Orissa High Court

Chanchal Kumar Bera @ Chanchal Bera & ... vs Additional Commissioner Settlement & ... on 18 February, 2025

                ORISSA HIGH COURT : CUTTACK




                   WP(C) No.11380 of 2019

An application under Articles 226 & 227 of the Constitution of
                            India.



                             ***

Chanchal Kumar Bera @ Chanchal Bera & Others ... Petitioners.

-VERSUS-

Additional Commissioner Settlement & Consolidation Balasore, District: Balasore & Others ... Opposite Parties.

Counsel appeared for the parties:

For the Petitioners : Mr. G. Mishra, Sr. Advocate.

Along with Mr. A. Dash, Advocate.

For the Opposite Parties : Mr. G. Mohanty, Standing Counsel.

(for the State) Mr, S.N. Mishra, Adv. (O.P. Nos.3 & 4)

WP(C) No.18685 of 2019

***

Bijay Kumar Bera & Another ... Petitioners.

-VERSUS-

Additional Commissioner Settlement & Consolidation Balasore, District Balasore & Others ... Opposite Parties.

Counsel appeared for the parties:

For the Petitioners : Mr. Mr, S.N. Mishra, Adv.

For the Opposite Parties : Mr. G. Mohanty, Standing Counsel.

(for the State) Mr. G. Mishra, Sr. Adv.

Along with Mr. A. Dash, Advocate (O.P. No.6)

P R E S E N T:

HONOURABLE MR. JUSTICE ANANDA CHANDRA BEHERA

Date of Hearing : 28.01.2025 :: Date of Order : 18.02.2025

O RDER

ANANDA CHANDRA BEHERA, J.--

1. Since both the writ petitions have been filed praying for

quashing an Order dated 09.01.2019 passed in Settlement

Revision Petition Case No.4 of 2017 (in short R.P. Case No.4 of

2017) by the Additional Commissioner Settlement and

Consolidation, Balasore (Opposite Party No.1) then, both the

writ petitions are taken up together analogously for their final

disposal through this common Judgment.

2. I have already heard from the learned counsel for the

petitioners, the learned Standing Counsel for the Opposite

Party Nos.1 and 2 and the learned counsels for the other

Opposite Parties in both the writ petitions.

3. The petitioners as well as the Opposite Parties other than

the Opposite Party Nos.1 and 2 in both the writ petitions were

the parties in the R.P. Case No.4 of 2017.

When during settlement operation an order was passed

for recording the properties under Hal Plot No.99/433 under

Hal Khata No.162 in Mouza-Bijaya Patna under Chandbali

Tahasil in the name of the petitioners in WP(C) No.11380 of

2019, then, the petitioners in WP(C) No.18685 of 2019 filed

R.P. Case No.4 of 2017 before the Additional Commissioner

Settlement and Consolidation, Balasore praying for recording

the said properties jointly in their names along with the

names of the petitioners in WP(C) No.11380 of 2019. In that

R.P. Case No.4 of 2017, notices were issued to the Opposite

Parties thereof i.e. to the petitioners in W.P(C) No.11380 of

2019 and accordingly, they (Opposite Parties in R.P. Case

No.4 of 2017) contested the same making their appearance.

After hearing from both the sides, the Additional

Commissioner Settlement and Consolidation, Balasore

(Opposite Party No.1) passed the final Order vide Annexure-2

on dated 09.01.2019 in R.P. Case No.4 of 2017 directing

Tahasildar, Chandbali to record the case land in the name of

the State under Anabadi Khata after deleting the names of the

petitioners in WP(C) No.11380 of 2019 from the same.

4. On being aggrieved with the said Order dated 09.01.2019

passed in R.P. Case No.4 of 2017 by the Additional

Commissioner Settlement and Consolidation, Balasore

(Opposite Party No.1), the parties thereof filed two separate

writ petitions vide WP(C) No.11380 of 2019 and 18685 of 2019

respectively challenging the same.

