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2016 DIGILAW 120 (ORI)

Bijay Kumar Binakar v. State of Orissa

2016-02-15

A.K.RATH

body2016
JUDGMENT Dr.A.K.RATH, J. - The instant petition is to laciniate the order dated 18.12.2015 passed by the Commissioner, Consolidation, Odisha, Bhubaneswar-opposite party no.2 in S.R.P.No.289 of 2014. By the said order, opposite party no.2 dismissed the revision holding inter alia that the application was filed after thirteen years of publication of R.O.R. 2. Bereft of unnecessary details, the short facts of the case of the petitioners are that in the record of rights of the year 1927-28, the suit properties were recorded in the name of Baidyanath Binakar, Kunja Bihari Binakar and Jagannath Binakar, who are all the sons of Prannath Binakar. Kunjabihari Binakar died issueless while in joint with Baidyanath and Jagannath and all the interest developed upon his two brothers equally. There was an amicable partition among the recorded owners. The suit land appertaining to sabik plot no.269 fell in the share of Jagannath Binakar. To press his legal necessity, Jagannath Binakar alienated an area A0.11 dec. of land to the petitioners by way of RSD No.3231 dated 22.9.1975 for a valid consideration and thereafter delivered the possession. During settlement operation, the petitioners could not take steps, as a result of which, plot nos.76/2295 and 74/2294 were recorded in the name of legal representatives of recorded tenants of 1927-28. Thereafter they approached the concerned Tahasildar for correction of hal R.O.R. of the year 2001 basing on their registered sale deed dated 22.9.1975, but the Tahasildar refused to entertain the same. Thereafter they filed an application under Section 15(b) of the Orissa Survey & Settlement Act, 1958 before opposite party no.2, which was registered as S.R.P.No.289 of 2014. By order dated 18.12.2015, opposite party no.2 dismissed the application holding, inter alia, that there is a delay of thirteen years in filing the revision. 3. Heard Mrs.Sumitra Mohanty, learned Advocate for the petitioners and Mr.S.Mishra, learned Additional Government Advocate for the State. 4. Section 15(b) of the Orissa Survey & Settlement Act (hereinafter referred to as “the Act”), which is hub of the issue, is quoted hereunder: “15. 3. Heard Mrs.Sumitra Mohanty, learned Advocate for the petitioners and Mr.S.Mishra, learned Additional Government Advocate for the State. 4. Section 15(b) of the Orissa Survey & Settlement Act (hereinafter referred to as “the Act”), which is hub of the issue, is quoted hereunder: “15. Revision by Board of Revenue- The Board of Revenue may in any case direct- (a) xxx xxx xxx (b) on application made within one year from the date of final publication under Section 12-B the revision of record-of-rights or any portion thereof whether within the said period of one year or thereafter but not so as to affect any order passed by a Civil Court under Section 42. Provided that no such direction shall be made until reasonable opportunity has been given to the parties concerned to appear and be heard in the matter”. 5. Section 15(b) of the Act was subject matter of interpretation in the case of Krushna Chandra Mahakul Vrs. State of Orissa and others, 2003 (II) OLR 306 . The Division Bench of this Court in paragraph-6 of the report held thus:- “6. Section 15(b) of the Orissa Survey and Settlement Act, 1958 is different from Section 5 of the Limitation Act, 1963, which is quoted hereinbelow : “5. Extension of prescribed period in certain cases : Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.” Whereas under Section 5 of the Limitation Act, 1963, the applicant has to show sufficient cause for not preferring the appeal or making the application, as the case may be, within the period prescribed, under Section 15(b) of the Orissa Survey and Settlement Act, 1958 there is no such requirement. Hence, even if the petitioner has not been able to explain sufficiently the entire period of delay of four years, eight months and twelve days in filing the revision, his revision should not be thrown out only on the ground of delay in filing the revision beyond the period of one year. Hence, even if the petitioner has not been able to explain sufficiently the entire period of delay of four years, eight months and twelve days in filing the revision, his revision should not be thrown out only on the ground of delay in filing the revision beyond the period of one year. In each case, the authority hearing the revision will have to consider as to whether ends of justice require entertaining the application for revision beyond the period of one year or as to whether any valuable right has accrued to some other party on account of delay in filing the application for revision on account of which the revision petition should not be entertained beyond the period of one year. ” (emphasis laid) 6. In view of the authoritative pronouncement of this Court in Krushna Chandra Mahakul (supra), the inescapable conclusion is that the Commissioner, Consolidation, Odisha, Bhubaneswar-opposite party no.2 has committed a manifest illegality in dismissing the application filed by the petitioners. Accordingly, the order dated 18.12.2015 passed by the Commissioner, Consolidation, Odisha, Bhubaneswar-opposite party no.2 in S.R.P.No.289 of 2014 is quashed. The matter is remitted back to the Commissioner, Consolidation, Odisha, Bhubaneswar-opposite party no.2 for de novo hearing. Opposite party no.2 is directed to consider the case of the petitioners in accordance with law laid down in Krushna Chandra Mahakul case. 7. The writ application is allowed. No costs. Application allowed.