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2014 DIGILAW 501 (ORI)

Padmabati Naik v. Goudagaon Primary School

2014-08-19

AMITAVA ROY, B.R.SARANGI

body2014
Judgment Dr. B.R.Sarangi, J. Opposite parties 4 to 8 in W.P.(C) No.1248 of 2009 are the appellants in this Writ Appeal challenging the order dated 14.09.2010 passed by the learned Single Judge in the said W.P.(C). 2. W.P.(C) No. 1248 of 2009 was filed before this Court by the present respondent no.1, Gaudagaon Primary School challenging the order dated 28.11.2008 passed by the learned Revenue Divisional Commissioner, Central Division, Cuttack in R.C. Case No. 29 of 29008, rejecting their claim under Section 37 of the Orissa Consolidation of Holding and Prevention of Fragmentation of Land Act, 1972 for correction of ROR in respect of the land over which its School building situated and recording the said land in their favour. 3. As it appears that Sabik Plot Nos. 176/708 and 160/709 under Sabik Khata No. 101/100 measuring an area of 92 decimals was the land of the then King of Udala in Mayurbhanj district of Odisha. The said land was given to Gopinath Naik, the predecessor-in-interest of the present appellants, who was serving the King, vide Nayabadi Case No.98/1949-50. 4. After getting the land, Gopinath Naik constructed his residential house over a portion thereof and resided thereon with his family. When the consolidation operation started in the village, after due verification, the said land was recorded in the name of Gopinath Naik in the consolidation records, vide plot No.598-Ac. 0.16 decimals, Plot No. 633- Ac.0.41 decimals and Plot No.634-Ac.0.35, in total Ac.0.92 dec. under Consolidation Khata No. 46. 5. Gaudagaon Primary School of Jhinkiria Gram Panchyat, present respondent No.1 was functioning at village Gaudagaon, Pokhoriadi. Thereafter the School having shifted to Hatigarh, the villagers requested Gopinath Naik to provide a room from his residential house standing on the aforesaid plots of land for running of the School till the School constructed a building of its own. The school established in the year 1943, developed its own building comprising of offices, class rooms, play ground, garden etc. 6. The dispute arose with regard to a part of the school area measuring Ac.0.35 dec. in respect of plot No. 634 under Khata No. 46 as mentioned in consolidation ROR Sabik Plot No. 176/708 (part of original Sabik Plot No. 176). 6. The dispute arose with regard to a part of the school area measuring Ac.0.35 dec. in respect of plot No. 634 under Khata No. 46 as mentioned in consolidation ROR Sabik Plot No. 176/708 (part of original Sabik Plot No. 176). It is stated that the original land was recorded in the name of Sri Laxminarayana Mohaprabhu Bije Kaptipada Sebayat-Sabarakar, under C.S. Khata No. 92/2 and C.S. Plot No. 176 with an area of Ac.1.76 dec. As the same was of Sabarakar land, the villagers of Goudagaon established the School in the year 1943 after taking due permission from the Government. Subsequently in the year 1949-50 in Nayabadi Case No.98/1949-50 an area of Ac.0.76 was settled/recorded in the name of Gopinath Naik, son of late Madhab Naik, out of which Ac.0.35 dec. was occupied by the School. Since prior to the aforesaid settlement in favour of Gopinath Naik. Gopinath Naik admitting that factual position agreed and consented to recording of that of land out of Hal Plot No. 634 under Khata No. 46 in the name of the School during consolidation operation, which is evident from the report of the Amin in the year 1988. But the said land was recorded wrongly in favour of the appellants who are the wife and sons of deceased Gopinath Naik. 7. Revision Case No.29 of 2008 being filed by opposite party-respondent no.1 before the Revenue Divisional Commissioner, Central Division, Cuttack vide R.C. No. 29 of 2008 stating that the land in question had been struck off from the Khas Patta in the year 1950-51 and had been recorded in the name of the deceased father of the present appellants but no document in that regard was available to say about any recording made by the consolidation authorities the Revenue Divisional Commissioner, refused to direct any correction of the ROR in respect of the disputed land in favour of opposite party-respondent no.1 and dismissed the revision case. Challenging the said order of the Revenue Divisional Commissioner, the opposite party-respondent no.1 approached this Court by filing W.P.(C) No. 1248 of 2008. 8. Challenging the said order of the Revenue Divisional Commissioner, the opposite party-respondent no.1 approached this Court by filing W.P.(C) No. 1248 of 2008. 