Orissa High Court
Puspanjali Sarangi vs Sub-Collector on 21 March, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No.16790 of 2011
(Through Hybrid mode)
Puspanjali Sarangi .... Petitioner
-Versus-
Sub-Collector, Bargarh and others .... Opposite Parties
Advocates appeared in this case:
For Petitioner : Mr. Santosh Kumar Nanda, Advocate
For Opposite Party nos.1 and 2 : Ms. Suman Pattanayak,
Addl. Govt. Advocate
For Opposite Party no.3 : None
CORAM: JUSTICE ARINDAM SINHA
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Date of hearing and Judgment: 21.03.2023
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1. Mr. Nanda, learned advocate appears on behalf of
petitioner and submits, impugned is order dated 8th December,
2010 made by the Sub-Collector in Misc. Certificate Appeal
no.2 of 2010, arising out of cancellation of residence certificate
made under rule 7 of Orissa Miscellaneous Certificates Rules,
1984. No appeal lies therefrom. He submits further, rule 8
provides for appeal and it is maintainable only against orders
passed by the Revenue Officer under rule 6.
2. Ms. Pattanayak, learned advocate, Additional
Government Advocate appears on behalf of State and submits,
by impugned order in appeal, the cancellation was set aside.
3. The Rules of 1984 were superseded by Odisha
Miscellaneous Certificates Rules, 2017, which in turn were
superseded by Odisha Miscellaneous Certificates Rules, 2019.
Be that as it may, there is no doubt that the order, made subject
matter of the appeal by the Sub-Collector, was passed under
rule 7 of the 1984 Rules. It was on review of the case, whereby
residence certificate granted to opposite party no.3, stood
cancelled. The rules do not provide for appeal therefrom.
4. Order-sheet reveals, opposite party no.3 was noticed
and also represented earlier. She goes unrepresented.
5. A right of appeal, where conferred, vests on
commencement of the lis. It was conferred, in this case,
specifically by the rules in omitting to provide for appeal from
order of review. As such, the Sub-Collector could not have
continued the lis by embarking to adjudicate on appeal from the
order of review cancelling the residence certificate. The
Supreme Court by order dated 15th February, 2022 in IA
no.99210 of 2021 in Civil Appeal no.1842 of 2021 (ECGC v.
Mokul Shriram EPC JV.) said as in paragraph 33 reproduced
below.
"33. There is another line of judgments taking a
view that right of appeal is a creation of
statute and the legislature is competent to
determine the conditions on which an
appeal would lie. These are not the cases of
amending or repeal of a statute, therefore,
such judgments are not applicable to the
questions arising in the present application."
(emphasis supplied)
The view was noticed in the judgment and distinguished to be
not applicable to the case dealt with thereby. The Supreme
Court earlier in Kamal Kumar Dutta v. Ruby General
Hospital Ltd., reported in (2006) 7 SCC 613 had held, right of
appeal can be taken away by a subsequent enactment, either
expressly or by necessary intendment. In that case, consequent
to amendment in Companies Act, 1956, inter alia, complaints
on oppression and mismanagement were to be taken to the
Company Law Board instead of petitioning the Company Judge
in the High Court, Calcutta. Appeal therefrom lay to the
Company Judge. There was taken away the Letters Patent intra
Court appeal on inserted by amendment section 100A in Code
of Civil Procedure, 1908. It is significant to note that the right
of appeal taken away had been conferred by the Letters Patent,
1865.
6. Scheme of the Rules of 1984 suggests that there was to
be made initial verification, for purpose of issuance of the
certificate and on review, it may be cancelled. After review, the
rules did not provide for appeal, to continue the lis before any
superior officer in the revenue administrative hierarchy. In the
circumstances, though impugned order, made purportedly
under rule 8 providing for appeal, was result of adjudication on
merits but it is required to be and is set aside on the ground that
the appeal was not maintainable under the Rules of 1984.
7. The writ petition is allowed and disposed of.
(Arindam Sinha)
Judge
R.K.Sethi
