Kamala Mohapatra vs Collector & District Magistrate
2023 Latest Caselaw 5736 Ori

                    ORISSA HIGH COURT : C U T T A C K
                                W.P.(C) NO. 11235 OF 2023
                             An application under Articles 226 & 227 of
                                  the Constitution of India.


         Kamala Mohapatra                                                             : Petitioner

                                                 -Versus-

         Collector & District Magistrate,
         Cuttack & Anr.                                                       :Opposite Parties


               For Petitioner                             : Mr. D.Mohapatra, Mr.M.R.
                                                            Pradhan, Mr.J.Barik, Mr.P.K.
                                                            Singhdeo & Mr.S.K.Rout,Adv.

               For Opp.Parties                            : Mr. S.Ghose, AGA



                              JUDGMENT

CORAM :

JUSTICE BISWANATH RATH

Date of Hearing & Judgment : 11.05.2023

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

<The petitioner therefore most humbly prays that this Hon'ble Court may graciously be pleased to issue rule Nisi calling upon the Opposite Parties

(i) as to why the order passed by the Revisional Authority in Annexure-3 and consequential order passed by the Tahasildar in Annexure-6 shall not be quashed.(ii) as to why there shall not be a direction to consider the case of the petitioners in the light of the materials available on records and (iii) accordingly as to why there shall not be a direction to change the Kissam of the schedule land of the petitioners from GADIA Kissam to PURATAN PATITA and thereafter for consideration of the recording of the land as GHARABARI.

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And if the Opposite Parties fail to show cause or show insufficient cause to make the said rule absolute by issuance of appropriate writ(s), order(s), direction(s) as this Hon'ble Court may deem fit and proper;

And/or to pass such other order(s) as this Hon'ble court may deem just and proper under the facts and circumstances of the present case.

And for this act of kindness the petitioner shall as in duty bound ever pray.=

2. Principal ground of challenge to the impugned order appears

to be once there is power provided to the Commissioner under the

provision of Section 15(b) of the O.S.S. Act, 1958, it is only the

Commissioner to discharge such power and he has no authority to

remit the matter to the Tahasildar for involving Tahasildar's

exercise in such dispute. Second limb of argument appears to be

even assuming the Tahasildar has worked out on the direction of

the Commissioner, the Tahasildar should have confined the

proceeding considering it ought to be a request for correction of

record-of-right and in no circumstance there involved a case for

conversion of land. Further argument advanced by Mr.Mohapatra,

learned counsel for the petitioners appears to be Tahasildar while

having remand exercise took the proceeding to be involving a

request for conversion of land and therefore, there is inadvertent

following of the previous judgment of this Court referred to

therein. It is keeping the above legal position, Mr.Mohapatra,

learned counsel sought for setting aside of the impugned order.

Mr.Mohapatra, learned counsel also to satisfy his such submission

brought to the notice of the order dated 27.07.2022 in W.P.(C)

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No.14368 of 2022 and the judgment dated 13.04.2023 involving

W.P.(C). No.5042 of 2019 with W.P.(C).No.9426 of 2023 passed

by this Court. Reading through the judgment and order referred to

hereinabove, Mr.Mohapatra, learned counsel attempted to satisfy

this Court that it was only for the Commissioner to discharge his

exercise looking to the nature of the proceeding.

3. Mr.Ghose, learned Additional Government Advocate

however referring to the proceeding filed in R.P. Case No.248 of

2007 and Misc. Case No,.29 of 2021 involving R.P. Case No.248

of 2007, reading through the different orders at page -56 and 57 of

the brief in his first limb of argument submitted that there is no

proper assistance to the Court for there has been non-appearance of

the contesting parties in several occasions. Further in reference to

the judgment and order referred to hereinabove, Mr. Ghose, learned

Additional Government Advocate contended that for the judgment

and order came to exist subsequently, there was no occasion on the

part of the Commissioner either to come to know such legal

position or to refer such orders. Further, similarly the Tahasildar

had also no occasion to go through the judgment and order passed

on this particular aspect by this Court in the meantime. Taking this

Court to the order involving previous round of litigation,

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Mr.Ghose, learned Additional Government Advocate contends the

Tahasildar remain bound to give a lawful outcome. Mr. Ghose

however submitted that there cannot be any dispute of the decision

in W.P.(C).No.8797 of 2004 and O.J.C.No.6721 of 1999 not

applying to the case at hand.

