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2010 Supreme(Ori) 362
2010 (Supp.-II) OLR — 151
A.S. NAIDU, J.
Cuttack Municipal Corporation ...Petitioner
Versus
Joint Commissioner, Consolidation and Settlement and others
(In both the cases)...Opp. Parties
In W.P.(C) No.12031/2006
W.P.(C) Nos.12031 and 12032 of 2002
(Date of Judgment : 28.6.2010)
For Petitioner:M/s. S. P. Mishra, Niranjan Panda-1, S. K. Acharya, M. K. Panda, S. K. Swain and B. K. Sahoo
For Opp. Party No.2:M/s. N. P. Parija, A. K. Mohanty and S. K. Rout
In W.P.(C) No.12032/2006
For Petitioner:M/s. S. K. Nayak-1, Niranjan Panda-1, S. K. Acharya, M. K. Panda, S. K. Swain and B. K. Sahoo
For Opp. Party No.2:M/s. N. P. Parija, A. K. Mohanty and S. K. Rout
Headnote:1. ORISSA SURVEY AND SETTLEMENT ACT, 1958 - Land - Title - By virtue of a recording made in the R.O.R. neither title is created nor the same is extinguished - A person claiming title can establish the same in proper Court of law - The Settlement Authorities have no jurisdiction or authority to decide disputed questions of title. (Para - 13)
2. FRAUD - Fraud is a bundle of facts and the same has to be pleaded and established beyond all reasonable doubts.
(Para - 14)
3. CONSTITUTION OF INDIA, 1950 - Art. 226 - Lands recorded in favour of Municipality in 1931 during settlement operation - No document produced to establish as to how the municipality acquired title over the lands - Settlement records neither create nor extinguish title - Title of the exintermediary was virtually settled by the Civil Court and by the Privy Council - Held, Cuttack Municipal Corporation cannot assail the same - Directions issued.
(Para - 13)
4. CONSTITUTION OF INDIA, 1950 - Arts. 226 and 227 - Writ jurisdiction - Powers of High Court - Court does not act as a Court of appeal - It can only exercise its power of superintendence - A writ of certiorari can be issued for correcting errors of jurisdiction committed by Courts or Tribunals - Detail stated. (Para - 14)
In other words, the cases where the orders are passed by inferior Courts or tribunals without jurisdiction or in excess of it, a Writ can be issued. A writ of certiorari can similarly be issued where in exercise of jurisdiction con¬ferred on it, the Court or Tribunal acts illegally or improperly and decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopt¬ed in dealing with the dispute is opposed to principles of natu¬ral justice. The jurisdiction to issue a Writ of certiorari being a supervisory jurisdiction, the High Court while exercising it is not entitled to disturb the finding of facts. This limitation necessarily means that finding of fact reached by inferior Court or Tribunal as a result of appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of record can only be corrected by a writ Court, but not an error of fact, however grave it may appear to be. In regard to the finding of fact recorded by the Tribunal a Writ of certiorari can be issued if it is shown that while re¬cording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admit¬ted inadmissible evidence which has influenced the impugned findings. While dealing with the aforesaid category of cases, High Court must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal was insuffi¬cient or inadequate to sustain the impugned finding.
JUDGMENT
A.S. NAIDU, J. : Cuttack Municipal Corporation has filed W.P.(C) No.12031/2006 assailing the order dated 24.2.2004 (Annex¬ure-12) passed by the Joint Commissioner, Settlement and Consoli¬dation, Orissa, Cuttack in R.P. Case No.2161/2001. It has also filed W.P.(C) No.12032/2006 (renumbered as R.P. Case No.1612/2003) assailing the order dated 24.2.2004 passed by the Joint Commissioner, Settlement and Consolidation, Orissa, Cut¬tack, in R.P. Case Nos.2162/2001 (renumbered as R.P. Case No.1613/2003).
2. Bereft of unnecessary details, the facts which are necessary for effectual adjudication are stated herein below :-
Gajendra Kumar Acharya was the intermediary in respect of lands appertaining to Tauzi No.2499. The said Tauzi consisted of Ac.3582.08 decs. of lands under three khatas.
The disputes cropped up between the agnates of the interme¬diary with regard to right, title and interest over the lands. The said dispute was decided by the then Sub-ordinate Judge, Cuttack in T.S. No.94/1924. The dispute travelled up to the Privy Council, where it was held that Gangahdar has a share in the property. The decision of the Privy Council is reported in AIR 1931 P.C. 84.
3. During pendency of the disputes in the year 1931 settlement operations commenced in the area and a portion of the lands appertaining to Sabik Khata No.917 consisting of Plot No.1135/3776 measuring Ac.0.606 decs. were recorded in favour of the Cuttack Municipality (hereinafter called as Municipality), which was the adjoining owner.
4. In the meanwhile the Estate vested within the State. After the death of Gajendra Kumar Acharya, his son Naba Kumar Acharya applied to settle the lands measuring Ac.0.606 decs (more fully described above) in his favour under the provisions of O.E.A. Act. The said petition was registered as O.E.A. Case No.3699/1976. After observing all paraphernalia, the O.E.A Col¬lector settled the lands in favour of Naba Kumar Acharya by order dated 17.1.1978. After the order of settlement was passed Naba Kumar Acharya paid salami and rent to the administration for the period from 1953-54 to 1980-81.
5. In the year 1983 the Municipality preferred an appeal assailing the order of settlement passed under the O.E.A. Act settling the lands in favour of Naba Kumar Acharya. The said appeal was registered as appeal case No.1673/1983. In the year 1984-85, it is submitted that the appeal was allowed mainly on the ground that the Addl.Tahasildar had no jurisdiction to settle the Municipality lands under the provisions of O.E.A. Act. Howev¬er, no document was filed in support of such pleadings. In the year 1987 Naba Kumar Acharya sold lands appertaining to Hal Plot Nos.482,283 Part and 286 in favour of opposite party No.2 (Gobin¬da Prasad Pattnaik) and Smt. Baisali Mohanty under a registered sale deed. In the same year, i.e. 1987 the Record of Rights were published by the Settlement Authorities recording the lands in favour of the Municipality with a note of possession of Naba Kumar Acharya in respect of Hal Plot No.282,286 and 296. In the year 1995 opposite party No.2 the purchaser, filed Mutation case Nos.1749/1995, 1750/1995 and 1751/1995 before the Tahasildar (Sadar), Cuttack, with a prayer to record the lands in his favour on the strength of the registered sale deed executed by Sri Naba Kumar Acharya as well the order of settlement made in favour of Naba Kumar Acharya by the O.E.A. authorities in O.E.A. Case No.3699/1976. After giving opportunity of hearing to all the parties by order dated 30.5.1996 both the Mutation Cases were allowed by the Tahasildar and the lands were directed to be recorded in favour of opposite party No.2. Being aggrieved by the said order in the year 1996, the Municipality preferred Mutation Appeal Nos.87/1996, 88/1996 and 89/1996 before the Sub-Collector (Sadar), Cuttack. The appellate authority after hearing learned counsel for the parties, after going through the order of settle¬ment passed by O.E.A. authorities and considering
