Research › Search › Judgment

Orissa High Court · body

2018 DIGILAW 667 (ORI)

Nilamani Dash v. Gourishankar Dash

2018-07-17

B.RATH

body2018
JUDGMENT B. Rath, J. - This writ petition involves a challenge to the quashment of orders at Annexures-1, 3 and 4 involving the writ petition. 2. Short background involving the case is that on 25.04.1983 there is final publication of ROR under Section 22(2) of the Consolidation of Holdings and Prevention of Fragmentation of Land Act (for short "the Consolidation Act"). As a consequence, Chaka No.81, L.R. Plot No.299(P), an area of Ac.0.10 decimals was allotted in favour of the petitioners. No objection was being raised by opposite party no.2 at the relevant point of time. Finding there is discrepancy in the field position of the plots involved as well as the map position, petitioners preferred a revision under Section 37 of the Consolidation Act on the file of the Joint Commissioner, Consolidation, Sambalpur bearing Revision No.8 of 1998. Opposite parties also simultaneously filed Revision No.175 of 1997 for allotment of an area of Ac.0.10 decimals being wrongly recorded in the name of the petitioners. Consequent upon filing of objection by the respective parties, both the revisions being taken up together were concluded with a direction for remand of the revisions to the Consolidation Officer with specific direction for conducting field enquiry and also taking fresh decision after providing opportunity to the respective parties. Upon remand of the matter, the Consolidation Officer observing that there is discrepancy in the area between the map and field and as it was within the permissible limit further looking to the claim of opposite party no.2, directed for restoration of Ac.0.10 decimals of land in favour of opposite party no.2. Consolidation Appeal No.45 of 1998 preferred by the petitioners on 30.01.1998 the appellate authority on disposal of the Appeal directed to allot Ac.0.10 decimals of Government land in favour of the petitioners and thereby confirmed the order for restoration of Ac.0.10 decimals in favour of opposite party no.2. Consolidation Revision No.161 of 1999 being preferred, the Revisional Authority confirmed the orders of the Authorities below. 3. Assailing the impugned order, Miss Dipali Mohapatra, learned counsel appearing for the petitioners submitted that though the appellate authority directed to allot Ac.0.10 decimals of land in favour of the petitioner from the Government land to Chaka No.81, in fact there is no land adjoining in the Chaka holding for the intervention of a Canal therein. However, there was some Government land adjacent to Chaka No.82. However, there was some Government land adjacent to Chaka No.82. Further, the revision at the instance of opposite party no.2 having been initiated after fourteen years delay, Miss Mohapatra, learned counsel appearing for the petitioner also resisted the entertainment of the revision under Section 37(1) of the Consolidation Act after such long delay. 4. Shri Routray, learned counsel appearing for the private opposite party no.2 taking this Court to the observations of the Authorities below, submitted that there is no infirmity involving the impugned order requiring interference in the same. 5. Shri K.K. Mishra, learned Addl. Government Advocate appearing for the State toed the submission of the learned counsel appearing for opposite party no.2. 6. Considering the rival contentions of the parties and looking to the impugned order at Annexure-1, this Court finds, the Authority considering the dispute involving Annexure-1 and taking into account the rival contentions of the parties observed as follows :- "However on the day of field enquiry on 01.11.1998 it was conceded by the Advocate of both the parties in the later presence that out of chaka No.83, chaka plot No.141 of the petitioner in RRC No.8/98, the O.P. is possessing Ac.0.04 which was agreed upon to be restored to the petitioner in this case, upon restoration of Ac.0.10 original land of petitioner in R.R.C. No.175/97 in his chaka No.82 upon modification for chaka No.81 of O.P. in that case." It be stated here that the word 'petitioner' hereinabove indicates that the petitioner in RRC 8/1998, i.e., the present petitioner and the petitioner in RRC No.175 of 1997 is the opposite party no.2. 7. It is in the above background of the case, this Court finds, the order passed by the original authority was on the concession made by both the parties. Looking to a decision of the Apex Court in the case of State of Maharashtra v. Ramdas Shrinivas Nayak, reported in AIR 1982 S.C. 1249 , wherein the Apex Court considering whether in view of the concession recorded by a particular Court, if it is open to a party to agitate the matter further in higher forum ? Looking to a decision of the Apex Court in the case of State of Maharashtra v. Ramdas Shrinivas Nayak, reported in AIR 1982 S.C. 1249 , wherein the Apex Court considering whether in view of the concession recorded by a particular Court, if it is open to a party to agitate the matter further in higher forum ? In paragraphs-4 and 7 therein the Apex Court have held as follows :- "4.When we drew the attention of the learned Attorney General to the concession made before the High Court, Shri A.K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the respondents there and who appeared for Shri Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submission made by him in the High Court. We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public Policy bars us Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. "Judgments cannot be treated as mere counters in the game of litigation". (Per Lord Atkinson in Somasundaran v. Subramanian, AIR 1926 PC 136 ). We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well-settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. The principle is well-settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error (Per Lord Buckmaster in Madhusudan v. Chandrabati, AIR 1917 PC 30 ). That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment. 7. So the Judges' record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the Judge himself, but nowhere else." 8. Taking into consideration the admission of the petitioners before the original authority in the remand proceeding and the decision of the Apex Court, this Court is of the opinion that there is admittedly a concession by both the parties and further for no involvement of a concession contrary to legal position, this Court is bound to accept the statements / concession of the parties so recorded by the original authority. Following the Hon'ble Apex Court's directions, in the worse, the parties were at liberty to call the attention of the very Judge / the authority while the matter was still fresh in the mind of the Judge / authority. For the settled position of law and the observation of this Court, this Court finds, there is no scope for interfering in the impugned order at Annexure-1, so also the subsequent orders involved therein vide Annexures-3 and 4. For the settled position of law and the observation of this Court, this Court finds, there is no scope for interfering in the impugned order at Annexure-1, so also the subsequent orders involved therein vide Annexures-3 and 4. For the specific concession and for the petitioner not taking timely steps on the objection to recording of such concession in the same Court, this Court otherwise has no scope for entertaining such plea at this point of time. 9. This writ petition thus stands dismissed for having no merit. No cost.