Orissa High Court
Asutosh Mohapatra And Others vs Sk. Manwar Alli And Others ... Opposite ... on 31 March, 2026
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P(C) Nos. 24461, 7690, 7693, 7694,7696, 7698, 7772, 7797, 21983,
24185, 24207, 24423, 34745 of 2025 with W.P(C) Nos. 1069, 4483,
5117 of 2026
WP(C) No.24461 of 2025
Asutosh Mohapatra and others ... Petitioners
-versus-
Sk. Manwar Alli and others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioners : Mr. S.S. Bhuyan,
Advocate
Ms. S.Mohapatra,
Advocate
Mr. S Sahoo, Advocate.
-versus-
For Opposite Parties : Mr. S. K. Rath
Advocate.
WP(C) No.7690 of 2025
Kanak Manjari Sundaray ... Petitioner
-versus-
Satyabhama Sundaray
and others ... Opposite Parties
W.P.(C) No.24461/2025 and batch cases Page 1 of 37
Advocates appeared in the case through hybrid mode:
For Petitioner : M/S. N.K. Sahu, Sr. Advocate
Mr. Shib Shankar Mohanty,
Advocate
Mr. J. Dash, Advocate
Mr. A.P. Bose, Advocate
Mr. Ranjan Kumar Rout Ray,
Advocate
Mr. A.K. Das, Advocate
Mr. J. Sahoo, Advocate
Mr. K.L. Barik, Advocate.
-versus-
For Opposite Parties : M/S S.S.Rao(Sr.Adv.),
Sukant Kumar Nayak,
Advocate
S.S.K. Nayak, Advocate
B.B. Sahoo, Advocate
S. K. Routray, Advocate
Basudev Mohapatra,
Advocate
Prasanna Panda, Advocate
S. E. Haque, Advocate
B. K. Mohanty, Advocate
S.Sailaja, Advocate
M/S. Nityananda
Behuria, Advocate
Nityabrata Behuria,
Advocate
Braja Bhusan Sahoo,
Advocate
WP(C) No.7693 of 2025
Kanak Manjari Sundaray ... Petitioner
W.P.(C) No.24461/2025 and batch cases Page 2 of 37
-versus-
Satyabhama Sundaray
and others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : M/S. N.K. Sahu, Sr. Advocate
Mr. Shib Shankar Mohanty,
Advocate
Mr. A.P. Bose, Advocate
Mr. Ranjan Kumar Routray,
Advocate
Mr. A.K. Das, Advocate
Mr. J. Sahoo, Advocate
Mr. K.L. Barik, Advocate.
-versus-
For Opposite Parties : M/S S.S.Rao(Sr.Adv.),
Sukant Kumar Nayak,
Advocate
S.S.K. Nayak, Advocate
B.B. Sahoo, Advocate
S. K. Routray, Advocate
Basudev Mohapatra,
Advocate
Prasanna Panda, Advocate
S. E. Haque, Advocate
B. K. Mohanty, Advocate
S.Sailaja, Advocate
M/S. Nityananda
Behuria, Advocate
Nityabrata Behuria,
Advocate
Braja Bhusan Sahoo,
Advocate
W.P.(C) No.24461/2025 and batch cases Page 3 of 37
WP(C) No.7694 of 2025
Kanak Manjari Sundaray ... Petitioner
-versus-
Satyabhama Sundaray
and others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : M/S. Yashobanta Dash,
Sr.Advocate
Mr. Shib Shankar Mohanty,
Advocate
Mr. B.P. Nanda, Advocate
Mr. A.P. Bose, Advocate
Mr. Ranjan Kumar Rout Ray,
Advocate
Mr. A.K. Das, Advocate
Mr. J. Sahoo, Advocate
Mr. K.L. Barik, Advocate.
-versus-
For Opposite Parties : M/S S.S.Rao (Sr.Adv.),
Sukant Kumar Nayak,
Advocate
S.S.K. Nayak, Advocate
B.B. Sahoo, Advocate
S. K. Routray, Advocate
Basudev Mohapatra,
Advocate
Prasanna Panda, Advocate
S. E. Haque, Advocate
B. K. Mohanty, Advocate
S.Sailaja, Advocate
M/S. Nityananda
W.P.(C) No.24461/2025 and batch cases Page 4 of 37
Behuria, Advocate
Nityabrata Behuria,
Advocate
Braja Bhusan Sahoo,
Advocate
WP(C) No.7696 of 2025
Kanak Manjari Sundaray ... Petitioner
-versus-
Satyabhama Sundaray
and others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : M/S. Yashobanta Dash,
Sr. Advocate
Mr. Shib Shankar Mohanty,
Advocate
Mr. B.P. Nanda, Advocate
Mr. A.P. Bose, Advocate
Mr. Ranjan Kumar Rout Ray,
Advocate
Mr. A.K. Das, Advocate
Mr. J. Sahoo, Advocate
Mr. K.L. Barik, Advocate.