When, the Opposite Parties in R.P. Case No.4 of 2017

filed WP(C) No.11380 of 2019, the petitioners in R.P. Case

No.4 of 2017 filed WP(C) No.18685 of 2019 challenging the

same and one Order dated 09.01.2019 passed in R.P. Case

No.4 of 2017 on the ground that, the petitioners in WP(C)

No.18685 of 2019 had filed R.P. Case No.4 of 2017 under

Section 15(b) of the Orissa Survey and Settlement Act, 1958

praying for joint recording of the case land i.e. in their names

along with the names of the Opposite Parties in that R.P. Case

No.4 of 2017, but the Opposite Party No.1 in both the writ

petitions, passed the final Order on dated 09.01.2019 in the

said R.P. Case No.4 of 2017 creating a third case which was

not the case of either parties to the R.P. Case No.4 of 2017

directing for recording of the case land in the name of a third

party i.e. State of Odisha under Anabadi Khata without asking

the parties to answer the intention of the Opposite Party No.1

of both the writ petitions for passing an order in favour of no

party to the same i.e. State of Odisha.

6. As such, the final Order in R.P. Case No.4 of 2017 vide

Annexure-2 has been passed by the Opposite Party No.1

without complying the principle of natural justice.

Because, none of the parties were given opportunity of

being heard concerning any question raised in the mind of the

Opposite Party No.1 for passing an order creating a third case

other than the case of the parties for recording the case land

in the name of the third party i.e. State of Odisha.

7. When, only the legality and propriety of the Order of the

Settlement Authority was under challenge in R.P. Case No.4 of

2017 and when the petitioners of the same prayed for joint

recording of the case land instead of recording of the same

only in the names of the Opposite Parties thereof, then, at this

juncture, the Opposite Party No.1 had no authority under law

to make out a third-case, which is not the case of either party,

for recording of the case land in the name of the State of

Odisha, who was not at all a party to the said revision.

8. It is the settled propositions of law that, any court or

authority, during adjudication cannot create a third case,

which is not the case of either party.

On this aspect, the propositions of law has already been

clarified by the Hon'ble Courts and Apex Court in the ratio of

the following decisions:

I. In a case between Rudramohan Mohapatra Vs. LIC of India and Others reported in 2007 (I) OLR 57 (Para No.8)--Practice and Procedure--A court of fact is not entitled under law to make out a third case which is not the case of either of the parties before it. II. In a case between Lal Bahadur Prasad & Others Vs. Surendra Singh & Others reported in 2014 (1) CCC 44 (Patna) (Para Nos.12 to 16)--Court cannot make a third case on the basis of evidence produced by defendants in support of a fact which was never put forth in pleading.

III. In a case between Venugopal Padayachi (dead) through LRs Vs. V. Pichaikaran reported in 2018(4) CCC 165 (SC)-- High Court making out a new case not set up by any party, not permissible. IV. In a case between Bachhaj Nahar Vs. Nilima Mandal & Others reported in IV (2008) Civ.L.T. 276 (SC) (Para Nos.9, 10 &12)-- The Court cannot make out a case not pleaded by the parties. The Court should confine its decision to the question raised in the pleadings.

V. In a case between Banambar Das Vs. Pitambar Das and Others reported in 2010 (I) OLR 700 (Para No.5)-- Whenever an order is passed to the detriment of a party, that party must be given a reasonable opportunity to show cause and being heard.

VI. In a case between Dawood Vs. Zubaida reported in 2010 (4) CCC 229 (Kerla)-- No one should be visited with an adverse consequence unless he has been given an effective and reasonable opportunity to be heard - to show cause against such an adverse order.

11. When, the Opposite Party No.1 on the basis of the

Judgment dated 09.01.2019 in R.P. Case No.4 of 2017 has

created a third case, without inviting any show-cause from the

parties for the same to meet the intention of the Opp. Party

No.1 for creation of a third case in order to record the case

land in the name of the third party i.e. State, then at this

juncture, by applying the principles of law enunciated in the

ratio of the aforesaid decisions, it can be held that, the

impugned order dated 09.01.2019 passed in R.P. Case No.4

of 2017 by the Opposite Party No.1 is not sustainable under

law.