Orissa High Court
Rashmi Ranjan Rout vs State Of Odisha And Others .... Opposite ... on 21 April, 2025
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
AFR IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.23855 of 2024
Rashmi Ranjan Rout .... Petitioner
Mr. Sidhartha Mishra, Advocate
-Versus-
State of Odisha and others .... Opposite Parties
Mr. Prabir Kumar Ray, AGA
Mr. Susanta Kumar Baral, Advocate for O.P. No.3
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT:21.04.2025
1. Instant writ petition is filed by the petitioner challenging
the impugned decision by order as per Annexure-2 and
consequent preparation of Record of Rights (R0Rs) vide
Annexure-3 series by opposite party No.2 in connection with
Misc. Case No.24 of 2024 on the grounds inter alia that such
an exercise is per se illegal, arbitrary and without jurisdiction
besides in gross violation of the principles of nature justice.
2. The subject matter in dispute corresponds to the plots in
question situate under Hal Khata Nos.403/2556, 403/2558
and 403/2559 in Mouza-Madhuban under Barang-Tahasil in
the district of Cuttack. As per the petitioner, the case plots
W.P.(C) No.23855 of 2024 Page 1 of 13
were acquired in the name of the company, namely, M/s Maa
Charchika Cold Storage Private Limited represented by him
as its Director through a registered sale deed and after
mutation, the record of rights were prepared accordingly as
per Annexure-3 series and while matters stood thus, opposite
party No.3 moved opposite party No.2 for correction with
regard to the name of the Marfatdar of the company
entertained vide Misc. Case No.24 of 2024, which was
allowed in his absence leading to the passing of the
impugned order dated 8th August, 2024 i.e. Annexure-2
followed by issuance of RoRs as per Annexure-3 series and
as such, the same has not been in accordance with law and
thus, liable to be interfered with since no opportunity of
hearing was provided before the correction thereof to the
extent indicated was allowed.
3. Heard Mr. Mishra, learned counsel for the petitioner and
Mr. Baral, learned counsel for opposite party No.3 as well as
Mr. Ray, learned AGA for the State.
4. Mr. Mishra, learned counsel for the petitioner would
submit that the RoRs have been corrected vide Annexure-2
which is not in accordance with the Mutation Manual read
with the provisions of the Orissa Survey Settlement Act,
1958 (hereinafter referred to as 'the Act') and Rules framed
thereunder, hence, therefore, such correction is bad in law
and hence, liable to be quashed. On the contrary, Mr. Baral,
learned counsel for opposite party No.3 submits that there
has been no illegality committed by opposite party No.2 as it
W.P.(C) No.23855 of 2024 Page 2 of 13
was in relation to the plots owned by the company and not by
the petitioner, who was just a Marfatdar. It is contended that
the petitioner was a Director of the Company at the time of
the purchases made and as its representative, he was recorded
as the Marfatdar but thereafter, upon his resignation, such
correction was applied, hence, opposite party No.2 taking
judicial notice of the same about a suit pending in the Court
of learned Civil Judge (Senior Division), 1st Court, Cuttack
and a proceeding before the National Company Law,
Tribunal, Cuttack Bench, Cuttack (in short 'the Tribunal')
and in order to prevent further sale, deleted the name of the
Marfatdar only, until the final outcome of the Tribunal
rendered in Company Petition No.96/CTB/2019 and in any
case, it stands in the name of the company without anyone
being really prejudiced. Mr. Ray, learned AGA for the State
highlighted upon the circumstances leading to the correction
of the RoRs in respect of case land in view of the dispute
between the petitioner and opposite party No.3 over the
management of the company.
5. Perused the impugned order as at Annexure-2. The
proceeding was initiated at the instance of opposite party
No.3 vide Misc. Case No.24 of 2024 as already stated before.
In fact, upon considering the order in the suit in IA No.663 of
2010 and status of the proceeding pending before the
Tribunal and its interim order and the request for correction
of the name of the Marfatdar in the RoRs and to thwart resale
of the plots at the behest of the petitioner, who obtained such
an order of injunction, allowed the correction to the extent, as
W.P.(C) No.23855 of 2024 Page 3 of 13
aforesaid. With the necessary correction, the RoRs as at
Annexure-3 series have been issued by opposite party No.2
recording the name of the company exclusively without any
Marfatdar.
