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2016 DIGILAW 797 (ORI)

Jayaprakash Choudhury v. Santosh Kumar Bej

2016-09-14

BISWANATH RATH

body2016
JUDGMENT : Biswanath Rath, J. This writ application has been filed assailing the orders under Annexures-1, 3 & 5. 2. Short background involved in this case is that in a proceeding initiated under Section 26(2) of the O.L.R. Act, the Additional Tahasildar, Balasore while disposing of the same held that the land described therein is a resumable land in favour of the applicant and the O.Ps. respectively thereby fixing certain amount of premium as appearing at Annexure-1. On the premises, the order under Annexure-1 was passed ex parte without having any opportunity of objection and hearing to the present petitioners and also on suppression of notice, the present petitioners moved an application before the Collector, Balasore for a reference of the matter to the Board of Revenue under Section 59(2) of O.L.R. Act for scrutiny of the order passed by the Revenue Officer, Balasore on 4.3.1974 under Annexure-1. This proceeding before the Collector was decided on contest with an order of recommendation of the dispute to the Board of Revenue for an adjudication in exercise of power under Section 59(2) of O.L.R. Act. In the 59(2) proceeding registered as O.L.R. Revision Case No.36/1991, it appears in spite of notice on paper publication, the present petitioners (complainant before the Collector) on whose application, the 59(2) reference was initiated, did not appear, and therefore, the 59(2) proceeding was dismissed by upholding the order of the Revenue Officer on the premises that long 19 years have passed in the meantime and nobody is coming forward to contest the matter. Being aggrieved by the order passed by the Board of Revenue at Annexure-3, the present petitioners filed a Misc. Case registered as Misc. Case No.3/1995 for setting aside the ex parte order thereby requesting fresh hearing of the revision on restoration of the same. This proceeding was decided on contest by the order under Annexure-5. While rejecting the said Misc. Case at the instance of the petitioners, the Board of Revenue observed that there is no convincing ground for recalling the order passed under Annexure-3 and further the Board of Revenue decided not to go into the issues regarding applicability of Section 7 of Board of Revenue Act, 1951 or Rule 4 of the Orissa Board of Revenue Rules, 1959 or Regulation 28 (Chapter VIII) of the Board of Revenue Orissa Regulations, 1963. 3. 3. Being aggrieved by the orders passed in Annexures-1, 3 & 5, the petitioners preferred the present writ application in assailing the same. Mr. S.C.Samantaray, learned counsel for the petitioners, contended that all the courts below have failed understanding on the aspect of service of notice on the petitioners and the matters have been all through decided in absence of any opportunity of objection and hearing by both the original authority and also in passing the order under Annexure-3 by the Board of Revenue, since the case of the petitioners has not been taken into consideration and the petitioners have lost a very valuable right over the disputed property. It is further contended that for the interest of justice, the dispute involved should be decided on merit. 4. In his opposition, Mr. P.Kar, learned counsel for the private O.P.1, contended that it is not a case where the petitioners have not been noticed at all and the proceedings before the original authority as well as the Board of Revenue were all decided without affording opportunity to the present petitioners. It is, on the other hand, his case is that in spite of notice, the petitioners did not appear and their non-appearance before different forums establishes the callousness as well as deliberate withdrawal of the petitioners therein from the proceedings. On these premises, Sri Kar prayed for disposal of the writ application. 5. Learned Additional Government Advocate appearing for O.Ps.6, 7 & 8, supported the submission of the learned counsel appearing for O.P.1 and also prayed for dismissal of the writ application, as it has no merit. 6. Heard learned counsel for the respective parties. 7. There is no denial to the fact that the petitioners themselves brought the proceeding before the Collector, vide O.L.R. Revision Case No.3/84 requesting for a reference to the Board of Revenue in exercise of power for a decision in the matter in exercise of power under Section 59(2) of O.L.R. Act. There is also no dispute that the Collector has formed an opinion after looking to the materials available on record for referring the matter to the Board of Revenue for a decision under Section 59(2) of O.L.R. Act. It is only consequent upon the reference of the Collector, the proceeding was taken up before the Board of Revenue. 8. There is also no dispute that the Collector has formed an opinion after looking to the materials available on record for referring the matter to the Board of Revenue for a decision under Section 59(2) of O.L.R. Act. It is only consequent upon the reference of the Collector, the proceeding was taken up before the Board of Revenue. 8. Considering the submissions of the respective parties and on perusal of the impugned orders, this Court finds from paragraph-8 of Annexure-3 that notice in respect of petitioners was published in “The Statesman” on 7th July, 1993, besides notices were also sent to the legal heirs by registered Post at the address given by the petitioners to the Collector. This Court also observes that the Board of Revenue has a clear recording that the notices sent to the legal heirs by registered Post returned un-served with postal endorsement, “not known”, but however, the Board of Revenue after recording that despite notice, the legal heirs did not appear, finally concluded the matter with an order of dismissal on the premises of no interest shown by the petitioners. The order passed by the Board of Revenue nowhere discloses that notice sent through the court returned un-served with postal endorsement, “not known”. This Court further finds from the application filed by the petitioners for setting aside the order in Annexure-3, where the petitioners have a specific pleading that the publication made in “The Statesman” was in English language and the petitioners are not conversant with English language, and therefore, the publication of notice on paper cannot be treated as sufficiency of notice. 9. For the observations made by the Board of Revenue that the publication was made in English language in “The Statesman” and considering the reasons assigned by the petitioners in the application for recalling the order under Annexure-3 and after going through the observations of the Board of Revenue itself that the notice in the other process returned un-served, this Court finds, there is no proper service of notice on the petitioners. This aspect has not been properly appreciated by the Board of Revenue, vide Annexure-3 as well as Annexure-5, resultantly, this Court finds, both the orders under Annexures-3 & 5 are bad in law. Consequently, while setting aside the orders under Annexures-3 & 5, this Court remits the matter back to the Board of Revenue for fresh hearing. This aspect has not been properly appreciated by the Board of Revenue, vide Annexure-3 as well as Annexure-5, resultantly, this Court finds, both the orders under Annexures-3 & 5 are bad in law. Consequently, while setting aside the orders under Annexures-3 & 5, this Court remits the matter back to the Board of Revenue for fresh hearing. Since the contesting opposite party is facing a litigation for such long period for no fault of him, this Court while setting aside the said orders under Annexure-3 and 5, for the conduct of the petitioners not following the proceeding even after application to the Collector for a reference under Section 59(2) of O.L.R. Act meticulously, this Court thinks it appropriate to impose a cost of Rs.20,000/-(rupees twenty thousand) to be paid to O.P.1 by the present petitioners within a period of fifteen days from today. 10. Since this matter is decided in presence of the contesting parties, the parties are directed to appear before the Board of Revenue with a copy of this order along with the receipt of payment of cost to O.P.1 on 3rd October, 2016 and the Board of Revenue shall do well in disposing of the matter providing opportunity of hearing to the contesting parties and taking decision independently and without being influenced by any of the observations made by any authority but within a period of three months from the date of communication of this order. The writ application stands disposed of. With order as to cost as above.