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IN THE HIGH COURT OF ORISSA AT CUTTACK

W.P.(C) No.24198 of 2017 &

W.P.(C) No. 23781 of 2017

(Applications under Articles 226 and 227 of the Constitution

of India)

A.F.R. W.P.(C) No. 24198 of 2017

Pratima Jena & Others … Petitioner

- versus-

State of Odisha & others … Opposite Parties

W.P.(C) No. 23781 of 2017

Annapurna Jena and Others … Petitioners

- versus-

State of Odisha & others … Opposite

Parties

Advocates appeared in the cases through hybrid mode:

For Petitioner(s) : Mr. R.P. Mohapatra, Advocate

[in W.P.(c) No.24198 of 2017]

M/s. Bhakta Hari Mohanty, D.P.

Mohanty, R.K. Nayak, T.K. Mohanty,

P.K. Swain & M. Pal, Advocate

[in W.P.(C) No.23781 of 2017]

For Opposite Parties : Mr. S.N. Patnaik,

Addl. Govt. Advocate

CORAM:

JUSTICE SASHIKANTA MISHRA

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JUDGMENT

12.02.2026

SASHIKANTA MISHRA, J . Both these writ applications are

directed against the same order and being heard together are

disposed of by this common judgment.

2. The property in dispute relates to Sabik settlement

Khata No.56, Plot No.80, measuring Ac.0.120 decimals in the

erstwhile Mouza- Sana Jobra in the district of Cuttack. The

property stands recorded in the Hal ROR published on

04.01.1974 under Hal Khata No.18 in favour of the

petitioners.

3. The facts of the case are that the Collector,

Cuttack, filed an application under Section 15(b) of the OSS

Act, 1958 in the Court of Joint Commissioner, Settlement

and Consolidation, Board of Revenue, Cuttack registered as

RP No.483 of 2016 for correction of the Hal ROR in favour of

the State by deleting the names of the recorded tenants

(present petitioners). It is the case of the Collector that during

settlement operation at Khanapuri stage, one Ganesh

Chandra Jena produced a registered sale deed bearing No.

3177 dated 13.07.1984 executed in favour of one Narayan

Jena. Said Narayan Jena also produced a chirasthai patta in

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respect of Sabik Plot No.80 under Sabik Khata No.56. The

settlement authority, without application of judicial mind and

examining the authenticity of the documents, passed order to

settle the land corresponding to Hal Plot No.132 in the name

of Narayan Jena with sthitiban status. Hal ROR was finally

published on 04.01.1974. It is stated that Sabik Khata No.

56, Sabik Plot No.80, originally stood recorded in the name of

Government of Odisha in Anabadi Khata. Therefore, the

subsequent recording of the land in favour of Narayan Jena

and others conveyed no title in their favour. It was stated that

during demarcation of the proposed road from Mahanadi

Ring Road to the Cancer Institute, the above fact came to the

notice of the State.

3.1. An application for condonation of delay was filed.

The petitioners submitted their show-cause reply citing the

flow of title in their favour and resisting the application on

the ground of delay. Learned Joint Commissioner, by order

dated 20.09.2017, allowed the revision by holding that the

disputed property stood recorded in the name of the

Government and that the opposite parties have taken help of

fraudulent methods to record the land in respect of its

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corresponding Hal plots. Since the land originally stood

recorded in the name of the Government, subsequent

recording in the names of the petitioners confers no title on

them. The revision was allowed by directing the correction of

the ROR as per Sabik and to record the plots in the name of

Government by deleting the names of the present petitioner

from the Hal ROR and remarks column of the plots. The

petitioners have filed this writ application impugning the said

order.

Challenge of the petitioners to the impugned order

is firstly on the ground of limitation. It is stated that the Hal

ROR having been published in the year 1987, the application

under Section 15(1)(b) was filed in the year 2016 i.e, after a

delay of more than 29 years. The inordinate delay was not

explained at all. That apart, though the revision was to be

heard on the question of limitation at the outset, learned

Joint Commissioner did not hear the parties on such

question and went on to pass the impugned order holding

that the case was admitted and the delay had been condoned.

In the absence of a specific order condoning the delay, the

impugned order becomes nullity in the eye of law. It is the

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further case of the petitioners that the revision petition was

filed alleging that the settlement authority without

application of judicial mind and examining the authenticity of

documents, directed settlement of land. Not a word alleging

fraud was whispered. However, the revisional authority went

a step forward to hold that the petitioners had adopted

fraudulent means to get the land recorded in their favour,

which is not the case of the revision petitioner. That apart,

the revisional authority misdirected himself by unnecessarily

delving upon the meaning of fraud without taking pain to

ascertain as to how the same was alleged and proved in the

case. The order is therefore, rendered unsustainable.