6. In course of hearing, it is claimed by Mr. Mishra, learned
counsel for the petitioner that the statutory procedure has not
been followed at the time of such mutation, hence, therefore,
the decision as at Annexure-2 is under challenge. Mr. Baral,
learned counsel for opposite party No.3 would submit that
when the petitioner is no more the Director of the company,
deletion of his name as Marfatdar was allowed by opposite
party No.2 specially considering the litigation between both
the sides and the orders of the Court and the Tribunal as the
same is permissible under law. The petitioner and another
have instituted CS No.765 of 2010 against opposite party
No.3 and therein, as it appears from Annexure-2, an interim
order of injunction has been passed restraining the opposite
parties from alienating any portion of the case land including
disposals by way of gift, mortgage with creation of third
party interest and also changing the nature of character of the
same in any manner, whatsoever, till disposal of the suit.
Such an order is against opposite party No.3 and two others
in IA No.663 of 2010 dated 28th November, 2011. It is
further made to understand that a company proceeding is
stated to be pending before the Tribunal registered again at
the behest of the petitioner with the company being also a
respondent.
7. It is not denied that the petitioner resigned from the post
of Directorship of the company from 20th August, 2005 but
there has been a dispute over and in connection vis-a-vis
affairs of the company and its Management with the
allegation of illegal transfer of shares held by the petitioner,
before such transfer. It is made to reveal that the plots were
purchased in the name of the company with the petitioner as
the Marfatdar. The case land was purchased by and in the
name of the company. As on date, the litigation is pending
between the parties over the management of the company
pending before the Tribunal. Not only that, the petitioner has
knocked the doors of the Civil Court and managed an interim
order of injunction in respect of the case land. The claim of
opposite party No.3 is that the petitioner has no rights over
the plots, the same being owned by the company having been
purchased, while he was its Director. It is not a case of
transfer and mutation, rather, under the peculiar facts and
circumstances of the case, opposite party No.3 approached
opposite party No.2 seeking deletion of the name of the
petitioner therefrom in order to prevent any further sale of the
plots, which is owned by the company. The primary
contention of Mr. Mishra, learned counsel for the petitioner is
that before any such correction with regard to the name of the
Marfatdar of the plots, opposite party No.2 was required to
issue notice to the petitioner. Against the aforesaid backdrop
of facts and considering the resignation of petitioner way
back in 2005 and keeping in view the proceeding before the
Tribunal inter se parties and the fact that the case land is
recorded in the name of the company, opposite party No.2
deemed it proper to allow the change to avoid further sale in
respect of the alleged plots. It is the contention of Mr. Baral,
learned counsel for opposite party No.3 that merely a change
in the RoRs with regard to the deletion in the name of the
Marfatdar, who represented the company at the time of the
purchases made, has only been allowed and such mutation is
conceived under the Act and Rules. According to the Court,
whosoever, runs the company having primacy over the
management subject to the decision in the company
proceeding by the Tribunal, the fact remains, the plots are
owned by the company. The details of the litigation between
the petitioner and opposite party No.3 are made to reveal
from the company petition filed before the Tribunal, wherein,
the company itself is one of the respondents. The fact, such
as, the resignation of the petitioner with other disputes
including the unilateral sale of shares held by the petitioner
etc. with necessary reliefs are pending decision and final
orders of the Tribunal. It is a tug of war between the parties
for having control and management of the company in
question advancing rival claims against each other.
8. At this juncture, the Court is of the view that the facts
pleaded on record need a little bit of more elaboration with
reference to the other relevant materials. In fact, an additional
affidavit is filed by the petitioner, referring to which, Mr.