-versus-
For Opposite Parties : M/S S.S.Rao (Sr.Adv.),
Sukant Kumar Nayak,
Advocate
S.S.K. Nayak, Advocate
B.B. Sahoo, Advocate
S. K. Routray, Advocate
Basudev Mohapatra,
Advocate
W.P.(C) No.24461/2025 and batch cases Page 5 of 37
Prasanna Panda, Advocate
S. E. Haque, Advocate
B. K. Mohanty, Advocate
S.Sailaja, Advocate
M/S. Nityananda
Behuria, Advocate
Nityabrata Behuria,
Advocate
Braja Bhusan Sahoo,
Advocate
WP(C) No.7698 of 2025
Kanak Manjari Sundaray ... Petitioner
-versus-
Satyabhama Sundaray
and others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : M/S. Yashobanta Dash,
Sr.Advocate
Mr. Shib Shankar Mohanty,
Advocate
Mr. A.P. Bose, Advocate
Mr. Ranjan Kumar Routray,
Advocate
Mr. A.K. Das, Advocate
Mr. J. Sahoo, Advocate
Mr. K.L. Barik, Advocate.
-versus-
For Opposite Parties :M/S S.S.Rao (Sr.Adv.),
Sukant Kumar Nayak,
Advocate
S.S.K. Nayak, Advocate
W.P.(C) No.24461/2025 and batch cases Page 6 of 37
B.B. Sahoo, Advocate
S. K. Routray, Advocate
Basudev Mohapatra,
Advocate
Prasanna Panda, Advocate
S. E. Haque, Advocate
B. K. Mohanty, Advocate
S.Sailaja, Advocate
M/S. Nityananda
Behuria, Advocate
Nityabrata Behuria,
Advocate
Braja Bhusan Sahoo,
Advocate
WP(C) No.7772 of 2025
Kanak Manjari Sundaray ... Petitioner
-versus-
Satyabhama Sundaray
and others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : M/S. N.K. Sahu, Sr. Advocate
Mr. Shib Shankar Mohanty,
Advocate
Mr. B.P. Panda, Advocate
Mr. A.P. Bose, Advocate
Mr. Ranjan Kumar Routray,
Advocate
Mr. A.K. Das, Advocate
Mr. J. Sahoo, Advocate
Mr. K.L. Barik, Advocate.
-versus-
For Opposite Parties : M/S S.S.Rao(Sr.Adv.),
W.P.(C) No.24461/2025 and batch cases Page 7 of 37
Sukant Kumar Nayak,
Advocate
S.S.K. Nayak, Advocate
B.B. Sahoo, Advocate
S. K. Routray, Advocate
Basudev Mohapatra,
Advocate
Prasanna Panda, Advocate
S. E. Haque, Advocate
B. K. Mohanty, Advocate
S.Sailaja, Advocate
M/S. Nityananda
Behuria, Advocate
Nityabrata Behuria,
Advocate
Braja Bhusan Sahoo,
Advocate
WP(C) No.7977 of 2025
Kanak Manjari Sundaray ... Petitioner
-versus-
Satyabhama Sundaray
and others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : M/S. N.K. Sahu, Sr. Advocate
Mr. Shib Shankar Mohanty,
Advocate
Mr. B.P. Panda, Advocate
Mr. A.P. Bose, Advocate
Mr. Ranjan Kumar Routray,
Advocate
Mr. A.K. Das, Advocate
Mr. J. Sahoo, Advocate
Mr. K.L. Barik, Advocate.
W.P.(C) No.24461/2025 and batch cases Page 8 of 37
-versus-
For Opposite Parties : M/S S.S.Rao(Sr.Adv.),
M/S Sushant Kumar
Nayak, Advocate
S.S.K. Nayak, Advocate
B.B. Sahoo, Advocate
S. K. Routray, Advocate
Basudev Mohapatra,
Advocate
Prasanna Panda, Advocate
S. E. Haque, Advocate
B. K. Mohanty, Advocate
S.Sailaja, Advocate
M/S. Nityananda
Behuria, Advocate
Nityabrata Behuria,
Advocate
Braja Bhusan Sahoo,
Advocate
WP(C) No.21983 of 2025
Asutosh Mohapatra and others ... Petitioners
-versus-
Sk.Manwar Alli and others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioners : Mr. S. Mohapatra,
Advocate
Mr. S.Sahoo, Advocate
Mr. S.S. Bhuyan, Advocate
-versus-
W.P.(C) No.24461/2025 and batch cases Page 9 of 37
For Opposite Parties : Mr. S.K. Rath, Advocate,
Mr. P.K. Panda, Advocate
WP(C) No.24185 of 2025
Asutosh Mohapatra and others ... Petitioners
-versus-
Sk.Manwar Alli and others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioners : Mr. Suryasnata
Mohapatra, Advocate
Mr. S.Sahoo, Advocate
Mr. S. S.Bhuyan, Advocate
-versus-
For Opposite Parties : Mr. Soubhagya Kumar
Rath, Advocate
WP(C) No.24207 of 2025
Asutosh Mohapatra and others ... Petitioners
-versus-
Sk.Manwar Alli and others ... Opposite Party
W.P.(C) No.24461/2025 and batch cases Page 10 of 37
Advocates appeared in the case through hybrid mode:
For Petitioners : Mr. S. Mohapatra,
Advocate
Mr. S.Sahoo, Advocate
Mr. S.S. Bhuyan, Advocate
-versus-
For Opposite Parties : None.
