Ramananda Mishra And Others vs State Of Odisha & Others

Sashikanta Mishra, J

Both these writ applications involve common questions of fact and law and being heard together, are disposed of by this common judgement.

For convenience and brevity, the facts of W.P.(C) No.19412 of 2025 are considered.

The petitioner assails the order dated 13.09.2024 passed by Addl. Tahasildar, Bhubaneswar in Mutation Case No. 24361 of 2014 corresponding to Grievance Case No.1847 of 2024, whereby his application for recording of the case land in his favour was rejected. He further prays for a direction to direct the Tahasildar to make necessary changes and corrections in the record of right relating to the case land in his favour.

The facts of the case, briefly stated, are that the land in question forms part of a larger parcel of land measuring Ac.1.00 dec. pertaining to Plot No.516 under Khata No.423 of Mouza Patia being leased out in favour of one Radhamohan Patnaik, vide Waste Land Lease Case No.1790 of 1978 for agricultural purpose. Said lease was cancelled by the ADM, Bhubaneswar by exercising power under section 7-A (3) of the OGLS Act by order dated 17.03.1982 passed in Lease Revision Case No.6 of 1981. The lessee challenged the cancellation of lease before this Court in OJC No. 9523 of 2000. By order dated 31.10.2000, this Court set aside the order of the Revisional Authority (ADM) and remitted the matter to him for fresh disposal. Accordingly, Lease Revision Case No. 6 of 1981 was reopened and disposed of by holding that the lease granted in favour of the lessee was valid. Accordingly, the order passed in the lease case was confirmed. The lessee then sold the case land being Ac.0.115.7 decimals from Plot No.516/1719 under Khata No.474/27 to the present petitioner vide sale deed number 254 dated 09.01.2007. The petitioner, after purchase applied for mutation of the land, which was registered as Mutation Case No.24361 of 2014. By order dated 16.09.2017, the Tahasildar rejected the application for mutation on the ground that Plot No.516 of the same Mouza was under investigation by the Economic Offences Wing (EOW), Crime Branch vide P.S. Case No. 3 of 2013 for fraud and irregularity. The order of rejection was challenged by the petitioner before this Court in W.P.(C) No. 26312 of 2017. In course of hearing of the writ application, on a direction issued by this Court, the Deputy Superintendent of Police, EOW, CID, CB Bhubaneswar submitted an affidavit clarifying that WL case No. 1790 of 1978 relating to the petitioner was not part of the investigation being conducted by it. As such, this Court by order dated 20.06.2024 disposed of the writ application by setting aside the order dated 16.09.2017 of the Tahasildar and by remitting the matter to him for fresh consideration. The Tahasildar again rejected the application for mutation on the ground that the petitioner was not using the land for the purpose for which it was granted, settlement of Jungle Kisam government land in favour of the lessee is contrary to law and prior approval of the Collector was not obtained before granting lease as per Sections 3 and 4 of the Odisha Communal Forest and Private Lands (Prohibition of Alienation) Act, 1948. (in short, 'Orissa Act of 1948'). The order of rejection passed by the Tahasildar on 13.09.2024 is impugned in the present writ application.

Counter affidavit has been filed by the ADM and Tahasildar. Grant of lease in favour of Radhamohan Pattnaik and the subsequent orders passed restoring the lease in his favour are admitted. It is averred that the petitioner is not using the land for agriculture. The settlement of Jungle Kisam Government land is in violation of law. As such, the lease, though granted, is inoperative and void.

Heard Mr. S.S. Das, learned Counsel for the petitioner along with Ms. T.R. Mohapatra and Mr. S.N. Patnaik, learned AGA for the State.

Mr. Das assails the impugned order by submitting that when the original ground of rejection of the petitioner's application for mutation was found to be untenable because of affidavit submitted by the EOW, the Tahasildar exhibiting undue zeal invented new grounds to somehow reject the petitioner's application. In doing so, he exceeded the power conferred upon him and acted like a revisional authority deciding the correctness of the order passed by the ADM in the Lease Revision Case. He further argues that even on merits, the reasoning adopted by the Tahasildar is fallacious, inasmuch as the land in question situates in the midst of a busy commercial and educational area of Bhubaneswar having no trace of forest whatsoever. He further submits that the Tahasildar is guilty of discrimination, inasmuch as mutation applications submitted by purchasers of different portions of the same leased property have been allowed.

Mr. S.N. Patnaik, learned AGA, would argue that undisputedly the land is a leasehold land, not converted to freehold status. Secondly, the nature of the land is forest. Therefore, the provisions of the Act of 1948 squarely apply. Since no prior approval of the Collector was obtained before granting the lease, the same is invalid. The Tahasildar rightly refused to mutate the land in favour of the petitioner.

