Devi Pr.Mohanty (Dead) Debika Rani Mohanty & Another vs Member, Board Of Revenue, Orissa & Others

Sashikanta Mishra, J

The petitioners call in question the correctness of order dated 27.06.2009 and 29.04.2011 passed by the Member, Board of Revenue, Odisha in OSS Case No. 1612 of 2003 and Misc. Case No. 11/2009.

The facts of the case, briefly stated, are that the land in question that is, appertaining to Sabik Plot No. 995 under Sabik Khata No. 579 measuring Ac.1.156 decimals originally belonged to one Banshidhar Mohanty. He sub-divided the plot and sold different portions at different times. He also transferred a portion shown as a road in favour of the Executive Officer, Cuttack Municipality (present Opposite Party No.5), by a registered gift deed dated 26.09.1969 for development of road and delivered possession thereof. A portion of land adjacent to Hal Plot No. 222 relating to Hal Plot No. 221 measuring an area of Ac. 0.216 decimals under Hal Khata No. 384 corresponding to Sabik Plot No. 995 was wrongly recorded in the name of Opposite Party No.5, though actually never transferred to him. The petitioner No.2, Manjubala Sutar is the owner in possession of the said plot, having purchased the same from Banshidhar Mohanty. In the last settlement operation, the authorities without properly verifying the records, included said portion of the land in records of the Opposite Party No.5. The ROR was finally published on 13.11.1987 by which time, the original owner was dead. His legal representatives, the original petitioner No.1 and after his death, his LRs, the present petitioners, filed revision under Section 15 of the OSS Act, being R.P. No. 4450/1996 before the Commissioner, Land Records and Settlement, Odisha seeking necessary direction for correction of the Hal ROR. The Commissioner, in course of hearing was of the view that a field inquiry was necessary and since the settlement operations had been concluded, the Tahasildar has jurisdiction under Rule 34 of the OSS Rules to make necessary inquiry and to effect corrections. Accordingly, the revision was disposed of by order dated 01.11.1996. Pursuant to such order, the Tahasildar registered Mutation Case No. 1778 of 1996 and directed the Amin to conduct a field inquiry. Basing on the report of the Amin dated 24.12.1996, the mutation case was allowed by holding that the land in question had been wrongly recorded in the name of Opposite Party No.5 and the same ought to be reverted to its actual owner. The mutation case was thus disposed of by order dated 07.01.1997 and the Hal ROR was corrected. The entire suit land was thereafter transferred to petitioner No.2 by way of sale and the same was mutated in her name. The Opposite Party No.5 (Municipality) never challenged the orders passed by the Commissioner as well as the Tahasildar. However, a notice was issued to the petitioners to remove the construction already made by the petitioner No.2 over the case land. The petitioners therefore, approached this Court in OJC No. 3546 of 2001 and by order dated 27.03.2001 eviction of the petitioner has been stayed. The Opposite Party No.5 thereafter filed Mutation Appeal No. 141 of 2001 on 14.09.2001 challenging the order of the Tahasildar along with an application seeking condonation of delay. The Sub-Collector, by order dated 17.08.2002 was not inclined to condone the delay and dismissed the appeal. Against such dismissal, Opposite Party No.5 filed the revision before the Member, Board of Revenue being OSS Case No. 1612 of 2003. By the impugned order, the Board of Revenue quashed not only the order passed in the mutation appeal but also the earlier order passed by the Commissioner under Section 15 of the OSS Act and the Tahasildar in the mutation case.

Learned Member, Board of Revenue held that the Commissioner had no authority to delegate its power under Section 15(b) to any other sub-ordinate authority. It was further held that as a consequence, the Tahasildar exercised jurisdiction not vested in him.

Heard Mr. G.M.Rath, learned counsel for the petitioner, Mrs. J.Sahoo, learned Additional Standing Counsel for the State and Mr. P.K.Mohanty, learned Senior counsel with Mr. P.Mohanty for the Opposite Party No.5 (Municipality).

Be it noted that neither the State nor the Municipality (Opposite Party No.5) filed counter. Learned State counsel as well as learned Senior counsel appearing for the Municipality however, preferred to make oral arguments.

Assailing the impugned order, Mr. Rath would argue that the Member, Board of Revenue, instead of deciding the correctness or otherwise of the order impugned before him, most illegally examined the order passed earlier by the Commissioner under Section 15(b) of the OSS Act and the consequential order of the Tahasildar, even though the same was not under challenge. Even otherwise, the Commissioner had not delegated its authority to the Tahasildar but observed that the settlement operations having come to the close and the dispute in question involving field inquiry, the Tahasildar was competent to look into it. There was nothing wrong in such observation. Since the claim of the petitioners is based on registered documents showing conveyance of title, the learned Member could not have quashed the earlier orders without rendering any finding as to the validity or otherwise of the claim of the revision petitioner (Opposite Party No.5) ignoring the documents of title.

Mrs. J.Sahoo, learned State counsel would argue that Section 32 confers wide powers on the Member, Board of Revenue to interfere if any authority subordinate to it is found to have not exercised jurisdiction vested in it. In the instant case, the Commissioner, while hearing the revision under Section 15 wrongly delegated his power to the Tahsildar, who lacks competence to exercise revisional jurisdiction. Learned Member therefore, must be held to have rightly interfered in the matter.

