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Judgment
Sashikanta Mishra, J
Order dated 20.01.2026 passed by the Additional District Magistrate, Kandhamal, Phulbani in RMA No. 1 of 2025 (Demarcation) is under challenge in the present writ application.
Bereft of unnecessary facts, the case of the petitioners is that they are the owners in possession of the properties recorded in the settlement ROR under Khata No. 408 in Mouza Phulbani Sahi comprising of six plots, in all measuring Ac. 0.070 decimals. These properties are claimed to be their ancestral properties. Opposite Party No.6 is the adjacent landowner which she claims to have purchased vide RSDs dated 07.08.1991 and 08.08.1991 from Ashok Kumar Satapathy and Chapala Mohapatra respectively. She alleged that the petitioners wanted to grab a portion of her land and created disturbances. According to her, though the ROR was rightly published, the area of a plot of land in Hal Map was reduced in comparison to the Sabik Map. She therefore, approached the RDC (S.D.), Berhampur by filing a revision under Section 15(b) of the OSS Act, which was allowed by order dated 04.06.2020, directing correction of the map. The petitioners were not impleaded as parties. During pendency of the revision, the Opposite Party No.6 filed a civil suit in the Court of learned Senior Civil Judge, Phulbani claiming title but the same was withdrawn on 10.10.2023. She thereafter, approached the Additional Tahasildar, Kandhamal for demarcation of the plots in question. In the meantime, the petitioners challenged the revisional order before this Court in W.P.(C). No. 25784 of 2024. This Court, by order dated 23.10.2024 directed the petitioners to approach the R.D.C (S.D.) Berhampur seeking recall of the impugned order and also directed status quo to be maintained in respect of the property. The petitioners filed application for recall being OSSARC No. 132 of 2024 for recall of order dated 04.06.2020, which is pending. At this stage, Opposite Party No.6 filed Demarcation Case No. 63 of 2025. The Additional Tahasildar, by order dated 23.07.2025 dropped the demarcation proceeding taking note of the pendency of the revision case. Being aggrieved, the Opposite Party No.6 approached the ADM in a purported appeal registered as RMA No. 1 of 2025. By the order impugned, the appeal was allowed by setting aside the order passed by the Additional Tahasildar in the Demarcation Misc Case.
Heard Mr. D. Behera, learned counsel for the petitioner, Mr. A.R. Dash, learned AGA for the State and Mr. T.K. Mishra, learned counsel for Opposite Party No.6.
Mr. Behera assails the impugned order by contending that there is no provision for filling appeal under the OSS Act or any other statute against the order passed in a demarcation case. The ADM assumed appellate jurisdiction and not only entertained the appeal but also allowed the same. Moreover, being directed by this Court in the earlier writ application, the petitioners have sought recall of the original order passed by the revisional authority and such application is pending.
Mr. Dash, learned AGA fairly concedes that there is no provision in the OSS Act for filling appeal against an order passed in a demarcation case.
Mr. T.K. Mishra, also fairly submits that the statute has not provided any remedy of appeal against the order passed in a demarcation case. He however, submits that the matter may be remanded to the ADM for consideration afresh on the point of maintainability.
The facts of the case are not disputed. Being granted liberty by this Court in the earlier writ application, the petitioners have filed application before the RDC for recall of the earlier order passed on 04.06.2020. It is common ground that said application is pending. While the matter stands thus, Opposite Party No.6 filed Demarcation Case No. 63 of 2024 for demarcation of the disputed property. The Additional Tahasildar in his order dated 23.07.2025, dropped the case taking note of the pendency of the revision case pursuant to order passed by this Court. Being aggrieved, the Opposite Party No.6 approached the ADM in appeal. It is stated at the bar that the OSS Act does not provide any remedy of appeal against the order passed in a demarcation case. Before proceeding further, it would be apt to take note of certain judicial pronouncements in the present context.
In the case of Durga Shankar Mehta v. Thakur Raghuraj Singh((1954) 2 SCC 20), the Supreme Court held that an appeal is a creature of statute and there can be no inherent right of appeal from any judgment or determination unless an appeal is expressly provided for by the law itself. In the case of Ganga Bai v. Vijay Kumar((1974) 2 SCC 393), the Supreme Court held as follows:
“15. It is thus clear that the appeal filed by Defendants 2 and 3 in the High Court was directed originally not against any part of the preliminary decree but against a mere finding recorded by the trial ourt that the partition was not genuine. The main controversy before us centres round the question whether that appeal was maintainable. On this question the position seems to us well established. There is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. It is no answer to a suit, howsoever frivolous to claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute.”
A similar line of reasoning is found in the judgment of the Supreme Court in the case of Gujarat Agro Industries Co. Ltd. v. Municipal Corpn. of the City of Ahmedabad((1999) 4 SCC 468),
“8. By the amending Act 1 of 1979 discretion of the court in granting interim relief has now been limited to the extent of 25% of the tax required to be deposited. It is, therefore, contended that the earlier decision of this Court in Anant Mills case [(1975) 2 SCC 175] may not have full application. We, however, do not think that such a contention can be raised in view of the law laid down by this Court in Anant Mills case [(1975) 2 SCC 175] . This Court said that right of appeal is the creature of a statute and it is for the legislature to decide whether the right of appeal should be unconditionally given to an aggrieved party or it should be conditionally given. Right of appeal which is a statutory right can be conditional or qualified. It cannot be said that such a law would be violative of Article 14 of the Constitution. If the statute does not create any right of appeal, no appeal can be filed. There is a clear distinction between a suit and an appeal. While every person has an inherent right to bring a suit of a civil nature unless the suit is barred by statute, however, in regard to an appeal, the position is quite opposite. The right to appeal inheres in no one and, therefore, for maintainability of an appeal there must be authority of law. When such a law authorises filing of appeal, it can impose conditions as well (see Ganga Bai v. Vijay Kumar [(1974) 2 SCC 393] ).”
Turning to the statute, this Court finds that Rule 38 of Odisha Survey and Settlement Act, 1962 is relevant and reproduced below:
“38.Measurement - Where a measurement or field enquiry is claimed, fees shall be realised at the rate of four rupees for every plot of land covered by such measurement or enquiry :
Provided that the fees shall be calculated on the number of plots that are made after the said measurement or enquiry:
[Provided further that no measurement fee shall be realised for measurement or field enquiry necessitated in any proceedings commenced otherwise than on an application.]”
Such measurement usually goes by the name demarcation. Neither the Act nor the Rules provide for any appeal against the order passed under Section 38 that is, in a demarcation case. It is stated at the bar that the Government has issued guidelines concerning different aspects of demarcation but the same, being in the nature of executive instructions, cannot take the place of statute. Even otherwise, the remedy of appeal is not provided thereunder.
Viewed in the light of the judicial pronouncements and the statutory scheme, this Court is left with no doubt that the ADM lacked jurisdiction to sit in appeal over the order passed in the demarcation case. In fact, the so-called appeal itself should not have been entertained, much less decided. The impugned order is therefore, rendered unsustainable in the eye of law.
For the reasons aforesaid, the writ application is allowed. The impugned order is set aside. The order passed by the Additional Tahasildar in the demarcation case is hereby restored.