Baikunthanath Nayak vs State Of Orissa & Ors
2022 Latest Caselaw 3278 Ori

                 ORISSA HIGH COURT : C U T T A C K

                          W.P.(C) No.9308 of 2007

                  An application under Article 226 & 227 of
                      the Constitution of India, 1950



Baikunthanath Nayak                                    : Petitioner

                                -Versus-

State of Orissa & Ors.                        : Opposite Parties

For Petitioner                             : M/s. S. Mohanty,
                                                  S.K. Behera,
                                                  B. Ganthia
For Opposite Party Nos.1 to 4              : Mr. S.P. Panda,
                                             Addl. Govt. Adv.

For Opposite Party No.6                    : M/s. P.K. Rath,
                                                  P.K. Satpathy,
                                                  R.N. Parija,
                                                  S.K. Pattnaik,
                                                  D.P. Pattnaik

                                JUDGMENT

CORAM :

JUSTICE BISWANATH RATH

Date of hearing & judgment : 15.07.2022

1. This writ petition involves a challenge to the order of the

Tahasildar and the consequential order of the Sub-Collector vide

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Annexures-4, 5 & 6 arising out of a proceeding under the Mutation

Manual.

2. Factual background involved herein is; consequent upon the parties

entering into a registered sale deed involving sale of land involved herein

the purchaser applied for correction of record of rights by way of a

proceeding under the Mutation Manual. It appears, after disposal of the

proceeding vide Mutation Case No.53/2003 on 13.05.2003 directing for

appropriate correction in the record of rights, the record of rights appears

to have been corrected vide Annexure-2. The Petitioner claims after

correction of the record of right vide Annexure-2 he was going on paying

the land revenue. One such document is filed at Annexure-3. It is alleged

that being aggrieved with the order in Mutation Case No.53/2003 the

vendors involved in the sale deed preferred appeal vide Mutation Appeal

No.11/2003 before the Sub-Collector, Rairakhol. The case of the

appellant therein is that there has been wrong disclosure on the caste of

the purchaser and thus a claim was made for allowing the appeal under

presumption that the sale deed a void one. On this main ground the appeal

was contested. It appears, considering the case of the parties, the appellate

authority, however, found the case to be reconsidered by the Tahasildar.

In the process, while allowing the appeal, the appellate authority set aside

the order of the Tahasildar in Mutation Case No.53/2003 and remitted the

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matter back to the Tahasildar to take departmental action against the

concerned R.I. for giving false information and also directing the

Tahasildar to re-enquire the matter and dispose of the case in accordance

with law. After such remand order the matter was re-examined and the

original authority appears to have dismissed the mutation case for having

no merit therein also with an observation therein that for the nature of

allegation, there appears to be suppression of material facts by the

purchaser in entering into the sale deed when the transaction was made

between Tribe to Non-Tribe. It further appears, on rejection of the

mutation case, an appeal was preferred and the same has been disposed of

freshly with an order of dismissal thereby confirming the order of the

Mutation Authority. Order of the Mutation Authority as well as the

Appellate Authority challenged herein appears at Annexures-5 & 6.

3. In his challenge to the orders at Annexures-5 & 6, Mr. Mohanty,

learned counsel for the Petitioner taking this Court to the disclosures

through the sale deed further taking support of the caste certificate

claimed to have been issued by the competent authority vide Annexure-7,

contended that for the caste available with the Petitioner and the nature of

document required to be considered in the mutation proceeding, even

assuming that there is dispute raised on the caste of the Petitioner i.e. the

purchaser involving a sale deed, the Mutation Authority had no authority

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to get into such subject. It is, therefore, while contending that there is in

fact no suppression of fact, further contended that in the event such

objection subsists, nothing prevented the parties in challenge to go before

the competent authority to declare the sale deed void.

It is, in the above premises, learned counsel for the Petitioner

contended that there has been exceeding of jurisdiction by both the

Tahasildar as well as the Sub-Collector in exercise of their power under

the provisions of Mutation Manual and therefore, a prayer is made before

this Court for interfering in both the orders at Annexures-5 & 6.

4. Mr. Rath, learned counsel for the Opposite Party No.6 taking this

Court to the disclosures in the sale deed and the claim of the purchaser to

be 'Kandha' by caste contended that this disclosure has been made by the

purchaser without any material support by him. Further a contest is also

made on the premises that record, if any, in the record of rights at

Annexure-2 shows the Petitioner to be 'Kandha' as simply based on the

information available through the sale deed taken into action. For the

nature of objection raised by the owner of the land also involved in the

sale deed, Mr. Rath, learned counsel for the Opposite Party No.6

contended that there is clear suppression of material facts in the

involvement of the sale deed and there is no material support to the claim

of the purchaser on his caste and the document should be treated to be

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void and has no place to be considered in the eye of law. It is thus on

reiteration of the grounds taken before the appellate authority in the first

instance and continuation of the grounds in the remand proceeding and

the original proceeding and the consequential appeal proceeding, Mr.

