Orissa High Court
(An Application Under Articles 226 And ... vs State Of Odisha on 19 November, 2025
Bench: K.R. Mohapatra, Savitri Ratho
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C). No.20217 OF 2014
(An application under Articles 226 and 227 of the Constitution
of India)
*******
Safik Khan (Since Dead), represented
through his legal heirs
1 (a) Amina Bibi
1 (b) Imtaz Khan
1 (c) Intadul Khan
1 (d) Tahir Khan
1 (e) Sabera Bibi
1 (f) Afrooza Bibi
1 (g) Hasiba Bibi ... Petitioners
-versus-
1. State of Odisha, represented through
its Secretary, Revenue and Disaster
Management Department, Odisha
Secretariat, Sachivalaya Marg,
Bhubaneswar
2. Additional District Magistrate,
Bhubaneswar, Dist-Khurda
3. Settlement Officer, Mouza-Andharua,
District-Khurda
4. Assistant Settlement Officer, Mouza-
Andharua, Rental Colony,
Bhubaneswar, District-Khurda
5. The Tahasildar, Bhubaneswar,
At/PO-Bhubaneswar 14, Dist.-Khurda ... Opp. Parties
Advocate for the parties:
For Petitioners : Mr. Suvashish Pattnaik,
Advocate
For Opposite Parties : Mr. Sabita Ranjan Pattnaik,
Additional Government Advocate
W.P.(C). No.20217 of 2014 Page 1 of 13
CORAM:
JUSTICE K.R. MOHAPATRA
JUSTICE SAVITRI RATHO
Heard and Disposed of on: 19.11.2025
JUDGMENT
By the Bench:-
1. This matter is taken up through hybrid mode.
2. Counter affidavit filed by the Assistant Settlement Officer,
Rental Colony, Bhubaneswar on behalf of the Opposite Party No.1
is taken on record, being received from the Office. Copy of the
same is served on Mr. Pattnaik, learned counsel for the Petitioners.
3. On consent of learned counsel for the parties, the matter is
taken up for final disposal.
4. The Petitioner in this writ petition seeks to assail the undated
order passed by the Assistant Settlement Officer, Rental Colony,
Bhubaneswar in Objection Case No.7654 of 2013.
5. Mr. Pattnaik, learned counsel for the Petitioners submits that
Shri Gobinda Barik and Smt. Gouri Barik of village- Andharua
being the landless persons, applied for grant of lease in their favour.
Accordingly, W.L. Case No. 40 of 1974 was initiated in respect of
the application filed by Shri Gobinda Barik and W.L. Case No. 414
of 1974 was initiated by the Tahasildar, Bhubaneswar in respect of
the application filed by Smt. Gouri Barik. Accordingly, Ac.0.680
dec. was settled in favour of Shri Gobinda Barik and Ac.0.660 dec.
was settled in favour of Smt. Gouri Barik. Shri Gobinda Barik and
Smt. Gouri Barik executed two Registered Sale Deed Nos. 5699
and 5698 respectively on 24th July, 1981 in favour of one Laxman
Kumar Nath and alienated the entire property in his favour on
payment of consideration and delivered possession to said Laxman
Kumar Nath. After death of Laxman Kumar Nath, his legal heirs
for their legal necessity alienated the entire leasehold property in
favour of the predecessor of the Petitioners, namely, Safik Khan, by
virtue of Registered Sale Deed No. 1822 dated 27th March, 1984
(Annexure-1). After purchase, said Safik Khan got the land mutated
in his name and Record of Right (Annexure-2) was prepared
accordingly. When said Safik Khan was enjoying the land in
question with his right, title and interest, Lease Revision Case No.
699 of 1998 and Lease Revision Case No. 705 of 1998 were
initiated by the Additional District Magistrate, Bhubaneswar in
exercise of power under Section 7-A (3) of the Orissa Government
Land Settlement Act, 1962 (for brevity, 'the O.G.L.S. Act').
6. Both the revision cases were disposed of without affording
any opportunity to Safik Khan although he was in possession over
the case land having right, title and interest thereon. Thus, the said
Safik Khan filed two writ petitions viz., W.P.(C) No. 11028 of
2005 and W.P.(C) No. 7051 of 2006 assailing the said orders
passed by the Additional District Magistrate in the revision cases.
