Orissa High Court
Prasanna Kumar Routray vs Member on 2 August, 2022
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.40812 OF 2021
Prasanna Kumar Routray ..... Petitioner
Mr. Prafulla Kumar Rath, Advocate
-versus-
Member, Board of Revenue, Odisha .... Opp. Parties
and other
Mr. Ajodhya Ranjan Dash,
Additional Government Advocate
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 02.08.2022 9. 1. This matter is taken up through Hybrid mode.
2. Order dated 26th November, 2021 (Annexure-1) passed by learned Member, Board of Revenue, Odisha, Cuttack in OSS Revision Case No.714 of 2017 is under challenge in this writ petition.
3. The case has a chequered history. The property in question, i.e., Plot No.223 under Khata No.300 was recorded in the name of Taponidhi Ganasar Bharati Gossain Bije Puri, Marfat Maharaja Rama Chandra Deb in 1931 Settlement. The said land corresponds to Plot No.73 under Khata No.397 of 1973 Settlement and Consolidation Plot No.97 under Khata No.456 to an extent of Ac.0.26 decimal out of Ac.1.74 decimal (hereinafter referred to as 'case land' for convenience). The ex- intermediary had executed a deed of settlement (Hata Patta) in favour of Kapila Das on 5th March, 1944 for Ac.0.26 decimal Page 1 of 10 // 2 // (the case land). Said Kapila Das enjoyed the case land on payment of rent to ex-intermediary, Sri Gajapati Maharaja Birakishore Deb. Bhabagrahi Das, the vender of the Petitioner is the son of said Kapila Das. In 1973 Settlement, the case land was recorded in government khata. Subsequently, consolidation ROR was published in the name of the Government. Accordingly, said Bhabagrahi Das filed TS No.154 of 1993 impleading Collector, Cuttack, Tahasildar, Sadar Cuttack and Gajapati Maharaja Dibya Singh Deb and others as parties. The said suit was decreed ex-parte vide judgment date 13th May, 1998 with the following order:-
"ORDER The suit be and the same is decreed ex-parte without costs. The Plaintiff's title over the suit Schedule-A land is hereby declared and the possession of Plaintiff thereof is confirmed. It is further declared that the wrong entry made in the settlement as well as the consolidation R.O.R. shall not affect the Plaintiff's title over the suit Schedule-A land and Deft. Nos.2 & 3 are permanently restrained not to interfere with the possession of Plaintiff over the suit Schedule-A land."
3.1 After the ex-parte decree was passed, said Bhabagrahi sold the case land to the Petitioner by virtue of RSD dated 22nd May, 2005 and delivered with possession. The Petitioner after purchasing the case land applied for mutation before Tahasildar, Sadar Cuttack vide Mutation Case No.1835 of 2008. However, Tahasildar, Sadar Cuttack did not take any action for its disposal. Being aggrieved by the inaction of Tahasildar, Sadar Cuttack, Petitioner preferred W.P.(C) No.911 of 2016 before this Court, which was disposed of on 5th February, 2016 with a direction to Tahasildar, Sadar Cutack to Page 2 of 10 // 3 // dispose of Mutation Case No.1835 of 2008 within a period of three months from the date of production of certified copy of the said order. The Tahasildar, after receiving certified copy of the said order, vide order dated 10th May, 2016 (Annexure-9) rejected Mutation Case No.1835 of 2009. Assailing the same, the Petitioner preferred Mutation Appeal No.109 of 2016 before Sub-Collector, Sadar Cuttack, who allowed the appeal vide order dated 20th December, 2016 (Annexure-10) with the following direction:-
"In view of the above analysis when the status of the case is as above, the order under challenge in this appeal is set aside. Tahasildar, Cuttack Sadar is directed to mutate the case land in favour of the appellant if there is no any other legal impediment.
Appeal is disposed of accordingly."
3.2 Upon receipt of the order passed by Sub-Collector, Cuttack Sadar, Tahasildar, Cuttack Sadar did not take any action on the same, for which the Petitioner again approached this Court by filing W.P.(C) No.6968 of 2017, which was disposed of vide order dated 26th April, 2017 with the following direction:-
"In that view of the matter, the Tahasildar, Sadar, Cuttack is directed to carry out the orders passed by the learned Sub-Collector, Sadar, Cuttack on 20.12.2016 in Mutation Appeal No.109 of 2016 within a period of fifteen days of receipt of certified copy of this order. He is directed to act upon production of certified copy of this order."