Rath, learned counsel for the Opposite Party No.6 contended that all the

authorities have rightly treated the sale deed being the foundation of the

claim of the Petitioner as void and have rightly declined to change in the

record of rights.

5. Mr. Panda, learned State Counsel in his opposition supporting the

stand taken by Mr. Rath, learned counsel for the Opposite Party No.6,

attempted to justify the impugned orders and thereby requested for

dismissal of the writ petition.

6. Considering the rival contentions of the parties, this Court finds,

the moot question remains here for adjudication of this Court is; mere

acquisition that when a party having no support of such disclosures

claims belonging to Scheduled Tribe category, whether it takes away the

effect of the registered sale deed involved herein and in the nature of

objection involved herein? have the Authorities under the Mutation

Manual any jurisdiction to take a call on the registered sale deed?

7. Keeping the above questions in view, this Court now proceeds to

consider this case. From the sale deed this Court finds, the sale deed

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undisputedly indicates the Petitioner as the purchaser and the Opposite

Party Nos.5 to 8 as the vendors. The sale deed has been registered on

consent of both the parties and without having any objection in the

disclosures belonging to purchaser. The sale deed has also been registered

on passing of consideration amount involved therein in favour of the

Opposite Party No.6. The sale deed has also a clear disclosure about

handing over of possession by the vendor to the purchaser on receipt of

final consideration amount. Not only that the sale deed is also registered

as per the law. For the nature of transaction involving the registered sale

deed by the competent authority under the Registration Act, 1908, it is

just impossible that the Registering Authority blindly accepts the claims

on the caste of the Petitioner involved. It appears, in the first round of

litigation there was no raising of such objection. Even though it appears,

the appeal is filed by the vendors on the ground of adjudication of the

mutation case ex parte and behind their back, on reading of the sale deed

it appears, there is clear disclosure by the purchaser claiming to be

belonging to Scheduled Tribe category. For the property belonging to

Scheduled Tribe category, in the event of registration of such document

responsibility also lies with the Registering Authority to find-out the

veracity in such claim by the party to avoid subsequent conflicts or

confusion. It is strange to observe that the appeal is preferred by the

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vendors even after receipt of final consideration, making a case that there

is absolutely no material to establish the purchaser belongs to Scheduled

Tribe community. For the nature of proceeding and the role of the

Mutation Authority, this Court finds, the role of such authority is very

limited that too the authority has to simply go by the existing materials. In

the event there was any dispute with regard to the caste of the purchaser

raised by the vendors even after entering into the registered sale deed and

also upon receipt of final consideration, the only course left open for the

vendors is to go to the appropriate Court to declare the sale deed void. On

the mere acquisition of one party, there cannot be declaration of a

document void that too by the Mutation Authority. It is when one side

claiming to be belonging to Scheduled Tribe community. Further the

Petitioner is also claiming his right through a caste certificate being

issued by the competent authority at Annexure-7 and further there is also

reliance of another record of rights also involving the Petitioner, but in

respect of a different property clearly disclosing the Petitioner and his

other relative members belonging to Kandha community. Such materials

cannot be simply ignored.

8. In whole consideration of the case, this Court finds, in the event

there was any doubt on the caste of the Petitioner, nothing prevented the

Authority in exercising power under the Mutation Manual to leave the

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matter for decision of the competent authority. For the observation made

hereinabove, this Court while reiterating its finding that in no

circumstance, the Mutation Authority could have gone into the validity of

a registered deed, observes, in the event of raising of such question, the

Mutation Authority had the only option while negativing the claim in

respect of the caste, would have left the matter for adjudication of the

competent authority. The question framed here, is thus answered in

favour of the Petitioner.

9. In the circumstance this Court finds, there is excess exercise of

power by the Mutation Authority involved herein under the Mutation

manual. In the process, this Court interfering in the orders at Annexures-

4, 5 & 6, sets aside the same and confirms the order of the Mutation

Authority vide Annmexure-1-A thereby also confirms the record of rights

made in the meantime vide Annexure-2. Considering the request of

Mr. Rath, learned counsel in such event that there should be available of

scope with the vendor involved herein to get the issue involved, if raised,

adjudicated by the competent authority, this Court considering the nature

of dispute involved herein, observes, subject to the question of

Limitation, if any, the dispute if agitated, be adjudicated by the competent

authority, the decision at Annexures-1-A & 2 shall ultimately be abided

by such decision.

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10. The writ petition succeeds to the extent indicated hereinabove.

There is, however, no order as to the costs.

...............................

(Biswanath Rath) Judge

Orissa High Court, Cuttack.

The 15th day of July, 2022// Ayaskanta Jena, Senior Stenographer