Orissa High Court
Nishikanta Jena vs State Of Odisha And Others on 10 August, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.19297 OF 2021
Nishikanta Jena .... Petitioner
Mr. Amiya Kumar Behera,
Advocate
-versus-
State of Odisha and others .... Opp. Parties
Mr. Dillip Kumar Mishra,
Additional Government Advocate
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 10.08.2021
03. 1. This matter is taken up through hybrid mode.
2. This writ petition has been filed assailing the order dated
25th March, 2021 (Annexure-1) passed by the Additional
Tahasildar, Bhubaneswar-Opposite Party No.6 in Mutation Case
No.8752 of 2021.
3. Mr. Behera, learned counsel for the Petitioner submits
that assailing recording of the suit land in Government Khata,
one Nabakishore Ray had filed T.S. No.162 of 1993 for
declaration of his right, title and interest and possession over the
suit land as well as for permanent injunction against
functionaries of the Government. The suit was decreed ex parte
in the Lok Adalat vide judgment dated 25th October, 1998.
Pursuant to the judgment passed in T.S. No.162 of 1993, said
Nabakishore Ray had filed Mutation Case No. 949 of 2000 and
R.O.R. was corrected accordingly in his name. Subsequently,
said Nabakishore Ray sold an area of Ac. 0.230 decimals of land
out of Ac.1.300 decimals pertaining to Plot No.360 under Khata
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No.611/1281 to Gajanan Property Dealer & Construction Pvt.
Ltd. Thereafter, several transactions were made and ultimately,
the Petitioner had purchased one unit from the apartment
constructed over the case land vide Registered Sale Deed dated
29th November, 2014 and is in possession thereof. While the
matter stood thus, the Opposite Party No.4-Director, Estate-cum-
Joint Secretary to Government of Odisha, Bhubaneswar filed an
application under Order IX Rule 13 C.P.C. to set aside the ex
parte decree passed in T.S. No.162 of 1993, which was
registered as CMA No.336 of 2003. However, said application
was not accompanied by an application for condonation of
delay. Although several transactions had taken place in the
meantime, but the original tenant, namely, Nabakishore Ray,
was made a party to the said CMA, who contested the same.
Learned Civil Judge although vide his order dated 4th February,
2008 (Annexure-11) held that since no compromise or
settlement has been arrived at between the parties, the matter
could not have been decreed ex parte in the Lok Adalat and that
judgment and decree passed in the Lok Adalata on 25th October,
1998 in T.S. No.162 of 1993 is non est in the eyes of law, but
ultimately dismissed the CMA being not maintainable. Relying
upon the said order, the Opposite Party No.4 filed Mutation Case
No.8752 of 2021. The Additional Tahasildar, Bhubaneswar, on
the date of initiation of the proceeding, i.e. 25th March, 2021,
although asked for R.I. report, but proceeded to decide the
mutation case on the very same day taking into consideration the
observations made by learned Civil Judge (Senior Division),
Bhubaneswar in CMA No. 336 of 2003.
// 3 //
4. It is submitted by Mr. Behera, learned counsel for the
Petitioner that neither the Petitioner was given an opportunity of
hearing in the CMA nor he was given an opportunity of hearing
in the mutation case itself. The Additional Tahasildar,
Bhubaneswar without issuing notice to the Petitioner, who is
admittedly in possession over the land in question, hurriedly
disposed of the mutation case on the date of its initiation, i.e, 25th
March, 2021. He further submits that the observations made by
learned Civil Judge (Senior Division), Bhubaneswar in CMA
No.336 of 2003 is not executable as the CMA was dismissed as
not maintainable and there is no observation in the order that the
ex parte decree passed against the State was set aside. Hence, he
submits that the order under Annexure-1 is not sustainable being
illegal and without jurisdiction.
5. When the matter was listed on 19th July, 2021, learned
Additional Government Advocate prayed for some time to take
instruction in the matter, more particularly, with regard to the
findings of learned Civil Judge (Senior Division), Bhubaneswar
at paragraph-6 of the order passed in CMA No.336 of 2003. On
instruction, he reiterated the observation made by the Additional
Tahasildar, Bhubaneswar in the impugned order under
Annexure-1 and contended that since learned Civil Judge has
held the ex parte decree to be non est in the eyes of law,
dismissal of CMA is immaterial. As such, the Additional
Tahasildar, Bhubaneswar has committed no error in allowing the
mutation application by restoring the suit land to Government
Khata. He further submits that the Petitioner has a remedy under
Rule 42 of the Orissa Survey & Settlement Rules, 1962 to assail
the impugned order. The original landlord, namely, Nabakishore
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Ray, although participated in CMA No.336 of 2003, had never
challenged the order passed in CMA No.336 of 2003. Further,
the Petitioner has no locus standi to file this writ petition as the
land in question has not yet been mutated in his name. As such,
this writ petition is not maintainable.
