High Court of Orissa
Case Details
IN THE E HIGH COURT OF ORISSA AT CUTTACK W.P. (C) No.20296 of 2017 Akshya Kumar Be Behura r Beura@ Akhaya Kumar …. Petitioner Pe Mr. P.K. Rath, Senior Ad Advocate -Versus- Member, Board o rd of Revenue, Cuttack …. Opposite Mr. B. Naya Mr. P.K. Lenka, Advocate (O.P site parties ayak, AGA (O.P.No.3) CORA MR. J RAM: JUSTICE R.K. PATTANAIK Order No. 02. 1. Heard M d Mr. Rath, learned Senior Advocate appearing ring for the petitioner and M d Mr. Nayak learned AGA for opposite party N ty Nos. 1 & ORDER 16.12.2024 2 besides Mr. Len Lenka, learned counsel for opposite party Nos. os. 3 to 7. 2. 3. None ap appears for opposite party Nos. 3 to 7. Instant w nt writ petition is filed by the petitioner challen llenging the impugned decisi cision passed in O.S.S Case No. 99 of 2012 012 dated 28.08.2015 by t y the Member, Board of Revenue, Odisha, Cuttack under Annexure ure-1 and the Mutation Appellate order by the Appellate Author thority-cum- Sub Collector, Cuttack in Mutation tion Appeal No. 4/2008 date ated 10.2.2012. 4.
Legal Reasoning
Mr. Rat Rath, learned Senior Advocate for the pe petitioner submits that the the impugned decision by order under Annex nexure-1 is legally not tenab nable. It is further submitted that the petitio itioner was issued with the m e mutation RoR as per Annexure-8 and the sa e same was challenged in Mu Mutation Appeal No.04 of 2008 and was disp
Decision
disposed of Pa age 1 of 5 vide Annexure-9 9 and followed by Annexure-1. According ing to Mr. Rath, learned Se Senior Advocate, the petitioner filed revisio ision under Section 32 of th f the OS&S Act, 1958 read with the Odisha M a Mutation Manual, 1962 ch challenging the order in Mutation Appeal N l No. 4 of 2008 but the sam same was dismissed with a conclusion that fr t fraud has been played and and perpetuated in connection with the proce oceeding in Misc. Case No. 43 of 2004 disposed of by order dated 27 27th April, 2005 recalling th g the earlier order dated 27th December, 2004 004 passed in Misc. Case N No. 1 of 2004. The contention is that the o e order in Misc. Case No. o. 43 of 2004 dated 27th April, 2005 wa was never challenged which hich was in respect of resumption initially allow llowed and subsequently, rev revoked with the restoration of the lease in fa n favour of the vendor, the he fact which was lost sight of by the Member ber, Board of Revenue, Odi disha while confirming the order in Mutation ion Appeal No. 4 of 2008 w 8 with the decision by order under Annexure-1 1, hence, therefore, the sam same is liable to be interfered with and set asid aside. 5. On the he contrary, Mr. Nayak, learned AGA appea pearing for opposite party N y Nos. 1 & 2 submits that fraud was committe itted at the behest of the pet petitioner and as learned Additional Tahasildar dar did not have the authorit ority to recall the order in Misc. Case No. 43 o 3 of 2004, rightly, therefore fore, Mutation Appeal was filed and dispose osed of by order under An Annexure-9 which was ultimately upheld ld by the Member, Board ard of Revenue, Odisha as per Annexure- -1, while disposing of the the revision under Section 32 of the OS&S A S Act, 1958 hence, the same e calls for no interference. 6. In fact, the lease was executed in favour of the ve vendor of the petitioner as as made to reveal from the record and it wa was with a stipulation there consent in erein that the lessee shall not without the co Pa Page 2 of 5 writing of the les lessor, assign or under lot or otherwise part w rt with the possession of the the whole of the demised land or any part art thereof which consent nt shall not be unreasonably withheld ld and in compliance there ereof, the sale was effected in favour of the pe e petitioner vide Annexure-6 6 in the year 2006, which was followed ed by the proceeding in M Mutation Case No. 135 of 2007 with the issu issuance of RoR as well as a as at Annexure-8 but then, Mutation Appeal N al No. 4 of 2008 was filed ed by the Tahasildar, Tangi, Choudwar, Cutt uttack and others, which w was disposed of vide Annexure-9. As earlier ier stated, the order under der Annexure-9 was challenged and confirmed ed by the Member, Board rd of Revenue, Odisha and in so far as the pro proceeding in Misc. Case No No. 43 of 2004 is