3.3 In spite of direction of this Court, Tahasildar, Sadar Cuttack did not take any step for disposal of the Mutation Case for which the Petitioner filed CONTC No.666 of 2017, which is listed along with this writ petition.
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4. It is pertinent to mention here that after disposal of W.P.(C) No.6968 of 2017, the Administrator, Shree Jagannath Temple, Puri filed Misc. Case No.17204 of 2017 to be impleaded as a party in the said disposed of writ petition, which was dismissed vide order dated 8th November, 2017.
4.1 However, in the meantime, an application under Order IX Rule 13 CPC to set aside the ex-parte decree passed in TS No.154 of 1993 has been filed by Collector and District Magistrate, Cuttack as well as Tahasildar, Sadar Cuttack, which has been registered as CMA No.128 of 2017 and is pending before learned Civil Judge (Junior Division), 1st Court, Cuttack for consideration.
4.2 After receipt of notice in the Contempt Petition, the Tahasildar, Sadar Cuttack again rejected the Mutation Case No.1835 of 2008 vide order dated 20th July, 2017 (Annexure-11). After rejection of the Mutation Case, Collector, Cuttack as well as Tahasildar, Sadar Cuttack preferred revision before learned Member, Board of Revenue, Odisha, Cuttack under Section 32 of the Odisha Survey and Settlement Act, 1958 (for short 'the Act') in OSS Revision Case No.714 of 2017 assailing the order passed in Mutation Appeal No.109 of 2016 and the impugned order under Annexure-1 has been passed. The aforesaid factual aspect is not disputed by learned counsel for the parties.
5. Mr. Rath, learned counsel for the Petitioner submits that Tahasildar, Sadar Cuttack under Rules 34 and 35 of the Odisha Survey and Settlement Rules, 1962 (for short, 'the Rules') is obliged to carry out the order passed by Civil Court or any Page 4 of 10 // 5 // competent authority. He verily relied upon Rule-35 of the Rules, which provides as under:-
"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."
He, therefore submits that Tahasildar, Sadar Cuttack had no other option than to mutate the case land in the name of the Petitioner. Further, this Court had also specifically directed Tahasildar, Sadar Cutack to carry out the order passed in Mutation Appeal No.109 of 2016 within a period of fifteen days. The Tahasildar, Sadar Cuttack, however, rejected the Mutation Case on the ground that since consolidation ROR has already been published in the name of the Government, Civil Court had no power to pass a decree or otherwise. Thus, the decree is a nullity. After carrying out the direction in the order passed by the Sub-Collector, Cuttack Sadar in Mutation Appeal No.109 of 2016 (although erroneously), the order of Sub- Collector is no more available to be challenged in the revision under Section 32 of the Act that too after direction of this Court in W.P.(C) No.6968 of 2017. But Member, Board of Revenue most illegally proceeded to pass an order on merit by setting Page 5 of 10 // 6 // aside the order passed by the Sub-collector, Sadar, Cuttack in Mutation Appeal No. 109 of 2016, which is not sustainable in the eyes of law. Fact remains that the decree passed by the competent Civil court is binding on the parties thereto. Rule 35 of the Rules makes it clear that Tahasildar, Sadar Cuttack has to implement the decree only. He cannot question the legality of the said decree.
5.1 It is his submission that even a void order passed by a competent authority is required to be declared as such, in view of the ratio in the case of State of Kerala Vs. M.K. Kunhikannan Nambiar Manjerimanikoth, Naduvil (dead), reported in AIR 1996 SC 906. Entertaining a revision under Section 32 of the Act against an order of the Sub-Collector in Mutation Appeal No.109 of 2016 is per se contemptuous, as this Court in W.P.(C) No.6968 of 2017 issued a clear direction to implement the said order within fifteen days. On perusal of the impugned order, it appears that learned Member, Board of Revenue proceeded on an assumption that the Civil Court is not competent to entertain a suit and pass decree in the fact and circumstances of the case. When an application to set aside the said ex-parte decree is pending before the Civil Court, learned Member, Board of Revenue could not have proceeded on an assumption that the Civil Court is not competent to pass the decree. Till a decree is existing, the revenue authorities are obliged under law to respect the same. In that view of the matter, the impugned order under Annexure-1 is not sustainable in the eyes of law and is liable to be set aside. He also prays for Page 6 of 10 // 7 // a direction to the Tahasildar, Sadar Cuttack to mutate the case land in favour of the Petitioner.