4. Considering the rival contentions of the parties, attaining to

the validity of the order under Annexure-3 & 6, this Court refers to

the pleadings of the petitioner based on hal record-of-right

appears to be a clear case of bringing in change in the status of the

land mentioned in sabik khata and in no circumstance, there

involves any case for conversion. Facts as borne through the

pleading undisputedly establishing petitioner herein is subsequent

purchaser. Plot No.1563, Plot No.1481 and Plot No.1483

originally recorded as <Puratana Patita=. In sabik there has been

recording of status of above land as <Gadia=, compelling the

vendor of the petitioner brought a Section 15(b) of O.S.S. Act

proceeding on the file of Revisional Authority. Looking to the

record of right and discussions involving hal record vis-à-vis sabik

record, this Court finds there should not be any doubt that there

was inadvertent mentioning of status of the land in the further

preparation of record and as such Section 15 (b) application should

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have considered the limited aspect in bringing in correct status of

land dependant on hal record-of-right.

5. In the circumstance, looking to the nature of dispute brought

under Section 15(b) of the O.S.S. Act, this Court finds even

considering the case of the petitioner, the Commissioner vide page-

46 & 47 has come to observe as follows:

<On verification of documents filed by the petitioners and the submissions made by the learned Counsel for the petitioners, it is revealed that the Hal Plot No.465, area Ac0.112 dec. and Plot No.911, area Ac.0.348 dec.

stands recorded in the names of Abhaya Chandra Mohanty, Son of Dinabandhu Mohanty under Hal Khata No.34 with stitiban status. It is further contended that the original Hal recorded tenant namely Abhaya Chandra Mohanty died leaving behind his three sons namely Petitioner No.1, 2 and Proforma Opp.Party No.2 namely Dr.Anil Chandra Mohanty, Asit Chandra Mohanty and Ananda Chandra Mohanty, Sons of Late Abhaya Chandra Mohanty. It is further contended that the counsel for the petitioners by adducing the true copy of Sabik settlement Record-of-Right in the year 1931, that the classification in respect of Hal Plot No.465 & 911 which corresponds to Sabik Plot No.1481 & Sabik Plot No.1483 under Sabik Khata No.1563 as a <Puratana Patita=,but while the Hal settlement Record-of-Right finally published on 13th March, 1992. The classification of Hal Plot No.465 and 911 has been wrongly recorded as <Gadia= in column 9 (nine) instead of <Puratana Patkita= in the impugned Hal ROR No.34. Hence, this revision.= It is here taking into account the observation of the

Commissioner, this Court finds the commissioner even after

coming to conclude there was wrong recording on the status of the

land involved herein and maintained it to be <Puratana Patita=,

there involves change in kissam of the property in sabik record-of-

right bringing it to be puratana Patita from recording Gadia. The

Revisional Authority should have stop his exercise here simply

directing bringing in record-of-right with change in status of land

to <Puratana Patita=. Further reading of the observation, this Court

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again finds the Revisional Authority coming to his direction

remitted the matter to the Tahasildar for consideration keeping in

view the judgment of this Court in W.P.(C) No.8797 of 2004 and

O.J.C.No.6721 of 1999, this Court finds there is mis-application of

the judgment referred to therein to the case at hand. Deciding such

issue, this Court in both the order dated 29.07.2022 in

W.P.(C).No.13468 of 2022 and the judgment dated 13.04.2023 in

W.P.(C).N0.5042 of 2019 has already come to hold there is no

application of the judgment vide W.P.(C).No. W.P.(C) No.8797 of

2004 as well as O.J.C.No.6721 of 1999 to this nature of case.

6. In the circumstance, this Court sets aside the direction part at

end of page -46 and continuing till page- 47 of the brief at

Annexure-3. It is for the aforesaid finding the impugned order at

Annexure-6 is declared as bad and in total non-application of mind

and thus also is sets aside. This Court accordingly remits the

matter back to the Revisional Authority for giving the rightful

declaration bringing in the status of the disputed land involved

herein from <Gadia Jalasaya= to <Puratana Patita= by completing

his exercise within a period of one month from the date of

communication of this order by the petitioners There should also

be consequent direction to the concerned Tahasildar to bring the

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corrected record-of-right within a further one month time. For this

Court records the submission of Mr.Mohapatra, learned counsel for

the petitioners that there has been subsequent sale and vendor is not

co-operating presently, in such event, it may be open to the

petitioner herein to pursue the litigation in R.P. Case No.248 of

2007. It is open to the Revision Petitioner to bring to the notice of

the Commissioner the decision of this Court vide

W.P.(C).No.5042 of 2019 dtd.13.04.2023 and W.P.(C).No.14368

of 2022 dtd.29.07.2022 respectively.

7. In the result, the writ petition succeeds however, there is no

order as to cost.

(Biswanath Rath) Judge

Orissa High Court, Cuttack.

The 11th day of May, 2023//sks.

Digitally signed by SUSIL KUMAR

Date: 2023.05.12 16:21:40 +05'30'