Sandhyarani Roul vs Gourahari Roul & Ors
2023 Latest Caselaw 5383 Ori

                    ORISSA HIGH COURT : C U T T A C K
                                W.P.(C) NO. 14559 OF 2019
                             An application under Articles 226 & 227 of
                                  the Constitution of India.


         Sandhyarani Roul                                         : Petitioner

                                                -Versus-

         Gourahari Roul & Ors.                                    :Opposite Parties


               For Petitioner                            : Mr. D.P.Mohanty, Adv.
                                                          Mr. R.K.Nayak,Adv.
                                                          Mr.T.K.Mohanty,Adv.
                                                          Mr.P.K.Swain,Adv.

               For Opp.Parties                           : Mr. M.Mohanty, Adv.
                                                           Mr.K.C.Roul,Adv.
                                                           Mr.S.Rath, Adv.
                                                                      (For O.P.No.1)



                                                JUDGMENT

CORAM :

JUSTICE BISWANATH RATH

Date of Hearing & Judgment : 08.05.2023

Biswanath Rath,J. This writ petition involves the following prayer:

<The petitioner therefore prays that in view of the facts and circumstances stated above this Hon'ble Court may be graciously pleased to admit this writ application, call for records of the court below if necessary and after hearing the parties allow the same and issue an appropriate writ/direction or order quashing the order dated 22.06.1998 passed in Revision Petition No.155/1998 by the Opposite Party No.5 the Joint Commissioner, Settlement & Consolidation, Odisha Bhubaneswar, Annexure-8 thereby dismissing the Revision Case in full.

And pass such other order or orders, as the Hon'ble court may deem fit and proper in the circumstances of the case.

// 2 //

And for this the Petitioner shall as in duty bound ever pray.=

2. Background involving the case is that a proceeding under

Section 37(1) of the O.C.H. & P.F.L. Act was brought to the

competent forum vide Annexure-7 in the year 1998 registered as

R.P. Case No. 155 of 1998. Thus, there is raising of question on

entertainability of writ petition after so many years.

3. Reading through the cause title in the R.P. Case No. 155 of

1998, taking this Court to the genealogy brought at page-3 of the

brief, Mr. Mohanty, learned counsel appearing for the Petitioner

brings to the notice of this Court that even though the Petitioner

herein is one of the co-sharers in the disputed property, the

proceeding under Section 37(1) of the O.C.H. & P.F.L. Act was

contested behind her back and finally decided in favour of the

Petitioner therein vide Annexure-8. The order vide Anenxure-8

appears to have been passed on 22.06.1998.

4. Coming to answer as to the reason in bringing a Writ

Petition 2019, Mr. Mohanty, learned counsel for the Petitioner

taking to the background involved herein particularly to the notice

of this Court that one of the party attempted to bring a review of

the order herein being rejected, a Writ Petition was brought to this

Court in O.J.C. No. 7851 of 1999, which came to be disposed of on

09.08.2006 in the rejection of the application. It is made clear that

// 3 //

the Writ Petition was filed by some other party not by the present

Petitioner. Petitioner herein has not even enclosed the said writ

petition.

5. It is at this stage, taking this Court to the documents from

Annexures-1 to 5, attempt is made to establish that the property all

through remained in the ancestors of the Petitioner. It is claimed

only after coming to the know that there has been certain

development through the proceeding under Section 37(1) of the

O.C.H. & P.F.L. Act and after coming to the know that there has

been further litigation through O.J.C. No. 7851 of 1999, the

Petitioner applied for the certified copy of the Writ Petition along

with the orders therein and also the documents appended therein.

Taking this Court to the date of application being on

28.01.2019 and date of delivery on 02.02.2019, it is contended that

after getting the order under Section 37(1) of the O.C.H. & P.F.L.

Act as well as the development through documents supplied by the

High Court, the Petitioner applied for a Nil Certificate of

Encumbrance on Property vide Annexure-9 to find the position of

the property, which copy was supplied to the Petitioner on

09.08.2019 and the Writ Petition came to be filed on 16.08.2019.

It is for obtaining of the order behind back of the Petitioner, Mr.

// 4 //

Mohanty, learned counsel for the Petitioner contended that the

impugned order should be interfered with and the matter ought to

be remitted back for reconsideration of the dispute in the

involvement of the parties in the interest of justice.

