Mina Samal And Another vs State Of Odisha And Others
2023 Latest Caselaw 3396 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                                 W.P.(C) No. 21597 of 2022
                 Mina Samal and another                   ....      Petitioners
                                               Mr. Soumya Mishra, Advocate
                                           -versus-
                 State of Odisha and others               ....    Opp. Parties
                                                    Mr. Swayambhu Mishra,
                                                 Additional Standing Counsel
                                              (For Opposite Party Nos. 1 to 4)
                            CORAM:
                           JUSTICE K.R. MOHAPATRA
                                       ORDER

Order No.                             13.04.2023
 3.         1.       This matter is taken up through Hybrid mode.

2. Perused the endorsement dated 27th February, 2023 of learned Deputy Registrar (Judicial) for listing of the matter before this Bench.

3. Order dated 24th December, 2021 (Annexure-11) passed in OSS Revision Case No.899 of 2018 is under challenge in this writ petition, whereby learned Member, Board of Revenue, Odisha, Cuttack dismissed the revision under Section 32 of the Odisha Survey and Settlement Act, 1958 (for brevity, 'the Act') and confirmed the order passed by revenue authorities in refusing to mutate the land in question in favour of the Petitioners.

4. It is submitted by Mr. Mishra, learned counsel for the Petitioners that by virtue of registered sale deed dated 19th May, 2001 husband of the Petitioner No.1 purchased Plot No.100, area Ac.2.00 decimal, Plot no.101, area Ac.0.31 decimal, Plot No.102, area Ac.0.15 decimal (total Ac.2.46 decimal) under Khata No.62 in mouza Raidiha under Thakurmunda tahasil in

// 2 //

the district of Mayurbhanj (for brevity, 'the case land') from Opposite Party Nos. 5 to 8 and took delivery of possession. However, after death of the Purchaser (husband of Petitioner No.1 and father of Petitioner No.2), the Petitioners filed Mutation Case No.174 of 2013 before Tahasildar, Thakurmunda, which was dismissed vide order dated 24th March, 2014 on the ground that the purchaser, namely, Dhirendra Kumar Jena was not in possession over the case land. Subsequently, the Petitioners filed Mutation Case No.191 of 2014, which was also dismissed vide order dated 15th December, 2014 on the self-same ground that the vendee was not in possession of the case land. Assailing the same, the Petitioner No.1 filed W.P.(C) No. 17486 of 2014, which was disposed of vide order dated 1st November, 2016 (Annexure-7) with a direction to the Tahasildar to re-open the Mutation Case and dispose of the same by passing a fresh order giving opportunity of hearing to all concerned. Pursuant to the direction of this Court, the Mutation Case was re-opened and was adjudicated afresh. However, the same was again dropped vide order dated 11th July, 2017 (Annexure-9) on the ground that the Petitioners are not in possession over the case land. Being aggrieved, the Petitioner No.1 preferred Mutation Appeal No.10 of 2017, which was also dismissed vide order dated 19th June, 2018 (Annexure-10) passed by the Sub-Collector, Panchpir, Karanjia. Having failed in her attempt to mutate the case land, Petitioner No.1 preferred OSS Revision Case No.899 of 2018. The recorded tenants appeared before the Member Board of Revenue and made an objection to the effect that they have neither executed the sale deed in favour of the husband of

// 3 //

the Petitioner No.1 nor is she in possession over the case land. C.S. No. 43 of 2019 assailing validity of the sale deed is pending before learned Civil Judge (Junior Division), Karanjia. Learned Member Board of Revenue making out a third case held that the case land was purchased by the husband of the Petitioner No.1, namely, Dhirendra Kumar Jena in the capacity of Secretary, Jojana-41, Ekamra Villa, Jayadev Vihar, Bhubaneswar, district Khordha. Since the Petitioner No.1 did not file any record to show that she has any interest in the said Jojana-41, she cannot succeed to the case land as the legal heir of the purchaser, namely, late Dhirendra Kumar Jena. He further submits that Tahasildar, while exercising power under the Act and Rules framed thereunder, cannot delve into the validity of a sale deed. It has to accept the sale deed on its face value and proceed to mutate the land if it is found to be in order. 4.1 In support of his case, Mr. Mishra, learned counsel for the Petitioners placed reliance upon a decision of this Court in the case of Baikunthanath Nayak Vs. State of Orissa and others [W.P.(C) No.8308 of 2007 disposed of vide judgment dated 15th July, 2022], wherein at para-8, it is held as under:-