6. Mr. Dash, learned AGA refuting the above submission contends that Section 51 of the Odisha Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as 'the Consolidation Act' for convenience) clearly bars a suit in respect of the matter which can be decided by the Consolidation Authority. After the ROR under Section 22 of the Consolidation Act is published in respect of the case land, a Civil Court cannot sit over the same and pass a decree. It is his submission that such a decree is nullity and can be avoided. Revenue Authorities have only done so. The Sub-Collector, Cuttack Sadar in Mutation Appeal No.109 of 2016 directed the Tahasildar, Sadar Cuttack to mutate the case land in the name of the Petitioner 'if there is no legal impediment'. As there was a legal impediment in implementing the decree of the Civil Court, Tahasildar, Sadar Cuttack has committed no error in rejecting the Mutation Case. He, however, submits that after direction of this Court in W.P.(C) No.6968 of 2017, learned Member Board of Revenue should not have entertained the revision under Section 32 of the Act, more particularly when the Tahasildar has already passed an order in compliance of order passed in Mutation appeal No.109 of 2016. It is his submission that the Civil Court lacks jurisdiction to entertain a suit for declaration of right, title and interest in respect the case land as the Consolidation ROR has already published. Thus, the decree itself is a nullity and cannot be implemented. As such, the rejection of Mutation Case Page 7 of 10 // 8 // No.1835 of 2008 is legal and justified. He, therefore, prays for dismissal of the writ petition.
7. Heard learned counsel for the parties and perused the materials placed before this Court.
8. True it is that Section 51 of the Consolidation Act bars a Civil Suit in the subject matter of dispute in which Consolidation Authority has jurisdiction to decide. In the instant case, Consolidation ROR in respect of the case land has already been published in the name of the Government. On perusal of the decree passed in TS No.154 of 1993, it is crystal clear that learned Civil Judge has not recorded any finding with regard to legality and propriety of the ROR published under the Consolidation Act. It has only opined that the Settlement and Consolidation ROR do not affect the right, title and interest of the Plaintiff therein (vender of the Petitioner). The said decree has not yet been set aside by any competent Court of law and is still in force. Moreover, CMA No.128 of 2017 has been filed by the Collector, Cuttack as well as Tahasildar, Sadar Cuttack to set aside the ex-parte decree and is pending for consideration.
9. It is, therefore, apparent that functionaries of the State are conscious of the competence of the Civil Court in passing such decree. Till a decree passed by competent Civil Court is in force the Revenue Authorities, more particularly Tahasildar, Sadar Cuttack is obliged in law to carry out the same without raising any objection with regard to its legality and validity. Rule-35 of the Rules makes it clear that Tahasildar has to carry out the decree of the Civil Court immediately without initiating Page 8 of 10 // 9 // a regular mutation proceeding. In the instant case, the Sub- Collector, Sadar Cuttack in Mutation Appeal No.109 of 2016 has also directed to implement the Civil Court decree, if there is no other legal impediment. Legal impediment, as raised by learned AGA cannot be a ground to reject the Mutation Case No.1835 of 2008, as has been rightly pointed out by learned counsel for the Petitioner that a void order is required to be declared as such. Mr. Dash, learned AGA does not dispute that the Civil Court is not competent to declare right, title and interest of the case land. His objection is with regard to entertaining a suit after the Consolidation ROR is published. It is the matter of consideration by competent Court of law, if moved. On the face of it, Civil Court has passed a decree, which has not yet been set aside. Hence, the Tahasildar, Sadar Cuttack cannot ignore the same. On the other hand, he is obliged to respect the same and is bound to comply with it.
10. As submitted by Mr. Dash, learned AGA, learned Member, Board of Revenue is not competent to entertain a Revision under Section 32 of the Act after this Court has issued a direction in W.P.(C) No.6968 of 2017 to comply with direction made in the said order. Hence, the impugned order under Annexure-1 is not sustainable in the eyes of law and is accordingly set aside.
11. At this stage, Mr. Rath, learned counsel submits that Petitioner may be given liberty to file a petition before Tahasildar, Sadar Cuttack to recall order dated 20th July, 2017 (Annexure-11) in view of observation made by this Court hereinabove.
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12. In the event Petitioner files an application for recall of order under Annexure-11, the same shall be considered and disposed of in accordance with law keeping in mind the observation made herein above.
13. The writ petition is disposed of with the observation and direction, as aforesaid.
Issue urgent certified copy of the order on proper application.
(K.R. Mohapatra) Judge s.s.satapathy Page 10 of 10