Orissa High Court
Sulata Mohapatra And Another vs State Of Odisha And Others on 31 March, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 39215 of 2021
Sulata Mohapatra and another ..... Petitioners
Mr.Tusar Kumar Mishra, Advocate
-versus-
State of Odisha and others .... Opp. Parties
Mr. Swayambhu Mishra,
Additional Standing Counsel
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 31.03.2022
3. 1. This matter is taken up through Hybrid mode.
2. Petitioners in this writ petition pray for a direction to
Tahasildar, Cuttack Sadar-Opposite Party No.4 to dispose of
Mutation Case bearing Misc. Case No.39 of 2017 at an early
date.
3. Case of the Petitioners has a chequered career. Briefly
stated, Petitioner No.2 was the purchaser of Hal Plot No.327
under Hal Khata No.244 to an extent of Ac.0.226 decimal,
which is a part of CS Plot No.3492 under CS Khata No.614 of
an area of Ac.1.00 decimal of Mouza Bahara Bisinabar under
Cuttack Sadar tahasil in the district of Cuttack (for short 'the
case land'). CS Khata No.614 was originally recorded in the
name of one Keshab Mallick. Out of it, he sold an area
Ac.0.240 decimal in favour of one Amal Kumar Banarjee, who
in turn, sold the aforesaid area to Petitioner No.2, namely, Smt.
Banalata Mohanty, vide RSD dated 28th November, 1967.
During settlement operation, land in question was recorded in
the name of Petitioner No.2 along with one Bishnupriya
// 2 //
Mohapatra at Khanapuri stage and subsequently draft ROR was
issued in the name of Petitioner No.2. One Subrat Banarjee
claiming to be heir of Amal Kumar Banarjee, filed Settlement
Appeal No.157 of 1988, which was allowed and against that
order, Petitioner No.2 filed Revision Case No.709 of 1989.
However, the land was finally recorded in the name of State of
Odisha and taking advantage of the same, her possession was
interfered with by the government functionaries. Hence, said
Banalata Mohanty filed TS No.246 of 1992 before learned Sub-
Judge (1st Court), Cuttack impleading the Collector, Cuttack as
well as Settlement Officer, Cuttack as defendants to the said
suit praying for decree of title over Lot No.1 of schedule 'A'
property (the case land) as occupancy tenant and for
confirmation of her possession along with permanent injunction
to restrain Defendant No.1-Collector, Cuttack therein to
interfere with the possession.
3.1 Defendants, upon receipt of notice, did not appear and
were set ex parte. Ultimately, ex parte judgment was passed on
28th September, 1993 with the following order:
"The suit is decreed ex parte against the defendants
but considering the circumstances without costs. The
right, title and interest of the plaintiff in respect of the
suit schedule land is hereby declared and the
possession of the plaintiff over the said land is hereby
confirmed. The defendant No.1 is restrained from
interfering with the peaceful possession of the plaintiff
over the suit schedule land. As per the Survey and
Settlement Act, the defendants are directed to correct
the Record of Rights accordingly and to record that the
suit schedule land in the name of the plaintiff."
3.2 Pursuant to the aforesaid judgment and decree, the
Petitioner No.2 also filed Revision Case No.7706 of 2000
// 3 //
(1248/2003) under Section 15(b) of the Odisha Survey and
Settlement Act, 1958 to correct the ROR in terms of the decree
passed by learned Sub-Judge (1st Court), Cuttack in TS No.246
of 1992. The said Revision was allowed vide order dated 27th
June, 2003 directing the Tahasildar, Sadar Cuttack to correct
the ROR in the name of Petitioner No.2. Accordingly, the
Petitioner No.2 approached the Tahasildar, Sadar Cuttack
(Misc. Case No. 39 of 2017) to work out order dated 27th June,
2003 (Annexure-2) passed in Revision Case No.7706 of 2000.
3.3 Since the Tahasildar, Sadar Cuttack did not take any
step to correct the ROR, Petitioner No.2 had to approach the
Joint Commissioner, Land Records and Settlement, Odisha,
Cuttack by filing Misc. Case No.140 of 2004 and the Joint
Commissioner by his order dated 15th February, 2005
(Annexure-2 series) directed the Tahasildar, Cuttack Sadar to
take necessary steps for disposal of the matter latest by 30th
March, 2005. Even after the direction of the Joint
Commissioner, the Tahasildar did not take any action for
correcting ROR in the name of Petitioner No.2. Finding no
other alternative, the Petitioner No.2 filed W.P.(C) No.2087 of
2009 before this Court, which was disposed of vide order dated
3rd March, 2009 with a direction to the Tahasildar, Sadar
Cuttack to dispose of Remand Revision Case No.7706 of 2000
(1248 of 2003) pending before him within a period of six
months from the date of communication of the said order.
