Sanjib Naik vs State Of Odisha And Others
2023 Latest Caselaw 5680 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK
                             W.P.(C) No.12361 OF 2023

            Sanjib Naik                             ....          Petitioner(s)
                                                          Mr.A.K.Sahoo,Adv.
                                         -versus-

            State of Odisha and others              ....       Opposite Party(s)
                                                             Mr.S.Ghosh,AGA



                      CORAM:
                      JUSTICE BISWANATH RATH
                                       ORDER

Order No.                             10.05.2023
   01.       1.     Heard learned counsel for the Parties.

2. Dispute involved herein whether there was requirement of probate of will involving Mutation Application involving scheduled areas in the district of Sundargarh? Considering the submission of learned counsel appearing for the parties, this Court in first of all on the requirement of probate of will at all in the preparation of mutation records, through the judgment in the case of Siba Sankar Sahoo, Vs. The State of Odisha & Others, 2022 (II) OLR-1030, this Court has already come to hold if an attempt is made for mutation purpose based on family arrangement by way of will, there is absolutely no requirement of probate of such will. Thorough this judgment, this Court has also come to categorically hold probate of will shall be a requirement in non-scheduled areas i.e. the areas which has not been covered by the Administration of Orissa State Orders, 1948 provided the parties involved therein is desirous of transfer of land and unless there involves transfer of land, there is absolutely no requirement of

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probate of will. This Court here finds from the Administration of Orissa State Order, 1948 Sub-order-3 Order-2 has already included Bonai to be remaining out of the requirement of probate of will. Bonai being a part of the district of Sundargarh and Sundargarh being a scheduled area earlier remaining as a Princely Estate, there should not be insisting probate of will in the whole area of Sundargarh district even. This Court finds strange in the attitude of Tahasildar since some of the district are insisting of probate of will even after the judgment reported in the case of Siba Sankar Sahoo Vs. The State of Odisha & Others, 2022 (II) OLR-1030, which has again been confirmed by a division Bench of this Court in W.A.No.233 of 2023. This Court in paragraph-8 of the judgment involving the case of Siba Sankar Sahoo (supra) directs as follows:

<8. Keeping this view and to have a check the unnecessary litigations of this nature, this Court directs for sending a copy of this judgment to the Principal Secretary to Government in Revenue & Disaster Management, O.P.1, the G.A. Department, all R.D.Cs., the Board of Revenue, Cuttack and all Commissioners holding under different status for their information and as a matter of future guidance at the cost of the petitioner.=

3. In the above view of the matter, this Court finds the impugned order dated 02.02.2023 passed in Mutation Case No.128 of 2023 remains unsustainable which is sets side hereby and the matter is remitted back to the Mutation Authority-Opposite Party No.3 to consider the Mutation Case No. 128 of 2023 in allowing the prayer therein by completing the entire exercise within a period of four weeks from the date of communication of certified copy of this order. It is open for the Petitioner to bring the certified copy of this order along with copy of the judgment in the case of Siba Sankar Sahoo

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(supra) to the knowledge of the Opposite Party No.3 for doing the needful.

4. The Writ Petition stands disposed of with the observation and direction made hereinabove.

(Biswanath Rath) Judge S.Dash

SWARNAPRAVA Digitally signed by SWARNAPRAVA DASH DASH Date: 2023.05.11 13:18:43 +05'30'