Research › Search › Judgment

Orissa High Court · body

2010 DIGILAW 840 (ORI)

Naliniprava Lenka v. Collector, Jajpur and Four

2010-12-09

B.N.MAHAPATRA, V.GOPALA GOWDA

body2010
ORDER 9.12.2010 — Heard learned counsel for the petitioner, learned Government Advocate for opposite party nos. 1 to 4 and the learned counsel for opposite party no.5 and dispose of this matter at the stage of preliminary hearing after hearing them on merits. 2.The correctness of the order dated 4.1.2010 passed by the Sub-Collector, Jajpur in Misc. Appeal No. 20 of 2008 declining to set aside the residential certificate issued by the Tahasildar, Darpan in favour of opposite party no.5 is questioned in this writ petition urging various legal contentions particularly placing reliance upon the Voters List Annexure-4 at page 21 wherein at sl. no. 23 the name is mentioned as Arati Sahoo instead of Arati Swain. He has also placed reliance upon the earlier order dated 24.8.2007 of the Tahasildar, Darpan wherein the residential certificate issued in favour of opposite party no.5 on 17.8.2007 was set aside by the Tahasildar for the reasons recorded therein. Again she filed an application for residential certificate which was registered as Misc. Case No. 9083 of 2008 and she obtained the certificate on 24.10.2008. Therefore, the impugned order is vitiated in law and the finding recorded by the Sub-Collector is without examining the relevant material facts which were required to be considered by him. Therefore, the impugned order is erroneous in law and liable to be quashed. Learned counsel has also placed reliance upon the meaning of ‘residence’ as given in the book Words and Phrases’ written by Justice R.P. Sethi, former Judge, Supreme Court of India according to which “residence” does not mean a temporary residence for the purpose of obtaining a divorce but habitual residence or residence which is intended to be permanent for future as well. This interpretation was given by the Supreme Court in the case of Narasimha Rao v. Venkata Lakshmi, (1991) 3 SCC 451 . 3.Learned counsel for the opposite party no.5 sought to justify the correctness of the order placing reliance on the documents produced by the petitioner himself. He also sought to justify the finding on contentious issue, namely, issuance of residence certificate in Form III by the Tahasildar is on the basis of the report of the Revenue Inspector. 3.Learned counsel for the opposite party no.5 sought to justify the correctness of the order placing reliance on the documents produced by the petitioner himself. He also sought to justify the finding on contentious issue, namely, issuance of residence certificate in Form III by the Tahasildar is on the basis of the report of the Revenue Inspector. Therefore, the same is based on material evidence and further the fact that she has purchased property on 15.10.2007 and has got conversion patta from agricultural land to non-agricultural land which is reflected in the report of the R.I. Therefore, the issuance of the certificate is held to be legal and valid. 4.With reference to the aforesaid legal contentions, we are required to examine as to whether the impugned order Annexure-1 is vitiated on account of erroneous reason or error in law. We have carefully examined the correctness of the same including the documents produced, namely, Annexure-4 the Voters List and the order-sheet dated 24.8.2007 of the Tahasildar, Darpan in Case No. 4109 of 2007 wherein the Tahasildar has cancelled the residential certificate issued in favour of opposite party no.5. After careful perusal of the said material and on the basis of undisputed fact and the report submitted by the Revenue Inspector with regard to the residence of opposite party no.5 on the basis of application submitted by her in Form III as required in (a) permanent and present address are examined with reference to the voters list and found that she is a permanent resident of village Nalida, P.S. Siha under Barachana PS in the district of Jajpur. Further strong reliance is placed on rule (5) in support of the finding recorded in Annexure-1 to show that she is a permanent resident of the aforesaid village wherein her name found place at sl. no. 5 and House No. 16 of the Voters list. With reference to the same, the Sub-Collector held that opposite party no.5 has been residing in the said village from 1999. The said finding is seriously contested contending that she has managed to get her name entered in the voters list though she is not residing in the said village. no. 5 and House No. 16 of the Voters list. With reference to the same, the Sub-Collector held that opposite party no.5 has been residing in the said village from 1999. The said finding is seriously contested contending that she has managed to get her name entered in the voters list though she is not residing in the said village. This matter has been carefully examined in the light of the documents produced by opposite party no.5, i.e. the letter dated 29.1.1998 issued by the Office of the NIIRD (National Institute for Integrated Rural Development) wherein it has been certified that she has been working as Instructor, Kanteijhar (B) NFE Centre at a monthly salary of Rs.200/- with effect from 5.2.1998 until further orders. The said finding recorded by the Sub-Collector is based on the voters list. Apart from the voters list, the Sub-Collector considered the service of opposite party no.5 as A.W.W. in support of issuance of the residential certificate by the Tahasildar. Therefore, the Sub-Collector rightly did not interfere with the order of the Tahasildar. Having regard to the finding of fact recorded by the appellate authority, reliance placed by the petitioner upon the authority and documents produced and the meaning of the word ‘residence’ given in the book written by Justice R.P. Sethi, referred to supra, have no application to the facts and circumstances of the case. Hence the contention is devoid of merit and is liable to be rejected. For the reasons stated supra, we do not find any good reason whatsoever to interfere with the order of the appellate authority in holding that issuance of residence certificate in favour of opposite party no.5 is valid. Accordingly, the writ petition fails and the same is dismissed. Petition dismissed.