Ram Chandra Patra vs The Commissioner
2023 Latest Caselaw 8152 Ori

                   ORISSA HIGH COURT : C U T T A C K
                                W.P.(C) No.10856 of 2017
                          An application under Article 226 & 227 of
                                  the Constitution of India


         Ram Chandra Patra                                          : Petitioner

                                         -Versus-

         The Commissioner,                                    : Opposite Parties
         Consolidation & Settlement, BBSR & Ors.


         For Petitioner                               : M/s. S. Udgata,
                                                             S. Udgata, A. Mishra
         For Opposite Party Nos.1 & 2                 : Mr. U.K. Sahoo,
                                                        Addl. Standing Counsel
         For Opposite Party Nos.3 to 4                : M/s. D.N. Mohapatra,
                                                             M. Mohapatra,
                                                             G.R. Mohapatra,
                                                             A. Dash
                                         JUDGMENT

CORAM :

JUSTICE BISWANATH RATH Date of hearing & Judgment:: 28.07.2023

Per Biswanath Rath, J.

1. Heard the submissions of respective parties.

2. This Writ Petition involves a challenge to the impugned order at Annexure-2 passed in Consolidation Rev. Case No.12 of 2012/97/2015 undisputedly a proceeding U/s.37(I) of the O.C.H. & P.F.L. Act, 1972.

3. Bringing to the notice of this Court the petition involved decided through the impugned order and the record of rights with the Petitioner,

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learned counsel for Petitioner submits that since Petitioner herein was a party to the proceeding, the proceeding of this nature should have been decided in the participation of the Petitioner herein. Taking this Court to the observation of the authority concerned the notice of this Court has also been brought to the aspect of ex parte nature of disposal of the proceeding. On the footing that had the Petitioner been provided with opportunity of hearing, decision in the case would have been otherwise learned counsel for Petitioner prayed for allowing this Writ Petition.

4. Mr. Mohapatra, learned counsel for Opposite Party Nos.3 & 4 taking this Court to the impugned order and the records therein of the authority concerned contended that in spite of notice the Petitioner chose to remain absent and therefore the authority was compelled to proceed ex parte and order has been passed ex parte. On the premises that the observation of the competent authority clearly establishes that in spite of notice the Petitioner did not attend to the proceeding and the contesting Opposite Parties are in enjoyment of an outcome in their favour in the Section 37(I) of the O.C.H & P.F.L. Act proceeding, it is thus urged that in the event this Court interferes in such order, there would be serious prejudice to the contesting Opposite Parties for their no fault. It is, in the circumstances, Mr. Mohapatra, learend counsel for Opposite Party Nos.3 & 4 claimed for rejection of this Writ Petition.

5. Mr. Sahoo, learned State Counsel toed/followed the submission of Mr. Mohapatra, learned counsel for Opposite Party Nos.3 & 4 and accordingly prayed this Court for dismissal of this Writ Petition.

6. Considering the rival contentions of the parties, this Court finds, the authority below in undertaking the proceeding U/s.37(I) of the OCH & PFL Act 1972 has made the following clear observation:

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"The notice has been duly served to all parties. That has been return back. It is attached in case record."

7. From the aforesaid observation this Court finds, there should not be any doubt that there has been service of notice. Further in the entire reading of the grounds taken in the Writ Petition this Court nowhere finds, there is any serious allegation of non-sufficiency of notice. Therefore, this Court observes, no blame can be saddled on the authority deciding the matter of this nature.

8. Be that as it may, this Court here finds, present proceeding is a proceeding U/s.37(1) of the OCH & PFL Act being emanated from the remand order in a proceeding U/s.37(2) of the OCH & PFL Act relating to Village-Bhramapur, Tahasil/P.S./Dist.-Khurda and also involving the disputed property. Looking to the serious nature of dispute and for undertaking an exercise to declare the right, title and interest of the parties, this Court is of this opinion that such nature of dispute should have been decided in the contest of all the parties.

9. In the circumstance, this Court finds, the impugned order is an outcome of non-cooperation of the Petitioner and there is suffering at the end of the contesting Opposite Parties for the latches of the Petitioner alone. This Court, therefore, while interfering in the impugned order at Annexure-2, sets aside the same and directs the Commissioner, Consolidation & Settlement, Bhubaneswar to re-adjudicate the proceeding vide Consolidation Revision Case No.12/12/97/2015 involving all the parties concerned. At the same time keeping in view the suffering of the contesting Opposite Parties for the setting aside of the impugned order, this Court in remand of the proceeding also imposes a cost of Rs.7500/- (rupees seven thousand five hundred only) on the

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Petitioner to be paid to the contesting Opposite Parties herein. The cost be paid within a period of ten days of this order.

10. Petitioner is directed to submit a copy of this Court along with receipt establishing payment of cost before the Commissioner, Consolidation & Settlement, BBSR on 9th August, 2023. Upon such development the Revisional authority shall do well in re-opening the matter and deciding the same in the involvement of both the contesting parties herein. For there is no filing of the written statement in the Section 37(I) proceeding, this Court also permits the Petitioner to bring its written statement and or objection also within a period of two weeks of the order of this Court. For there is sufficient loss of time in the meantime this Court also requests the Commissioner, Consolidation & Settlement, BBSR to re-adjudicate the proceeding afresh and conclude the same within a period of three months from the date of production of a copy of this order. Both the parties are also directed to appear before the competent authority along with a copy of this order on 9th August, 2023.

11. This Writ Petition succeeds but with an order of remand. There is, however, cost as awarded vide paragraph no.9 herein.

(Biswanath Rath) Judge Orissa High Court, Cuttack.

The 28th day of July, 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: 31-Jul-2023 15:26:00