Mr. P.K.Mohanty, learned Senior Counsel makes more or less, a similar arguments as the State counsel and further submits that the land in question being used as a road, the same could not have been recorded in the name of petitioner No.2 by the Tahasildar. The Sub-Collector, instead of deciding the correctness of the order of the Tahasildar dismissed the appeal purely on technical grounds.

This Court has given its anxious consideration to the rival contentions and perused the pleadings and materials on record. The facts of the case are not disputed. On an application filed by the petitioners under Section 15(b) of the OSS Act, the Commissioner by order dated 01.10.1996 held as follows:

"Since the revisional Court has no independent agency to cause a field inquiry as the settlement camps have closed and the S.O. has no further jurisdiction in the matter after the final publication of the R.O.R. and since the jurisdiction the Tahasildar U/r. 34 of the O.S. & S. Rules is resumed after the ROR is published the Tahasildar is the competent authority enquire into the matter under rule 34(e) of the of the O.S. & S. rules read with rule 62 where in the Tahasildar has been vested the all powers exercisable by a Civil Court in a trial of suits. He also has authority under para 17(1) of the Mutation Manual the appeal against the order of the Tahasildar lies before the Sub-Collector under para 92 of the Mutation Manual read with section 42 of the O.S. & S Rules and revision lies before the Board of Revenue under para 111 of the Mutation Manual read with Sec. 32 of the O.S.& S Act.

The Tahasildar, Cuttack, Sadar is directed to take up the case under para 17(1) of the Mutation Manual and cause a field inquiry over the road as per R.G.D. No. 8304 dtd. 26.09.1969 and verify the lawful possession of the petitioners over hal Plot No. 222 and correct the map and area was found necessary possession without title to be ignored. The parties be noticed and the case be decided within four months of receipt of this order."

A careful reading of the above order would suggest that the Commissioner never delegated his authority conferred under Section 15 of the Act to be exercised by the Tahasildar, rather noting that determination of the dispute requires field inquiry, the Commissioner held that the revisional Court has no independent agency to conduct field inquiry. Further, as the settlement operation had closed, the settlement officer has no jurisdiction. The only jurisdiction available is that of the Tahasildar under Rule 34 of the Rules. Therefore, the directions to the Tahasildar to take up the case under paragraph 17(1) of the Mutation Manual and cause field inquiry can, by no stretch of imagination, be treated as delegation of authority. It is rather to be construed as liberty granted to the petitioners to approach the competent authority for effecting corrections in the ROR. This Court finds nothing wrong in such order. Basing on such order, the Tahasildar caused a field inquiry, which incidentally appears to have been attended by a representative of the Municipality, and allowed the prayer for mutation. The order of the Commissioner was never challenged. What was challenged was the order passed by the Tahasildar in the mutation case but after a long delay of four and half years. The appellate authority, after considering the grounds cited to explain the delay, was not satisfied and therefore, dismissed the appeal. This order was carried further in Revision under Section 32 of the OSS Act.

Section 32, Reads as follows:

"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."

It was therefore, incumbent upon the learned Member to examine the correctness or otherwise of the order of dismissal of the appeal. Surprisingly, however, nothing whatsoever has been decided in this regard. On the contrary, learned Member has forayed into the correctness of an order not in challenge before him. In other words, instead of deciding whether the Sub-Collector was legally justified in dismissing the mutation appeal, the Member went off on a tangent to decide a non-issue. Such approach cannot be countenanced in law nor is contemplated under the provisions of Section 32.

It is further interesting to note that certain caustic remarks have been made by the learned Member against the Sub-Collector, which are reproduced below:

"11- By not admitting the appeal and, thereby, upholding indirectly the illegal orders of the Tahasildar, Cuttack, the Sub-Collector, Cuttack acted in a manner, which is not expected of a responsible officer. This is a judicial misconduct."

If, according to learned Member, the order passed by the Sub-Collector was legally unsustainable, the same could have been set aside by citing valid reasons. As already stated, nothing has been said as regards the order of the Sub-Collector. Despite the same, such adverse comments have been made which, in the considered view of this Court, are unwarranted and not expected of an officer as senior as the Member, Board of Revenue. There is no way by which the action of the Sub-Collector in dismissing the appeal on the ground of limitation could be termed as 'judicial misconduct'. This Court can only observe that senior officers must exercise restraint in the use of language while dealing with orders passed by the subordinate authorities.

Thus, from a conceptus of the analysis of facts and law, this Court is of the view that the impugned order cannot be sustained and therefore, feels persuaded to interfere therewith.

In the result, the writ application is allowed. The impugned order is set aside. Consequently, order dated 01.11.1996 passed by the Commissioner, Land Records and Settlement in R.P. No. 4490 of 1996, order dated 07.01.1997 passed by the Tahasildar, Cuttack in Mutation Case No. 1778 of 1996 and order dated 17.08.2002 passed by the Sub-Collector, Cuttack in Mutation Appeal No. 141 of 2001 are hereby restored.