Sabita Mohanty vs State Of Odisha And Others

Arindam Sinha, J.

Ms. Mohapatra, learned advocate appears on behalf of petitioner and submits, impugned is order dated 8th May, 2013 made by the Assistant Settlement Officer (ASO). She relies on judgment dated 2nd January, 2023 made by the first Division Bench of this Court in, inter alia, W.P.(C) no.1608 of 2014 (Narottam Rath v. State of Odisha and another), paragraphs 16 and 17. The paragraphs are reproduced below.

“16. Be that as it may, it is plain that in all these cases, the ASOs exercised ‘suo motu powers’ to override the orders of the ADM under the OGLS Act in favour of the predecessors-in-interest of the Petitioners or refused to record their names in the ROR despite there being no objections to the draft publication of the ROR.

Clearly the ASOs were acting without jurisdiction and beyond the scope of their powers under the OSS Act. It is obvious that powers which could have been exercised only under the OGLS Act were sought to be exercised by the ASO which was impermissible in law for them to do. The above extracted portions of the orders of this Court conclusively settle the legal position in this regard and do not bear repetition.”

Mr. Rout, learned advocate, Additional Standing Counsel appears on behalf of State and submits, this Bench does not have assignment. Impugned order having been made by the ASO appointed under Odisha Survey and Settlement Act, 1958, the writ petition falls under entry-9 in assignment list of the Hon’ble Mr. Justice Biswanath Rath. In any event, petitioner has efficacious alternative statutory remedy under the Act of 1958.

Judgment dated 2nd January, 2023 (supra) relied upon by Ms. Mohapatra was made, as aforesaid, by the first Division Bench. As on 2nd January, 2023, entry-7 in assignment list of the first Division Bench included Division Bench matters upto 2015 except criminal and tender matters. As on 2nd January, 2023 the writ petitions dealt with by judgment dated 2nd January, 2023 (supra) had impugned in them orders made by the ASO. On that day there was existing entry-9 in assignment list of the Hon’ble Mr. Justice Biswanath Rath, including writ petitions under the Survey and Settlement Act. We are not prepared to accept that judgment dated 2nd January, 2023 (supra) made by the first Division Bench was without assignment. We have assignment, as we are bound to follow judgment dated 2nd January, 2023 (supra) on ‘Comity of Courts’. The question on assignment we, therefore, answer in the positive.

Moving on to the merits, we find from impugned order, the authority said that petitioner had not produced relevant legal documents and maps. On query from Court Ms. Mohapatra refers to order dated 30th May, 2007 made by Additional District Magistrate, Bhubaneswar, as a document produced by her client before the ASO. We reproduce below a paragraph from said order.

“In view of the facts indicated in the foregoing paras there is sufficient reason to conclude that the lessee was eligible to get land on lease. Hence, lease sanctioned by the Tahasildar, Bhubaneswar of an area Ac.1.500 dec. pertaining to Khata No.420 under Plot No.1198 in village Pathargadia vide W.L. Case No.2905 of 1974 is as per law. The lease revision proceeding is dropped to the extent of an area Ac.0.375 dec. As purchased by the petitioners in the above mentioned O.J.C. The Tahasildar, Bhubaneswar also mutate the land in favour of the petitioner on realization rent for the year 2001-2002 from the petitioners.”

(emphasis supplied)

Impugned order is obviously arbitrary inasmuch as there is no reference to above order dated 30th May, 2007 made by higher authority being the Additional District Magistrate. In the circumstances, availability of efficacious alternative statutory remedy is not a bar on petitioner moving this Court for interference. This is apart from impugned order having been made by the ASO without jurisdiction, as held by said judgment dated 2nd January, 2023 (supra). Impugned order is set aside and quashed.

Ms. Mohapatra prays for return of original certified copy of order dated 30th May, 2007 upon undertaking to put in photo copy thereof. The original be returned on such substitution.

The writ petition is disposed of.

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