Dasarathi Sahu v. Collector,Bhadrak

IN THE HIGH COURT OF ORISSA AT CUTTACK

W.P.(C) No.15371 OF 2006 Dasarathi Sahu ....

Petitioner(s) M/s. G.Satpathy, Advocate -versusCollector-cum-District Magistrate, Bhadrak and others ....

Opposite Party(s) Mr.S.P.Panda,AGA M/s.S.Mohanty,Adv.

for O.P. 4 & 5

CORAM:

JUSTICE BISWANATH RATH Order No.

ORDER

08.09.2022 19.

1.

Heard learned counsel for the Parties.

2.

This Writ Petition involves a challenge to the order at Annexures-3 & 4 passed by the Appellate Authority. Short question involved herein involving the sale deed whether Petitioner is entitled to the benefit of Section 23 of the OLR Act. For undisputedly at the time of filing of proceeding under Section 23 of the Act, case of the Petitioner was not included in the presidential notification issued for the purpose, Petitioner drawing attention of this Court to some of the judgments of this Court claiming that for the benefit through the judgement in the cases of Narayan Behera vs. State of Orissa and Ors. Reported in 49(1980) CLT 47 and Basanti Behera and Ors. Vrs. the State of Orissa and Ors. reported in 69(1990) CLT 375, there was no difficulty in allowing the Petition under Section 23 of the OLR Act filed by the Petitioner by the competent authority and therefore there is no infirmity in passing the order vide Annexure-2. Mr. Satpathy, learned counsel for the Petitioner brought to the notice

// 2 // of the Court of the amendment taking place in the presidential order in 2002.

Reading through the judgements in the case of Sebati Behera vrs. Subasi Nayak and Ors. reported in 102(2006) CLT 409, Commissioner of Income Tax 1 Ahmedabad vrs. Gold Coin Health Food Private Limited reported in (2008) 9 Supreme Court Cases 622 and Bijay Kumar Jally vrs. Member, Board of Revenue and Ors. Reported in 2011 (98) AIC 425, 111 (2011) CLT 233. Mr. Satpathy, learned counsel for the Petitioner submitted that even assuming the caste of the Petitioner is included in the presidential declaration in the year 2002 but for clear observation through all the judgements giving reference to the case in Zile Singh vrs. State of Haryana reported in 1997 5 SCC 482, it is claimed that law has been settled scoring amendment brought in 2002 having retrospective effect. Petitioner thus claims through the aforesaid judgments that since the amendment brought in 2002 becomes retrospective, there is no infirmity in the order at Annexure-2 requiring to be interfered by the higher forum as at Annexures- 3 & 4. 4.

Learned counsel appearing for the private Opposite Parties submitted that application under Section 23 of the OLR Act was filed in 1999 and decided in 29.01.2003. Undisputedly presidential notification was not produced before the competent authority, there was no scope for the competent authority to consider 2002 amendment and even though such amendment came in 2002, there was no advancement of case involving 2002 amendment and considering effect of such amendment by higher forum. It is in these premises counsel for private Opposite Parties objected entertainability of the Writ Petition for involving the ground altogether new to the case at hand.

// 3 // 5.

Learned State Counsel adopted the submission of the private counsel and also opposed the entertainability of the Writ Petition however there is no dispute in the Bar on the settled position of law through Sebati Behera vrs. Subasi Nayak and Ors. reported in 102(2006) CLT 409, Commissioner of Income Tax 1 Ahmedabad vrs. Gold Coin Health Food Private Limited reported in (2008) 9 Supreme Court Cases 622 and Bijay Kumar Jally vrs. Member, Board of Revenue and Ors. Reported in 2011 (98) AIC 425, 111 (2011) CLT 233 judgements observing therein retrospective application of such amendment, this Court relegates the matter back to the stage of original proceeding. This Court here observes amendment placed here since came to exist in 2002 and final hearing in Section 23 of the OLR Act proceeding was undertaking in 2003, the original authority is to examine if such an amendment was already available at the time of hearing and pass lawful order. 6.

Considering the rival contentions of the Parties, this Court finds, undisputedly question of retrospective application or not of the amendment brought in 2002 could not be considered in the decision making the process involved in Annexure-2. This Court at the same time finds application of presidential notification to the case at hand in the above legal scenario cannot be lost sight of. Therefore, this Court finds force in the submission of the counsel for the Opposite Parties that the ground taken herein shall not be available for consideration in any of the forum.

7.

It is at the same time for the settled position of law observing retrospective application of the amendment in 2002 and for such ground not being considered in the original stage of the matter of proceeding under OLR Case No.3 of 1999, this Court interferes in all the impugned orders vide Annexures-2,3 & 4 involved herein thereby

// 4 // reopening the OLR Case No.3 of 1999 and directs the Sub-Collector, Bhadrak to conclude fresh hearing involving such proceeding, keeping in view the judgments taken note hereinabove, the observation of this Court in para-5 hereinabove and also providing opportunity of hearing to all concerned. It is open to all the parties to place the judgements taken note hereinabove along with any other judgment supporting there cases before the competent authority during hearing. All Parties are directed to appear before the SubCollector, Bhadrak on 26th September, 2022. Further proceeding involving the OLR Case No.3 of 1999 shall also be concluded within a period of three months from the communication of these orders by the Petitioner.

8.

The Writ Petition succeeds but with an order of remand. No order as to cost.

(Biswanath Rath) Judge Swarna