Research › Search › Judgment

Orissa High Court · body

2008 DIGILAW 393 (ORI)

NIRAKAR PATRA v. NARASINGHA GANTAYAT

2008-05-07

I.MAHANTY

body2008
JUDGMENT : Indrajit Mahanty, J. - The Petitioner Nirakar Patra in this writ application has sought to challenge an order dated 6.11.1993 passed by the Member, Board of Revenue, in O.L.R. Revision Case No. 126 of 1983. 2. Learned Counsel for the Petitioner contends that one Narasingha Gantayat (O.P. No. 1) was a tenant of Bhikari Sahu (since deceased) in respect of Ac.11.88 dec. of land. The OLR Case No. 193 of 1975 was started by O.P. No. 1 u/s 36-A of the Orissa Land Reforms Act (in short 'O.L.R. Act') for declaring the land as "non-resumable" and by order dated 23.2.1976, the Revenue Officer after taking evidence and consulting with the members of local village committee, declared that O.P. No. 1-Narasingha Gantayat was a "tenant" and the disputed land was "not resumable". 3. In terms of the order dated 23.2.1976, Narasingha Gantayat paid the compensation amount and became a "Raiyat" of the disputed land who paid rent directly to the State Government. Thereafter, Narasingha Gantayat sold six acres out of the said Ac.11.88 dec. of land to the present Petitioner-Nirakar Patra by way of registered sale deed for consideration and delivered possession thereof. It is further stated that the balance area, i.e., Ac.5.88 dec. was sold by Narasingh Gantayat in favour of one Balaji Sahu by way of registered sale-deed. Learned Counsel for the Petitioner asserts that after the date of purchase, the Petitioner has been continuing his possession and paying rent to State regularly, evidence of which has been annexed as Annexure-3 to the writ application. Accordingly, the Petitioner has also been recorded as raiyat under Khata No. 53/93 in respect of his purchased land. 4. It appears that the Collector, Koraput made a reference u/s 59(2) of the O.L.R. Act and on the basis of that reference, O.L.R. Revision No. 126/83 was started before the Member, Board of Revenue and in the said revision case, no notice was served on the Petitioner nor was he made a party and as such, was unaware of the proceeding. On 2.6.1987, the Member, Board of Revenue was pleased to set aside the order of the Revenue Officer passed in O.L.R. Case No. 193/75. On learning of the same, the Petitioner came and filed the writ application in O.J.C. No. 2246 of 1987 before this Court, challenging the order of the Member, Board of Revenue dated 2.6.1987. On 2.6.1987, the Member, Board of Revenue was pleased to set aside the order of the Revenue Officer passed in O.L.R. Case No. 193/75. On learning of the same, the Petitioner came and filed the writ application in O.J.C. No. 2246 of 1987 before this Court, challenging the order of the Member, Board of Revenue dated 2.6.1987. By the order and judgment dated 14.11.1991, the aforesaid writ application was allowed and the matter was remanded to the Member, Board of Revenue for re-disposal, after giving an opportunity of hearing to the Petitioner. The present impugned order dated 6.11.1993 under Annexure-7 is the result and outcome thereof whereby, the Member, Board of Revenue has been pleased to once again reject the contention of the present Petitioner and has set aside the earlier order passed in O.L.R. No. 193/75. 5. Learned Counsel for the Petitioner submits that the impugned order suffers from lack of inherent jurisdiction and in support of such contention he further submits, that the other purchaser, namely, Balaji Sahu had also moved before this Court seeking to challenge the selfsame order in a separate writ application in O.J.C. No. 2623 of 1987. It further appears that the writ application of Balaji Sahu was allowed by this Court and order was passed quashing the order of reference made by the Collector u/s 59(2) of the O.L.R. Act. Placing reliance on the said judgment of this Court, learned Counsel for the Petitioner further submits that, once the judgment has been passed by this Court on 13.11.1992 in O.J.C. No. 2623 of 1987, the reference u/s 59(2) against order passed in OLR No. 193/75, no longer subsists and non-consideration of the same and the attempt made by the Member, Board of Revenue to exercise continue jurisdiction over the matter, is wholly without jurisdiction and lacks the mandate of law. 6. Learned Counsel for the Petitioner also submits that the reference made by the Collector in the O.L.R. Revision case itself having been held illegal and the right of the tenant as per O.J.C. 2623 of 1987 over the land having became absolute, it is no more within the scope of the Collector to make a reference to reopen by any revision before the Member, Board of Revenue. Accordingly, learned Counsel submits that the Member, Board of Revenue no longer posses any jurisdiction to once again reopen the order of the Revenue Officer and the impugned order is clearly contradictory and opposed to the judgment of this Court passed in O.J.C. No. 2623 of 1987. 7. Learned Addl. Govt. Advocate submits that, earlier two writ applications were filed by two independent purchasers, separately before this Court though they arose from the self-same order passed by the Member, Board of Revenue. It further appears that the writ application filed by Nirakar Patra in O.J.C. No. 2246 of 1987 came to be disposed of by an order dated 14.11.1991 by this Court. While the matter was remain pending before the Member, Board of Revenue on remand, the second writ application, i.e., O.J.C. No. 2623 of 1987 filed by Balaji Sahu, came to be allowed by this Court vide judgment dated 13.11.1992. Learned Govt. Advocate submits that it was onus of the Petitioner to bring the said order to the notice of the Member, Board of Revenue and submits that since the Petitioner has failed to bring the order of the High Court dated 13.11.1992 to the notice of the Member, Board of Revenue, they cannot have any grievance against the same. 8. Considering the submissions advanced by the learned Counsel for the parties and after perusing the orders passed in the connected writ application, I am of the considered view that, this Court in O.J.C. No. 2623 of 1987 had categorically held that the reference itself is against the original O.L.R. Case No. 193/75 was unlawful and, therefore, the reference no longer subsists and was quashed. Therefore, although the present Petitioner had filed the writ application, i.e., in OJC No. 2246 of 1987 and order of remand has been directed, yet, no subsequent proceeding or order could lawfully passed in view of the order dated 13.11.1992 passed in OJC No. 2626 of 1987. 9. Therefore, although the present Petitioner had filed the writ application, i.e., in OJC No. 2246 of 1987 and order of remand has been directed, yet, no subsequent proceeding or order could lawfully passed in view of the order dated 13.11.1992 passed in OJC No. 2626 of 1987. 9. Therefore, I am of the view that no lawful purpose would be served if the matter is once again remanded to the Member, Board of Revenue to reconsider the matter in the light of consequence of the Court in O.J.C. No. 2623 of 1987 especially since the matter is extremely old and is pending adjudication more than 30 years, I am of the considered view that the writ application deserves to be allowed and the impugned order dated 6.11.1993 under Annexure-7 passed by the Member, Board of Revenue in O.L.R. Revision Case No. 126/83 is quashed and held to be unlawful in view of the order dated 13.11.1992 passed in O.J.C. No. 2623 of 1987. 10. Accordingly, the writ application is allowed. Final Result : Allowed