Both the writ petitions were disposed of by separate orders dated 5th
December, 2006 setting aside the orders passed in Revision Case
No. 699 of 1998 and Revision Case No. 705 of 1998 holding that
both the revision cases were time barred as those were initiated
after 14 years from the date of settlement of the land in favour of
the lessees. By that time, settlement operation in village Andharua
had already started. Thus, ASO making an enquiry published the
draft/preliminary Record of Right under Section 12 of the Orissa
Survey and Settlement Act, 1958 (for brevity, 'the Act, 1958') in
favour of Safik Khan. Being aggrieved, the Government of Odisha
filed objection under Section 12 of the Act, 1958 to the said
preliminary Record of Right before the Assistant Settlement
Officer, Rental Colony, Bhubaneswar (Opposite Party No.4) which
was registered as Objection Case No. 7654 of 2013. No notice
whatsoever was served on Safik Khan although he was the
Opposite Party in the said objection case. The Assistant Settlement
Officer without taking into consideration that the land in question
was settled in favour of the lessees in different lease cases under the
O.G.L.S. Act and the order of the Revisional Authority had already
been set aside by this Court together with the fact that preliminary
Record of Right was published in favour of Safik Khan, directed to
record the land in question in favour of the State Government.
7. It is further submitted by Mr. Pattnaik, learned counsel for
the Petitioners that the Assistant Settlement Officer, Rental Colony,
Bhubaneswar proceeded to adjudicate the correctness of the order
passed in Lease Case No. 40 of 1974 and 414 of 1974. It is his
submission that the land in question was settled in favour of the
lessees under the provisions of the O.G.L.S. Act, thus the
correctness of the same could not have been tested in a proceeding
under the Act, 1958. As such, the impugned order is without
jurisdiction and hence it liable to be set aside.
8. It is also submitted by Mr. Pattnaik, learned counsel for the
Petitioners that in the meantime, final Record of Right in respect of
village Andharua has already been published under Section 12-B of
the Act, 1958. Since the order passed by the Assistant Settlement
Officer, Rental Colony, Bhubaneswar under Annexure-7 was
without jurisdiction, the Petitioner without availing remedy under
Section 12-A of the Act, 1958 or under Section 15 (b) of the Act,
1958 has filed this writ petition. It is his submission that in view of
the ratio decided in the case of Whirlpool Corporation vrs.
Registrar of Trade Marks, Mumbai and Others; (1998) 8 SCC 1
and Godrej Sara Lee Ltd. vrs. The Excise and Taxation Officer-
cum-Assessing Authority and Others; 2023 SCC Online SC 95,
this Court has discretion to entertain a writ petition under Articles
226 and 227 of the Constitution of India although statutory remedy
was available to Safik Khan to challenge the order impugned
herein. He also placed reliance on the ratio in the case of Simple
Sujata Mishra vrs. State of Odisha and Others in W.P.(C) No.
9777 of 2014 disposed of on 22nd October, 2025, in Ranjit Kumar
Mohanty and State of Odisha and Others in W.P.(C) No. 5876 of
2014 disposed of on 22nd September, 2025 and in Narottam Rath
vrs. State of Odisha and Others in W.P.(C) No. 1608 of 2014
disposed of on 14th October, 2025 and submits that in those writ
petitions involving similar issue, this Court has entertained the writ
petitions despite availability of statutory remedy under Section 15
(b) of the Act, 1958 and directed the Tahasildar, Bhubaneswar to
record the land involved in the said writ petitions in favour of the
Petitioner (s) therein. He, therefore, submits that the Petitioners
deserve similar treatment by setting aside the impugned order under
Annexure-7. It is also submitted that during pendency Safik Khan
expired and his legal heirs have substituted and pursuing the present
writ petition.
