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2019 DIGILAW 20 (ORI)

Adaita Kumar Biswal v. R. D. C.

2019-01-10

BISWANTH RATH

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JUDGMENT : Biswanth Rath, J. Heard Sri K.K.Jena, learned counsel, on behalf of Sri B.K.Dagara, learned counsel for the petitioner and Sri S.N.Mishra, learned Additional Government Advocate for the opposite parties. 2. This writ application involves a challenge to the order dated 29.3.2000 passed by the Revenue Divisional Commissioner, Northern Division cancelling the order of settlement of land in favour of the petitioner involving Encroachment Revision No.28/98 so also the orders dated 17.7.2000 to 14.8.2000 involving OPLE Case No.551/95. 3. Sri K.K.Jena, learned counsel for the petitioner advancing his argument submitted that the proceeding initiated, vide Annexure-2 under Section 12(3) of the OPLE Act, 1972 is not maintainable for there being availability of scope for Appeal and Revision. Taking this Court to the provision indicated herein above and two decisions of this Court in the cases of Bulla Sahu vs. Member, Board of Revenue, Orissa, Cuttack, reported in 1987 (II) OLR-241 and Jaminikanta Das vs. Revenue Divisional Commissioner, Central Division, Cuttack, reported in 2016 (Supp.II) OLR-350, Sri Jena, learned counsel for the petitioner submitted that the above two decisions also support the contention of the petitioner. In view of the above, learned counsel for the petitioner prayed this Court for interference of Annexures-2 & 1. 4. To the contrary, Sri S.N.Mishra, learned Additional Government Advocate for the opposite parties in support of the impugned order submitted that the proceeding being initiated on the reference made by the Collector, the Revenue Divisional Commissioner was well within its right to take up the Revision proceeding. Sri Mishra thus contended that there is no illegality involving the order therein. As a consequence, there is no illegality in Annexure-1. Sri Mishra, learned Additional Government Advocate further contended that the petitioner having not raised the objection with regard to maintainability of the Revision proceeding in the Revision, he is estopped to raise such contentions in this Court. 5. Considering the rival contentions of the parties, this Court finds, there is no dispute amongst the parties that involving the order dated 2.1.1996 involving the very same land, the direction by the Tahasildar for settling the land in favour of the encroacher has neither been appealed nor any revision is preferred involving the same. There is also no dispute that the proceeding initiated, vide Annexure-2 is a proceeding under Section 12 (3) of the OPLE Act and a Suo Motu Revision. There is also no dispute that the proceeding initiated, vide Annexure-2 is a proceeding under Section 12 (3) of the OPLE Act and a Suo Motu Revision. Section 12(3) of the OPLE Act reads as follows :- "12(3)-The Revenue Divisional Commissioner having jurisdiction may call for and examine the records of any proceedings under this Act before any officer in which no appeal or revision lies and if such officer appears (a) to have exercised a jurisdiction not vested in him by law; or (b) to have failed to exercise a jurisdiction so vested; or (c) while acting in the exercise of his jurisdiction to have contravened some express provision of law affecting the decision on the merits, where such contravention has resulted in serious miscarriage of justice, it may after giving the parties concerned a reasonable opportunity of being heard pass such order as it deems fit." Reading the aforesaid provision, it becomes clear that there was scope for Appeal and further a Revision involving the orders of the Tahasildar. For the clear provision of appeal and Revision involving the order of the Tahasildar in the statute and for there being no appeal filed involving the order dated 2.1.1996, this Court finds, the suo motu Revision initiated by the Revenue Divisional Commissioner is not maintainable in the eye of law. This Court here taking into consideration the citations cited at Bar finds, both the citations have support to the case of the petitioner for the clear provision of law under Section 12(3) of the OPLE Act. Further for the settled position of law by the aforesaid decisions, this Court finds, the proceeding, vide Annexure-2 remains illegal. As a consequence, the orders dated 17.7.2000 and 14.8.2000 on re-opening of the encroachment Case No.551/95 by virtue of the direction of the Revenue Divisional Commissioner, vide Annexure-1 is also illegal. 6. For the question of law being raised by the learned counsel for the petitioner on the maintainability of the Revision under Section 12(3) of the OPLE Act, this Court finds for involvement of a question of law, there is no force in the submission of the learned Additional Government Advocate. 7. In the result, this Court interfering with the order at Annexure-2 and the order at Annexure-1 involving the proceeding, vide Encroachment Case No.551/95 from 17.7.2000 to 14.8.2000 sets aside the same. 8. The writ petition succeeds. 7. In the result, this Court interfering with the order at Annexure-2 and the order at Annexure-1 involving the proceeding, vide Encroachment Case No.551/95 from 17.7.2000 to 14.8.2000 sets aside the same. 8. The writ petition succeeds. No order as to cost.