WP(C) No.24423 of 2025
Asutosh Mohapatra and others ... Petitioners
-versus-
Sk.Manwar Alli and others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioners : Mr. S. Mohapatra,
Advocate
Mr. S.Sahoo, Advocate
Mr. S.S. Bhuyan, Advocate
-versus-
For Opposite Parties : Mr. R.K. Mohanty, Sr.
Advocate,
Ms. Sumitra Mohanty,
Advocate,
Mr. K.K. Mohapatra,
Advocate,
Mr. S.S. Bhuyan, Advocate,
Mr. P.K. Panda, Advocate
WP(C) No.34745 of 2025
W.P.(C) No.24461/2025 and batch cases Page 11 of 37
Asutosh Mohapatra and others ... Petitioners
-versus-
Sk.Manwar Alli and others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioners : Mr. S. Mohapatra,
Advocate
Mr. S.Sahoo, Advocate
Mr. S.S. Bhuyan, Advocate
-versus-
For Opposite Parties : None
WP(C) No. 1069 of 2026
Uttam Kumar Panigrahi
and others ... Petitioners
-versus-
State of Odisha and others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioners : Mr. Dillip Ku. Mohapatra,
Advocate Mr. Ch. B.
Mohapatra, Advocate
Mr. S. Mohapatra, Advocate
W.P.(C) No.24461/2025 and batch cases Page 12 of 37
-versus-
For Opposite Parties : Mr.P.V. Balakrishna,
Advocate
WP(C) No. 4483 of 2026
Debasis Chakrabarty @ Chakravarty
and another ... Petitioners
-versus-
State of Odisha and others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioners : Mr. Raj Kumar Sutar,
Advocate
Mr. N. Maharana, Advocate
Mr. S. Mohanty, Advocate
-versus-
For Opposite Parties : None
WP(C) No. 5117 of 2026
P. Bhaskar Patro ... Petitioner
-versus-
State of Odisha and others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
W.P.(C) No.24461/2025 and batch cases Page 13 of 37
For Petitioner : Ms. Deepali Mahapatra,
Advocate
-versus-
For Opposite Parties : None
---------------------------------------------------------------------------
CORAM:
JUSTICE SASHIKANTA MISHRA
ORDER
31.03.2026 Sashikanta Mishra, J. In all these Writ Petitions, a common preliminary question as to maintainable of writ petitions arises for determination-
Whether an order passed in mutation appeal under Rule 42 of the Orissa Survey and Settlement Rules, 1962 (OSS Rules) is revisable under Section 32 of the Orissa Survey and Settlement Act (OSS Act) read with Paragraph-111 of the Mutation Manual.
In all these cases, the orders passed in different mutation appeals are impugned.
2. For convenience, the facts of W.P.(C) No.24461/2025 are taken up for consideration.
Facts.
3. One Kulamani Mohapatra was the original recorded owner of the property in question, who died issueless. The W.P.(C) No.24461/2025 and batch cases Page 14 of 37 property devolved upon the Petitioners by way of survivorship and they are in possession. One Birendra Pattanaik, brother-in-law of late Kulamani, looked after the education of the children of his brother-in-law. The names of Kunmun Mohapatra, Anamika Mohapatra, Kabita Sahoo and Gayatree Mohapatra were recorded in the ROR in the settlement operation by treating them as successors of late Kulamani. Subsequently, they illegally alienated the property through a registered sale deed dtd.20.5.2023 in favour of the Opp.Party No.1. The Petitioners, therefore, filed a civil suit being C.S. No.347/2023 in the Court of learned Civil Judge, Jagatsinghpur for cancellation of the sale deed and declaration of their right, title and interest. The Petitioners also filed application under Order XXXIX Rules 1 and 2 for temporary injunction, which was allowed. Opposite Party No.1 challenged the order of injunction in appeal before the learned District Judge, Jagatsinghpur in F.A.O. No.54/2023, whereby the order of the trial Court was reversed. Challenging the order of the appellate Court, the Petitioners have approached this Court in CMP No.1501/2024, wherein an order of status quo was passed, W.P.(C) No.24461/2025 and batch cases Page 15 of 37 which is still in operation. In the meantime, the Opposite Party No.1 filed six mutation cases before the Tahasildar, Tirtol for correction of ROR on the basis of the sale deed. All such cases were rejected on the ground that the sale deed was executed without consent of all the recorded tenants/legal heirs. Opposite Party No.1 thereafter preferred appeal being Mutation Appeal No.160/2023 before the Sub-Collector, Jagatsinghpur. Said appeal was allowed. Challenging such order passed in Mutation Appeal, the present Writ Petition has been filed.
