Renubala Acharya & Ors. vs State Of Odisha & Ors.

G. Satapathy, J.

The petitioners, by way of this Writ Petition, seek to invoke the extraordinary jurisdiction of this Court under Articles 226 & 227 of the Constitution of India with following prayer: -

The factual matrix underpinning the controversy in sequence reveals that one Ramesh Chandra Dash had applied before the Tahasildar, Bhubaneswar for settlement of a patch of Government land for cultivation and residential purpose. According to the writ petitioner, the Tahasildar, Bhubaneswar settled/leased out a piece of land in favour of said Ramesh Chandra Dash in WL Case Nos.114/1974 & 1251/1974 and, accordingly, the said land was duly recorded in the name of Ramesh Chandra Dash in Mutation Khata No.61/12, but upon the demise of said Ramesh Chandra Dash, his Legal Heirs (LRs), who are the vendors of the present Writ Petitioner succeeded to his interest in the property and continued in uninterrupted possession thereof. Subsequently, the daughters of said Ramesh Chandra Dash relinquished their respective shares in favour of their seven brothers by a deed executed on 05.04.2019. Accordingly, the LRs of said Ramesh Chandra Dash conveyed/transferred a portion of the land from Plot No.60/139 in favour of the present writ petitioner Nos.1 to 3 by executing Registered Sale Deed Nos.11081904526, 11081904528 & 11081904505 on 05.04.2019 for land measuring Ac.0.055 dec., Ac.0.034.5 dec. & Ac.0.034.5 dec. respectively, out of total area of Ac.0.200 dec and, accordingly, the possession thereof was delivered to the writ petitioners, who applied for mutation in Mutation Case No.16648 of 2022, but the aforesaid mutation case was dropped on the ground that the entire land measuring Ac.0.200 dec. was leasehold land and, thereafter, the petitioners along with their vendors preferred Mutation Appeal No.205 of 2024 before the Sub-Collector, Bhubaneswar advancing the claim that Plot No.60/139 was Stithiban land, but wrongly recorded as Dakhal Satwa Sunya, however, the appeal was also dismissed holding that the land had already been restored to Government Khata No.62 (Anabadi) pursuant to cancellation of the vendors’ lease in Misc. Case No.1445/2000 and, thereby, rendering the subsequent sale transactions legally unsustainable. It is claimed by the writ petitioners that neither the petitioners nor their vendors had any knowledge of the alleged resumption of land or cancellation of the lease nor was the deceased father of the vendors served with any notice in this regard, but the legality of alleged resumption or cancellation along with incidental issue therein is under challenge before this Court in D-W.P.(C) No.48021 of 2026.

This Court has already heard Mr. Goutam Mukherjee, learned Senior Advocate, who is being assisted by Mr. Abhishek Nair, learned Advocate for the petitioners and Mr. Swarup Kumar Patnaik, learned Advocate for OPNo.5 and Mr. Jayant Kumar Khandayat Ray, learned ASC in the matter on the maintainability of the Writ Petition.

Mr. Goutam Mukherjee, learned Senior Advocate in support of claim of maintainability of the Writ Petition submits that the undisputed fact is that the petitioners are the owners in possession of the land under Plot No.60/139 of Khata No.61/12, but the authority concerned are proceeding to construct and developed a crematorium on the adjoining land of aforesaid plot of the petitioners, however, the petitioners have right to protect their possession and enjoyment over their own landed properties under Article 300-A of Constitution of India. Mr. Mukherjee further submits that when the constitutional right of the petitioners to enjoy their property is infringed by the proposed construction of crematorium adjoining to their land, a Writ Petition would squarely lie to redress the grievance of the petitioners, since both the land of the petitioners and crematorium are adjacent to each other and how come the authority would construct the crematorium by the side of a residential land of the petitioners and that too, encroaching upon the said land. Mr. Mukherjee further submits that the title of the petitioners to the property cannot be disputed on account of a wrong order passed by the authority for resumption of the land with cancellation of lease and that too, without hearing the parties in gross violation of principles of natural justice. Accordingly, Mr. Mukherjee prays to admit the Writ and issue notice to the OPs.

