Sandip Kumar Malla Vs Member,Board of Revenue,Cuttack

1. Heard M r. Rath, learned Senior Advocate appearing for the petitioner and M r. Nayak learned AGA for opposite party Nos. 1 & 2 besides Mr. L e nka, learned counsel for opposite party No s . 3 to 7.

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2. None a p pears for opposite party Nos. 3 to 7.

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Instant w rit petition is filed by the petitioner challe n ging the impugned decision passed in O.S.S Case No. 100 of 20 1 2 dated 28.08.2015 by the Member, Board of Revenue, Odisha, Cuttack under Annexure-1 and the Mutation Appellate order by the Appellate Auth o rity-cum- Sub Collector, Cuttack in Mutatio n Appeal No. 3/2008 dat e d 10.2.2012.

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Mr. R a th, learned Senior Advocate for the p etitioner submits that th e impugned decision by order under Ann e xure-1 is legally not ten a ble. It is further submitted that the petiti o ner was issued with the m utation RoR as per Annexure-8 and the s a me was challenged in Mutation Appeal No.03 of 2008 and was disposed of

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vide Annexure- 9 and followed by Annexure-1. Accordin g to Mr. Rath, learned S e nior Advocate, the petitioner filed revisi o n under Section 32 of t h e OS&S Act, 1958 read with the Odisha M utation Manual, 1962 challenging the order in Mutation Appeal N o. 3 of 2008 but the s a me was dismissed with a conclusion that f raud has been played an d perpetuated in connection with the proc e eding in Misc. Case No. 43 of 2004 disposed of by order dated 2 7 th April, 2005 recalling the earlier order dated 27^th December, 2004 passed in Misc. Case N o. 1 of 2004. The contention is that the order in Misc. Case No . 43 of 2004 dated 27^th April, 2005 w a s never challenged which was in respect of resumption initially allo w ed and subsequently, revoked with the restoration of the lease in f avour of the vendor, the fact which was lost sight of by the Memb e r, Board of Revenue, Odisha while confirming the order in Mutatio n Appeal No. 3 of 2008 w ith the decision by order under Annexure-1, hence, therefore, the same is liable to be interfered with and set asi d e.

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On the contrary, Mr. Nayak, learned AGA appe a ring for opposite party N os. 1 & 2 submits that fraud was committ e d at the behest of the pe t itioner and as learned Additional Tahasilda r did not have the author i ty to recall the order in Misc. Case No. 43 of 2004, rightly, therefo r e, Mutation Appeal was filed and dispos e d of by order under A nnexure-9 which was ultimately upheld by the Member, Boar d of Revenue, Odisha as per Annexure - 1, while disposing of th e revision under Section 32 of the OS&S A ct, 1958 hence, the same calls for no interference.

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In fact, the lease was executed in favour of the v e ndor of the petitioner a s made to reveal from the record and it w a s with a stipulation ther e in that the lessee shall not without the c o nsent in P a ge 2 of 5

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writing of the l e ssor, assign or under lot or otherwise part with the possession of t h e whole of the demised land or any par t thereof which consent shall not be unreasonably withheld and in compliance thereof, the sale was effected in favour of the p etitioner vide Annexure- 6 in the year 2006, which was followe d by the proceeding in M utation Case No. 134 of 2007 with the issuance of RoR as well as a t Annexure-8 but then, Mutation Appeal N o. 3 of 2008 was filed by the Tahasildar, Tangi, Choudwar, Cut t ack and others, which w as disposed of vide Annexure-9. As earli e r stated, the order unde r Annexure-9 was challenged and confirme d by the Member, Board of Revenue, Odisha and in so far as the pr o ceeding in Misc. Case No. 43 of 2004 is concerned, which is alleg e d to be an action vitiat e d by fraud, it is made to reveal from the i m pugned order under An n exure-1 that the record of the proceeding was not traceable but su b sequently, it was produced. In so far as the decision of the Additio n al Tahasildar, Choudwar in Misc. Case N o . 43 of 2004 by order d ated 27^th April, 2005 is concerned, the earlier order on 27^th December, 2004 was revoked. In fact, the pr o ceeding seeking resumption of the lease hold land was subsequentl y recalled in Misc. Case N o . 43 of 2004 by order dated 27^th April, 20 0 5. On a reading of the s aid order dated 27^th April, 2005, such re s umption was recalled wi t h a conclusion that the lease was granted in favour of the vendor of the petitioner in the year 1982 an d in the meantime, twe n ty-two years have gone by, therefore, the same cannot be recalled as per the provisions of the OGLS Act and Rules framed thereun d er. The order dated 27^th April, 2005 in M isc. Case No. 43 of 200 4 was never challenged thereafter. In other words, the decision to r ecall the earlier dated 27^th December, 200 4 in Misc. Case No. 43 of 2 004 attained finality.

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As far a s the decision of the Member, Board of R evenue, Odisha as per A nnexure-1 is concerned, it is in connectio n with a proceeding as p er the Odisha Mutation Manual, 1962 a gainst a decision in Mut a tion Appeal No. 3 of 2008. Mr. Nayak , learned AGA for the State submits that enquiry was held and appa r ently, in exercise of powers of review, since fraud was noticed, the order in Mutation Appe a l No. 3 of 2008 was, therefore, upheld an d against any such mutat i on in favour of the petitioner as per An n exure-8. The contention of Mr. Rath, learned Senior Advocate is th a t in such a proceeding a s per the Odisha Mutation Manual, the M ember, Board of Revenue, Odisha could not have reached at a c o nclusion of having fraud being perpetuated at the instance of the v e ndor of the petitioner. T he Court considering the circumstances under which the mutation w a s disallowed by order in Mutation Appeal No. 3 of 2008 and ultim a tely, affirmed by the Member, Board of R evenue, Odisha as per A nnexure-1 with a conclusion arrived with a fraud being committ e d was uncalled for. So to say, the Co u rt is in complete agreement with the contention of Mr. Rath, learned Senior Advocat e for the petitioner morefully when the d e cision in Misc. Case No. 4 3 of 2004 was not challenged and that a p art, such mutation was allowed with the issuance of RoR i.e. Annex u re-8 and though immedi a tely, thereafter, it was followed by an app e al at the instance of the learned Tahasildar, Tangi, Choudwar, Cuttack. The proceeding as s u ch is as per the provisions of the Odisha M utation Manual and in terms of Section 32 of the OS&S Act, 195 8 and in absence of any opportunity being provided to the vend o r of the petitioner, no s u ch conclusion could have been arrived at r egarding fraud. So, ther e fore, the Court is of the ultimate view that the

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decision in favour of the petitioner towards mutation in r e spect of the schedule la n d, he having purchased under a validly e xecuted sale deed, coul d not have been tinkered with vide Annex u re-9 and confirmed as p e r Annexure-1, which is, therefore, suscepti b le to be interfered with a nd set aside.

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8. Hence, it is ordered.

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In the result, the writ petition stands allowe d . As a necessary corollary, the impugned order under Anne x ure-1 in connection wit h O.S.S Case No. 100 of 2012 by Member, B oard of Revenue, Odis h a, Cuttack and the order under Annexure-9 in Mutation Appe a l No.3 of 2008 by Sub-Collector, Cuttack i s hereby set aside.

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A certified copy of this order be issued as per rules.

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kabita

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Signature Not Verified

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Digitally Signed Signed by: KABITARANI MAJHI Reason: Authentication Location: OHC,CUTTACK Date: 19-Dec-2024 19:52:35

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Sandip Kumar Malla v. Member,Board of Revenue,Cuttack

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Sandip Kumar Malla v. Member,Board of Revenue,Cuttack

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