Orissa High Court
Manoj Kumar Agrawal vs State Of Odisha & Ors on 2 September, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.27972 of 2023
Manoj Kumar Agrawal .... Petitioner(s)
Miss G. Patra, Adv.
-versus-
State of Odisha & Ors. .... Opposite Party(s)
Mr. S. Ghose, AGA
CORAM:
JUSTICE BISWANATH RATH
ORDER
02.09.2023
Order No.
01. 1. Heard the submission of learned counsel for Petitioner as well
as learned State Counsel
3. This Writ Petition involves the following prayer:-
"It is therefore humbly prayed that, the Hon'ble
Court may graciously be pleased to admit the Writ
Application, Call for LCR, issue RULE NISI calling upon
the Opp. Parties to show cause as to why, the order
dtd.29.12.2022 passed in Mutation Case No.5553 of 2022
by the ld. Tahasildar, Jharsuguda, in rejecting the
application for Mutation and as to why necessary direction
shall not be issued directing Opp.Party No.3 to allow the
Mutation and Direct correction of RoR;
And any other order and/or orders, direction and/or
directions be issued as this Hon'ble Court would deem fit &
proper."
4. The main thrust of challenge to the impugned order at
Annexure-2 appears to be; the mutation application was brought by the
Petitioner herein on the foundation of a 'WILL'. It appears, there has
been inquiry on this aspect. It is alleged that in spite of submission of
'WILL' and exemption of the Jharsuguda district from the requirement
of probate of 'WILL' long since, the Tahasildar, Jharsuguda depending
on the outcome in Mutation Case No.5553/2022 appears to have
// 2 //
rejected the mutation application of the Petitioner on erroneous footing
that 'WILL' not being probated cannot be taken into account.
5. Learned State Counsel has no dispute to the fact of exemption
of Jharsuguda District from probate of 'WILL'.
6. Considering the above and looking to the judgment delivered
by this Court though in respect of the District of Keonjhar in W.P.(C)
No.19001 of 2022 however, taking note of the Orissa State Orders,
1948 clause 4 sub-clause 3 of Order 2 finds, there is clear exemption of
the District of Jharsuguda and this Court also from paragraph no.4 of
the above judgment also finds, there is recording of exemption of
probate of 'WILL' in some districts mentioned therein. This apart, this
position has already been settled through the Hon'ble Supreme Court
specifically authorizing probate of "WILL' can only be made in case of
transfer of the property therein in order to protect the stamp fees as the
revenue as of the State.
It is, in the circumstance, this Court finds, there is erroneous
observation by the authority concerned. This Court is, accordingly,
inclined to interfere in the impugned order. In the process while setting
aside the impugned order, this Court in remand of the proceeding
directs the Tahasildaer, Jharsuguda to re-consider the mutation
application involved herein and pass appropriate order for preparation
of the record of rights in terms of the "WILL", but however, without
insisting probate of 'WILL' therein and complete the entire exercise
within a period of one month from the date of communication of a
copy of this order by the Petitioner.
// 3 //
6. Writ Petition stands disposed of with the above order.
(Biswanath Rath)
Judge
Ayaskanta Jena
Signature Not Verified
Digitally Signed
Signed by: AYASKANTA JENA
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa
Date: 04-Sep-2023 10:58:30
