no placing
of such materials in the suo motu proceeding. It is, at this stage of the
matter, considering the prospect of involvement of Section 37(I)
proceeding, this Court again finds, there is no cause of action involving
Annexure-3 to agitate such issues through Annexure-4 and decided vide
Annexure-5 and the authorities under the O.C.H. & P.F.L. Act, 1972
cannot adjudicate the proceeding, if the O.E.A. authority had jurisdiction
and scope to entertain such proceeding.
8. In the circumstance, this Court finds, the proceeding at Annexure-3
and the decision vide Annexure-5 are all innocuous. Considering that
there is bona fide action by the Petitioners and undertaking exercise vide
Annexure-4 got an outcome vide Annexure-5 a bona fide one and even
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the writ petition was entertained by this Court in 2013 and pending as of
now and since a valuable land right of the Petitioners cannot be brushed
aside on the ground of delay, this Court though declined to interfere in the
order at Annexure-3 as the order therein is possibly ex parte, but
however, observes, in the event the order vide Annexure-3 remains
contrary to the development vide Annexures-1 & 2, Petitioners shall bring
review application along with supporting materials for consideration of
the O.E.A authority and passing an order as appropriate in the review
application involving the order at Annexure-3. Let the review application
be brought within three weeks from the date of judgment and in such
event the authority passed the order vide Annexure-3 shall undertake a
review exercise in the involvement of desired parties and dispose of the
review application in accordance with law.
9. This writ petition stands disposed of with the above direction. In
the circumstance, no order as to cost.
...............................
(Biswanath Rath)
Judge
Orissa High Court, Cuttack.
The 31st day of January, 2023//
Ayaskanta Jena, Senior Stenographer
