ABSALAM PAIK Vs. COLLECTOR AND DISTRICT MAGISTRATE, GAJAPATI

JUDGEMENT

(1.) THE unsuccessful petitioners in the writ petition are the appellants in this appeal questioning the correctness of the order dated 4th March, 2011 passed by the learned Single Judge in OJC No.375 of 1995 in affirming the order of the Collector, Gajapati dated 14.12.1994 dismissing the Regulation Appeal No.5 of 1984 and further affirming the order of the Officer -on -Special Duty, Parlakhemundi in R.M.C. No.416 of 1971 initiated on the basis of the allegations made by late Buluka Gamango under Section 3(2) of the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulations, 1956 urging various facts and legal contentions.

(2.) LEARNED Single Judge has referred to the relevant necessary facts for the purpose of appreciating rival claims of the parties with a view to find out as to whether the impugned orders passed by the Collector, Gajapati and Officer -on Special Duty, Paralakhemundi required to be quashed in the writ petition filed by the appellants in exercise of judicial review power under Articles 226 and 227 of the Constitution of India. Therefore, there is no need for this Court to dwell upon the facts as it would be repetition of the same except referring to the legal grounds urged in this appeal with a view to find out as to whether any substantial question of law involved in this appeal in affirming the order of the Col1ector who has exercised his appellate jurisdiction and affirmed the order of the Officer -on -Special Duty in restoring the land in favour of the Respondent Nos.3 and 4.

(3.) RESPONDENT Nos.4 and 5 have not come forward to adduce the evidence to show semblance of right over the land in question. Mere assertion in the application filed by the original applicant under the Regulation, the order of the Officer on Special Duty and Appellate Authority are bad in law. There is evidence on behalf of the appellants in support of their right and possession over the property in question, which has been ignored while passing the impugned orders by the Officer -on -Special Duty, Parlakhemundi and Collector, Gajapati in exercise of his appellate jurisdiction. Therefore, it is urged on behalf of the appellants that the learned Single Judge ought to have exercised his judicial review power and quashed the same by allowing the writ petition. The Officer -on -Special Duty, Parlakhemundi and Collector, Gajapati have not found prima facie material evidence to prove claim of Late Buluka Gamango, the original applicant to show that he belongs to Scheduled Tribe. In the absence of such material, the Officer -on -Special Duty, Parlakhemundi and Collector, Gajapati should not have passed the order under the Regulation in respect of the land in question. The learned Single Judge has lost sight of the fact of deficiency of evidence in passing the impugned orders challenged in the writ petition. He ought to have interfered with the same by quashing the same by issuing a writ of certiorari. Not doing so, the appellants have filed this appeal contending that substantial question of law would arise in this appeal as there is error apparent on the face of the record in the orders impugned in the writ petition. Non -consideration of the same by the learned Single Judge and affirming the said order would certainly be the substantial question of law that would arise for consideration of this Court and grant relief in this appeal.