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2017 DIGILAW 43 (ORI)

Bipin Behari Barik v. Gula Dalabehera

2017-01-06

BISWANATH RATH

body2017
JUDGMENT : Biswanath Rath, J. This writ petition has been filed assailing the impugned orders under Annexures-7 and 8 passed by the authorities even exercise of power under Regulation-II of 1956 as well as the rejection of the review application at the instance of the petitioners as against the order passed in Regulation-II Appeal No.3 of 2002. 2. Short background involved in the case is that opposite party no.1 made a representation to the Revenue Divisional Commissioner, Central Division, Cuttack alleging that petitioners and the opposite party no.2 are in forcible possession of the disputed property recorded in the name of husband of the opposite party no.1. The representation being forwarded to the opposite party no.3, Regulation-II Case No.2 of 2001 was registered against the original petitioner nos.1 and 2. Petitioners submitted their show cause disclosing the fact that husband of opposite party no.1 sold Ac.0.2 1/2 decimals of land out of the plot and khata in question by Registered Sale Deed No.1296 dated 4.5.1983 to one Madhusudan Dehury, a Scheduled Tribe person, who while in possession sold the disputed land to the petitioner no.1 by Registered Sale Deed No.995 dated 23.7.1999 after obtaining due permission under Section 3(1) of the Regulation-II of 1956. It is alleged that the original authority even though by order dated 15.12.2001 directed to conduct an inquiry involving the dispute but by order dated 26.12.2001 recalled his order dated 15.12.2001 and disposed the matter directing restoration of the possession of the disputed land in favour of the petitioner. The order of the original authority appears to have been passed on the basis of documents only produced by opposite party no.1 and in absence of consideration of the documents produced by the petitioner nos.1 and 2. It is alleged that a mere inquiry could have established that the attempt of the opposite party no.1 was based on falsehood. Assailing the impugned order, petitioners preferred appeal registered as Regulation-II Appeal No.3 of 2002. Appellate authority by the impugned order under Annexure-8 in mechanical exercise of mind while dismissing the appeal imposed penalty on the petitioners and uphold the direction for restoration of the land in favour of the opposite party no.1. 3. Assailing the impugned order, petitioners preferred appeal registered as Regulation-II Appeal No.3 of 2002. Appellate authority by the impugned order under Annexure-8 in mechanical exercise of mind while dismissing the appeal imposed penalty on the petitioners and uphold the direction for restoration of the land in favour of the opposite party no.1. 3. Assailing the impugned orders, Sri Dash, learned counsel appearing for the petitioners contended that since the impugned orders suffer on account of non-consideration of the materials available on record and for non-consideration of the fact of the transaction at the instance of the husband of the opposite party no.1 in favour of the vendor of the petitioners, that too after obtaining due permission under Regulation-II of 1956, there was no scope of either entertaining the claim at the instance of the opposite party no.1 or dismissing the appeal and thus prayed for interference of this Court in both the impugned orders and setting aside the same. 4. In spite of notice, there is no appearance on behalf of the private opposite parties. Sri K.K.Mishra, learned Additional Government Advocate appearing for the opposite party nos.3 and 4 contended that for the reasons assigned by both the authorities below, the impugned orders remain unassailable and there is no scope for interference in the same. 5. Considering the rival contention of the parties, this Court finds there is no dispute that the land originally belongs to the husband of the opposite party no.1. But fact remains, the husband of opposite party no.1 sold the disputed land by Registered Sale Deed No. 1296 dated 4.5.1983 to one Madhusudan Dehury belonging to Scheduled Tribe and Madhusudan Dehury while was in possession sold the purchased land in favour of petitioner no.1 by virtue of Registered Sale Deed No.995 dated 23.7.1999. The sale in favour of petitioner no.1 by the vendor of petitioner also discloses that the sale involving disputed property took effect after obtaining necessary permission from the competent authority under Section 3(1) of Regulation-II of 1956. The record further discloses that in spite of petitioner no.1 bringing all these facts to challenge the representation at the instance of the petitioners the original authority without considering the relevant materials available on record passed an order simply directing for restoration of the disputed property in favour of opposite party no.1. The record further discloses that in spite of petitioner no.1 bringing all these facts to challenge the representation at the instance of the petitioners the original authority without considering the relevant materials available on record passed an order simply directing for restoration of the disputed property in favour of opposite party no.1. There is no transaction in violation of the provisions contained in Regulation II of 1956. For the suppression of material fact by the opposite party no.1, the order passed by the Original Authority cannot be sustained. Representation at the instance of the petitioners being based on suppression of material facts, the original proceeding should have been dismissed. Under the circumstances, this Court declares the order under Annexure-7 as bad in law and sets aside the same. For the observations herein, the impugned order vide Annexure-8 also remains bad in law. 6. Considering the submission of learned Additional Government Advocate that there is no illegality in the rejection of the review application by the competent authority under Regulation-II of 1956, this Court finds there is no provision under Regulation-II of 1956 authorising the competent authorities for reviewing their own orders. For the challenge of the petitioners to the orders under Annexures-7 and 8 and as this Court has already declared the orders under Annexures-7 and 8 as bad in law, the question raised above remain academic. 7. In view of the above, while setting aside the orders under Annexures-7 and 8, this Court allows the writ petition. No cost.