4. A doubt having arisen as to whether the order of the appellate authority is revisable before the Board of Revenue under Section 32 of the OSS Act or not, particularly in view of the conflicting judgments passed by this Court in different cases, the matter was heard extensively on this point.
Submissions
5. Heard Mr. B.B. Bhuyan, learned Senior counsel with Mr. S.S.Bhuyan, Mr. N.K.Sahu, learned Senior counsel with Mr. S.S.Sahu, Ms. Deepali Mahapatra, Mr. Bijay Mohapatra and Mr. R.K.Mohanty, learned Senior counsel W.P.(C) No.24461/2025 and batch cases Page 16 of 37 with Mrs. Sumitra Mohanty for the Petitioners. Also heard Mr. S.N.Patnaik, learned Addl. Government Advocate and Smt. J. Sahoo, learned Addl. Standing Counsel, for the State.
6. Learned Senior counsel Mr. B.B.Bhuyan submits that the revision under Section 32 of the OSS Act cannot be treated as an alternative remedy for a person aggrieved by order passed in Mutation Appeal. He further submits that the power of revision can be exercised by the Board of Revenue suo motu only against orders passed by Revenue authorities against whose decision no appeal lies. Alternatively, Mr. Bhuyan argues that this Court, exercising writ jurisdiction has plenary powers and can exercise jurisdiction even if alternative remedy is available.
7. Learned Senior counsel Mr. N.K.Sahu refers to different statutory provisions such as Section 16 of the of the OSS Act and Rules 32,33,34,35,41,42 and 43 of the OSS Rules, 1962. He also refers to Section 32 of the OSS Act to submit that the expression "from whose decision no appeal lies" clearly implies that the order passed in Mutation Appeal is not included in its purview. With regard W.P.(C) No.24461/2025 and batch cases Page 17 of 37 to Para-111 of the Odisha Mutation Manual, 1962, Mr. Sahu submits that the same being in the nature of an executive instruction and not authenticated in the manner prescribed under Article 166(2) of the Constitution nor notified in the official gazette, does not have force of law. Mr. Sahu further submits that the power under Section 32 can be exercised in relation to an order passed before publication of the ROR. The statute provides specific remedy to any person aggrieved by final publication of ROR under Section 15 of the OSS Act.
8. Ms. Deepali Mahapatra also refers to Paragraph 111 of the Mutation Manual to submit that the same is not 'Law' within the meaning of Article 13(3)(a) and13(3)(b) of the Constitution of India. It is a mere executive instruction having no binding force. Ms. Mahapatra submits that any person aggrieved by the final publication of ROR can seek redressal under Section 15(b) of the OSS Act.
9. Mr. Bijay Mohapatra, while adopting the arguments made by the two Senior counsel and Ms. Mohapatra, further submits that the word 'officer' appearing in Section 32 has not been specifically defined in the OSS Act. Section W.P.(C) No.24461/2025 and batch cases Page 18 of 37 2(2) refers to Asst. Settlement Officer, Section 2(3) refers to Chief Survey Officer, while Section 2(10) refers to Settlement Officer and Section 2(13) refers to Survey Officer. So according to Mr. Mohapatra, any orders passed by these authorities alone are subject to revisional jurisdiction under Section 13. Referring to the OSS Rules, Mr. Mohapatra submits that the word 'Tahasildar' has been defined as the Chief Officer in charge of revenue administration of a Tahasil and includes an Additional Tahasildar and any other officer who has been appointed to discharge any of the functions of the Tahasildar. As per Rule 42, appeal lies to the Settlement Officer if the order is made by the Asst. Settlement Officer exercising power of the Tahasildar or to the Sub-Divisional Officer if the order is passed by any other officer exercising the powers of Tahasildar. Mr. Mohapatra also refers to the provisions under the Act and Rules relating to revision and submits that the same are not available against any order passed in mutation appeal.
10. As against the contentions noted above, learned Senior counsel Mr. R.K.Mohanty submits that there are W.P.(C) No.24461/2025 and batch cases Page 19 of 37 conflicting judgments of this Court. He refers to a judgment of Jaysankar Agarwal v. Collector, Puri and another1 and the judgment rendered in Sushanta Kumar Das v. Sub-Collector, Bhubaneswar & Others2 by a co- ordinate Bench of this Court. In the first judgment, it has been held that the order passed in mutation appeal is not revisable. In later judgment, a contrary view has been taken by holding that order passed in mutation appeal is revisable.
11. Also, the learned counsel for the Petitioners further submits that even if this Court finds that the order passed in mutation appeal is revisable under Section 32 of the OSS Act, the same cannot be treated as an absolute bar to the maintainability of the writ petitions. Placing reliance on the judgments of the Supreme Court in Whirlpool Corporation v. Registrar of Trade Marks3 and Godrej Sara Lee Ltd. v. Commr. (AA)4, , it is contended by the learned counsels that the power of this Court under Article 226 of the Constitution is plenary in nature and can be 1 2004(1) OLR 538 2 W.P.(C) No.1031/2013 3 (1998 )8 SCC 1 4 (2009) 14 SCC 338 W.P.(C) No.24461/2025 and batch cases Page 20 of 37 exercised notwithstanding the availability of an alternative remedy.
