Remanded

Md.Masood Akram v. the Sub Collector,Champua

Orissa HC2 Dec 2020WP(C)/14006/2018

Case brief

AI extract

What is this about?

The High Court set aside impugned orders refusing to record Government land in the petitioner's name pending a sub judice appeal. The Court held that unsettled administrative assumptions regarding the appeal's maintainability contrary to a certified judgment must be corrected, remitting the mutation case to be disposed of within eight months.

What did the court decide?

The impugned orders of the Sub-Collector and Tahasildar setting aside the mutation case were set aside. The matter was remitted to the Tahasildar for fresh consideration within eight months, subject t

Md.Masood Akram Vs the Sub Collector,Champua — Land Acquisition | Orissa HC (2020)

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W.P.(C) NO. 14006 OF 2018

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08 02.12.2020 Due to outbreak of COVID-19, this matter is taken up through Video Conferencing.

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Heard Mr. A.P. Bose, learned counsel for the petitioner and Mr. S.N. Mishra, learned Addl. Government Advocate for the State-opp. parties.

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The petitioner in this writ petition prays for a direction to set aside the order dated 03.07.2018 (Annexure-1) passed by the Sub-Collector, Champua in Mutation Appeal Case No.08 of 2016, whereby he confirmed the order dated 12.11.2015 (Annexure-1/A) passed by the Tahasildar, Barbil rejecting the Mutation Case No. 370 of 2006 filed by him and held that in view of the decision taken by the authority to file an appeal against the ex parte decree passed in favour of the petitioner, the Government land cannot be recorded in favour of the petitioner.

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Mr. Bose, learned counsel for the petitioner submits that the father of the petitioner came to Barbil way back in the year, 1900 and settled there by occupying a piece of Government land in Plot No.109 to an extent of Ac.0.192 decimals and Plot No. 46/534 to an extent of Ac.0.370 decimals under Khata No. 149 in mouza Sundara, Kissasm-Anabadi in the district of Keonjhar (for short ‘the case land’). After the death of his father, the petitioner continued to be in possession over the same. Subsequently, the petitioner filed C.S.

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No. 06 of 2003 in the court of learned Civil Judge (Senior Division), Champua with a prayer for declaration of right, title and interest over the case land. Although the defendants-opp. parties appeared in the suit, but they preferred not to contest the suit for which they were set ex parte and ex parte judgment and decree was passed in favour of the petitioner on 04.08.2004. Subsequently, the State Government filed CMA No. 18 of 2009 for setting aside the ex parte decree, which was dismissed for default on 06.07.2011. Thus, the ex parte decree passed in favour of the petitioner became final. Pursuant to the said ex parte decree passed in favour of the petitioner, he filed Mutation Case No. 370 of 2006 before the Tahasildar, Barbil for recording the case land in his name, but the Tahasildar, Barbil did not act upon the same and kept the matter pending for which the petitioner moved this Court in W.P.(C) No. 9413 of 2015 with a prayer for early disposal of the mutation case. The said writ petition was disposed of on 31.07.2015 with a direction to the Tahasildar, Barbil to dispose of the Mutation Case No. 370 of 2006 within a period of three months. Accordingly, the Tahasildar, Baribil passed the order dated 12.11.2015 (Annexure-1/A) dropping the mutation case. Assailing the same, the petitioner was constrained to move the appellate authority, i.e. the Sub-Collector, Champua, in Mutation Appeal Case

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No. 08 of 2016. Since the said mutation appeal was not disposed of for a long time, the petitioner again moved this Court in W.P.(C) No. 22229 of 2017 for early disposal of Mutation Appeal Case No. 08 of 2016. The said writ petition was disposed of directing the SubCollector, Champua to dispose of the mutation appeal within a period of three weeks. Consequently, the SubCollector, Champua passed the impugned order under Annexure-1.

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Mr. Bose, learned counsel for the petitioner submits that the impugned order under Annexure-1 and Annexure-1/A are not sustainable in the eyes of law as the authorities under the Orissa Survey and Settlement Act, 1958 have no jurisdiction to sit over the judgment and decree passed by a competent civil court. The judgment and decree passed in C.S. No. 6 of 2003 was never challenged and reached its finality. Though very recently the State Government has filed an appeal in RFA No. 4 of 2020 before learned Addl. District Judge, Champua, the same is not maintainable. The delay in filing the said appeal has not yet been condoned. In that view of the matter, the impugned order under Annexure-1 and the order under Annexure-1/A are liable to be dismissed.

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Mr. Mishra, learned Addl. Government Advocate for the State, on the other hand, submits that the ex parte judgment and decree passed in C.S. No. 06 of

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2003 is challenged in RFA No. 4 of 2020, which is subjudice before the learned Addl. District Judge, Champua. Thus, the settlement authorities have no jurisdiction to proceed with either mutation case or appeal to record the case land in the name of the petitioner. He further submits that the land in question is a valuable Government land. Due to some communication gap, the State Government could not take appropriate step to file an appeal in time. In view of the subsequent development in the matter, the impugned order under Annexure-1 and the order under Annexure-1/A should not be interfered with by this Court.

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Taking into consideration the submissions of learned counsel for the parties and on perusal of the impugned order, it appears that the authorities under the Orissa Survey and Settlement Act, 1958 have proceeded under a misconception that in view of the decision taken by the authority to file an appeal against the ex parte judgment and decree passed in C.S. No. 06 of 2003, the mutation proceeding cannot be entertained. Such a finding is contrary to law. The settlement authorities have to respect the order passed by a competent civil court and act accordingly. From the conduct of the authorities under the Act, it appears that they have acted in a manner which is contrary to the sound principles of law. Though very recently the

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ex parte judgment and decree passed by learned Civil Judge (Senior Division), Champua in C.S. No. 6 of 2003 has been challenged in RFA No. 4 of 2020 under Section 96 of the C.P.C., which is pending before learned Addl. District Judge, Champua, the same cannot stand on the way in entertaining the mutation case. Unless and until the delay in filing the appeal is condoned and the appeal is entertained on merit, it cannot be treated as an appeal in the eyes of law, as has been held by this Court in the case of Ainthu Charan Parida –v- Sitaram Jayanarayan Firm , reported in AIR 1984 Orissa 230 (Full Bench). 8. Accordingly, the impugned order under Annexure-1 and the order under Annexure-1/A are set aside. The matter is remitted back to the Tahasildar, Baribil-opp. party no.2 for fresh consideration of Mutation Case No. 370 of 2006 in accordance with law giving weightage to the judgment and decree passed in C.S. No. 06 of 2003, which will be subject to further order to be passed in RFA No. 4 of 2020. It is made clear that the Tahasildar, Barbil-opp. party no.2 shall do well to consider and dispose of the Mutation Case No. 370 of 2006 in accordance with law as expeditiously as possible preferably within a period of eight months from the date of production of an authenticated copy of this order downloaded from the

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website of the Orissa High Court giving opportunity of hearing to the parties concerned.

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Authenticated copy of this order downloaded from the website of this Court shall be treated at par with certified copy in the manner prescribed in this Court’s Notice No.4587 dated 25.03.2020.

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K.R. Mohapatra, J.

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bks

Md.Masood Akram v. the Sub Collector,Champua

Case brief

What is this about?

What did the court decide?

Md.Masood Akram v. the Sub Collector,Champua

Case brief

What is this about?

What did the court decide?

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