Orissa High Court
Basanta Panda vs State Of Odisha And Others .... Opp. ... on 15 September, 2021
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.3728 OF 2016
Basanta Panda .... Petitioner
Mr. B.P. Sathapathy, Advocate
-versus-
State of Odisha and others .... Opp. Parties
Mr. Swayambhu Mishra,
Additional Standing Counsel
(For Opposite Party Nos.1 to 4)
Mr. Prafulla Kumar Rath, Advocate
(For Opposite Party No.5)
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 15.09.2021 06. 1. This matter is taken up through hybrid mode.
2. This writ petition has been filed assailing the orders dated 6th November, 1993 and 8th October, 2015 passed by the Tahasildar, Chandabali-Opposite Party No.4 in Mutation Case No.12-C of 1993.
3. It is submitted by Mr. Satapathy, learned counsel for the Petitioner that the father of the Petitioner, namely, Banamali Panda and Sanatan Panda vide Registered Sale Deed dated 21st January, 1983 sold an area of Ac.0.48 decimals out of Plot No.518 under Khata No.77 in Mouza-Gopinathpur to the Opposite Party No.5, namely, Kartika Ojha. But, said Opposite Party No.5 by practizing fraud filed Mutation Case No.12-C of 1993 to mutate Plot No.517 in his name, which was never sold to him. The Tahasildar, Chandabali without making any proper enquiry vide his order dated 6th November, 1993 allowed the Page 1 of 4 // 2 // said mutation case. After death of his father, late Banamali Panda, the Petitioner came to know about recording of the said land in the name of Opposite Party No.5 for which he filed an application under Rule 43 of the Orissa Survey & Settlement Rules, 1962 (for short 'the Rules') for review of the said order. Although the Tahasildar, Chandabali in his order recorded that fraud has been practized in mutating Plot No.517 in favour of Opposite Party No.5, but refused to entertain the same on the ground that the order dated 6th November, 1993 was passed by his predecessor and he has no jurisdiction to entertain the review petition. Assailing the same, this writ petition has been filed. Relying upon the decision of this Court in the case of Alekh Chandra Rath and another -v- Commissioner of Land Records and Settlement, Orissa and others; reported in 1989 (II) OLR 135, Mr. Satapathy, learned counsel for the Petitioner submits that every court has got jurisdiction to recall its own order when it comes to his knowledge that there is apparent error on the face of the order itself. In that view of the matter, he prays for setting aside the order dated 6th November, 1993 as well as the order dated 8th October, 2015 under Annexure-4 series.
4. Mr. Rath, learned counsel for the Opposite Party No.5 vehemently objected to the same and submitted that review of the order passed in Mutation Case No.12-C of 1993 is not maintainable in view of the fact that the application was made after a lapse of more than 20 years. Further, although the statutory period for filing of an application under Rule 43 of the Rules is 30 days, no application for condonation of delay was Page 2 of 4 // 3 // filed accompanying the review application. The Tahasildar, Chandabali while disposing of the review application has given liberty to the Petitioner to file appeal, which has not been resorted to by the Petitioner. It is his submission that although Plot number has been wrongly mentioned in the sale deed, but the boundary given in the sale deed itself shows that Plot No.517 was sold to the Opposite Party No.5 by the father of the Petitioner along with Sanatan Panda. During their lifetime, they had never challenged the order dated 6th November, 1993 passed by the Tahasildar, Chandabali in Mutation Case No.12- C of 1993. Accordingly, he prays for dismissal of the writ petition.
5. Mr. Mishra, learned Additional Standing Counsel for the State submits that since there is a serious dispute with regard to the identity of the land, the revenue authorities cannot adjudicate the same and it can only be adjudicated by the competent civil court. It is submission that since the matter requires scrutinisation of facts, the appellate authority under the Rules can effectively adjudicate the same. As such, the writ petition is not maintainable and is liable to be dismissed.
6. Heard learned counsel for the parties and perused the materials available on record.
7. Admittedly the sale deed in question contains Plot No.518 stated to have been sold to Opposite Party No.5, but the mutation application in Mutation Case No.12-C of 1993 was filed in respect of Plot No.517 and the same was allowed vide order dated 6th November, 1993. Mr. Rath, learned counsel for the Opposite Party No.5 categorically submits that although Page 3 of 4 // 4 // Plot number has been wrongly reflected in the sale deed, but the boundary of the land sold in favour of Opposite Party No.5 discloses that it is Plot No.517 and not Plot No.518. It further appears that the review application under Rule 43 of the Rules was filed beyond the statutory period without accompanying a petition for condonation of delay. On perusal of the impugned order under Annexure-6, it clearly discloses that the Tahasildar, Chandabali taking into consideration the peculiar facts and circumstances of the case had given liberty to the parties to file appeal under Rule 42 of the Rules.
8. Since there is a factual dispute with regard to the identity of the case land, this Court in exercise of power under Rule 227 of the Constitution is not competent to adjudicate upon the same. As such, it is open to the Petitioner to move the competent court of law for redressal of his grievances.
9. With the aforesaid observation, this Court without interfering with the impugned orders passed in Mutation Case No.12-C of 1993, disposes of the writ petition.
Urgent certified copy of this order be granted on proper application.
(K.R. Mohapatra) Judge jm Page 4 of 4