Analysis and findings
12. It would be profitable at the outset to refer to the scheme of the OSS Act in so far as the same relates to preparation of RORs. Chapter III is titled 'Record of Rights' under which Section 11 confers power on the Government to prepare RORs, Section 12 provides for preliminary publication of draft RORs and hearing of objections by the Asst. Settlement Officer. Appeal lies against the order passed under Section 12 to the Settlement Officer under Section 12A. Final publication of RORs is governed by Section 12B. Once the ROR has been finally published, the Board of Revenue has power to exercise revisional jurisdiction under Section 15. Section 16 provides that the map and the RORs shall be kept up-to-date and maintained. If the need arises to effect any changes in the ROR finally published, the procedure therefor is laid down in the Rules. Be it noted that the OSS Rules, 1962 have been framed by the State exercising power under Section 43 of the Act.
W.P.(C) No.24461/2025 and batch cases Page 21 of 37
13. The word 'Mutation' has not been expressly defined either in the Act or in the Rules.
The Law Lexicon (2nd Edition) defines 'Mutation' as follows;
"A significant or basic alteration of the name of a person by the name of another in relation to property in the record showing right or title to the property"
14. Thus, plainly speaking, mutation refers to change and in the present context to the entries in a record of right. Chapter-IV contains Rule 34, which deals with correction of RORs and map and reads as follows:
"34. Grounds on which correction of the record- of-rights and map is to be made - The Tahasildar may on application in that behalf of any person interested or on receipt of a report from any of his subordinate officers or on receipt of a notice from the Registrar or Sub-Registrar appointed under the Indian Registration Act, 1908, or from a Court or on his own motion, order [* * *] any charge of any entry in the record-of-rights according to the rules hereinafter prescribed on any one or more of the following grounds, namely :
(a) that all persons interested in any entry in the record-of-rights wish to have it changed;
(b) that by a decree in a civil suit, any entry therein has been declared to be erroneous;
(c) that being founded on a decree or order of a Civil Court or on the order of any competent authority, the entry therein is not accordance with such decree or order;
(d) that such decree or order has subsequently been varied on appeal, revision or review;
(e) that any entry therein has no relationship with the existing facts; and W.P.(C) No.24461/2025 and batch cases Page 22 of 37
(f) that by preparation of a survey record under Chapter II of the Act, any change is necessitated in the record-of-rights"
15. An entry in the ROR can be changed on any one or more of the grounds enumerated under Rule 34. Rule 35 relates to registration of proceedings for change in RORs and reads as follows;
"35. Registration of proceedings- All proceedings commenced on a report, application or otherwise under this Chapter shall be registered as mutation cases and each such case shall be numbered and entered in register in Form No.8 to be called the Mutation Register:
Provided that changes in any entry of the record-of- rights arising out of an order to decree of Revenue or a Civil Court or the order of a Tribunal constituted under any law for the time being in force shall be numbered and entered in the Register as separate cases and carried out by the Tahasildar immediately on receipt of such order or decree, as the case may be, and it shall not be necessary to commence a Mutation Proceeding for that purpose."
16. These cases are to be registered as mutation cases. Rule 41 provides the manner of disposal of mutation applications. Rule 42 provides the remedy of appeal and reads as follows:
"42. Appeal- (1)An appeal from any final order made under Rule 41 shall lie -(i)if the original order was made by an Assistant Settlement Officer exercising the powers of the Tahasildar under those rules and working under the administrative control of the Settlement Officer, to the Settlement Officer; and(ii)if the original order was made by any other officer exercising the powers of the Tahasildar under these W.P.(C) No.24461/2025 and batch cases Page 23 of 37 rules, to Sub-divisional Officer.(2)Every such appeal must be presented within thirty days from the date of the order appealed against."
17. Now, it is to be considered whether the order passed under Section 42 can be revised by any higher authority. It is significant to note that Section 42-A provides for revision and reads as follows:
"42-A. Revision- the Collector may, of his own motion or otherwise, call for and examine records of any proceedings in which orders have been passed under Rules 34, 42 and 43 by the Tahasildar (or any Officer authorized by him under Rule 34) of Sub-Collector, as the case may be, in respect of any Govt. land, for the purpose of satisfying himself that such order was not passed under mistake of fact or owing to any fraud or misrepresentation or on account of any material irregularity of procedure and may pass such order thereon as he thinks proper:
Provided that no order shall be passed under this rule, unless the person affected by the proposed order has been given a reasonable opportunity of being heard in the matter:
Provided further that no proceedings under this rule shall be intimated after the expiry of thirty years from the date of order."
