Bina Behera vs State Of Odisha And Others

Mr. Samantaray, learned advocate appears on behalf of petitioner and submits, impugned is, inter alia, order dated 7th September, 2022 passed by the Additional District Magistrate, as appellate forum. On querry from Court he submits, also impugned order dated 31st August, 2016 was made by the Tahsildar under section 8 in Odisha Estates Abolition Act, 1951.

He submits, impugned order be set aside and quashed, for there to be restoration before the appellate authority, for rehearing.

Mr. Rout, learned advocate, Additional Standing Counsel appears on behalf of State and submits, counter has been filed.

We in our order dated 24th January, 2023 had made query to State. Paragraph 3 from said order is reproduced below.

“3. It appears from impugned order made by the Additional District Magistrate that there is reference to yadhast report saying, father of appellant had purchased suit land in year, 1960 from late Raja Ranendra Pratap Singhdeo and she had asserted that the report is part of the case record. The Additional District Magistrate upheld the Tahsildar’s order since, appellant had not been able to produce any legal supporting documents like sale deed etc. at the time of hearing by the Tahsildar.”

On query from Court Mr. Samantaray submits, the yadhast report was asserted in paragraph 4 of the petition and, inter alia, copy disclosed as annexure 2 series. We find, paragraph 7 in the counter dealt with paragraph 4 in the petition. We reproduce below paragraph 7.

“That in reply to the averments made in Para-4 of the writ petition, it is humbly submitted that Hal Khata No.107 of village-Kukudajhar khamar was recorded in the name of Gourendra Pratap Singh Deo and in respect of Hal Plot No.193 measuring an area Ac.0.90 dec., the illegal possession of Ballava Behera, S/o-Adhira Behera of village- Kaimati was made in the remarks column of the ROR by illegally influencing the settlement staffs.”

Statement of fact regarding existence of yadhast report has not been specifically dealt with in the counter. This is sufficient for us to conclude that petitioner’s contention was not considered by the authorities. In the circumstances, there appears to have been violation of principle of natural justice.

Impugned order dated 7th September, 2022 is set aside and quashed. The appeal is restored to the appellate forum. Petitioner with forthwith communicate this order to the forum, for the authority to expeditiously re-hear the appeal and dispose of it, preferably within two months from date. Mr. Samantray submits, liberty be granted to petitioner for producing further relevant documents. Petitioner has liberty to move the appellate forum for permission to produce additional evidence in appeal.

The interim order stands confirmed to continue till three weeks after decision in appeal is made known to petitioner. The writ petition is disposed of.

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