9. Mr. S.R. Pattnaik, learned Additional Government Advocate
referring to the counter affidavit filed by the Assistant Settlement
Officer, Rental Colony, Bhubaneswar submits that the final Record
of Right in respect of the land in question has already been
published in the name of the State Government. Thus, the
Petitioners have a remedy under Section 15 (b) of the Act, 1958 to
assail the correctness of entries in the final Record of Right in
respect of the land, in question. The Petitioner has also not availed
the remedy under Section 12-A of the Act, 1958 by challenging the
order passed under Annexure-7. He, therefore, submits that the writ
petition is not maintainable and is liable to be dismissed.
10. Heard learned counsel for the parties. Perused the materials
of record and the case law cited before this Court.
11. In the instant case, the land, in question, was settled by the
Tahasildar, Bhubaneswar in favour of the Shri Gobinda Barik in
W.L. Case No. 40 of 1974 and Smt. Gouri Barik in W.L. Case No.
414 of 1974. For their legal necessity, they alienated leasehold
property by two different Sale Deed Nos. 5699 and 5698
respectively, registered on 24th July, 1981 to one Laxman Kumar
Nath. After the death of Laxman Kumar Nath, his legal heirs for
their legal necessity sold the entire leasehold property to Safik
Khan, the predecessor of the Petitioners vide Registered Sale Deed
No. 1822 dated 27th March, 1984 (Annexure-1). Since then, Safik
Khan and after him the Petitioners are in possession over the land in
question exercising right, title and interest thereon. After purchase,
said Safik Khan also got the land muted in his name in the year,
1991 and the mutation Record of Right was prepared in his name.
Subsequently, two suo motu revision cases were initiated by the
Additional District Magistrate, Bhubaneswar in exercise of power
under Section 7-A (3) of the O.G.L.S. Act in Lease Revision Case
No. 699 of 1998 and Lease Revision Case No. 705 of 1998.
Although by that time, the leasehold property stood recorded in the
name of Safik Khan but the revision cases were initiated against the
lessees. No opportunity of hearing to said Safik Khan was afforded
in the said revision cases.
12. The said revision cases were disposed of cancelling the lease
granted in favour of the lessees. When Safik Khan came to know
about the same, he moved this Court in two writ petitions, i.e.,
W.P.(C) No. 11028 of 2005 and W.P.(C) No. 7051 of 2006. Both
the writ petitions were allowed vide order dated 5th December, 2006
setting aside the orders passed in Lease Revision Case No. 699 of
1998 and Lease Revision Case No. 705 of 1998 holding that the
suo motu revision cases under the provision of Section 7-A (3) of
the O.G.L.S. Act were initiated beyond 14 years. It was also held
that the Additional District Magistrate, Bhubaneswar had no
jurisdiction to initiate those revision cases after lapse of the
statutory period of 14 years. As settlement operation had
commenced in the village Andharua by then, said Safik Khan
approached the Assistant Settlement Officer, Rental Colony,
Bhubaneswar (Opposite Party No.4) to record the land in his name.
The Assistant Settlement Officer, Rental Colony, Bhubaneswar
looking into the facts and circumstances of the case and the order
passed by this Court in aforesaid two writ petitions, prepared the
preliminary Record of Right under Section 12 of the Act, 1958 in
the name of Safik Khan. Assailing the same, the State Government
filed Objection Case No. 7654 of 2013 under Section 12 of the Act,
1958. The Assistant Settlement Officer, Rental Colony,
Bhubaneswar in the said objection case directed the land in
question to be recorded in favour of State Government. These
factual aspects were not disputed by Mr. Pattnaik, Additional
Government Advocate.
13. Mr. Pattnaik, Additional Government Advocate has, of
course, raised an objection that as Safik Khan had not availed the
statutory remedy against the order under Annexure-7 impugned
herein, the writ petition is not maintainable. Thus, the question that
arises for consideration is whether the writ petition is maintainable
when admittedly the Petitioner did not avail the statutory remedy
under the Act, 1958.
14. In the case of Whirlpool Corporation (supra), it is held that:-
"Much water has flown under the bridge, but there
has been no corrosive effect on these decisions which,
though old continue to hold the field with the result that law
as to the jurisdiction of the High Court in entertaining a writ
petition under Article 226 of the Constitution, in spite of the
alternative statutory remedies, is not affected, specially in a
case where the authority against whom the writ is filed is
shown to have had no jurisdiction or had purported to usurp
jurisdiction without any legal foundation."