18. As can be seen, an order passed under Rule 42 is revisable but only in respect of Government land. It is argued that had it been the intention of the legislature to provide the remedy of revision in respect of all lands- Government and private- it would have stated so in Rule W.P.(C) No.24461/2025 and batch cases Page 24 of 37 42-A instead of limiting it to Government lands only. Thus, according to learned counsel for the petitioners, from the scheme of the Act and Rules as reflected in the relevant provisions quoted herein-before, the order passed under Rule 42 is not revisable in so far as it relates to land other than Government lands.
The above argument appears acceptable on the face of it, but on deeper scrutiny, it is not so. While it is true that the Rules do not specifically provide a remedy of revision against orders passed under Rule 42 (appellate orders) in respect of lands other than Government lands but absence of the same cannot be treated as an absolute bar against revision, more so as there is no provision in the Rules debarring the same. The contrary view would impinge upon the general power of revision conferred on the Board of Revenue by the statute under Section 32. It is trite law that Rules being subordinate legislation cannot override the main statutory enactment. Reference in this regard may be had to the case of Babaji Kondaji Garad v. Nasik W.P.(C) No.24461/2025 and batch cases Page 25 of 37 Merchants Coop. Bank Ltd.5, wherein the Supreme Court observed as follows:
15. Section 73-B provides a legislative mandate.
Rule 61 has a status of subsidiary legislation or delegated legislation. Bye-law of a Cooperative society can at best have the status of an article of association of a company governed by the Companies Act, 1956 and as held by this Court in Cooperative Central Bank Ltd. v. Additional Industrial Tribunal, Andhra Pradesh [(1969) 2 SCC 43 : (1970) 1 SCR 205] the bye-laws of a Cooperative society framed in pursuance of the provision of the relevant Act cannot be held to be law or to have the force of law. They are neither statutory in character nor they have statutory flavour so as to be raised to the status of law. Now if there is any conflict between a statute and the subordinate legislation, it does not require elaborate reasoning to firmly state that the statute prevails over subordinate legislation and the bye-law if not in conformity with the statute in order to give effect to the statutory provision the rule or bye-law has to be ignored. The statutory provision has precedence and must be complied with. Further the opinion of the Deputy Registrar as expressed in his circular dated February 1, 1979 and his letter dated June 4, 1979 has no relevance because his lack of knowledge or misunderstanding of law as expressed in his opinion has no relevance. The High Court relying upon the aforementioned two documents observed as under:
XX XX XX."
[Emphasis added] Reiterating the same, the Supreme Court in a recent case of Nova Ads v. Metropolitan Transport Corpn.6 has held that the Rules cannot override statute.5
(1984) 2 SCC 50 6 (2015) 13 SCC 257 W.P.(C) No.24461/2025 and batch cases Page 26 of 37
19. Before proceeding further, it would be proper to refer to the provision under Section 32 of the Act, which is reproduced below:
"32. Power to call for and revise proceedings of Revenue Officers- The Board of Revenue may call for the record of any Proceeding [any Officer] from whose decision no appeal lies if such Officer appears to have exercised a jurisdiction not vested in him by law or to have failed to exercise a jurisdiction so vested or while acting in the exercise of his jurisdiction to have contravened some express provision of law affecting the decision on the merits where such contravention has produced a serious miscarriage of justice and the Board of Revenue after hearing the parties if they attend, shall pass such order as it deems fit."
(Emphasis Added) This is obviously a general power conferred on the Board of Revenue to be exercised in cases indicated therein.
20. Admittedly, neither the Act nor the Rules provide for any further appeal against the order passed under Rule 42. Much has been argued as regards the status of Mutation Manual. This Court does not deem it necessary to examine whether the said Manual can be treated as ''Law" within the meaning of Article 13(a) of the Constitution of India or not. It is common ground that it is an executive instruction meant to supplement the provisions of the Act and Rules and not act contrary thereto. Paragraph-111 of the manual W.P.(C) No.24461/2025 and batch cases Page 27 of 37 has been referred to by learned counsel for the Petitioners to urge that the nature of proceeding under Section 32 of the Act has been clarified. The paragraph reads as follows:
"111. Under Sec. 32 of the Act, the Board of Revenue have powers, with or without petition, to call for and revise any proceedings before any Officer from whose decision no appeal lies. The fact that the Board of Revenue have been vested with this power of revision of any proceedings at any time does not mean that any party to a mutation proceeding can, as a matter of course, move the Board for changing an order passed by a subordinate authority. The statutory rule does not provide for a second appeal or revision after the first appeal and in the absence of such a specific provision the general powers conferred by Sec. 32 cannot be invoked to utilise the Board of Revenue as a Court of second appeal. Powers of control and supervision by the superior authority are discretionary and the authorities exercising such powers are not ordinarily disposed to interfere except in the following classes of cases, namely:
(a) where a subordinate officer has improperly refused to exercise a jurisdiction vested in him, or
(b) where such officer in the exercise of the jurisdiction has failed in his duty or has contravened some express provision of law affecting the decision on the merits, and where such contravention has produced a serious miscarriage of justice, or
(c) generally where it is necessary for the purpose of preventing gross abuse or gross injustice."
