Orissa High Court
Santanu Kumar Rout @ Senapati vs State Of Odisha And Others on 9 August, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 21356 of 2021
Santanu Kumar Rout @ Senapati .... Petitioners
and others
Mr. Amitav Das, Advocate
-versus-
State of Odisha and others .... Opp. Parties
Mr. Dillip Kumar Mishra, Advocate
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 09.08.2021
2. 1. This matter is taken up through hybrid mode.
2. Petitioners, in this writ petition, seek to assail the order
dated 25th June, 2020 (Annexure-8) passed by Sub-Collector,
Balasore-Opposite Party No.2 in Mutation Appeal No.15 of
2019 whereby he remitted the matter back to Tahasildar,
Balasore-Opposite Party No.3 to decide the Mutation Case
No.2822 of 2018 afresh as per the guidelines of the Government
in Disaster Management Department in letter No.3439 dated 10th
September, 2018.
3. Learned counsel for the Petitioners submits that father of
the Petitioners, namely, late Nityananda Senapati filed CS
No.198 of 2021-I for declaration of his right, title and interest as
well as for permanent injunction in respect of the land in
question, which was recorded in the name of the Government.
The suit was decreed on contest vide judgment and decree dated
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27th March, 2018 and 7th April, 2018 respectively by learned 1st
Additional Civil Judge, Balasore with the following order:-
"ORDER
The suit be and the same is decreed on contest
against the defendants, but in the peculiarity of the fact and
circumstances of this case without any cost. It is hereby
declared that the plaintiff has right, title and interest over
the schedule suit land. Further the plaintiff is entitled for
permanent injunction against the defendants restraining
them to interfere in the possession of the plaintiff over the
schedule suit land."
Pursuant to the same, the father of the Petitioners filed Mutation
Case No.2822 of 2018 before Tahasildar, Balasore to record the
suit land in their favour. The Mutation Case was erroneously
rejected by the Tahasildar, Balasore vide order dated 18th
January, 2019. Assailing the said order, the father of the
Petitioners preferred Mutation Appeal No.15 of 2019 before
Sub-Collector, Balasore-Opposite Party No.2. During pendency
of the Appeal, said Nityananda Senapati died and was
substituted by his legal heirs, namely, the present Petitioners.
Although Sub-Collector, Balasore accepted the case of the
Petitioners but observing that the Government Pleader has not
given a clear opinion, remitted the matter to Tahasildar, Balasore
for fresh adjudication of the Mutation Case as per the guidelines
of the Government in Revenue and Disaster Management
Department vide letter No.3439 dated 10th September, 2018.
Assailing the same, this writ petition has been filed.
4. Mr. Das, learned counsel for the Petitioners submits that
the said guidelines is not applicable to the case at hand, as the
guidelines deals with ex-parte decree passed against the
Government, but in the case at hand, the decree passed is
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contested one and it has not yet been challenged or set aside. As
such, the revenue authorities are duty bound to record the land in
question in the name of the Petitioners. He also relied upon a
decision of this Court in Smt. Manjumala Pattnayak Vs. State
of Odisha and others, reported in 2001 (1) OLR 530 in
paragraph-4 of which it is held as under.
"4. xx xx xx
A bare perusal of the aforesaid provisions
makes it clear that the record- of-rights is to be
corrected by the Tahsildar in accordance with the
decree of the Civil Court or order of any competent
authority. In such view of the matter, there cannot
be any doubt that mutation has to be effected on the
basis of decision by a Civil Court. The decision,
even if, ex pane does not lose its binding force,
particularly when, the present opposite parties had
been impleaded as parties in the suit. It is not the
case of the opposite parties that the ex parte decree
has been subsequently set aside either by invoking
the jurisdiction under Order 9, Rule 13, CPC, or by
filing appeal or in any other manner. The duty of
the revenue authorities is to act in accordance with
the decision of the Civil Court. The cancellation of
the leased by the revenue authorities was also one
of the questions raised before the Civil Court and it
had been decided in favour of the plaintiff. Even
assuming that such decision was a wrong decision,
instead of availing the remedy available under law,
the opposite parties could not have arrogated
themselves the authority to scrutinize the decision of
the Civil Court. By mutation, the right of a party is
not finally decided, but it is the duty of the revenue
authorities to act in accordance with the provisions
contained in Rule 34 of the Orissa Survey and
Settlement Rules, 1962, which provides, inter alia,
that mutation can be effected on the basis of the
decision of the Civil Court."
In the instant case, the Petitioners sand in a better footing, as the
decree is a contested one. He, therefore prays for setting aside
the impugned order under Annexure-8 and to direct the
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Tahasildar, Balasore to record the land in question in the name
of the Petitioners.
5. Mr. Mishra, learned AGA submits that since Sub-
Collector, Balasore found some irregularities in the proceedings
of the Mutation Case, he set aside the order and remitted the
matter back to the Tahasildar, Balasore for fresh adjudication in
accordance with law. Thus, the Petitioners are no way
prejudiced by the impugned order. It is open for the Petitioners
to pursue the matter before the Tahasildar, Balasore to prepare
the ROR in their name.
6. Taking into consideration the submissions of learned
counsel for the parties and on perusal of materials available on
record, this Court finds that there is a Civil Court decree in
favour of the Petitioners, which is contested one. Further, the
ratio decided in Smt. Manjumala Pattnayak (supra), it is held
that when a Civil Court decree is there, the revenue authorities
should respect it and record the land in the name of the decree
holders. From the materials on record, it appears that neither the
judgment and decree passed by learned 1st Additional Civil
Judge, Balasore in CS No.198 of 2012 has been challenged nor
there is any material on record to come to a conclusion that the
Petitioners are otherwise not entitled to be recorded in respect of
the land in question.
7. Accordingly, this Court directs that Tahasildar,
Balasore-Opposite Party No.3, while adjudicating the Mutation
Case No.2822 of 2018, shall take into consideration the ratio
decided in the case of Smt. Manjumala Pattnayak (supra),
judgment and decree passed in CS No. 198 of 2012, provisions
of Section 34(b) of the Odisha Survey and Settlement Rules,
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1962 as well as consider the applicability of the guidelines of
Revenue and Disaster Management Department in letter
No.3439 dated 10th September, 2018 and pass a reasoned order
giving opportunity of hearing to the parties concerned. The
entire exercise shall be completed within a period of four months
from the date of production of certified copy of this order.
8. With the aforesaid observation and direction, the writ
petition is disposed of.
Issue urgent certified copy of the order on proper
application.
(K.R. Mohapatra)
Judge
s.s.satapathy