On merits, the petitioners contend that the land

originally belonged to the ex-intermediary, Ray Bahadur

Jogesh Chandra Chandra. After his death, his successor,

namely Ray Bahadur Ganesh Chandra Chandra executed a

registered deed of permanent lease bearing No.3177 dated

13.07.1984 in respect of the disputed land in favour of one

Narayan Jena and delivered possession. Said Narayan Jena

paid rent to the ex-intermediary and after vesting of the

estate, he continued as a tenant under the State on payment

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of rent to the concerned Tahasildar. During the Hal

settlement operation, Narayan Jena put forth his claim in

respect of the leasehold property. The matter was enquired

into by the settlement authorities, who directed recording of

his name in the Hal settlement. Such enquiry was based on

verification of Jamabandi, prepared on the basis of Ekpadia,

submitted by the ex-intermediary. The property was thus

recorded in sthitiban status. Narayan Jena also applied to the

appropriate authority under Urban Land (Ceiling and

Regulation) Act, 1976 for sale of a portion of the property,

which was granted by the Collector, Cuttack vide letter dated

09.03.1981. Narayan Jena died leaving behind two sons,

Ganesh and Umesh. The petitioners are the legal heirs of

Ganesh and Umesh. There have been subsequent sale

transactions of different portions of the property. After death

of Narayan Jena, all his successors jointly filed application

under section 19(1) (c), of the OLR Act for amicable partition

of the properties under Hal Khata No.18. The property was

divided into two equal shares allotting Ac.0.047 decimals and

5 links each in favour of the successors of late Ganesh and

Umesh. Separate record of rights was published accordingly.

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The petitioners contend that the land was never recorded in

the name of the State.

4. Heard Mr. R.P. Mohapatra, learned counsel

appearing for the petitioners in W.P.(C) No. 24198 of 2017,

Mr. D.P.Mohanty, learned counsel appearing for the

petitioners in W.P.(C) No. 23781 of 2017 and Mr. S.N.

Pattnaik, learned counsel appearing for the State.

5. Both Mr. R.P. Mohapatra and Mr. D.P. Mohanty

would argue that the revisional authority adopted a novel

procedure in dealing with the application filed by the

Collector seeking condonation of delay. Admittedly, the

revision was filed after more than 29 years and 3 months. No

application for condonation of delay was filed. Same was filed

only after grant of several opportunities by the revisional

authority. Though filed, the petition was never heard nor the

case was taken up for hearing on the question of admission.

The Revisional Authority however, without condoning the

delay by passing appropriate order, reserved the case for

orders on 07.09.2017. The impugned order was passed on

20.09.2017 indicating that the case was admitted and delay

was condoned. This, according to both counsel is a gross

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procedural error, which goes to the root of the matter and the

impugned order is liable to be set aside on such score alone.

5.1 Both Mr. Mahapatra and Mr. Mohanty further

argue that law is well settled that fraud has to be specifically

pleaded and proved. In the instant case, the Collector, in his

revision application never raised the question of fraud. The

revisional authority made out a third case and held that

fraud had been practiced by the petitioners. It was not

specified how fraud was practiced. The revisional authority

without making any fact-based analysis, unnecessarily dwelt

upon the meaning of fraud and its effect. The impugned

judgment cannot therefore be sustained for such reason also.

5.2 On facts, both counsel argue that the finding of the

revisional authority that the disputed land should be

recorded in the name of the State is an error apparent on the

face of record as the Yaddast clearly shows that the same

was under the intermediary administration of Ray Bahadur

Jogesh Chandra Chandra. Therefore, the flow of title proved

by original documents not having been considered at all by

the revisional authority and the disputed property being

directed to be recorded in the name of the State without any

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valid or justified reason, the impugned order warrants

interference.

6. Per contra, Mr. S.N. Pattnaik, learned Addl.

Government Advocate would argue that though the ROR was

published in the year 1987 yet, the same was not within the

knowledge of the revision petitioner. It was only during the

demarcation of the proposed road from Mahanadi Ring Road

to the Cancer Institute that the same came to its knowledge.

Mr. Patnaik submits that it is well settled that delay has to be

reckoned from the date of knowledge. This was clearly

mentioned in the application seeking condonation of delay.

The revisional authority after hearing both sides, was

convinced regarding the explanation cited and therefore,

condoned the delay. On the question of fraud, Mr. Patnaik

would argue that during the settlement operation, the

settlement authority without application of judicial mind and

examining the authenticity of the documents produced by the

predecessor-in-interest of the petitioners directed the

recording of the land in their favour. Prior to the settlement

operation the land was recorded with anabadi status and

therefore, purely government land and therefore, the so-called

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ex-intermediary cannot be held to have been in possession.

The documents produced cannot confer any title as these

aspects were ignored by the settlement authorities, who had

no jurisdiction under the OEA Act. It is evident that the

direction issued to record the name of Narayan Jena was

done on account of misrepresentation of facts/material

irregularities of procedure by resorting to fraudulent means.

The petitioners could not produce a single rent receipt to

prove that they were paying rent till the Hal settlement. As

per the relevant statutory provisions, the order of the

settlement authorities is bad and therefore, no title was

acquired by Narayan Jena thereby. Consequently, there is no

flow of title in favour of the petitioners, which the revisional

authority rightly held.