"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 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."

// 4 //

It is his submission that in the said case, the Tahasildar had mutated the land in favour of the Vendee. Assailing the same, the Vender preferred an appeal in which was reversed. Assailing the same, the writ petition was filed. This Court, while affirming the order passed by the mutation authority, rejected the plea of the Vender to the effect that the sale deed in question was obtained without taking permission of the competent authority, as the Vender was allegedly a person belonging to SC community. He further relies on the instruction provided by the Principal Secretary, Department of Revenue and Disaster Management in letter dated 7th May, 2018, wherein at para-1 it is instructed as under:-

"1. In some instances, Tahasildars are rejecting mutation cases presuming that the sale deed relating to a particular transaction is fraudulently made and void thereby. In this connection, it is reiterated that once a sale deed is registered under the provisions of the Registration Act, 1908, the sale deed remains valid in the eye of law, unless such instrument of sale is declared void or cancelled by the competent Civil Court under section 31 of the Specific Relief Act, 1963. Consequently, the allegation of fraud does not render the transaction or the deed void ab initio before the Revenue Officer who is considering mutation. A person who is aggrieved by the sale deed can only approach the competent Civil Court for relief and unless the sale deed is declared void by the Civil Court, mutation cannot be rejected."

In that view of the matter, Mr. Mishra, learned counsel submits that since the Opposite Parties 3 to 8 raised objection with regard to validity of the sale deed they should approach the civil Court to get it set aside. Since the sale deed in question is registered one, a presumption of genuineness is attached to it unless it is disproved by due process of law. This material aspect was lost sight of by learned Member Board of Revenue

// 5 //

while adjudicating the revision. Hence, he prays for setting aside the order passed under Annexure-11 and to direct learned Member Board of Revenue to adjudicate the matter afresh keeping in mind aforesaid settled position of law.

5. Considering the submission made by learned counsel for the Petitioners, this Court finds that both the Tahasildar and the appellate authority, i.e., Sub-Collector, Panchpir, Karanjia categorically held that that the Petitioner No.1 is not in possession over the case land. Further, the Opposite Parties 3 to 8, the Venders seriously dispute the execution of the sale deed in favour of the predecessor of the Petitioners and also dispute the possession of the Petitioners over the case land. After filing of the Mutation Case, it is the duty of the Tahasildar to call for objection and entertain the same together with report of the RI to ascertain the genuineness of the claim made by the applicant. Since the Venders, who are the true owners of the property, raised objection to the registration of the sale deed and the RI on field verification reported that that the Petitioner No.1 is not in possession over the case land, the Tahasildar has committed no error in rejecting the claim of the Petitioner No.1. In view of the serious disputed questions of facts, revenue authority lacks jurisdiction to entertain claim of the Petitioners to mutate the case land in their name. Thus, the case law as well as the notification of the Government is of no assistance to the Petitioners in the instant case. It also appears that a suit filed by Opposite Party Nos. 3 to 8 is pending before learned Civil Judge (Junior Division), Karanjia in respect of the case land. As such, I find no infirmity in the impugned order under Annexure-11. It

// 6 //

is, however, open to the Petitioners to redress their grievance in a competent court of Law.

6. With the aforesaid observation, this Court without interfering in the impugned order under Annexure-11 dismisses the writ petition.

(K.R. Mohapatra) Judge

s.s.satapathy