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2016 DIGILAW 698 (ORI)

Rabindra Rout v. Tahasildar, Bhubaneswar

2016-08-29

BISWANATH RATH

body2016
JUDGMENT : Biswanath Rath, J. This writ application has been filed assailing the notices, vide Annexure-4 series thereby quashing the proceeding in Dakhal Kharaj Misc. Case No.239/1995. 2. During course of submissions, this Court finds the following order passed by this Court on 14.10.2014:- “It has been stated in paragraph-5 of the counter affidavit filed by opposite party no.2 that the order passed by the Commissioner, Land Records and Settlement, Orissa, Cuttack in R.P. Case No.398 of 1989 has been sought to be recalled/reviewed at the instance of the Director of Estates, G.A. Department. Learned Additional Government Advocate is directed to take instruction whether the said petition for recall/review of final order passed in the revision case is still pending or disposed of by the next date. List this matter on 27.10.2014.” During course of argument in opposition to the submissions of the learned counsel for the petitioners and learned counsels for O.Ps.4 & 5 appearing for the subsequent purchasers, Mr. Bhuyan, learned Additional Government Advocate appearing for O.Ps.1 to 3, contended that the impugned notices under Annexure-4 series are an outcome of the development following the decision under Annexure-1. This apart, Sri Bhuyan made a serious allegation that not only the proceeding in R.P. Case No.398/1989 being initiated under Section 32 of the Orissa Survey and Settlement Act, 1958 illegally disposed of by the Commissioner, Land Records and Settlement not maintainable but the impugned order is also not sustainable as the Presiding Officer, who was on the order of transfer from 30.6.1989 (A.N.) having passed the final order on 29.6.1989. It is alleged by learned State Counsel that the order under Annexure-1 has been passed in haste and without proper application of mind as well as with oblique motive. 3. Reading the provisions contained in Section 32 of the Orissa Survey and Settlement Act, 1958, this Court finds the proceeding at the instance of the petitioners, vide R.P. Case No.398/1989 ought to have been taken up by the Board of Revenue instead of the Commissioner, Lands Records and Settlement, Orissa, Cuttack, who has illegally decided the matter. Further looking to the counter affidavit made by O.P.2- Member, Board of Revenue, it appears in paragraph-5 of the said counter affidavit in the meantime, the Director of Estate, G.A. Department has filed a revision petition before the Commissioner, Land Records and Settlement to recall the orders passed in Revision Case No.398/1989. Further looking to the counter affidavit made by O.P.2- Member, Board of Revenue, it appears in paragraph-5 of the said counter affidavit in the meantime, the Director of Estate, G.A. Department has filed a revision petition before the Commissioner, Land Records and Settlement to recall the orders passed in Revision Case No.398/1989. 4. Keeping in view the contentions of the learned counsel for the petitioners and the objection with regard to the role of the Commissioner, who was on the verge of transfer, in deciding the matter under Section 32 of the Act, 1958 on the verge of his demitting the office, further finding that the impugned order has been passed by a person having no competency, this Court feels it appropriate to set aside the impugned orders, vide Annexure-1 and Annexure-4 series and remits the R.P. Case No.398/1989 back to the learned Board of Revenue to have a fresh decision in the matter but however after affording opportunity of hearing to the contesting parties and taking into consideration the development at the instance of G.A. Department in filing their revision/objection petition in R.P. Case No.398/1989, fresh order be passed without being influenced by any of the observations made either in Annexure-1 or Annexure-4 series. Since the final order in this writ application is passed in presence of all concerned and in view of the order of remand, the parties are directed to appear before the learned Member, Board of Revenue on 16th September, 2016 along with a copy of this judgment for his proceeding in the matter in terms of the direction herein above. 5. The writ application stands allowed giving opportunity of hearing and objection to all concerned.