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Sri Barendra Das & Others v/s Joint Commissioner, Consolidation & Others

    OJC No. 3376 of 1998

    Decided On, 11 February 2009

    At, High Court of Orissa

    By, THE HONOURABLE MR. JUSTICE A.S. NAIDU

    For the Petitioner: J.R. Dash, Advocate. For the Opposite Parties 4: S.P. Mishra, Advocate.



Judgment Text

A. S. NAIDU, J:

1. The Petitioners are the villagers of village Kalanda in the district of Balasore. Their grievance in this Writ Petition is that though the consolidation authorities reserve certain lands for public purposes, i.e., for construction of infra village road, and such decision was confirmed by the Deputy Director in appeal and the Commissioner in revision, subsequently, the Commissioner recalled his earlier Order Dated 31.12.1996 and disposed of the revision de novo by Order Dated 31.12.1997. It is stated that such action of the Commissioner is unjust, illegal and contrary to the canons of law and it is a fit case where the same should be quashed.

2. The contesting Opposite Parties after receiving notice appeared and filed counter affidavit denying all the averments made in the writ application. According to the contesting Opposite Party, there were three bastis in village Kalanda, named as “Sadak Pakha Sahi” (Purba Sahi), ‘Dakhina Sahi’, and ‘Uttara Sahi’ and they are intervened by agriculture lands. In course of consolidation operation, in order to facilitate the ingress and outgress of the villagers, Narahari, father of Opposite Party No.4 donated a portion of his land appertaining to Plot Nos.543 and 544 over which the main road has been laid down. The said road provides adequate passage and caters to the need of three bastis and is existing since 1994. All the villagers are using the said road as a matter of course. The present Petitioners during the consolidation operation claimed before the consolidation authorities to provide them another approach road over plot Nos.541, 543 and 882/1014 belonging to Opposite Party No.4. It appears that the said lands are compact and contiguous having an area of Ac.12.00 over which there were also standing trees, tube well points, etc. It is averred that the Opposite Party No.4 had claimed before the consolidation authorities to convert the lands as non-consolidable, but then, the said prayer was turned down.

3. It appears that in the case filed by the Petitioner, which was registered as Case No. 760 of 1993, the Consolidation Officer directed to provide a new infra village road over the suit plot Nos.541, 543 and 882/1014. The order passed by the Consolidation Officer was assailed by Opposite Party No.4 in Appeal No.23 of 1994. The Deputy Director upheld the order passed by the Consolidation Officer. Thereafter, a revision was filed, which was registered as R.C.No. 438 of 1996 before the Joint Commissioner, Settlement. The said revision was disposed of by Order Dated 31.12.1996, mainly on the ground that some of the villagers who were vitally interested in the lis were not impleaded as parties. Thereafter, it appears, the present Opposite Party No.4 filed a mise. case for recalling the order of dismissal and to re-hear the revision and the same was registered as Mise. Case No.45 of 1996. In the said mise. Case, a petition was filed to implead the villagers, who said to have interest in the subject matter. The Commissioner, by Order Dated 8.8.1997. allowed the petition for impletion of villagers. The said order also reveals that the misc. petition was disposed of. Thereafter, it appears that Revision Case No. 438 of 1996 was heard once again by the Commissioner. The Petitioner as well as the Opposite Parties took part in the hearing and made elaborate submission. The Commissioner in course of hearing observed that majority of the villagers of village Kalanda and 8 Nos. of members of village consolidation committee out of 13, were against the plea of providing new infra road over the suit plot Nos.541, 543 and 882/1014, mainly on the ground that the road was existing since 1994 and the same had been constructed over the lands donated by Narahari, father of Opposite Party No.4 and caters to the needs of all the villagers. The Commissioner further observed that before doing any deviation or before reserving any lands for public purpose, the opinion of the village consolidation committee members are generally obtained. In the case in hand, as out of 13 members, 8 were satisfied with the existing road and opined that no infra road need to be carved out, the decision of the Consolidation Officer was not proper. On the basis of such conclusion, the revision was allowed.

4. Mr.Dash, Learned Counsel appearing for the Petitioners forcefully submitted that the Commissioner acted illegally and with material irregularity in disposing of Revision Case No. 438 of 1996 by Order Dated 31.12.1997 (Annexure-6) though the said revision was disposed of earlier by the same Commissioner by Order Dated 31.12.1996 vide Annexure-4. Mr.Dash took lots of pain to take this Court through different orders passed in the Mise. Case as well as in the revision case. On perusal of such orders, this Court is satisfied that there was some infirmity inasmuch as the order recalling Annexure-4 dated 31.12.1986 do not indicate that the earlier order was recalled. Admittedly, Revision Case No. 438 of 1996 was disposed of on 31.12.1996 (Annexure-4) as not maintainable as some of the necessary parties were not impleaded. A petition was filed to recall the said order and to rehear the matter. The said petition was registered as Mise. Case No. 45 of 1996. In the mise case, .a petition was filed to implead necessary parties and the said petition was allowed. The Order Dated 8.8.1997 however reveals that the misc. case itself was allowed. Once the Mise. Case is allowed, it is to be concluded that the prayer made in the said Mise. Case i.e. to recall the Order Dated 31.12.1996 (Annexure-4) was allowed. Consequently, the said order stands recalled. Thereafter, the revision petition was heard once again by the Commissioner, Consolidation. The order allowing the Mise. Case was not assailed by the Petitioner though the same was passed way back on 8.8.1997. Even otherwise, it appears that the Petitioner participated in the hearing of the revision and did not raise any objection before the revisional authority that he had no jurisdiction to hear the matter on the ground that the revision was earlier disposed of. Thus, it appears that all the parties were under the impression that the earlier order disposing of the revision on technical grounds and not on merits, had been recalled and case was heard on merit, as in the meanwhile the defect had been cured.

5. After hearing the parties de novo and after discussing the facts in extenso, the Commissioner has come to a categorical conclusion that as one road is existing and the same caters to the needs of the villagers, no further infra road is necessary. The said finding of fact is based on valid reasons and is supported by the decision of 8 Nos. of village consolidation committee members out of 13. This Court also finds that except the Petitioners, other villagers who were impleaded as Opposite Parties, objected to construction of another infra road over plot Nos.541, 543 and 882/1014. Thus, the finding of the Commissioner does not appear to be erroneous.

6. That apart the jurisdiction to issue a writ of certiorari is supervisory in nature. While exercising such supervisory jurisdiction, this Court is not entitled to act as a Co

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urt of appeal. In other words, a finding of fact arrived at by the inferior Court or the Tribunal should not be interfered lightly. But in the cases where error of law becomes apparent on the face of the record, or where it appears that while recording a finding of fact, admissible material evidence had been ignored or inadmissible evidence have been accepted a writ of certiorari can be issued. None of the aforesaid ingredients are satisfied in the case in hand. The conclusions arrived at by the Revisional Court are on the basis of admissible facts and there is no error apparent on the face of record. This Court is, therefore, not inclined to interfere with the impugned order exercising the supervisory power, that too after so many years. The writ application is accordingly disposed of.
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