In resisting the claim of the petitioners, Mr. Swarup Kumar Patnaik, learned Advocate for OPNo.5 submits that the basis of acquisition of title over the disputed land/purchased land of the petitioners by the original recorded tenant Ramesh Chandra Dash was lease, but such lease having been already cancelled with resumption of land to the Government, no valid title could devolve upon the petitioners to raise any dispute over the land in question and, thereby, the claim of the writ petitioners raises disputed question of facts, which cannot be adjudicated in exercise of writ jurisdiction and, thereby, the Writ Petition is not maintainable. Accordingly, Mr. Patnaik prays to dismiss the Writ Petition as not maintainable.

Mr. Jayant Kumar Khandayat Ray, learned ASC not only reiterates the submission as advanced by Mr. Swarup Kumar Patnaik, learned counsel for OPNo.5, but also submits that the claim of the writ petitioners requires a thorough adjudication on the basis of pleading and evidence to be led by the parties and, thereby, the Writ Petition is not maintainable. Accordingly, Mr. Ray prays to dismiss the Writ Petition as not maintainable.

After having considered and evaluated the competing submissions upon perusal of record, the prayer as advanced on behalf of the writ petitioners in the Writ petition itself discloses the relief to restrain the OPs from carrying out further construction of the crematorium or ploughing or excavating or other activities over the Plot No.60/139 of Khata No.61/12 of Mouza-Subudhipur, Tahasil-Bhubaneswar, District-Khordha measuring Ac.0.200 decimals and maintaining of status quo with respect to said properties. A careful scrutiny of the averments raised by the petitioners in the Writ petition, it appears that the land in question is already resumed by the Additional Tahasildar and the record of rights of the land in question under Plot No.60/139 measuring Ac.0.200 dec. and Plot No.13 measuring Ac.0.565 dec. of Khata No.61/12 have been merged with Government Khata No.62, but such order having not yet been reversed by any competent authority, the dispute in this case thereby traces back to its foundation on resumption of land of the property in question. In addition, the Sarpanch of Tamando Gram Panchayat being added as OPNo.5 seriously resists the claim of the petitioners and the relief claimed in the Writ Petition requires proper adjudication on the basis of rival claims supported by evidence, but Writ Petition can be adjudicated on the basis of admitted facts. No doubt, the petitioners have initiated series of litigations, but that would not come to their aid to seek remedy in a Writ Petition involving complex & disputed question of facts. The record reveals that the lease which formed the root of the Petitioners’ title was already cancelled over two decades ago in Misc. Case No. 1445/2000, and the land has already been restored to the State's Anabadi Khata

The prayer as advanced by the petitioners not only raises serious and complex disputed question of facts, but also the writ petitioners seek for adjudication of a dispute involving claim of title over the plot in question with incidental relief thereto, so also for adjudication of the boundary dispute adjoining the plot proposed to be allocated for crematorium in the village. It is also not in dispute that the petitioners claim relief qua a private plot by impleading the Government functionaries as Opposite Parties, but the impletion of Sarpanch of Tamando Gram Panchayat as OPNo.5 itself suggests that the dispute is not simple and it cannot be adjudicated without pleading and evidence. It, therefore, appears to this Court that the petitioners have sought for civil remedy by invoking the jurisdiction of the Civil Court in the garb of writ jurisdiction, which ordinarily is not available for adjudication in serious and disputed question of facts. It is a well-settled principle of jurisprudence that where a dispute primarily hinges upon highly contested questions of civil title and factual possession, the proper remedy lies before a competent Civil Court, rather than a Writ Court exercising extraordinary jurisdiction. On a careful scrutiny of the averments and keeping in view the claim of the writ petitioners on the basis of admitted facts, it appears that the writ petitioners raise a serious dispute for adjudication of title as well as de jure possession of the petitioners over the land in question, which can only be adjudicated in a Civil Court, but not in a Writ petition in exercise of writ jurisdiction. Law is well settled that the writ jurisdiction cannot be transformed into a substitute for a civil suit when the very bedrock of the Petitioner's title is compromised. Consequently, since the Petitioners' legal title to the land is highly disputed and currently lacks statutory recognition in the revenue records, this Court finds no merit in entertaining the present Writ petition under Article 226/227

In the result, the Writ Petition being not maintainable in the present form stands dismissed. Needless to say, it is open for the petitioners to redress their grievances before the Civil Court, if so advised.