concerned, which is allege leged to be an action vitiated ated by fraud, it is made to reveal from the im impugned order under Ann Annexure-1 that the record of the proceeding ng was not traceable but sub subsequently, it was produced. In so far as the he decision of the Additiona ional Tahasildar, Choudwar in Misc. Case No No. 43 of 2004 by order d r dated 27th April, 2005 is concerned, the earli arlier order on 27th Decemb ember, 2004 was revoked. In fact, the pro proceeding seeking resumpti ption of the lease hold land was subsequently tly recalled in Misc. Case No No. 43 of 2004 by order dated 27th April, 200 2005. On a reading of the sa said order dated 27th April, 2005, such resu resumption was recalled with with a conclusion that the lease was granted in d in favour of the vendor or of the petitioner in the year 1982 and and in the meantime, twen enty-two years have gone by, therefore, th the same cannot be recalle alled as per the provisions of the OGLS Act an t and Rules framed thereund under. The order dated 27th April, 2005 in Mi Misc. Case No. 43 of 2004 04 was never challenged thereafter. In other her words, the decision to re o recall the earlier dated 27th December, 2004 04 in Misc. Case No. 43 of 2 of 2004 attained finality. Page 3 of 5 Pa 7. As far a r as the decision of the Member, Board of R f Revenue, Odisha as per A r Annexure-1 is concerned, it is in connection tion with a proceeding as p s per the Odisha Mutation Manual, 1962 a against a decision in Muta utation Appeal No. 4 of 2008. Mr. Nayak, yak, learned AGA for the Stat State submits that enquiry was held and appar parently, in exercise of powe wers of review, since fraud was noticed, the he order in Mutation Appea peal No. 4 of 2008 was, therefore, upheld and and against any such mutatio tation in favour of the petitioner as per Ann nnexure-8. The contention o n of Mr. Rath, learned Senior Advocate is that that in such a proceeding as as per the Odisha Mutation Manual, the M Member, Board of Revenu enue, Odisha could not have reached at a co conclusion of having fraud ud being perpetuated at the instance of the ve vendor of the petitioner. Th The Court considering the circumstances unde nder which the mutation wa was disallowed by order in Mutation Appeal N al No. 4 of 2008 and ultima imately, affirmed by the Member, Board of R f Revenue, Odisha as per A r Annexure-1 with a conclusion arrived with ith a fraud being committed itted was uncalled for. So to say, the Cou ourt is in complete agreem reement with the contention of Mr. Rath, th, learned Senior Advocate ate for the petitioner morefully when the dec decision in Misc. Case No. 4 o. 43 of 2004 was not challenged and that apa apart, such mutation was all allowed with the issuance of RoR i.e. Annexur xure-8 and though immediat diately, thereafter, it was followed by an appe peal at the instance of the l e learned Tahasildar, Tangi, Choudwar, Cutta uttack. The proceeding as su s such is as per the provisions of the Odisha M a Mutation Manual and in t in terms of Section 32 of the OS&S Act, 1958 958 and in absence of any ny opportunity being provided to the vendo dor of the petitioner, no su such conclusion could have been arrived at re regarding fraud. So, there erefore, the Court is of the ultimate view t w that the Page 4 of 5 Pa decision in favou vour of the petitioner towards mutation in re respect of the schedule lan land, he having purchased under a validly e ly executed sale deed, could uld not have been tinkered with vide Annexur xure-9 and confirmed as per per Annexure-1, which is, therefore, susceptib tible to be interfered with a h and set aside. 8. 9. Hence, i e, it is ordered. In the e result, the writ petition stands allowed ed. As a necessary coroll rollary, the impugned order under Annexu exure-1 in connection with ith O.S.S Case No. 99 of 2012 by Member, B r, Board of Revenue, Odish isha, Cuttack and the order under Annexu exure-9 in Mutation Appea peal No.4 of 2008 by Sub-Collector, Cuttack is is hereby set aside. 10. A certifie tified copy of this order be issued as per rules. (R.K. Pattanaik) Judge kabita Signature Not Verified Digitally Signed Signed by: KABITARANI MAJHI Reason: Authentication Location: OHC,CUTTACK Date: 19-Dec-2024 19:50:36 Page 5 of 5 Pa