6. Mr. Maheswar Mohanty, learned counsel for the Opposite

Party taking again this Court to the genealogy and cause title in the

R.P. Case No. 155 of 1998 attempted to submit that it is not a case

decided without involvement of the interested parties, some of the

ancestors having been involved in the proceeding under Section

37(1) of O.C.H. & P.F.L Act, it should be presumed that all the

parties were involved in the proceeding under Section 37(1) of

O.C.H. & P.F.L requiring no opening of the proceeding any

further. Mr. M. Mohanty, learned counsel also took help of the

attempt of the one of the co-sharers in O.J.C. No. 7851 of 1999 and

submitted the present Writ Petition is barred by re- judicata. Mr.

Mohanty, learned counsel however did not dispute that petitioner

herein was althrough kept away from the litigation undertaken in

the meantime.

7. Considering rival contention of the parties, this Court on

perusal of the Petition under Section 37(1) of O.C.H. & P.F.L Act

read together with disclosures in Annexures-1 to 5 finds, Petitioner

// 5 //

undisputedly has interest in the property. There is also no denial

that the Petitioner was never a party to the proceeding under

Section 37(1) of O.C.H. & P.F.L. Act however in the disposed of

writ petition. It is taking into account the application of res-judicata

being raised by Mr. Mohanty, learned counsel for private Opposite

Party for the discussion involving O.J.C.No.7851 of 1999, on

perusal of the dispute involved in O.J.C. No. 7851 of 1999 decided

on 09.08.2006, this Court finds, the Petitioner was neither the

applicant there nor even an opposite party. Therefore, any

development therein does not bind the Petitioner. Further coming

to the question of bringing the Writ Petition with inordinate delay,

this Court for the recording hereinabove that the Petitioner was

never a party to either of the proceeding under Section 37(1) of

O.C.H. & P.F.L Act or in the Writ Petition finds, Petitioner only

after coming to know all such developments applied copy of the

Writ Petition along with the other copies by making copy

application to this Court on 28.01.2019 and obtained all such

documents on 02.02.2019. It is here, this Court also finds, the

Petitioner after getting the details of history of litigation involving

the disputed property attempted to know the position of the

property and in the process applies for a copy of Nil Certificate of

// 6 //

Encumbrance on Property in Form No. 25 vide annexure-9 and

obtained the certified copy of the same only on 09.08.2019. This

Writ Petition was brought on 16.08.2019. This Court therefore

satisfies with submission of learned counsel for the Petitioner

involving the delay in bringing such litigation.

8. For this Court finds, proceeding under Section 37(1) of

O.C.H. & P.F.L Act brought without involvement of the Petitioner

and Annexures-1 to 4 at least prima facie establishing Petitioner

has right over the disputed property and the decision vide

Annexure-8 decided behind back of the Petitioner, the order at

Annexure-8 remains unsustainable.

9. In the process, this Court interferes with the order at

Annexure-8 and sets aside the same. However, for there is

requirement of fresh disposal of the R.P. Case No. 155 of 1998,

remitting the matter back to the Joint Commissioner, Settlement

and Consolidation, Odisha and/or the Competent Authority for the

time being, directs both the parties in contest to appear before the

Competent Authority along with the certified copy this order on

27th May, 2023 and take a date of fresh hearing. At this stage of the

matter, Mr.Maheswar Mohnaty, learned counsel appearing for the

opposite party brings to the notice of the Court that presently the

// 7 //

proceeding lies before the Additional commissioner, Consolidation

& Settlement, Balasore. It may be open to the Petitioner herein to

bring her objection to the proceeding under Section 37(1) of

O.C.H. & P.F.L Act on the date of appearance itself. This Court

since finds from Annexures- 1 to 4 that there are so many stake

holders in the involvement of the property, parties on proper

advice, private parties herein shall bring any other parties likely to

be affected to the forum of consideration and the dispute shall be

decided in the involvement of all such parties.

10. The Writ Petition succeeds but however with an order of

remand. No cost.

(Biswanath Rath) Judge

Orissa High Court, Cuttack.

The 08th May, 2023//sks.

SUSIL KUMAR   Digitally signed by SUSIL
              KUMAR SWAIN

SWAIN         Date: 2023.05.10 17:47:36
              +05'30'