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2016 DIGILAW 841 (ORI)

Murali Pradhan v. State of Orissa

2016-09-21

BISWANATH RATH

body2016
JUDGMENT : Biswanath Rath, J. Filing this writ application, the petitioners have assailed the order under Annexure-4 passed by the revisional authority in reversing the judgment passed by the appellate authority involving Objection Case No.5850/93 initiated under Section 9(3) of the O.C.H. & P.F.L. Act, 1972. 2. Short background involved in this case is that the petitioners were the tenants over the disputed land, as appearing from the Record of Right in respect of plot no.145, Mouza-Ragadipasi, Thana-Dharmashala produced at Annexure-1. It is on the basis of this recording, the petitioners claimed that on introduction of Orissa Estates Abolition Act, the disputed property was merged with the State and on an application under Section 8(2) of the Orissa Estates Abolition Act, land has been settled in their favour by virtue of automatic implementation of the provision under the Orissa Estates Abolition Act. Be that as it may, since no Record of Right was prepared either under the Consolidation Act or the Settlement Act, the petitioners were constrained to file Objection Case No.5850/93 for settlement of the disputed land in their favour. This proceeding was disposed of against the petitioners giving opportunity of hearing to both the sides but however, considering the report submitted by the Amin in the proceeding alleged to have been prepared behind the back of the petitioners. Challenging the rejection of the Objection Case, the petitioners preferred an appeal and as appears from paragraph-2 of the appellate order, the petitioners had a clear case that the order of the Objection Authority was not sustainable on account of considering the report prepared behind the back of the petitioners and further without affording opportunity of examining the Amin, who submitted the report. The petitioners also claim that they are in possession of the property and there is a false report just to dislodge their case. The appellate authority allowed the appeal reversing the order of the original authority. On revision, the revisional authority, based on the report of the Amin, came to hold that the petitioners were not in possession as per the report of the Amin and finding the private O.Ps.5 & 6 herein in possession of the land, reversed the order passed by the appellate authority and an advice was given to the Marfatdar of the deity to settle the land on an application of provision under the Orissa Estates Abolition Act. 3. 3. In assailing the impugned order passed by the revisional authority, learned counsel for the petitioners contended that in view of the specific ground that the orders of the original authority as well as well as the revisional authority are simply based on the report prepared behind the back of the petitioners and further, as the petitioners were deemed to be the owners of the property, in exercise of power under Section 8(2) of the Orissa Estates Abolition Act, the original authority and the revisional authority have failed to consider the aforesaid legal aspect and have arrived at wrong and illegal impugned order and it is in this premises, the order of the revisional authority requires to be interfered with and set aside. 4. Learned counsel for the private O.Ps.5 & 6, referring to the averments made in the counter affidavit filed in this case, contended that as per the report, the deity is in possession of the property and since the land has not been settled in favour of the petitioners under the Orissa Estates Abolition Act, the claim of the petitioners should be rejected and since the order of the revisional authority is based on finding of possession in favour of O.Ps.5 & 6 establishing the Amin report, there is no illegality committed by the revisional authority and thus, there is no scope for interfering with the impugned order. 5. Learned State Counsel supporting the submission of the learned counsel for the private opposite parties contended that it was the duty of the petitioners to bring to the notice of the courts below on his submission and as appears, the petitioners have failed in establishing their case of non-consideration of their claim by the original authority as well as the revisional authority, and therefore, there is no illegality in the finding of the revisional authority. Further referring to the averments made in paragraph-10 of the counter affidavit, learned State Counsel submitted that the dispute cannot be resolved in absence of the Dehuri Family in whose favour the disputed property was recorded. 6. Heard the submissions of the learned counsel for the respective parties. 7. Further referring to the averments made in paragraph-10 of the counter affidavit, learned State Counsel submitted that the dispute cannot be resolved in absence of the Dehuri Family in whose favour the disputed property was recorded. 6. Heard the submissions of the learned counsel for the respective parties. 7. This Court finds from the submission of the learned counsel as well as on perusal of the submission of the counsel in the Objection Case, it is observed that the petitioners had all through a case that their right comes from the Orissa Estates Abolition Act and such right cannot be disturbed in exercise of power by the Consolidation Authority under the O.C.H. & P.F.L. Act. Further the petitioners have also a specific stand all through that the report submitted by the Amin on sport verification during pendency of the Objection Case has been prepared behind their back and further, the claim of the Objector to examine the Amin to satisfy the allegation on their behalf has been rejected all through. Considered the materials available in Annexure-1 establishing that the predecessor of the petitioners was the stitiban rayat under the deity of O.P.5 and on vesting of the land, the predecessor of the petitioners has taken over the land by virtue of the provision under Section 8(2) of the Orissa Estate Abolition Act. Further considering the non-consideration of the allegation of the petitioners with regard to the report submitted by the Amin, and further, since the matters have been decided in absence of opportunity to the petitioners to establish their possession to the disputed property, keeping in view the specific allegation of the petitioners that they are still in possession of the property and further looking to the findings of the original authority as well as the revisional authority simply based on the report of the Amin and absence of consideration of applicability of the provision under Section 8(2) of the Orissa Estates Abolition Act, this Court finds the impugned order passed by the revisional authority suffers but as the matter requires to be considered at the threshold itself, consequently while setting the impugned order, this Court remands the matter to the Objection Case stage. On the direction of remand, the Objection Case will now be re-heard giving opportunity of examination of the Amin to the petitioners and also opportunity of objection, if any, by the contesting opposite party therein, and further, fresh orders be passed giving opportunity of hearing to the petitioners and the private opposite parties and further taking into consideration the applicability of the provisions of Section 8(1) of the Orissa Estates Abolition Act. 8. The writ application stands allowed with an order of remand. Since this matter is decided in presence of the parties on contest, they are directed to appear before the court below on 3rd October, 2016 with a copy of this judgment and the matter shall be re-determined and disposed of within a period of six months thereafter. Parties to bear their respective costs.