15. In the case of Godrej Sara Lee Ltd. (supra), Hon'ble
Supreme Court has held that:-
"4. Before answering the questions, we feel the urge to
say a few words on the exercise of writ powers conferred by
Article 226 of the Constitution having come across certain
orders passed by the High Courts holding writ petitions as
"not maintainable" merely because the alternative remedy
provided by the relevant statutes has not been pursued by the
parties desirous of invocation of the writ jurisdiction. The
power to issue prerogative writs under article 226 is plenary
in nature. Any limitation on the exercise of such power must
be traceable in the Constitution itself. Profitable reference in
this regard may be made to article 329 and ordainments of
other similarly worded articles in the Constitution. Article
226 does not, in terms, impose any limitation or restraint on
the exercise of power to issue writs. While it is true that
exercise of writ powers despite availability of a remedy
under the very statute which has been invoked and has
given rise to the action impugned in the writ petition ought
not to be made in a routine manner, yet, the mere fact that
the petitioner before the High Court, in a given case, has
not pursued the alternative remedy available to him/it
cannot mechanically be construed as a ground for its
dismissal. It is axiomatic that the High Courts (bearing in
mind the facts of each particular case) have a discretion
whether to entertain a writ petition or not. One of the self-
imposed restrictions on the exercise of power under article
226 that has evolved through judicial precedents is that the
High Courts should normally not entertain a writ petition,
where an effective and efficacious alternative remedy is
available. At the same time, it must be remembered that
mere availability of an alternative remedy of appeal or
revision, which the party invoking the jurisdiction of the
High Court under article 226 has not pursued, would not
oust the jurisdiction of the High Court and render a writ
petition "not maintainable". In a long line of decisions, this
court has made it clear that availability of an alternative
remedy does not operate as an absolute bar to the
"maintainability" of a writ petition and that the rule, which
requires a party to pursue the alternative remedy provided
by a statute, is a rule of policy, convenience and discretion
rather than a rule of law. Though elementary, it needs to be
restated that "entertainability" and "maintainability" of a
writ petition are distinct concepts. The fine but real
distinction between the two ought not to be lost sight of. The
objection as to "maintainability" goes to the root of the
matter and if such objection were found to be of substance,
the courts would be rendered incapable of even receiving the
lis for adjudication. On the other hand, the question of
"entertainability" is entirely within the realm of discretion of
the High Courts, writ remedy being discretionary. A writ
petition despite being maintainable may not be entertained
by a High Court for very many reasons or relief could even
be refused to the petitioner, despite setting up a sound legal
point, if grant of the claimed relief would not further public
interest. Hence, dismissal of a writ petition by a High Court
on the ground that the petitioner has not availed the
alternative remedy without, however, examining whether an
exceptional case has been made out for such entertainment
would not be proper.
5. XXX XXX XXX
6. At the end of the last century, this court in paragraph
15 of its decision reported in (1998) 8 SCC 1 (Whirlpool
Corporation v. Registrar of Trade Marks, Mumbai) carved
out the exceptions on the existence whereof a writ court
would be justified in entertaining a writ petition despite the
party approaching it not having availed the alternative
remedy provided by the statute. The same read as under :
(i) where the writ petition seeks enforcement of any of
the /fundamental rights ;
(ii) where there is violation of principles of natural
justice
(iii) where the order or the proceedings are wholly
without jurisdiction ; or
(iv) where the vires of an Act is challenged."
(emphasis supplied)
16. Thus, it is to be seen as to whether the case of the
Petitioner(s) comes under the categories of cases as mentioned in
the aforesaid case laws to maintain the present writ petition. In the
instant case, the Assistant Settlement Officer, Rental Colony,
Bhubaneswar in exercise of power under Section 12 of the Act,
1958 passed the impugned order under Annexure-7.
