Orissa High Court
WP(C)/38505/2020 on 3 February, 2021
W.P.(C) No. 38505 of 2020
03. 03.02.2021 Due to outbreak of COVID-19, this matter is
taken up through Video Conferencing.
Heard Mr. Nirmal Chandra Mohanty, learned
counsel for the petitioner and Mr. D.K. Mishra, learned
Additional Government Advocate for the State-opposite
parties.
The petitioner in this writ petition prays for a
direction to set aside the order dated 28.02.2019
(Annexure-8) passed by the Additional Tahasildar,
Bhubaneswar-opposite party No.2 in Mutation Case
No. 2188 of 2006.
Mr. Mohanty, learned counsel for the petitioner
submits that the petitioner is a senior citizen of 70
years and it is the 5th journey of the petitioner to this
Court. It is his submission that pursuant to the
judgment and decree passed by learned Civil Judge
(Junior Division), Bhubaneswar in Title Suit No.141 of
1988, the petitioner filed Mutation Case No.2188 of
2006 in the Court of Tahasildar, Bhubaneswar for
correction of the R.O.R. pursuant to the said judgment
and decree. The said mutation case remained pending
before the Tahasildar, Bhubaneswar for which the
petitioner filed W.P.(C) No. 9114 of 2008, which was
disposed of on 14.07.2008 directing the Tahasildar to
consider the representation of the petitioner in the
light of the decree passed by learned Civil Court and
pass necessary order regarding correction of the R.O.R.
2
within a period of four weeks from the date of
communication of the order. That order being not
complied with, the petitioner moved this Court by filing
CONTC No.65 of 2009, which was disposed of vide
order dated 07.04.2018 with a direction to the
Tahasildar, Bhubaneswar to dispose of the
representation of the petitioner, as directed by the writ
Court in accordance with law, within a period of two
months from the date of the order. But, the said order
was not complied with for which the petitioner moved
this Court in another contempt petition in CONTC
No.1520 of 2018, which was taken up on 13.02.2020,
on which date learned Additional Government
Advocate on instruction submitted that Mutation Case
No.2188 of 2006 has already been disposed of on
28.02.2019 by the Tahasildar, Bhubaneswar. Thus,
the contempt petition was dropped accordingly vide
order dated 13.02.2020. Thereafter, the petitioner
applied for the certified copy of the said order, but he
was not supplied with the same. Accordingly, he filed
W.P.(C) No. 22686 of 2020, which was taken up on
12.11.2020 and a direction was given to the
Tahasildar, Bhubaneswar to supply the certified copy
of the order dated 28.02.2019 by 23.11.2020. On
receipt of the said order the Tahasildar, Bhubaneswar
called the petitioner over phone and supplied the
certified copy on the very next day. On perusal of the
3
certified copy of the order, the petitioner found that the
mutation case has been rejected vide order dated
28.02.2019. As such, he has filed the writ petition
assailing the said order.
Mr. Mohanty, learned counsel for the petitioner
submits that the Tahasildar, Bhubaneswar has to
comply with the direction of the Civil Court in view of
Rule 35 of the Orissa Survey and Settlement Rules,
1962 (for short, 'the Rules'). He could not have taken a
different view contrary to the judgment and decree
passed in Title Suit No.141 of 1988. The Additional
Tahasildar, Bhubaneswar has exceeded his jurisdiction
in rejecting the Mutation Case No. 2188 of 2006.
Hence, he prays for setting aside the impugned order
under Annexure-8 and to direct the Additional
Tahasildar, Bhubaneswar to comply with the judgment
and decree in Title Suit No.141 of 1988.
Mr.Mishra, learned Additional Government
Advocate, on the other hand, submits that the
petitioner has an effective and efficacious statutory
remedy under Rule 42 of the Rules to assail the order
passed in Mutation Case No. 2188 of 2006. In the
event, an appeal is filed under Rule 42 assailing the
order dated 28.02.2019 passed in Mutation Case
No.2188 of 2006, the appellate authority will be in a
position to verify the records and pass the order. The
writ court should not interfere with the order dated
4
28.02.2019 passed in Mutation Case No.2188 of 2006
when an efficacious statutory remedy is available to
the petitioner.
Taking into consideration the submissions made
by learned counsel for the parties, this Court is of the
considered opinion that the petitioner is unduly
harassed by the revenue authority. For the inaction of
the revenue authority, he has to approach this Court
time and again and lastly the impugned order was
passed on 28.02.2019. Even after passing of the order
in Mutation Case No.2188 of 2006, certified copy of the
same was not supplied, for which he had to approach
this Court again and after a direction of this Court only
on 12.11.2019 in W.P.(C) No.22686 of 2020 (Annexure-
7) certified copy of the impugned order was supplied to
him. Be that as it may, the petitioner has an
efficacious statutory remedy under Rule 42 of the
Rules to assail the order passed by the Additional
Tahasildar, Bhubaneswar in Mutation Case No.2188 of
2006. The harassment meted out to the petitioner
cannot be a ground to circumvent the statutory
remedy available.
In that view of the matter, this Court is of the
considered opinion that in the event the petitioner files
an appeal under Rule 42 of the Rules assailing the
order dated 28.02.2019 passed by the Additional
Tahasildar, Bhubaneswar in Mutation Case No. 2188
5
of 2006 within a period of three weeks hence, the same
shall be considered on its own merits, giving
opportunity of hearing to the parties concerned and
step should be taken for early disposal of the same.
With the aforesaid observation and direction, the
writ petition is disposed of.
Authenticated copy of this order downloaded
from the website of this Court shall be treated at par
with certified copy in the manner prescribed in this
Court's Notice No.4587 dated 25.03.2020.
................................
K.R. MOHAPATRA, J.
bct
bct