Mishra, learned counsel for the petitioner submits that not
only due procedure was not followed by opposite party No.2
but also, there has been substantial prejudice caused to the
petitioner, the fact, which is to be taken cognizance of. As
per the additional affidavit dated 23rd December, 2024, the
petitioner and opposite party No.3 are in litigating terms for
quite some time with a suit instituted before the Civil Court
and a proceeding pending adjudication before the Tribunal. It
is stated therein that the interim order is passed by the Civil
Court in the suit involving the plots purchased in the name of
the company, in respect of which, mutation proceedings were
entertained and disposed of in the year, 2024. The Mutation
RoRs are at Annexure-1 series of the additional affidavit and
it was followed by the impugned order i.e. Annexure-2 and
the RoRs i.e. Annexures-3 series. At the cost of the
repetition, it is stated that the only plea of the petitioner
advanced and already discussed before is to the effect that
pending the dispute between him and opposite party No.3,
without following the statutory law and issuing a notice to
him, opposite party No.2 ought not to have issued Annexure-
3 series carrying out the necessary change in Annexure-1
series. The suit is filed by the petitioner and another and it
was in the year, 2010 and as further made to appear from the
additional affidavit, the same stood dismissed for default
earlier, however, restored to file vide CMA No.188 of 2021
by an order dated 22nd July, 2023 subject to payment of costs
with the order of dismissal dated 1st November, 2021 being
set aside. It is not known, whether, upon such restoration of
the suit, the interim order in I.A. No. 683 of 2010 was
revived. But then, as per the impugned order i.e. Annexure-2,
it is made to suggest that the interim order in I.A. No.683 of
2010 was in force by then. The Court finds that the learned
Civil Judge (Senior Division) 1st Court, Cuttack by order
dated 28th November, 2011 directed opposite parties therein
including opposite party No.3, namely, Kissanlal Agarwal
not to alienate any portion of the plots in favour of anyone in
any manner even by a gift or mortgage or in any manner with
the creation of a third party interest over the same, till
disposal of the suit. It is also revealed from the record that the
Tribunal has been pleased to pass a similar order dated 20th
January, 2021. The above orders were within the knowledge
of opposite party No.2, while entertaining the proceeding
followed by the impugned order i.e. Annexure-2.
9. As far as a proceeding for mutation is concerned, it shall
be subject to the provisions of the Act and Rules. In fact,
Chapter- IV of the Orissa Survey & Settlement Rules, 1962
(briefly as, 'the Rules') deals with the RoR and map and
maintenance thereof. Rule 34 of the Rules prescribes the
grounds upon which the RoR and Map may be corrected. It
shall be as per the Rules with an independent proceeding
initiated either on an application received from any person
interested or on receipt of a report of any Sub-ordinate
officers or notice from the Registrar or Sub-Registrar
appointed under the Indian Registration Act, 1908 or from a
Court or suo motu with the powers exercisable by the
Tahasildar concerned. In case of correction of the RoR in
terms of Rules 34, learned Tahasildar shall have to remain
alive to the Orissa Mutation Manual, 1962, wherein, as per
Chapter-III, the Tahasildar is to initiate a proceeding for
mutation. As per Clause-17 of the Manual, the Tahasildar
shall have to register the proceeding upon receiving any such
application etc. as stipulated in Rule 34 of the Rules. The
Rule is a statutory provision, whereas, the instructions
contained in the Manual are executive in nature, which only
seeks to amplify the provisions in addition to laying down the
detailed instructions for regulating the administrative aspects
of the work. The detailed procedure as stipulated therein and
the manner for mutation supplementing the Rules are to be
followed, while considering disposal of such proceedings.
10. In the instant case, mutation was dealt with by opposite
party No.2 and it was disposed of in 2024 in respect of the
plots after being purchased. The order sheets in each of the
Mutation Proceedings are annexed to the additional affidavit
of the petitioner, whereafter, the further correction has been
allowed as per the impugned order dated 8th August, 2024 in
Misc. Case No.24 of 2024 to the extent already indicated. As
per the detailed procedure under the Rules and the Manual, it
is crystal clear that any such mutation applied for shall have
to be followed by a general or individual notices issued to the
persons likely to be affected thereby. In the case at hand, the
sole grievance of the petitioner is that even after the Mutation
RoRs have been issued upon disposal of Mutation Case
Nos.4646, 4647, 4648 and 4649 of 2024, recording the plots
in the name of the Company with him shown as the
Marfatdar, without any such further notice issued to anyone,
the miscellaneous proceeding was entertained on the
application of opposite party No.3 and was disposed of.
