Bikash Mohapatra @ Patra vs Chandra Mohapatra & Ors
2022 Latest Caselaw 882 Ori

                 IN THE HIGH COURT OF ORISSA AT CUTTACK

                              WPC NO.41064 OF 2021

            Bikash Mohapatra @ Patra               ....             Petitioner

                                                           Mr.B.Sahoo, Adv.

                                        -versus-


            Chandra Mohapatra & ors.               ....      Opposite Party(s)

                                                        R.P.Mohapatra, AGA

                      CORAM:
                      JUSTICE BISWANATH RATH
                                       ORDER

1.2.2022 Order No.

01. 1. This matter is taken up through video conference mode.

2. Heard learned counsel for the Petitioner.

3. Writ Petition involves a challenge to the order of the

Competent Authority in deciding finally the Mutation Appeal in

Annexure-5.

4. Taking this Court to the order portion appearing at Page-40

of the Brief, learned counsel for the Petitioner contended that once

the hearing process involving the Appeal was undertaken by the

Predecessor and there was no pronouncement of order, by him

atleast till his transfer, there is no scope for the Officer joining

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subsequent to transfer of the Predecessor to simply get into the

judgment and/or order. It is also contended that in the event the

subsequent Officer desires to finally dispose of the Appeal, he ought

to freshly hear the matter and decide the matter accordingly. It is in

the circumstance and the order being passed by the subsequent

Officer without getting into hearing of the matter, learned counsel

for the Petitioner urged, the impugned order becomes bad and

should be interfered with and set aside.

5. Mr.Mohapatra, learned Additional Government Advocate,

however, while not disputing to the allegation that the subsequent

incumbent passed the final order even without entering into hearing

the appeal proceeding but however taking this Court to the

discussions therein attempted to support the impugned order and

accordingly prayed for dismissal of the Writ Petition for having no

illegality in the impugned order.

6. Considering the rival contentions of the Parties, this Court

from the order dated 27.8.2016 passed in the Appeal, finds, the

order-sheet reflects as follows :-

"CR taken up today on call. This case was posted to 7.7.15 for orders. But no order has been pronounced in

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this case by my predecessor. Hence this case is posted to 22.9.2016 for order.

Case to 22.9.16"

Reading the aforesaid order it becomes clear that the Appeal was

finally posted to 7.7.2015 for orders by the predecessor. This order

further reveals, the case was posted to 7.7.2015 after hearing is

concluded by the same office and there has been no delivery of

order. In the circumstance, this Court finds, on transfer of the

competent officer and on joining of the new Officer in his post, in

the event the Appeal was required to be finally disposed of, the new

incumbent was required to have a fresh hearing of the matter and

getting into the final order. In the circumstance,this Court finds

force in the submission of the learned counsel for the Petitioner to

the extent that once an Officer has not heard the appeal proceeding,

he has no right to pass judgment simply based on argument before

his predecessor. For the matter taken up at admission stage, this

Court since finds, there is gross illegality in the Order besides abuse

of power by Competent Authority for the opinion of this Court

even if notice is issued to contesting opposite parties, there is no

possibility of a different view. Thus, while declining to issue notice

this Court feels it appropriate to dispose of the matter finally. This

Court, however observes, in the further proceeding the private

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opposite party ought to be heard. For the reason assigned this Court

declares the judgment/order impugned herein dated 22.9.2016

becomes bad in law. This Court accordingly sets aside the order

dated 22.9.2016 passed by the Sub-Collector, Jharsuguda in

Mutation Appeal Case No.56 of 2013. However since the Mutation

Appeal Case is required to be freshly heard and disposed of, the

Appeal Proceeding is remitted to the Sub-Collector, Jharsuguda for

fresh hearing involving all the Parties involved herein and dispose

of accordingly.

7. Let the petitioner produce a copy of this order before the

Appellate Authority and upon service of a copy of this order, the

Appellate Authority shall do well in giving notice to the contesting

opposite parties and disposing of the Appeal afresh after providing

opportunity of contest to all concerned.

8. The Writ Petition stands disposed of with an order of

remand.

9. As restrictions due to resurgence of COVID-19 situation are

continuing, learned counsel for the Parties may utilize a printout of

the order available in the High Court's Website, at par with certified

copy, subject to attestation by the concerned Advocate, in the

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manner prescribed vide Court's Notice No.4587 dated 25th March,

2020, modified by Notice No.4798 dated 15th April, 2021 and

Court's Office Order circulated vide Memo Nos.514 and 515 dated

7th January, 2022.

(Biswanath Rath) Judge M.K.Rout