(Emphasis added)
21. The words employed in paragraph-111 are self- explanatory. It is clarified in no uncertain terms that Section 32 does not provide a forum of second appeal in the garb of revision. It is well settled that appeal is a creature of statute. Unless the statute expressly provides the remedy of appeal, no authority can exercise such W.P.(C) No.24461/2025 and batch cases Page 28 of 37 power. As already stated, neither the Act nor the Rules provide the remedy of appeal against an order passed under Rule 42 of the Act. That being so, paragraph-111 in so far as it mentions that the general power conferred by Section 32 cannot be invoked to utilize the power of Board of Revenue as a Court of Second Appeal, cannot in any manner encroach upon such power conferred on the Board of Revenue by the statute to revise an appellate order. Otherwise, it would be a case of an executive instruction overriding the statute, which needless to mention, cannot be countenanced in law. Thus, this Court holds that neither the Rules nor the executive instruction (Mutation Manual) can operate to curb the power of the Board of Revenue conferred by Section 32 of the Act. It is in this context that the expression 'from whose decision no appeal lies' occurring in Section 32 is to be understood. As already stated, neither the Act nor the Rules provide for further appeal against the order passed by the appellate authority under Rule 42 of the Rules. There is, therefore, no reason as to why the afore-quoted expression shall not be held to W.P.(C) No.24461/2025 and batch cases Page 29 of 37 be applicable to orders passed by the appellate authority also.
22. It is to be noted that the power under Section 32 is subject to the limitations expressly mentioned therein, namely; (i) If the officer appears to have exercised a jurisdiction not vested in him by law; or (ii) to have failed to exercise his jurisdiction so vested; or (iii) while acting in the exercise of his jurisdiction, has acted in contrary of some express provision of law affecting the decision on the merits resulting in serious miscarriage of justice.
23. It may be mentioned in passing that this power is more or less similar to the power of revision conferred under Section 115 of C.P.C. The legislature in its wisdom has narrowed the scope of challenge in revision to orders passed by sub-ordinate Revenue Officers. Obviously, this cannot be a ground to by-pass the remedy of revision and invoke the extra-ordinary writ jurisdiction of this Court. This Court therefore, holds that the order passed by the appellate authority under Rule 42 of the Act is revisable under Section 32 of the Act.
W.P.(C) No.24461/2025 and batch cases Page 30 of 37
24. As regards the contention of the learned counsel for the petitioners regarding the maintainability of the writ petition, this Court has given its anxious consideration to the submissions. There is no dispute with regard to the proposition of law laid down in Whirlpool Corporation (Supra) that the existence of an alternative remedy does not operate as an absolute bar to the exercise of writ jurisdiction. It is well settled that, in exceptional cases, such as (i) where the writ petition has been filed for enforcement of any of the Fundamental Rights guaranteed under Part III of the Constitution, (ii) where there has been violation of the principles of natural justice, (iii) where the order or proceeding is wholly without jurisdiction, or (iv) where the vires of a statute is under challenge, this Court may entertain a writ petition notwithstanding the availability of an alternative remedy.
However, it is equally well settled that the power under Article 226 being discretionary in nature, is not to be exercised routinely. Where the statute provides an efficacious remedy for redressal of grievance, this Court would be slow in entertaining a writ petition bypassing W.P.(C) No.24461/2025 and batch cases Page 31 of 37 such statutory remedy. The rule of exhaustion of alternative remedy is a rule of self-imposed restraint and is founded on sound principles of judicial discipline.
In the present batch of cases, none of the exceptions as noted above are attracted. The grievance raised pertains to the correctness of orders passed in mutation appeal by the appellate authority within its jurisdiction. Mere allegation of illegality in such orders cannot be a ground to invoke writ jurisdiction by bypassing the statutory remedy. Precedents
25. Learned Senior counsel Mr.R.K.Mohanty has argued that there are conflicting judgments rendered by different benches of this Court. Mr. Mohanty first refers to the judgment passed by a coordinate Bench in the case of Sushanta Kumar Das (Supra) wherein it was held that revision is maintainable against an order passed in 'mutation appeal'. Mr. Mohanty further cites the judgment of this Court in the case of Jaysankar Agrawal (Supra), wherein it was held that the 'mutation order' passed under Chapter-IV of the Rules being appealable, that order is not revisable under Section 32. In the case of Maheswar W.P.(C) No.24461/2025 and batch cases Page 32 of 37 Nayak vs. Commissioner Land Records and Settlement and others7 another Bench held that there is no scope for undertaking a revision exercise under Section 32 against an order passed in mutation appeal.
