Orissa High Court
Sanjeev Gangadev vs State Of Odisha And Ors on 3 February, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.2852 OF 2023
Sanjeev Gangadev .... Petitioner(s)
Mr.A.K.Mohanty,Adv.
-versus-
State of Odisha and ors. .... Opposite Party(s)
Mr.U.K.Sahoo,ASC
CORAM:
JUSTICE BISWANATH RATH
ORDER
Order No. 03.02.2023
01. 1. Heard learned counsel for the Parties.
2. This Writ Petition involves the following prayer:-
"It is, therefore prayed
that, this Hon'ble Court be
graciously please to;
ISSUE RULE NISI
calling upon the Opposite Parties as
to why writ in nature of
mandamus/certiorari or any other
appropriate writ or writs and/or
direction/directions shall not be pass
to set aside the order dated
16.06.2022 passed by learned
Tahasildar, Deogarh.
AND
ISSUE FURTHER
RULE NISI calling upon the
Opposite Parties as to why writ in
nature of mandamus/certiorari or
any other appropriate writ or writs
and/or direction/direction to correct
// 2 //
the ROR as per the will under
Annexure-2 & 3.
If the Opposite Parties
fails to file show cause or show in
sufficient case, above rule nisi may
be made absolute.
And/or order/orders as
this Hon'ble Court may deem just
and proper in order to provide the
petitioner complete relief.
And for this act of
kindness, the Petitioner shall as in
duty bound, remain ever pray."
3. Mr. Mohanty, learned counsel taking this Court to the
impugned order at Annexure-4 passed by the Tahasildar, Deogarh
rejecting the Mutation Application of the Petitioner on simple
premises of no probate of the Will involved therein, Mr. Mohanty,
learned counsel taking this Court to the decision of this Court, in the
case of Shiva Shankar Sahoo Vrs. State of Odisha reported in 2022
OLR Volume-II Page 1030 claims, there is already exemption for
probate of will in respect of Deogarh since Bamra princely State
involved and the proceeding involved thus stood covered by the
judgment referred to herein.
4. Leaned Counsel for the State however submits, in his attempt
to support the Mutation order that there is right rejection by the
Competent Authority of the proceeding involved herein and objecting
the entertainibility of the Writ Petition, on the premises that there is
clear statutory remedy of Appeal.
5. Considering rival contention of the parties involved herein,
this Court finds, through the judgment 2022 Vol II OLR 1034 the
Odisha State orders 1948 sub-order 3 of order 2 already covered
number of Princely States including that of Bamra. In the
// 3 //
circumstance, this Court finds, the decision referred herein above has
a direct application to the case at hand. Further in the State order at
pargraph-5, this Court has also already discussed the time in the
requirement of the probate of will and has a clear view that for the
purpose of Mutation applied by family members since does not
involve the transfer of the property, there is no requirement of probate
of will otherwise in applying for mutation and change in the R.O.R. It
is in the circumstance and for illegal dismissal of Mutation
proceeding appears contrary to the Judgment of this Court instead
asking the Petitioner to visit the Appeal Forum in an attempt to
dispose of the proceeding here observes, the Tahasildar mis-applied
the requirement of law and therefore arrived at wrong order which
needs to be interfered and accordingly this Court interferes with the
order at Annexure-4 and sets aside the same. But however for there is
requirement of re-adjudication of such proceeding vide Annexure-4
same is remitted back to the Tahasildar, Deogarh for fresh decision
without insisting probate of will involved herein, by completing such
exercise within one months from the date of communication of this
order by the Petitioner along with copy of the judgment taking
support herein.
6. The Writ Petition succeeds but with an order of remand.
(Biswanath Rath)
Judge
U.Nayak
