Orissa High Court
(Through Hybrid Mode) vs State Of Odisha And Others on 24 March, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.7607 of 2023
(Through Hybrid mode)
Pravakar Behera .... Petitioner
Mr. S. B. Mohanty, Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr. G. N. Rout, ASC
CORAM:
JUSTICE ARINDAM SINHA
JUSTICE SANJAY KUMAR MISHRA
ORDER
24.03.2023
W.P.(C) No.7607 of 2023 and I.A. no.3417 of 2023
Order No.
01. 1. Mr. Mohanty, learned advocate appears on behalf of
petitioner and submits, the land has been with his client's family for
three generations. Mutation Case no.4025 of 2019 was initiated by
the Tahsildar. His client has challenged initiation of the same and
prays for issuance of writ of prohibition.
2. He relies on communication dated 20th December, 2016 from
the Principal Secretary to the Secretary, Board of Revenue. Therein
stands quoted paragraph 34 of order dated 15th December, 2015 of
the Supreme Court. He relies on clause (iv) in the extracted
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paragraph, reproduced below.
"(iv) We make it very clear that the striking down of the
first part of the proviso to section 2(oo) of the OEA Act,
1951 as mentioned above and quashing of the
notification referred to supra will be prospective and
this judgment shall not be applicable to the settled claim
of the claimants hitherto under the provisions of the
OEA Act of 1951 in so far as the Lands of the Lord
Jagannath Temple at Puri are concerned."
He submits, pursuant to said order there was, inter alia, circular
no.319 dated 25th April, 1990 issued by the Board of Revenue. He
relies on clause 4 in the circular, reproduced below.
"4. It has been brought to the notice of Government that
in some Tahasils of the State mutation applications are
being entertained from the parties on the basis of Sabik
Records for effecting changes in the current record-of-
rights. Such applications are not entertainable under
the provisions of the Odisha Mutation Manual 1962
and should therefore be summarily rejected. It has
further been brought to the notice of Government that
after entertaining such applications Sabik Hal
comparison of the maps are being made to make
changes in the record-of-rights. Such practices should
be discontinued forthwith. It has to be remembered that
not-only the tahasildars has no scope to entertain such
applications, but also entertainment and disposal of
such applications are without jurisdiction and illegal. "
// 3 //
(emphasis supplied)
He prays for interim protection by stay of the mutation case, pending
hearing and adjudication.
3. Mr. Rout, learned advocate, Additional Standing Counsel
appears on behalf of State. He draws attention to letter dated 22nd
February, 2018 from the Tahsildar to the Collector, seeking
clarification in view of aforesaid order of the Supreme Court. He
draws attention to the queries, in particular query nos.2 and 3,
reproduced below.
"2. Hon'ble Supreme Court have held that the
Tahasildar has no quasi judicial power under OEA Act,
hence Tahasildar cannot settle claims under OEA Act.
3. Even if the claims are to be decided using inherent
power of Tahasildar through Misc. Case, what action
need to be taken in instant case, as the land has been
recorded under sthitiban status with Lord Jagannath as
Khewatdar? "
4. The queries were answered by Deputy Administrator
(Revenue) of Shree Jagannath Temple. On query from Court
regarding answer to query no.3 Mr. Rout makes distinction between
inherent powers of the Tahsildar to cause mutation as different from
power to settle the land, to be exercised under the acquiring Act.
5. We appreciate the difference between settlement and
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mutation. We accept that aforesaid queries made by office of the
Tahsildar were answered on behalf of Shree Jagannath Temple. We
notice that the queries were made on subject of mutation of land.
Wording of the queries was regarding settlement. But query made
regarding settlement on subject of mutation and answered
accordingly is sufficient reason for us to direct interim measure.
6. On query from Court Mr. Rout submits, four weeks will be
necessary for filing counter.
7. Issue notice along with this order on opposite party nos.3
and 6 by registered/speed post with A.D. Petitioner will put in
requisites.
8. Opposite parties are to file counter, if they so desire.
Counter(s) be filed by 1st May, 2023. Petitioner may file rejoinder, to
be accepted on adjourned date upon advance copies served.
9. List on 15th May, 2023. In the meantime mutation case
no.4025 of 2019 will remain stayed till next date of hearing.
( Arindam Sinha )
Judge
( S. K. Mishra )
Judge
Prasant