6. Heard learned counsel for the parties and perused the
materials available on record.
7. From the facts narrated above, it appears that
Nabakishore Ray had filed T.S. No.162 of 1993, which was
decreed ex parte in the Lok Adalat. The judgment and decree
was passed on 25th October, 1998. Thereafter, said Nabakishore
Ray sold the land to Gajanan Property Dealer & Construction
Pvt. Ltd. vide Registered Sale Deed No.2332 dated 11th June,
2003. An apartment has been constructed over the suit land and
the Petitioner has purchased a unit in the said apartment. It is not
in dispute that the land was not mutated in the name of the
Petitioner. However, his possession over the same is not
disputed. It further appears that when the matter stood thus, the
Opposite Party No.4 filed an application under Order IX Rule 13
C.P.C. in CMA No.336 of 2003 before learned Civil Judge
(Senior Division), Bhubaneswar impleading Nabakishore Ray as
Opposite Party No.1. It further appears from the order dated 4th
February, 2008 (Annexure-11) that Nabakishore Ray had
appeared and filed his objection. Learned Civil Judge taking into
the consideration rival contentions of the parties came to the
following findings:
"6. In the instant case, the original suit was posted in
the Lok Adalat for exparte judgment. The ex-parte judgment in
question is not the outcome of compromise or settlement
between the parties and as such in view of the decision of the
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Hon'ble Apex Court, the matter should not have been disposed
of in the Lok Adalat. The exparte judgment and decree passed
by this court in the Lok Adalat on 25.10.1998 in T.S.
No.162/1993 is non-est in the eye of law.
7. In the result, the petitioner U/o. Rule 13 C.P.C.
is not maintainable. Hence, it is ordered.
ORDER
The Civil Misc. Application is dismissed as not
maintainable."
Thus, there is no dispute to the effect that although
learned Civil Judge held that the ex parte decree passed in the
Lok Adalat is non est in the eyes of law, but there is no finding
to the effect that the impugned ex parte judgment was set aside.
On the other hand, the CMA was dismissed as not maintainable.
The Additional Tahasildar, Bhubaneswar, while adjudicating
Mutation Case No.8752 of 2021 relying upon the observation
made by leaned Civil Judge in CMA No.336 of 2003, proceeded
to issue direction to restore the land to Government Khata.
Although the Petitioner was in possession over the suit land, he
was neither made a party nor was served with any notice to
defend his case. It further appears that the mutation case was
disposed of on the date of its initiation, i.e. 25th March, 2021.
Thus, there is a gross violation of principles of natural justice.
The order also suffers from procedural irregularity. Although the
land was never mutated in the name of the Petitioner, but he
being in possession over a portion of land by purchasing a unit
from the apartment constructed thereon has a right to be heard.
Thus, he has locus standi to file this writ petition as his valuable
right has been affected by the order passed in mutation case.
True it is that an appeal is provided under Rule 42 of the Orissa
Survey & Settlement Rules, 1962 against the impugned order,
but this Court is not precluded from entertaining the writ petition
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where the order passed is patently illegal without following due
procedure of law and has been passed in violation of principles
of natural justice.
8. The dispute involved in this writ petition is similar to
W.P.(C) No.18564 of 2021, which was disposed of vide order
dated 2nd July, 2021 setting aside the impugned order therein and
remitting the matter to the Additional Tahasildar, Bhubaneswar
for fresh adjudication. Thus, I do not find any reason to take a
different view in this matter.
9. In that view of the matter, the impugned order dated 25th
March, 2021 (Annexure-1) passed by the Additional Tahasildar,
Bhubaneswar is not sustainable and is set aside. The matter is
remitted back to the Additional Tahasildar, Bhubaneswar-
Opposite Party No.6 for fresh adjudication giving opportunity of
hearing to the parties concerned.
10. It is made clear that this Court has not expressed any
opinion on the merits of the case.
11. Urgent certified copy of this order be granted on proper
application.
(K.R.Mohapatra)
Judge
jm