7. It is common ground that the revision application

under section 15(1)(b) of the OSS Act was filed beyond the

period of limitation of 30 days. In fact, the delay was 29

years, 3 months and 19 days. Perusal of the certified copies

of the order sheets enclosed to W.P.(C) No. 23781 of 2017

(Annexure-15) reveals that the revision was filed on

05.10.2016 without any application seeking condonation of

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delay. The revisional authority directed the petitioners to file

such petition on 05.10.2016. The matter was adjourned

thereafter to 28.10.2016, 17.11.2016, 22.12.2016,

09.02.2017 and ultimately, the petition was filed on

02.03.2017. Notice was issued on that date and the matter

suffered some more adjournments and ultimately was

purportedly heard on 07.09.2017 and was reserved for order.

Whether such hearing was on the question of limitation or on

merits is not specified in the order dated 07.09.2017. Be that

as it may, the impugned order mentions that “the case was

admitted and the delay has been condoned as per various

decisions of the Hon’ble Apex Court submitted by the learned

Standing Counsel for the petitioner for the State.” There is

nothing on record or in the order sheet to show that the

parties were specifically heard on the question of limitation.

That apart, when the delay was condoned and the case was

admitted is also not forthcoming. The procedure so adopted is

unknown to law and cannot be countenanced. The impugned

order becomes vulnerable on such score alone.

8. Such being the position, ordinarily the matter

would have been remitted for hearing afresh on the question

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of limitation, but then this Court finds from the limitation

petition, copy of which has been enclosed in W.P.(C) No.

23781 of 2017 that there is no explanation worth the name

regarding the gross delay of more than 29 years in filing the

revision petition. It is stated vaguely that recording of the

names of the petitioners in the ROR published in the year

1987 was not within the knowledge of the State. This is

patently unbelievable as the petitioner himself is the Collector

and hence, not acceptable. This Court therefore, finds that

the revision application was grossly delayed and such delay

has not been satisfactorily explained to have been caused due

to sufficient reasons. This Court therefore, holds that the

revision could not have been admitted for hearing.

9. Even otherwise, this Court finds considerable force

in the submission of learned counsel for the petitioners that

the question of fraud was not raised by the revision petitioner

in his application at all. What was stated was that the

settlement authority had wrongly recorded the land without

application of judicial mind and examining the authenticity of

the documents produced by Narayan Jena. Obviously, this is

not akin to an allegation of fraud. It is well stated that fraud

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has to be specifically pleaded and proved. The revisional

authority made up a third case altogether by straight-away

holding that the petitioners have taken help of fraudulent

methods to record the land in their favour. It has not been

specified what such fraudulent method was. Evidently, the

revisional authority presumed that fraud had been

committed. As already stated, there can be no presumption of

fraud. This Court further finds that instead of making a fact-

based analysis as to how fraud was committed, if at all, the

revisional authority has unnecessarily digressed into the

meaning of fraud, effect of fraud etc. referring to numerous

judgments of the Supreme Court with quotations therefrom.

After such reference, the revisional authority abruptly arrived

at the conclusion that the allegation of fraud has been clearly

established after hearing the parties and perusal of record

and report. It is stated at the cost of repetition that there is

no allegation of fraud as such, much less any proof thereof.

This Court therefore, agrees with the contention raised by the

petitioners that the revisional authority entirely misdirected

itself in unnecessarily going into the law relating to fraud

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instead of making a factual inquiry as to whether fraud was

committed or not.

10. Though the impugned order is liable to be set aside

on the above grounds, still in order to satisfy itself, this Court

has also considered the merits of the rival claims

11. The petitioners have relied upon the Yaddast,

registered deed of lease dated 13.07.1984, rent receipts from

1965-1966 till 1987 and permission under Urban Land

(Ceiling and Regulation Act etc. which clearly show that the

successor of ex-intermediary had leased out the land

permanently in favour of Narayan Jena, the predecessor-in-

interest of the petitioners. The settlement authority took note

of all these documents as evident from copy of the Yaddast.

The Hal ROR was finally published in the year 1987 and

carries a presumption of correctness as per Section 35 of the

OSS Act. Nothing has been produced to rebut such

presumption. There is no reason to ascribe any malafides to

the concerned settlement authorities. Under such

circumstances, the claim of the Collector is found to be

without basis. The other arguments relating to the status of

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the property being anabadi holds no water in view of the Hal

ROR being published with sthitiban status.

12. Thus, from a conspectus of the analysis of facts,

law and the contentions raised and the discussion made, this

Court holds that the impugned judgment is unsustainable in

the eye of law.

13. Resultantly, the writ petitions are allowed. The

impugned judgment is set aside.

.……….……………...

Sashikanta Mishra,

Judge

Orissa High Court, Cuttack

The 12

th

February, 2025/ A.K. Rana, P.A.