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2017 DIGILAW 817 (ORI)

Rajkishore Behera v. Bansidhar Beldar

2017-07-31

BISWANATH RATH

body2017
JUDGMENT : Biswanath Rath, J. Assailing the impugned orders at Annexures-2 to 4 passed by the competent authority under the O.L.R. Act learned counsel for the petitioner submitted that since a spot enquiry was conducted by the original authority without involving the petitioner and without affording opportunity of cross examination to the adversary on the statement of the witness recorded therein, the impugned order vide Annexure-2 remains bad in law. Further the orders vide Annexures-3 & 4 having been passed in non-consideration of the above aspect, the same also claimed to be remain bad in law. 2. Short background involved in the case is that in the first round of litigation in a proceeding under Section 23 A of the O.L.R Act there was a direction for restoration of the land in favour of the objector. This order was challenged in appeal and the appellate authority allowed the appeal remitting the matter back for fresh consideration. On reopening of the original proceeding the authority taking up the matter made a spot enquiry and considering the argument made by the rival parties, the written note of argument filed therein and further considering the report obtained in the process of disposing the Section 23 A proceeding in favour of the objector directed for restoration of the land vide Annexure-2. This order was challenged in appeal, taking the plea that the appellant had a submission that opportunity of cross examination have not been provided to the appellant therein so far it relates to the report prepared behind back of the appellant-petitioner, the appellant claimed that for non-consideration of this issue the order of the appellate authority becomes bad. This order was challenged in the revision and the revisioinal authority by dismissing the revision confirmed the order passed by the original authority as well as the appellate authority. Challenging the order at Annexures-2 to 4, Sri Dash, learned counsel appearing for the petitioner raised the question regarding sustainability of the impugned orders in absence of providing opportunity of cross examination involving a report prepared therein since amounting violation of principle of natural justice. To support his case learned counsel for the petitioner relied on two decisions of this Court as reported in AIR 1974 Ori. 127 and in 69(1990) CLT 764. 3. To support his case learned counsel for the petitioner relied on two decisions of this Court as reported in AIR 1974 Ori. 127 and in 69(1990) CLT 764. 3. Sri Satapathy, learned counsel for the opposite party No.1 and Sri Mishra, learned Additional Government Advocate conjointly submitted that the enquiry referred to therein has been conducted in presence and participation of the petitioner and the petitioner was aware of the report prepared and evidence so recorded. It is thus contended that it was incumbent upon the part of the petitioner to avail the opportunity of cross examination by applying a copy of the report relied on, even nothing prevented the petitioner to bring his own witnesses during enquiry. Both the learned counsels also submitted that the decisions relied on by the learned counsel for petitioner is not applicable to the petitioner’s case. Further, for the concurrent finding of fact by all the forums, there is no scope for interfering with the impugned order at this stage. 4. This Court finds, the sole question needs to be determined here is when a report is prepared at the instance of the original authority upon entering into enquiry by itself and in presence of the petitioner, if the petitioner deserved an opportunity of cross examination? and if yes what relief? 5. Considering the rival contentions of the parties, this Court finds, the original proceeding was revived on the basis of an order of remand. The remand proceeding was taken up in presence of both the parties and an enquiry was undertaken by the competent authority on visiting the spot with notice to both the parties. Record also reveals that the enquiry was conducted in presence of both the parties involving the petitioner. Therefore, there is no doubt that the report prepared therein and relied on by the original authority was prepared entering into an enquiry in presence of both the parties and particularly in presence of the petitioner herein. There also remains no doubt that the petitioner was aware of preparation of such report. Thus if the statement of any person was recorded at the time of such enquiry was going against the petitioner, nothing prevented the petitioner to request for cross examination of the witness at the spot or even recording of statement of his own witnesses. There also remains no doubt that the petitioner was aware of preparation of such report. Thus if the statement of any person was recorded at the time of such enquiry was going against the petitioner, nothing prevented the petitioner to request for cross examination of the witness at the spot or even recording of statement of his own witnesses. Assuming that the petitioner was not assisted by any counsel at the time of enquiry, the petitioner had a scope in the original proceeding to ask for copy of the report and apply for cross examination of the witness involving the report or even bringing evidence to establish the contrary therein by producing his own witness/witnesses. Under the circumstance, this Court observes, a duty casted on the party in contest to ask for cross examination and no duty was casted on the Court to volunteer for examination or cross examination by the parties to contest. On asking of this Court learned counsel for the petitioner produced the copy of the appeal memorandum. Perusal of the appeal memorandum, this Court nowhere finds, the appeal indicates that there involved an asking of the petitioner for cross examination or even to lead evidence of his own which has been rejected by the competent authority. 6. Perusal of the provisions contained in Rule 3 of the O.L.R Act, this Court finds, there is no doubt that a party is entitled to reasonable opportunity but for the observation of this Court hereinabove, a duty since casted on the petitioner himself to avail an opportunity, this Court finds, there is no violation of the Rule 3 of the O.L.R Act. 7. Now coming to the citation cited at Bar by the petitioner reading of the decisions referred to hereinabove, this Court nowhere finds the decision involves the allegation regarding the applicants asking for such opportunity and denial of the same by the competent authority. Under the circumstance and for the difference in the fact situation in the case at hand, the decision relied by the petitioner has no application to the case at hand. Coming to consider the merit aspect, on perusal of the impugned orders, this Court finds, there is concurrent finding of fact by all the three forums and as such, there is no scope for interfering with the same in exercise of power under Article 227 of the Constitution of India. 8. Coming to consider the merit aspect, on perusal of the impugned orders, this Court finds, there is concurrent finding of fact by all the three forums and as such, there is no scope for interfering with the same in exercise of power under Article 227 of the Constitution of India. 8. For the observations, discussions made hereinabove and for the concurrent finding of fact by all the forums, this Court finds no scope to interfere with the impugned order at this stage. 9. The writ petition thus stands dismissed. But however in the circumstances, there is no order as to cost.