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2019 DIGILAW 580 (ORI)

Ramgopal Khadiratna v. State of Orissa

2019-09-13

BISWANATH RATH

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JUDGMENT : Biswanath Rath, J. 1. This writ petition involves a challenge to the initiation of suo motu proceeding under Section 15(a) of the Orissa Survey & Settlement Act, 1958 (for short "the Act, 1958"). The core challenge involving the impugned order is for the statutory provision involving Section 15(a) of the Act, 1958 though not prescribed any period of limitation but for the series of decisions of this Court and the decisions of the Hon'ble Apex Court, maximum period in initiating a suo motu proceeding should not have exceeded 3 years. For the suo motu proceeding involved herein through Revision Case No.359 of 2004 vide Annexures-3 and 5 initiated after 20 years of preparation of record-of-right, learned counsel for the petitioner drawing the attention of this Court to the series of judgments discussed in the case of Chaitanya Das (since dead) through L.Rs., Smt. Aladmani Das & others v. Bibhuti Charan Das & others, 2017 (I) OLR 406 including that of a judgment of Hon'ble Apex Court in the case of Santosh Kumar Shivgonda Patil and Ors. v. Balasaheb Tukaram Shevala and Ors., 2009 AIR SCW 6305, contended that the suo motu proceeding initiated becomes bad and therefore, this Court should be interfered in the order at Annexure-3 as well as order at Annexure-5 and set aside the both. For the involvement of a preliminary objection and the question of maintainability of the suo motu revision involved herein, this Court is not required to go into the merit of the case unless the petitioners fail in their attempt for establishing that the Revision Case No. 359 of 2004 is not maintainable on the premises of delay. 2. To the contrary, Sri Das, learned counsel for the opposite party nos. 6 and 7 submitted that though there is no time stipulation in Section 15(a) of the Act, 1958 but, however, for a circular of the State Government giving liberty for initiation of suo motu proceeding even after expiry of time under the circumstance stated therein, claimed that the suo motu revision petition in spite of being initiated after 20 years is maintainable. Sri Das also further contended that the circular relied on by him since not contrary to the statutory provision and is intended to avoid the gray area involving the statutory provision. Sri Das, thus contended that the circular has application to the case at hand. Sri Das also further contended that the circular relied on by him since not contrary to the statutory provision and is intended to avoid the gray area involving the statutory provision. Sri Das, thus contended that the circular has application to the case at hand. Sri Das, learned counsel also referring to a judgment of the Hon'ble Apex Court in the case of Harsh Dhingra v. State of Haryana and others with Sant Kumar and others v. State of Haryana and another, (2001) 9 SCC 550 submitted that for the decision vide Annexure-7 therein, the suo motu revision is maintainable. Further taking this Court to another decision of Hon'ble Apex Court in the case of Sant Ram Sharma v. State of Rajasthan and others, AIR 1967 SC 1910 , Sri Das again for the decision of the Hon'ble Apex Court in paragraph-7 therein submitted that the suo motu initiation of proceeding after 20 years is maintainable. In the circumstances, Sri Das, learned counsel while justifying the maintainability of the revision even though filed after 20 years, prayed for dismissal of the writ petition. 3. Sri Sahoo, learned Additional Standing Counsel supporting the stand of Sri Das also claimed that for the application of the judgments referred to therein and the circular to the case at hand-claimed for dismissal of the writ petition. 4. Miss Pratyusha Naidu, learned counsel appearing for the opposite party no. 8 apart from taking support of the stand taken by Sri Das also contended that for property of a deity involved therein remaining under the control of the Endowment Commissioner, the Endowment Commissioner should have been made a party to the proceeding and the matter in the lower forum should have been decided involving the Endowment Commissioner in absence of which the writ petition also not maintainable. In the above premises, Miss Naidu submitted that the settlement of land in favour of the petitioner in absence of involvement of Endowment Commissioner, preparation of record-of-right becomes illegal and thus claimed for dismissal of the writ petition. 5. Considering the rival contentions of the parties and taking into account the case and the objection of the parties concerned, this Court finds the moot questions to be decided are (i) As to whether initiation of the suo motu proceeding in exercise of power under Section 15(a) of the Act, 1958 being initiated after 20 years is maintainable? 5. Considering the rival contentions of the parties and taking into account the case and the objection of the parties concerned, this Court finds the moot questions to be decided are (i) As to whether initiation of the suo motu proceeding in exercise of power under Section 15(a) of the Act, 1958 being initiated after 20 years is maintainable? & (ii) For the availability of circular and the decision cited at Bar at the instance of Sri Das, more particularly whether the writ petition suffers and the impugned order is sustainable? 6. Taking into consideration the rival contentions of the parties, this Court finds there is no dispute that the suo motu revision vide Revision Case No. 359 of 2004 was initiated after 20 years of the publication of the record-of-right. It is at this stage, taking into account the provision at Section 15(a) of the Orissa Survey & Settlement Act, 1958 this Court finds Section 15(a) of the Act, 1958 read as follows: 15. Revision by Board of Revenue - The Board of Revenue may in any case direct- (a) of its own motion the revision of any record-of-rights, or any portion of a record-of-rights, at any time after the date of final publication under [Section 12-B] but not so to affect any order passed by a Civil Court under Section 2[42];" Reading of the aforesaid provision and due scrutiny, it becomes clear that there is of course no restriction in initiation of suo motu proceedings. Yet this Court observes that there is no restriction does not mean that a revision can be filed after undue delay which will ultimately affect the cardinal principle that no action should be undertaken to affect the already settled issues/matters. It is at this stage, taking into consideration of the decision of the Hon'ble Apex Court rendered in the case of Santosh Kumar Shivgonda Patil and Ors. V. Baiasaheb