8. In course of hearing, learned Single Judge, vide order dated 26.02.2010 appointed/deputed Sri Prakash Ranjan Barik, a senior member of the Bar to inspect the disputed plot and submit report to this Court within a period of one month, basing upon which spot enquiry was made by Sri Prakash Ranjan Barik, who furnished his report on 05.04.2010. In the said report it was stated as follows: “xx xx xx Xx xx xx I found that the school is functioning in three asbestos sheet rooms situated over plot no. 634. The length of the asbestos building is 65’ x 21.8”, having verandah of 7.7’ wide. One room is being utilized as office room and two other rooms are meant for Class III and Class IV. There is also a room measuring 32’ x 21.7” (Tile roof) being used for kitchen purpose and the eastern portion wall of the said room has already collapsed. Xx xx xx In order to ascertain as to whether the dwelling house of the Opposite parties No.4 to 8 have been encroached upon by the villagers for running the school, I requested the Tahasildar to take measurement of the plot over which their dwelling house is situated. Upon measurement, it is found that the dwelling house of the opposite parties No.4 to 8 exists over plot No. 633 which is situated to the adjacent west of plot No. 634. The distance between the dwelling house of the opposite parties No. 4 to 8 and the asbestos sheet room, where the school is functioning, is 55 links. xx xx xx Xx xx xx” 9. Relying upon such report, the learned Single Judge has held that the School in question is functioning over Plot No. 634, Holding no.46 measuring an area of Ac.0.35 dec. corresponding to Plot No. 176/708 (part of original Sabik Plot No.176) of village Nachhipur. 10. Mr. B. Sahoo, learned counsel for the appellants, strenuously urged that while disposing of the Writ Petition, the learned Single Judge has not whispered a single word about the validity or tenability of the order dated 28.11.2008 passed by the learned Revenue Divisional Commissioner, Central Division, Cuttack in Revision Case No. 29 of 2008. 11. Mr. Mohanty, learned counsel appearing on behalf of Mr. 11. Mr. Mohanty, learned counsel appearing on behalf of Mr. S.P. Mishra, learned Senior Counsel for respondent no.1, submitted that since the School in question is in possession of the disputed land from 1943, i.e. prior to the settlement in favour of the father of the appellants, and when the School was established over the plot disputed land, the father of the appellants was a signatory to such settlement, it is no more open to the appellants to drag on the lis, instead of setting it at rest. 12. It also appears from Amin Report vide Annexure-1 to the writ petition said Gopinath Nayak was a signatory to the enquiry report wherein it was stated that the School had been established over an area of Ac.0.35 dec. w.e.f. 1943 and the said Gopinath Nayak had also made a statement that the said land should be recorded in the name of the School. Accordingly, the Amin has submitted a report stating that Hal Plot comprising of Ac.0.35 having Kisam “Gharabari” might be recorded in the name of Gaudagaon Primary School, Marfat Secretary. 13. Without considering the materials available on record, the Revenue Divisional Commissioner, Central Division, Cuttack committed a gross error apparent on the face of the record having directed the authority concerned to record the disputed land in favour of the appellants and to correct the ROR in respect of that piece of land in their favour. 14. The learned Single Judge, after deputing Sri Prakash Ranjan Barik, a senior member of the Bar and after receiving the report from him was satisfied that the disputed land of Ac.0.35 dec. out of plot No. 634 was in possession of the School in question. 15. Taking into consideration the entire situation, the learned Single Judge by the impugned order directed the petitioner, Respondent No.1 herein, to file a fresh application before the Tahasildar, for settlement of the said land in favour of the School, which shall be considered favourably by the authorities. In any case, since the School in question is in possession of the disputed plot No. 634 measuring an area of Ac.0.35 dec. In any case, since the School in question is in possession of the disputed plot No. 634 measuring an area of Ac.0.35 dec. vide Holding No. 46, corresponding to Sabik Plot No. 176/708 (part of original Sabik Plot No. 176) of village Nachhipur, without causing any enquiry in proper prospective and appreciating the correct fact, the direction given by the Revenue Divisional Commissioner, Central Division, Cuttack to record the same in favour of the appellants in R.C. Case No. 29 of 2008 vide his order dt.28.11.2008 was thoroughly misconceived. 16. The order of the learned Single Judge being beyond the scope of interference, dismissal of the Writ Appeal is inevitable. 17. The Writ Appeal is dismissed.