Referring to Annexure-2, it is suggested that the application
was received from opposite party No.3 in respect of all the
plots for correction of the RoRs, in which, further hearing
was fixed, ultimately, disposing it of by order dated 8th
August, 2024. It is claimed that there has been no notice at all
ever issued and served on the petitioner despite the fact that
opposite party No.2 was fully aware of the dispute between
the parties having taken cognizance of the Civil Court's order
and also the restraint order of the Tribunal. Even through,
such a proceeding was registered followed by the impugned
order i.e. Annexure-2, if the claim of the petitioner is
accepted at its face value, notice to him was statutorily
necessary. In mutation proceeding, as earlier stated, general
notice or notices to individuals is sine qua non. It is to be
believed that the miscellaneous proceeding was disposed of
in such a manner by order dated 8th August, 2024 without any
notice having been issued to the petitioner and others,
whosoever, is or are interested. Hence, it shall have to be
held that there has been a procedural irregularity and
illegality committed by opposite party No.2. Irrespective of
the source of jurisdiction to initiate a proceeding as per the
Act and Rules, the principles of natural justice always
demand a hearing of the persons to be affected by the
outcome of such proceeding. Having discussed this far with
reference to the relevant provisions of the Act, Rules and the
guidelines of the Manual and considering the plea of the
petitioner, who himself with another claims to the
shareholders of the company having a joint ownership and in
view of the Mutation RoRs issued vis-à-vis plots in question,
it was incumbent upon opposite party No.2 to issue notice to
him at least. Of course, the necessary correction in the RoRs
only relates to the Marfatdarship, which has been deleted
recording it exclusively in the name of the company
especially without being represented by anyone on its behalf.
But, any such deletion and for that matter, a change even to
the extent as above, opposite party No.2, in the humble view
of the Court, certainly fell into error by not considering
issuance of notice to the petitioner. The Court, in view of the
Civil Court's order besides that of the Tribunal dated 20th
January, 2021, fails to understand any such real need for
opposite party No.2 to direct deletion of the name of the
Marfatdar from the RoRs. From Annexure-2, as mentioned
earlier, it reveals that opposite party No.2, in view of the
restraint orders of the Civil Court and the Tribunal deemed it
just and proper to carry out the necessary change in the RoRs
to prevent further sale of the plots. But the Court does not
find any logic therein and statutory force in the decision,
when the dispute between the petitioner and opposite party
No.3 is subjudice before the Civil Court and the Tribunal
with restraint orders being in place. It could not be elicited as
to if opposite party No.2 did really possess any such
jurisdiction to carry out the necessary change in the RoRs to
avoid disposal of any plots already mutated with the issuance
of RoRs thereafter. Is that the powers conferred on a
Tahasildar to pass orders to protect the interest of the party
initiating the mutation proceeding? Nonetheless, exercise of
any such jurisdiction shall have to be derived from the Act
and Rules. Even assuming for the sake of argument that
opposite party No.2 rightly entertained the miscellaneous
proceeding at the instance of opposite party No.3, justice
would have been met, had there been a notice to the
petitioner, as it is a statutory requirement before mutation. It
has to be emphatically stated that any such proceeding
exercising judicial or quasi-judicial powers, it is always
expected that hearing and disposal of the same would be by a
proper notice to the other side for inviting response or
objection. In the present case, statute prescribes a hearing
after notice upon receiving objections, if any, for considering
correction of the RoRs. Even in any such miscellaneous
proceeding, issuance of notice cannot not be excluded, as for
that matter, the provisions of the Act and Rules are to equally
apply and to be followed sacrosanctly. Even, otherwise, the
principle of audi alteram partem demands a proper hearing
with notice before disposal of a proceeding like the present
one. So therefore, the final conclusion of the Court is that
there is a need for re-hearing by opposite party No.2 upon
considering the reply and response of the petitioner, who was
the Marfatdar in the Mutation RoRs vis-à-vis the plots owned
by the company especially when he has raised a dispute not
only before the Civil Court but also, the Tribunal still stated
to be pending as of now.
11. Hence, it is ordered.
12. In the result, the writ petition stands disposed of with the
restoration of the proceeding in Misc. Case No.24 of 2024 for
a decision afresh upon hearing the parties fixing a date for a
response from the petitioner or anyone else as deemed
expedient followed by an order therein as per and in
accordance with law preferably within a period of six weeks
from the date of receipt of a copy of this judgment without
being unduly influenced by any of the observations made
herein above and till such time, status quo as on date shall be
maintained in respect of the impugned RoRs.
13. In the circumstances, however, there is no order as to the
costs.
(R.K. Pattanaik)
Judge
Tudu/Balaram