The facts of the case not being disputed are not required to be referred to again. It would suffice to indicate that the petitioner's application for mutation was originally rejected solely on the ground that the same was covered under investigation being conducted by the EOW for fraud and irregularity. However, an affidavit was filed by the EOW in the earlier writ application (W.P.(C) No.26312 of 2017) clarifying that the investigation pertained to other lands. In Paragraph-8 of the affidavit (copy enclosed as Annexure-7), the following has been stated:

"That, the investigation of above two cases relates to fraudulent RORs prepared in the name of Sulochana Devi, vide New Khata No. 489/45 bearing Plot No.516/1676, Area 2 Acre, from Khata No 493, Plot No 516 vide WL Case No.1263/78 and in the name of Sarbeswar Sinha, for two acres of Land vide New Khata No.489/46, Plot No 516/1677, Area Ac.2.00 from Khata No 493, Plot No 516 vide W.L. Case No. 1262/1978. Hence, these two cases of EOW are not related to the property under Khata No.474/27 corresponding to Sabik Khata No.423, Plot No.516/1719, Ac.0.115.7 dec."

[emphasis added]

Taking note of such affidavit, a Coordinate Bench of this Court, by order 20.06.2024 held as follows.

"xx xx xx

In view of the statements made in the affidavit filed by the EOW, it is now clear that the property in question is not involved in EOW PS Case No. 3 of 2013, contrary to the observation of the Tahasildar made in the impugned order under Annexure-6. As such, the order of the Tahasildar dated 16th September, 2017 under Annexure-6 is set aside and the matter is remitted back to him to decide afresh in accordance with law, within a period of four months from the date of receipt of certified copy of this order."

It would be significant to note that the grounds of rejection as mentioned in the impugned order were never cited. It is only after the matter was remitted for disposal afresh that certain new grounds have been cited. Reading of the impugned order reveals that the Additional Tahasildar has acted way beyond his jurisdiction to determine the validity of the lease granted as far back as in the year 1978, as confirmed by the Revisional Authority (ADM) under the provisions of the OGLS Act in the year 2006.

It goes without saying that in a mutation proceeding, the Tahasildar exercises power conferred under Rule-34 OSS Rules which is reproduced below:

"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

(f) that by preparation of a survey record under Chapter II of the Act, any change is necessitated in the record-of-rights."

Rule 35 being also relevant is reproduced below:

"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."

[Emphasis added]

Evidently, the Tahasildar is denuded of power to travel beyond the four corners of Rules 34 and 35. In other words, he can affect any change in any entry in the record of rights on any one or the grounds referred to Rule 34. It does not confer any power on him to decide the validity of an order passed under a different statute and that too by a superior authority. In the instant case, the lease was granted and ultimately confirmed by the competent authority exercising power conferred by the OGLS Act. Once the Revisional Authority (ADM) under the OGLS Act confirms the lease, the Tahasildar cannot sit in appeal over the same and attempt to reverse such decision by refusing to entertain the application for mutation. It would be contrary to the diktat of Rule-35 quoted before. The impugned order deserves to be interfered with on such score alone.

Even otherwise, the Tahasildar has held that the original plot was recorded as Kisam Jungle and that the petitioner is not using the land for which it was initially granted, i.e. for agriculture. On the face of the argument of learned counsel for the petitioner that the area in question is in the middle of a huge commercial and educational hub, which has not been rebutted in any manner by the State Counsel, the ground cited is untenable. Moreover, there is no finding that the original nature of the land persists even till date.

It has been argued that persons who have purchased different portions of land from the same Khata have been favoured with positive orders of mutation. Copy of one such order passed by the R.I. on 02.05.2012 in Mutation Case No. 25799 of 2011 has been enclosed as Annexure-3 to the writ application. Significantly, the land involved therein also relates to Khata No.474/27. Learned State Counsel has not disputed the contention that the land owners of different plots of land under the same Khata have had orders passed in their favour by the same Tahasildar. Therefore, on equitable considerations also, allowing the impugned order to subsist would tantamount to perpetuating an act of discrimination.

Thus, from a conspectus of the analysis of facts, law, the contentions raised and the discussions made, this Court has no hesitation in holding that the impugned order cannot be sustained in the eye of law and therefore, warrants interference.

In the result, the writ applications are allowed. The impugned orders are hereby set aside. The Tahasildar, Bhubaneswar is directed to allow the application for mutation by recording the case land in favour of the petitioners without any further delay and in any case, not later than four weeks from the date of production of certified copy of this order by the petitioners.