Dr. Deizy Panda vs State Of Odisha And Others
2023 Latest Caselaw 6271 Ori

     IN THE HIGH COURT OF ORISSA AT CUTTACK

                   WP(C) No.14980 of 2023

Dr. Deizy Panda                               ....                Petitioner

                                -Versus-
State of Odisha and others                    ....        Opposite Parties

Advocates appeared in this case :

For Petitioner : Mr. Kshetrabasi Mohanty, Advocate

For Opposite Parties : Mr. G. N. Rout, Advocate (ASC)

       CORAM:

       JUSTICE ARINDAM SINHA
       JUSTICE SANJAY KUMAR MISHRA

                                  JUDGMENT

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Date of hearing and Judgment: 17th May, 2023

---------------------------------------------------------------------------- ARINDAM SINHA, J.

1. Mr. Mohanty, learned advocate appears on behalf of petitioner and submits, impugned is order dated 30th November, 2012 made by the Assistant Settlement Officer (ASO). By it the authority had refused to maintain petitioner's name in the record. It amounts to cancellation of lease since, petitioner's name stood recorded based on original allotment. The ASO acted wholly without jurisdiction. He relies on judgment dated 2nd January, 2023 of the first division Bench in, inter alia, WP(C) no.1608 of 2014 (Narottam Rath v. State of Odisha and another), paragraphs 17 and 19 reproduced below.

"17. Clearly the ASOs were acting without jurisdiction and beyond the scope of their powers under the OSS Act. It is obvious that powers which could have been exercised only under the OGLS Act were sought to be exercised by the ASO which was impermissible in law for them to do. The above extracted portions of the orders of this Court conclusively settle the legal position in this regard and do not bear repetition.

19. In that view of the matter, the following directions are issued in all these writ petitions:

(i) The impugned orders of the ASOs declining to accept the request of the Petitioners for recording of their names in the ROR in respect of the lands in question on the ground that the land belongs to the Government, are hereby set aside;

(ii) The corresponding orders by the Appellate Authorities affirming such orders of the ASOs are also hereby set aside; xxx xxx xxx"

2. Mr. Rout, learned advocate, Additional Standing Counsel appears on behalf of State. He submits, the writ petition suffers from gross delay. It should not be entertained on that ground alone. Obviously petitioner is trying to take advantage of Narottam Rath (supra) upon earlier having accepted deletion of her name in the RoR.

3. Without prejudice he submits, certain documents disclosed in the petition itself need to be seen. Firstly, by order dated 5th January, 2009 in the writ petition of petitioner's predecessor-in-interest, [WP(C) no.10763 of 2008] resumption order in Misc. Case no.1225 of 2000 was quashed. The

resumption case was restored to the Additional Tahsildar. Direction paragraph from said order is reproduced below.

"We, accordingly, quash the impugned order dated 31.3.2003 and direct the Additional Tahasildar, Bhubanesar to dispose of the proceeding after giving reasonable opportunity to the petitioners. The petitioners are directed to appear before the Additional Tahasildar, Bhubanesar in the week commencing from 16th February, 2009 and on their appearance the Additional Tahasildar shall fix a date for hearing of the proceeding and shall dispose of the same as early as possible. It goes without saying that the petitioner shall be permitted to produce all the relevant documents in support of their case."

4. By order dated 28th August, 2009 the revision case was dropped. In the circumstances, no error was committed by the ASO in declining to maintain petitioner's name in the record. Petitioner had accepted impugned order. More so because subsequently by communication dated 20th December, 2013, the ASO had informed petitioner that her objection case had already been disposed of on 30th November, 2012 and final publication and Patta distribution in respect of the village had been made since 24th July, 2013 and 26th August, 2013. He reiterates, petitioner accepted the position. There be no interference on dismissing the writ petition.

5. We must deal with the first contention first, on inordinate delay and petitioner said to be seeking to take advantage of Narottam Rath (supra). Petitioner claims to be interested in the land. A situation prevailed prior to Narottam

Rath (supra) contrary to view taken that in matters of settlement of Government land, the ASO had no jurisdiction to act. It is apparent that petitioner was not able to maintain her name in the RoR because of impugned order, amounting to omission in the final publication. Hence, thereby the lease petitioner is claiming under was deemed to have been cancelled by the ASO. This, when State has pointed out that the resumption order was set aside and quashed. We have not been shown subsequent resumption order passed on restoration of the resumption case. In the circumstances, petitioner has continuing cause of action for the writ Court to intervene, as declared by the Supreme Court in Tukaram Kana Joshi v. M.I.D.C., reported in AIR 2013 SC 565. The Supreme Court also declared the law to be that a judgment of Court acts retrospectively on subsequent discovery of the correct position in law. This the Supreme Court said in CIT v. Saurashtra Kutch Stock Exchange Ltd., reported in (2008) 14 SCC 171. In the circumstances, there is no wrong committed by petitioner in having moved Court upon view taken in Narottam Rath (supra).

6. It is clear from paragraphs 17 and 19 in Narottam Rath (supra), relied upon by petitioner that the ASO acts without jurisdiction, when result is cancellation of settlement made under Odisha Government Land Settlement Act, 1962. We too have said so by our judgment dated 12th May, 2023 in Kumudini Pattnaik v. State of Odisha and others [WP(C) no.11305 of 2023].

7. In view of facts borne out by materials on record we have said as above. The facts are that petitioner initially had approached the Tahsildar in Waste Land Case no.1079 of 1972 with prayer for the authority to receive the rent and correct the RoR. Petitioner was directed to approach the settlement authority. Subsequent thereto there was order of resumption of the lease. We have ascertained that petitioner is transferee. As aforesaid, this Court by order dated 5th January, 2009 (supra) quashed the resumption order and restored the resumption case. By order dated 28th August, 2009 the revision case was dropped because the resumption order had been quashed. The revision obviously was preferred against appeal confirming the resumption order.

8. In the situation as it stood at that time, petitioner approached the ASO to maintain her name in the record. Her position was that the resumption order had been quashed and, therefore, for the purpose of finalization and settlement, her name should be maintained. By impugned order the ASO rejected the prayer. However, there was no direction in impugned order for transferring the land to Government Khata. This came about later in the final settlement operation, whereby petitioner's name stood omitted. This was communicated to petitioner under letter dated 20th December, 2013 by the ASO. Relevant paragraph from the letter is reproduced below.

"In this connection I am to say that, this Objection Case No.32/5/12 of village- Analapatana has already been disposed on 30.11.2012. Moreover, it may be stated here that

Final Publication and Patta Distribution of this village have already been made since 24.07.2013 and 26.08.2013 respectively as per the provisions laid down in the Survey & Settlement Act, 1958, if any party aggrieved in this stage can file Revision before the Board of Revenue within one year or before the Civil Court within 3 (Three) years from the date of Final Publication."

9. We are clear in our mind that petitioner having had purchased land allotted under lease, found that the lease stood cancelled in above procedure adopted by the ASO. As aforesaid the ASO did not have jurisdiction or authority to interfere in matters of allotment under the Act of 1962.

10. On query from Court Mr. Rout submits, concerned authority to make correction in the RoR is the Tahsildar. Accordingly we direct the Tahsildar to cause correction in the record within four weeks of communication.

11. The writ petition is disposed of.

(Arindam Sinha) Judge

(S. K. Mishra) Judge

R.K.Sethi

Signature Not Verified Digitally Signed Signed by: RANJAN KUMAR SETHI Designation: Secretary Reason: Authentication Location: ORISSA HIGH COURT Date: 18-May-2023 15:20:21