26. The earliest judgment cited at the bar being that in the case of Jaysankar Agrawal (supra), it would be proper to first refer to it. The Court, in the said judgment referred to different provisions contained in Chapter-IV of the Rules and observed as follows:
"Be that as it may, Section 32 of the Act provides the power of Revision on the Board of Revenue against non-appealable orders to consider legality and propriety of such order and also to examine jurisdictional error in such orders. Therefore, the mutation order passed under Chapter IV of the Rules being appealable, that order is not revisable under Section 32. Section 33 of the Act provides that Government by Notification, may delegate the power of the Board of Revenue to an officer not below the rank of Revenue Divisional Commissioner. On a combined reading of the aforesaid provisions it is seen that the provision of law in the Act and the Rules has not invested power or jurisdiction on the Collector to entertain a Misc. application to set aside an order of mutation or to revise the same with an order of remand."
(Emphasis Added) The above was a case where the Collector exercised jurisdiction to set aside an order passed in a mutation 7 (O.J.C. No.7134/2001) W.P.(C) No.24461/2025 and batch cases Page 33 of 37 case. The Court held that neither the Act nor the Rules vested jurisdiction with the Collector to exercise appellate or supervisory jurisdiction, noting that under Rule 42, Settlement Officer/Sub-Divisional Officer is the appellate authority. Since the mutation order passed under Chapter- IV of the Rules is appealable, the same is not revisable under Section 32. Obviously, the facts of the said case are entirely different from the present cases, where the question is whether the order passed by the appellate authority is revisable or not.
27. The next case is that of Maheswar Nayak (supra), wherein the Court considered the effect of Section 32 and Paragraph-111 of the Mutation Manual and observed as follows;
" xxx xxx xxx xxx xxx xxx xxx
7. Reading through the provisions at Section 32 of the Act, 1958, this Court finds, in the Section 32 of the Act, 1958 power lies with the Board of Revenue or the Commissioner and for the notification therein such power is to be exercised only involving the proceedings undertaken by the Revenue Officers. Section 32 further discloses that the Revision power is to be exercised involving the proceedings of the Revenue Officer, but however, where there is no scope of appeal. Similarly reading through the provision at paragraph no.111 of the Mutation Manual this Court again finds, there has been further clarification to the provision involving revisional power of the Board of Revenue or any authorized Officer. For there is raising of doubt, whether a proceeding U/s.22(2) of the O.S.S. W.P.(C) No.24461/2025 and batch cases Page 34 of 37 Act, 1958 will be an appeal in the eye of law or an original proceeding? This Court here takes into account the provision at proviso (c) of the rule 59 of the O.S.S. Rules, 1962, which reads as follows:
"(c) Proceedings relating to publication of the combined draft record-of-rights and Settlement Rent Roll, filing of objections to any entry therein or omission therefrom, disposal of such objections, revision of rent by the Assistant Settlement Officer, sanction of the settled rent and modification of order of the Assistant Settlement Officer, by the Settlement Officer shall be carried on in accordance with provisions of Sections 21 and 22 and Rules 26 and 27:
Provided that an application under Clause (b) of Subsection (2) of Section 22 shall be deemed to be an appeal under Section 12-A and no separate appeal shall lie under the said section This Court for the clarification through the proviso (c) of Rule 59 of the O.S.S, Rules, 1962 finds, there should be no doubt that the proceedings undertaken in exercise of power under Subsection 2 of Section 22 is appeal.
8. Reading both the provisions and keeping in view that undisputedly the original proceeding is already taken care of in appeal vide Appeal No.2299 of 1983 under the provisions of Section 22(2) of the Act, 1958, this Court is of the clear opinion that there was no scope for undertaking a revision exercise U/s.32 of the Act, 1958.
In the circumstance, this Court finds, the revision itself is not entertainable. Impugned order involving the Revision No.3972 of 1997 arising out of Appeal No.2299 of 1983 remains void and unenforceable. For the decision of this Court holding the revision per se not entertainable, there is no necessity to go to any other aspect involving challenge to the revision order.
In the above case, the matter involved challenge to an order passed under Section 22(2) of the Act. Section 22 relates to settlement of rent and does not concern orders passed in mutation proceedings, which are governed W.P.(C) No.24461/2025 and batch cases Page 35 of 37 by Section 16 of the Act and the corresponding Rules contained in Chapter-IV of the Rules. The cited case is therefore, clearly distinguishable from the facts of the present case.
28. In the case of Sushanta Kumar Das (supra), a co- ordinate Bench held that a revision should have been filed against the order passed in mutation appeal instead of filing writ petition.
29. This Court, after independently analyzing the statutory provisions and the scheme and object embedded therein, as narrated hereinbefore, feels persuaded to follow the reasoning adopted in Sushanta Kumar Das (supra) and holds accordingly.
Conclusion
30. Thus, from a conspectus of the analysis of the relevant statutory provisions and the precedents cited at the bar, coupled with the contentions raised and the discussions made, this Court holds that the order passed in Mutation Appeal is revisable under Section 32 of the OSS Act. Consequently, the Writ Petitions are held not maintainable.
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31. In the result, the Writ Petitions are disposed of leaving it open to the Petitioners to prefer revision under Section 32 of the Act against the impugned order, if so advised.
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Sashikanta Mishra, Judge Ashok Kumar Behera Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 06-Apr-2026 11:33:42 W.P.(C) No.24461/2025 and batch cases Page 37 of 37