WP(C)/37029/2020

                                W.P.(C) No.37029 of 2020




02.   04.01.2021         Due to outbreak of COVID-19, this matter is taken
                   up through Video Conferencing.
                         Heard Mr. D.K. Mohapatra, learned counsel for
                   the petitioner and Miss Samapika Mishra, learned
                   Additional Standing Counsel for the State-opposite
                   parties 1 to 3.
                         The petitioner in this writ petition prays for setting
                   aside the order dated 30.08.2018 (Annexure-1) passed
                   by the Sub-Collector, Balasore in Mutation Appeal
                   No.05 of 2016, whereby he set aside the order passed by
                   the   Tahasildar,     Khaira   passed       in      Mutation       Case
                   No.1377 of 2013.
                         Mr. Mohapatra, learned counsel for the petitioner
                   submits that the petitioner is a purchaser of the case
                   land from the rightful owner by virtue of registered sale
                   deed. After purchase, he filed Mutation Case No.1377 of
                   2013 before the Tahasildar, Khaira in which the R.O.R.
                   was corrected in his name. Assailing the same, the
                   opposite party no.4, namely, Niranjan Behera, filed
                   Mutation Appeal No.05 of 2016 before the Sub-
                   Collector,     Balasore,   who       vide     his     order    dated
                   30.08.2018      set   aside    the    order      passed       by    the
                   Tahasildar, Khaira in Mutation Case No.1377 of 2013
                   and directed to revert the land to its original Khata
                   No.180. The Sub-Collector, Balasore further directed the
                   Tahasildar, Khaira to follow the order to be passed by
                   the Civil Court in Civil Suit No.976 of 2013-1 pending in
                   the court of learned Civil Judge (Senior Division),
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Balasore. It is his submission that the civil suit was
filed after the order in Mutation Case was passed in his
favour. Thus, pendency of the civil suit filed for partition
should not stand as a bar for recording of the case land
in his name. Thus, the vendor of the petitioner being
one of the co-sharers in the land involved in the
aforesaid civil suit, he will be bound by the judgment
and decree to be passed in the civil suit. But, the order
passed in Mutation Case No.1377 of 2013 should not
have been set aside for the reason that at the time when
the order in mutation case was passed, no civil suit was
pending.    The    Sub-Collector,    Balasore    failed   to
appreciate the same and set aside the order illegally. As
the lawyer of the petitioner did not communicate the
impugned order under Annexure-1 to the petitioner,
there is a delay of two years in filling this writ petition.
Hence, he prays for setting aside the impugned order
and to direct the Tahasildar, Khaira to record the case
land in his name pursuant to the order passed in
Mutation Case No.1377 of 2013.
      Miss Mishra, learned Additional Standing Counsel
for the State, on the other hand, submits that the writ
petition is hopelessly time barred. No sufficient cause
has been assigned for such inordinate delay. She
further submits that the petitioner has a statutory
remedy under Section 32 of the Orissa Survey &
Settlement Act, 1958 (for short 'the Act') to assail the
impugned order under Annexure-1 by filing a revision.
It is her submission that the Sub-Collector, Balasore
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     has committed no error in setting aside the order
     passed in the mutation case as the land in question is
     admittedly a joint family property and the petitioner has
     purchased the land from one of the co-sharers. When a
     civil suit is pending, the Sub-Collector, Balasore has
     rightly directed the Tahasildar, Khaira to restore the
     land to the Original Khata No.180. Hence, she prays for
     dismissal of the writ petition.
           Taking into consideration the submissions made
     by learned counsel for the parties, this Court is of the
     considered opinion that the contention raised by
     learned   counsel    for   the    parties   needs       factual
     adjudication with reference to the case records in
     Mutation Case as well as Appeal, which can be
     effectively decided by the revisional authority under
     Section 32 of the Act. Hence, this Court without
     expressing any opinion on the merits of the case,
     disposes of the writ petition with an observation that
     the petitioner, if so advised, may move the revisional
     authority under Section 32 of the Act for rederessal of
     his grievances in challenging the order under Annexure-
     1.
           Authenticated copy of this order downloaded from
     the website of this Court in the manner prescribed in
     this Courts Notice No.4587 dated 25.03.2020 shall be
     treated at par with the certified copy of this order.


                                     ................................
jm                                  K.R. MOHAPATRA,J.