However, the Tahasildar, Sadar Cuttack, vide his order dated
21st December, 2017 passed in Misc. Case No.39 of 2017
(arising out of RP No.7706/2000-1248 of 2003), rejected both
the cases.
// 4 //
3.4 Being aggrieved, the Petitioners preferred Mutation
Appeal No.43 of 2018 before the Sub-Collector, Cuttack Sadar,
who vide his order dated 3rd January, 2020, while setting aside
the order, remanded the matter to Tahasildar, Sadar Cuttack for
reconsideration. During pendency of the Mutation Case (Misc.
Case No. 39 of 2017), although the Tahasildar called for the
enquiry report and concerned Amin has submitted his report
stating that the land in question has been alienated in the
meantime in favour of Petitioner No.1, but the Tahasildar sat
over the same and did not pass any order.
4. In the meantime, Collector, Cuttack and Settlement
Officer, Cuttack, who were defendants in TS No.246 of 1992,
filed an application in CMA No.552 of 2010 under Order IX
Rule 13 read with Section 151 CPC to set aside ex parte
judgment and decree dated 28th September, 1993 passed in the
said Title Suit. The said application was dismissed vide order
dated 29th January, 2013. However, the said order was not
challenged before the higher forum within the statutory period.
5. Mr. Mishra, learned ASC, however, submits that
assailing the said order dated 29th January, 2013 passed in
CMA No.552 of 2010, the Collector, Cuttack as well as
Settlement Officer, Cuttack has preferred FAO No.14 of 2017
along with a petition for condonation of delay, which is
pending for adjudication before the Court of learned District
Judge, Cuttack.
5.1 It is submitted by Mr. Mishra, learned counsel for the
Petitioners that although the appeal has been preferred since
2017, but no step has yet been taken in the limitation matter for
// 5 //
condonation of delay. As such, there is no appeal in the eyes of
law.
6. In the above backdrop of facts, Mr. Mishra, learned
counsel for the Petitioners submits that a direction may be made
to dispose of Mutation Case (Misc. Case No.39 of 2017) at an
early date and to record the land in question in favour of
Petitioner No.1 being the subsequent purchaser.
7. Mr. Mishra, learned ASC although does not dispute the
aforesaid factual position, but submits that steps are being taken
for disposal of FAO No.14 of 2017 pending before learned
District Judge, Cuttack. Hence, the Tahasildar, Sadar Cuttack
should await the decision of the learned District Judge, Cuttack
to proceed with Mutation (Misc.) Case No.39 of 2017.
8. Taking into consideration the submissions made by
learned counsel for the parties, this Court finds that CMA
No.552 of 2010 was disposed of on 29th January, 2013. The
said order although challenged after four years before the
learned District Judge, Cuttack in FAO No.14 of 2017, but
delay in filing such appeal has not yet been condoned. As such,
there is no appeal in the eyes of law. Mutation is a fiscal
measure to collect revenue and it does not confer any title.
Thus, the Tahasildar, Sadar Cuttack should not wait for eternity
to dispose of Mutation Case No.39 of 2017 without any
justifiable cause. From the submissions made by learned
counsel for the parties and on materials available on record, it
appears that due to the inaction of the State authorities, a
common citizen is made to suffer without any justifiable reason
and is being deprived of enjoying the property independently.
// 6 //
9. In that view of the matter, this Court feels that the
Mutation (Misc.) Case No.39 of 2017 pending before the
Tahasildar, Sadar Cuttack should be disposed of at an early date
in accordance with law.
10. Accordingly, the writ petition is disposed of with a
direction to the Tahasildar, Sadar Cuttack to make an
endeavour for early disposal of Mutation Case No.39 of 2017 in
accordance with law, as expeditiously as possible, preferably
within a period of four months from production of certified
copy of this order.
10.1 Parties are also directed to co-operate the Tahasildar,
Cuttack Sadar for early disposal of the Mutation Case.
Issue urgent certified copy of the order on proper
application.
(K.R. Mohapatra)
Judge
s.s.satapathy