17. On perusal of the impugned order under Annexure-7, it
appears that the Assistant Settlement Officer, Rental Colony,
Bhubaneswar presumably assumed jurisdiction to delve into the
veracity of the order of settlement made in favour of Shri Gobinda
Barik and Smt. Gouri Barik, the lessees. Vide order dated 29th
January, 1996 passed in OJC No. 9449 of 1993, this Court
observing the regularities in granting lease in Bhubaneswar,
directed that all the lease cases be scrutinized by an Officer of the
level of Secretary. Probably, the Additional District Magistrate,
Bhubaneswar pursuant to the direction of this Court in OJC No.
9449 of 1993, initiated two revision cases against the lessees in
Lease Revision Case No. 699 of 1998 and Lease Revision Case No.
705 of 1998. These lease revision cases were initiated after the
statutory period of 14 years provided under Section 7-A (3) of the
O.G.L.S. Act. Thus, this Court in W.P.(C) No. 11028 of 2005 and
W.P.(C) No. 7051 of 2006 set aside both the orders in aforesaid
lease revision cases holding that the initiation of proceeding of
Section 7-A (3) of the O.G.L.S. Act was beyond the period of
limitation.
18. In view of the above, the only reasonable conclusion that can
be drawn is that the lease granted in favour of the lessees, namely,
Shri Gobinda Barik and Smt. Gouri Barik attained finality. Neither
in the impugned order vide Annexure-7 nor in the counter affidavit,
the State Government challenges the competency of the lessees to
execute sale deed in favour of Laxman Kumar Nath. By virtue of
execution of the sale deeds by the lessees, said Laxman Kumar
Nath acquired right, title, interest and possession over the land, in
question. Due to legal necessity, his legal heirs sold the land in
question to Safik Khan. Thus, Safik Khan stepped into the shoes of
said lessees and thereafter Laxman Kumar Nath and acquired right,
title, interest and possession over the land in question.
19. The Assistant Settlement Officer, Rental Colony,
Bhubaneswar by scrutinizing the correctness of the lease granted in
favour of the lessees under the O.G.L.S. Act proceeded to hold that
the land should be recorded in the name of the State Government.
By directing so, the Assistant Settlement Officer, Rental Colony,
Bhubaneswar implied set aside the order granting lease in favour of
the lessees which is not permissible in law. The Assistant
Settlement Officer, Rental Colony, Bhubaneswar had no
jurisdiction to question the legality of the lease granted in favour of
the lessees under the provisions of the O.G.L.S. Act. Thus, the
Assistant Settlement Officer, Rental Colony, Bhubaneswar had no
jurisdiction to direct for recording of the land, in question, in the
name of the Government. The initiation of the objection case was
within the statutory domain of Assistant Settlement Officer but the
impugned order being without jurisdiction, becomes void initio. As
such, this Court has ample jurisdiction to entertain writ petition
under Articles 226 and 227 of the constitution in view of the ratio in
Whirlpool Corporation and Godrej Sara Lee Ltd. (supra). As such,
this writ petition is maintainable although statutory remedy under
Section 12-A and Section 15 (b) of the Act, 1958 was available to
Safik Khan. In view of the discussion made above, the impugned
order being not sustainable in the eye of law is set aside.
20. In view of the discussion made above, this Court is of the
considered opinion that the land in question should be recorded in
the name of the Petitioners being the legal heirs of Safik Khan.
Thus, at this stage, relegating the Petitioners to avail the statutory
remedy under Section 15 (b) of the Act, 1958 will further harass
him and serve no purpose.
21. Rule 34 of the Orissa Survey and Settlement Rules, 1962
empowers the Tahasildar to correct the Record of Right pursuant to
direction of this Court. In view of the above, this Court directs the
Tahasildar, Bhubaneswar (Opposite Party No.5) to record the land
in question, in favour of the Petitioners and accordingly issue the
Record of Right within a period of four weeks from the date of
production of certified copy of this order.
22. Resultantly, the writ petition is allowed to the aforesaid
extent.
23. In the facts and circumstances of the case, there shall be no
order as to costs.
(K.R. Mohapatra)
Judge
(Savitri Ratho)
Judge
High Court of Orissa, Cuttack
Dated the 19th November, 2025//Puspa
Signed by: PUSPANJALI MOHAPATRA
Designation: Personal Assistant
Reason: Authentication
Location: Orissa High Court
Date: 26-Nov-2025 15:00:41
