Allowed

Akshaya Ku.Pradhan v. Member,Board of Revenue,Orissa,Cuttack

Orissa HC5 Aug 2021WP(C)/5744/2017

Case brief

AI extract

What is this about?

The High Court set aside a revision order by the Member, Board of Revenue for failing to give the petitioner an opportunity to explain and rebut alleged irregularities and for omitting to examine the reasons for condoning a 13-year delay in preferring the mutation appeal.

What did the court decide?

Impugned order set aside; matter remitted to Member, Board of Revenue for fresh adjudication with hearing; subsequent actions set aside.

Akshaya Ku.Pradhan Vs Member,Board of Revenue,Orissa,Cuttack — Property and Title | Orissa HC (2021)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C) No.5744 OF 2017

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Akshaya Kumar Pradhan …. Petitioner

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Mr. Sisir Kumar Purohit, Advocate

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-versus-

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Member, Board of Revenue, Orissa and …. Opp. Parties others

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Mr. Swayambhu Mishra, Additional Standing Counsel (For Opposite Party Nos.1 to 3)

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CORAM:

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JUSTICE K.R. MOHAPATRA

ORDER

Order No.

05.08.2021

This matter is taken up through hybrid mode.

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None appears for the Opposite Party Nos.4 and 5 at the time of call although they are represented by Mr. A.C. Sarangi, learned counsel and his associates.

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The Petitioner in this writ petition seeks to assail the order dated 3^rd June, 2016 (Annexure-9) passed by the Member, Board of Revenue, Odisha, Cuttack in OSS Case No.183 of 2012.

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The contention of Mr. Purohit, learned counsel for the Petitioner is that firstly , the revision under Section 32 of the Orissa Survey & Settlement Act, 1958 is not maintainable and secondly , the delay of more than thirteen years in preferring appeal, i.e. Mutation Appeal No.22 of 2011 before the SubCollector, Sambalpur was condoned by the Member, Board of Revenue, Odisha, Cuttack when the same has not been properly

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explained by the Opposite Party Nos.4 and 5 (appellants therein). He further submits that although fraud was alleged against the Petitioner, but there was no specific pleading to that effect and although the Member Board of Revenue, Odisha, Cuttack allowed the revision finding certain irregularities in the order dated 25^th March, 1998 passed in Mutation Case No.871 of 1997 no opportunity either to explain or rebut the same was given to the Petitioner. In support of his case, Mr. Purohit, learned counsel for the Petitioner relied upon the case laws in the case of Narendra Kumar Tripathi –v- Karuna Auddy and others, reported in (2020) 3 SCC 220 and State of Punjan –vBaljinder Singh and another , reported in (2019) 10 SCC 473. Hence, he prays for setting aside the impugned order and to remit the matter back to the Member, Board of Revenue, Odisha, Cuttack for fresh adjudicating giving opportunity of hearing to the Petitioner.

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Mr. Mishra, learned Additional Standing Counsel for the State vehemently refuting such submission made by Mr. Purohit, learned counsel for the Petitioner argued that the limitation will not come into play when fraud is detected by the Court. It is his submission that fraud vitiates everything including the order dated 25^th March, 1998 passed in Mutation Case No.871 of 1997. The irregularities detected by the Member, Board of Revenue, Odisha, Cuttack as at paragraphs-6 and 7 of the impugned order are borne out from the record itself. The Member, Board of Revenue, Odisha, Cuttack scrutinizing the records in the aforesaid mutation case, found out the aforesaid irregularities. The record itself speaks that there were certain

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irregularities as explained in paragraphs-6 and 7 of the impugned order. Thus, it hardly makes any difference as to whether the Petitioner was given any opportunity to rebut/explain the same or not. It is his submission that the mutation of the land in question in favour of the Petitioner was an outcome of fraud and misrepresentation. As such, this writ petition merits no consideration and is liable to be dismissed.

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Taking into consideration the submissions made by learned counsel for the parties and on perusal of the impugned order under Annexure-9, it appears that after discussing the materials on record, the Member, Board of Revenue, Odisha, Cuttack summarized his findings at paragraph-7, which is reads as follows:

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“7.As analyzed above, the order dated 25.05.1998 in Mutation No.871/1997 has been obtained fraudulently because of the following grounds:-

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a) General proclamation in the village has been irregularity done.

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b) All legal heirs of the dead recorded tenant Sri Bhagaban Pradhan have not been noticed.

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c) Notice has been issued to the deceased Bhagaban Pradhan, the recorded tenant and received by the petitioner Akshay Kumar Pradhan himself.

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d) Though no deduction/correlation of the suit land can be done from a holding tax receipt, the same has been done by the learned Tahasildar, Sambalpur.

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e) Though an amicable partition of the properties of the recorded tenant Sri Bhagaban Behera was stated in the mutation, no notice has been issued to the legal heirs and Section 9 of the Orissa Land Reforms Act regarding partiion has not been followed.”

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There is nothing on record to come a conclusion that the irregularities and illegalities detected by the Member, Board of Revenue, Odisha, Cuttack were put to the Petitioner to explain and/or rebut the same. It further appears that the cause of delay

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as explained by the appellants (Opposite Party Nos.4 and 5 herein) before the appellate court in Mutation Appeal No.22 of 2011 was not at all discussed in the impugned order. The Member, Board of Revenue, Odisha, Cuttack without recording any finding with regard to his satisfaction to the explanation of delay by Opposite Party Nos.4 and 5 before the appellate court and only referring and discussing certain case laws proceeded to decide the Revision in favour of the Opposite Party Nos. 4 and 5. There is no quarrel over the fact that there was delay of more than 13 years in preferring the mutation appeal by the Opposite Party Nos.4 and 5. Condonation of delay is not a matter of right and should not be granted on mere asking for it. By passage of time, valuable civil right is accrued to a party in whose favour the property is recorded and thus, the party seeking condonation of delay to challenge such settlement must show a strong case for the same. Thus, the Member, Board of Revenue, Odisha, Cuttack should have been more cautious and ought to have taken pain to discuss the explanation offered by Opposite Party Nos.4 and 5 before the appellate court for condonation of delay as has been done by the Sub-Collector, Sambalpur in Mutation Appeal No.22 of 2011. In that view of the matter, the impugned order under Annexure-9 is not sustainable in the eyes of law.

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7.1 Accordingly, the impugned order under Annexure-9 is set aside and the matter is remitted back to the Member, Board of Revenue, Odisha, Cuttack-Opposite Party No.1 for fresh adjudication giving opportunity of hearing to the parties keeping in mind the observations made above.

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Since this Court sets aside the impugned order under Annexure-9, any action taken, order passed or R.O.R. published pursuant to the same including any order(s) passed in Mutation Case No.871 of 1997 subsequent to the impugned order under Annexure-9, are set aside.

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Accordingly, this writ petition is disposed of.

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Urgent certified copy of this order be granted on proper application.

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(K.R.Mohapatra) Judge

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Akshaya Ku.Pradhan v. Member,Board of Revenue,Orissa,Cuttack

Case brief

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Akshaya Ku.Pradhan v. Member,Board of Revenue,Orissa,Cuttack

Case brief

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