Sisir Kumar Bohidar vs Additional District Magistrate, Bolangir & Others

Biswanath Rath, J

This writ petition involves a challenge to the order dated 22.9.2003 under Annexure-5 involving Misc. Revision No. 14/2003.

Short background involved in the case is that the petitioner hails from Bolangir District and encroached the land bearing plot no.248/1404 involving

Holding No.851 measuring an area Ac.0.016. This land was subsequently settled and mutated in the name of the petitioner, vide Nazul Encroachment

Case No.1/1980. Upon settlement of the above land in favour of the petitioner, R.O.R. was prepared after observing all legal formalities by the then

Tahasildar, consequent upon a demand of Salami in the year 1981 in consideration of the settlement of the land measuring Ac.0.016, vide Nazul

Encroachment Case No.1/1980, the petitioner deposited the required amount and he was granted a receipt upon deposit of the Salami bearing RR

No.191123 dated 18.76.1981 with clear indication that the deposit is being made by the petitioner. Consequently, a corrected R.O.R. was also issued

in favour of the petitioner showing to be in peaceful possession of the land since 1981. The petitioner noticed a clerical mistake in the R.O.R. to the

extent mentioning correction is made pursuant to the Mutation Case No.1/1980 instead of Nazul Encroachment Case No.1/1980. On the

petitioner’s application necessary correction was made. Upon correction of the R.O.R. the petitioner claimed to be a Rayat in respect of the

disputed property. It further appears, the order in the Nazul Encroachment Case No.1/1980 was challenged by one Prafulla Kumar Singh Deo in

Encroachment Appeal No.5/1980. This appeal was dismissed in 1980 itself. The facts further disclose that after a gap of two decades, the O.P.4, a

stranger having purchased a plot of land near the disputed plot started claiming the disputed plot to be Rasta. It is further alleged that O.P.4 being an

influential person in the locality went on harassing the petitioner. Ultimately it landed in a complain to O.P.1. Based on the complain by O.P.4, O.P.1

wrote an official letter dated 11.1.2001 to the Tahasildar indicating therein that the A.D.M. has ordered for registering the Misc. Case on the basis of

preliminary enquiry report and in the same communication also directed the Tahasildar to hear both the parties and submit the case record to the

District Office through the Sub-Collector for necessary recommendation to the Member, Board of Revenue for cancellation of Pata. Based on such

direction, the Tahasildar, Bolangir registered Revenue Misc. Case No.11/2001 and subsequently, on 26.11.2001 after hearing the petitioner and the

O.P.4 gave its finding that there is no adverse evidence to believe that the Pata issued in favour of the petitioner is un-genuine and accordingly

observed that the complain of O.P.4 is not correct, vide Annexure-3. In the meantime, O.P.4 filed an appeal before the Sub-Collector, Bolangir

involving the order at Annexure-3 registered as Misc. Appeal No.2/2001. The Sub-Collector ultimately dismissed the appeal filed by O.P.4 as not

maintainable, vide Anenxure-4. Challenging the order involving Annexure-4, O.P.4 filed Misc. Revision No.14/2003 before the Additional District

Magistrate, Bolangir, O.P.1, who disposed of the Revision in favour of O.P.4 setting aside the order passed by the Sub-Collector in Misc. Appeal

No.2/2001 and remanded the matter back to the appellate court to decide it afresh.

Challenging the order at Annexure-5, Sri R.Rath, learned counsel for the petitioner on reiteration of the facts narrated herein above and the stand of

his client before the authorities below firstly contended that for the Tahasildar undertaking an exercise following the direction of O.P.1 and submitting

the report to the O.P.1 does not give rise to filing an appeal. Sri Rath, learned counsel for the petitioner thus contended that the appellate authority has

rightly dismissed the appeal as not maintainable. Secondly, assailing the order involving Misc. Revision No.14/2003, Sri Rath, learned counsel for the

petitioner further contended that in the same premises the Revision is also not maintainable. Further looking to the revisional provision in the OPLE

Act, a Revision under Section 12 of the OPLE Act lies to the Collector and not to the Additional District Magistrate. In the above background of the

matter, Sri Rath, learned counsel for the petitioner contended that the order at Annexure-5 should be interfered and set aside.

Mr. U.K.Sahoo, learned Additional Standing Counsel for O.Ps.1 to 3 on the other hand taking this Court to the observations of the revisional

authority in Annexure-5 contended that the findings since based on materials, there is no infirmity in the impugned order leaving no scope for

interference of this Court.

A set of counsel though appeared for O.P.4, the private party but nobody attended the hearing proceeding.

Considering the rival contentions of the parties and straightway the proceeding on the maintainability of the Revision in Annexure-5, this Court likes

to note the provision at Section 12 of the OPLE Act.

“12.Appeal and Revision- (1) An appeal from any decision or order made under this Act by the Tahasildar shall lie to the Sub-divisional Officer.

(2) The Collector may revise a decision or order made by a Sub-divisional Officer under Sub-sec.(1) (or under Section 7 or Section 8-A)

(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.

(4) Pending the disposal of any appeal or revision the Sub-divisional Officer, the Collector the (Revenue Divisional Commissioner) as the case may be, may stay the

execution of the decision or order appealed against or sought to be revised.â€​

Looking to the provision at Sub-Section (2) of Section 12 of the OPLE Act makes it clear that the Collector may revise the decision of the Sub-

Divisional Officer under Sub-Section

(1) in exercise of power under the provision of the OPLE Act. Perusal of the order at Annexure-4 clearly appears that exercise of power was

undertaken by the Sub-Collector, Bolangir. This Court is, therefore, of the view that the revision against the Sub-Divisional Officer, if any, was lying to

the Collector and not to the Additional District Magistrate.

In the circumstance, this Court observes, the order at Annexure-5 being passed by the authority without jurisdiction is not

sustainable. This Court accordingly interfering with the order at Annexure-5 sets aside the same.

The writ petition succeeds. In the circumstance, there is no order as to cost.

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