Tukaram Shevala and Ors., 2009 AIR SCW 6305 (supra), in paragraph-16 this Court finds the Hon'ble Supreme Court in paragraph-16 has made the following observation: "[16] It seems to be fairly settled that if a statue does not prescribe the time limit for exercise of revisional power, it does not mean that such power can be exercised at any time; rather it should be exercised within a reasonable time. It is so because the law does not expect a settled thing to be unsettled after a long lapse of time. Where the legislature does not provide for any length of time within which the power of revision is to be exercised by the authority, suo motu or otherwise, it is plain that exercise of such power within reasonable time is inherent therein. Ordinarily, the reasonable period within which power of revision may be exercised would be three years under Section 257 of the Maharashtra Land Revenue Code subject, of course, to the exceptional circumstances in a given case, but surely exercise of revisional power after a lapse of 17 years is not a reasonable time Invocation of revisional power by the Sub-Divisional Officer under Section 257 of the Maharashtra Land Revenue Code is plainly an abuse of process in the facts and circumstances of the case assuming that the order of Tehsildar passed on March 30, 1976 is flawed and legally not correct. Pertinently, Tukaram Sakharam Shevale, during his lifetime never challenged the legality and correctness of the order of Tehsildar, Shirol although it was passed on March 30, 1976 and he was alive up to 1990. It is not even in the case of respondent nos. 1 to 5 that Tukaram was not aware of the order dated March 30, 1976. There is no finding by the Sub-Divisional Officer either that order dated March 30, 1976 was obtained fraudulently". Basing on the aforesaid judgment, taking into account similar nature of writ petition vide W.P.(C) No. 3651 of 2002, this Court has also taken a view that in a similar circumstance involving a proceeding under Section 37(c) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, where a revision was preferred after 3 years, this Court taking into account the decision of the Hon'ble Supreme Court and series of decision of this Court and further keeping in view the observation of this Court indicated hereinabove, has come to hold that no revision can be entertained after lapse of 3 years. It is at this stage, taking into account the objection raised by Sri Das, this Court finds even though the statute did not prescribe a time stipulation but for the decision of this Court and Hon'ble Apex Court, law has been fairly well settled that no revision should be entertained after expiry of 3 years Taking into account the specific case that the statute did not prescribe a time of limitation, the decision of the Hon'ble Apex Court and the decision of this Court are also outcome of consideration of such situation as to whether a party or applicant can raise a revision and a suo motu revision can be entertained after expiry of 3 years. For the settled position of law, this Court finds circular, if any, issued by the State Government remains contrary to the law of the land, can neither override statute nor have any application to invite reopening of settled position settled long since and in such event there will be no end to any litigation. State should act as a role model and refrain it from/creating a confusing position. Furthermore, the circular is also opposed to the view of the Hon'ble Apex Court's judgment vide AIR 2009 SCW 6305 . 7. Considering the decisions relied on by Sri Das and the submission made by State Counsel as well as Miss Naidu, this Court from the decision rendered in the case of Sant Ram Sharma v. State of Rajasthan and others, AIR 1967 SC 1910 (supra), finds the case involved therein is that there was a challenge to the administrative action not governed in any statute and that further for the observations of the Hon'ble Apex Court that the procedure followed being violative of constitutional guarantees under Articles 14 and 16 of the Constitution of India, the decision does not hit the facts involving the case at hand. Similarly, taking into consideration the submission of Sri Das, this Court finds taking aid of the decision involving Harsh Dhingra v. State of Haryana and others with Sant Kumar and others v. State of Haryana and another, (2001) 9 SCC 550 (supra), this decision has application to the cases, which have already been closed and have no application to the cases pending for consideration in higher forum. For the clear application of the judgment of the Hon'ble Supreme Court in the case of Santosh Kumar Shivgonda Patil and Ors V. Balasaheb Tukaram Shevala and Ors., 2009 AIR SCW 6305 (supra) and the series of decision of this Court including the decision involving Chaitanya Das (since dead) through L.Rs., Smt. Aladmani Das & others v. Bibhuti Charan Das & others, 2017 (I) OLR 406 (supra), this Court finds the petitioner has the support of law and further the above decisions also opposed to the contentions raised by the counsel for the opposite parties. So far as the submission of Sri Sahoo, learned State Counsel based on decision in the case of Narendra Kumar Mohapatra v. Joint Commissioner, Settlement and Consolidation and others, 2008 (Supp-II) OLR-779, this Court observes for the subsequent decision of the Hon'ble Apex Court in the case of Santosh Kumar Shivgonda Patil and Ors. V. Balasaheb Tukaram Shevala and Ors., 2009 AIR SCW 6305 (supra), the decision of the Single Bench of this Court in the case of Narendra Kumar Mohapatra v. Joint Commissioner, Settlement and Consolidation and others, 2008 (Supp-II) OLR-779 is no more applicable. 8. In the circumstance, this Court finds the suo motu revision initiated after 20 years was not maintainable. This Court finds the decision at Annexure-3 as well as Annexure-5 both become bad in law and this Court while interfering in the same sets aside both. This Court also observes in the event the proposal of learned counsel for the opposite parties are accepted, then there will be no end to the litigation and further also unsettling the settled position. On the submission of Miss Naidu on the record-of-right being bad for preparing such record without involving the Endowment Authority, this Court observes that the Endowment Authority was not prevented to challenge the recording of the competent authority in appropriate time. Not only that this Court also finds the Endowment cannot be an aggrieved party Further, no challenge to such action by the parties/deity aggrieved at appropriate level, the Endowment Commissioner is estopped to challenge at this stage. 9. In the result, the writ petition succeeds. However, there is no order as to cost.