Durga Madhab Harichandan Vs State of Odisha

order the Tahasildar recalled his earlier orders dated 14.01.2024 and 13.02.2024 passed in Mutation Case Nos. 13607 of 2023 and 10183 of 2023 respectively, thereby rejecting applications for Mutation Case Nos. 13607 of 2023 and 10183 of 2023. It is stated that the petitioner was applicant in Mutation Case No. 10183 of 2023. Learned counsel refers to the operative portion of the impugned order dated 17.08.2024 passed by the Tahasildar, Jatni which is quoted herein :

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“Keeping in view the above, facts & evidence the order dtd. 14.01.2024 and 13.02.2024 passed in Mutation Case No. 13607/23 and 10183/23 is hereby recalled and the case No. 13607/23 & 10183/23 is rejected, the ROR bearing No.721/805 is hereby cancelled. Hence I am inclined to allow the misc petition in favour of the petitioner with direction to the R.K. to revoke back the area Ac0.805dec, of plot no. 1099/2374/2407 and area Ac0.322 dec. of plot No.1099/2374 from khata 721/805 of mouza-Padanpur and record the suit area in Khata No.252 in plot No. 1099 of mouzaPadanpur.”

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2. To challenge the order it is submitted that the order

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dated 17.08.2024 passed by the Tahasildar is not a final

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order and not appealable under Rule 42 of the Odisha Survey and Settlement Rules, 1962 (hereinafter the OSS Rules, 1962). The petitioner who had filed the Mutation case earlier i.e. Mutation Case No. 10183 of 2023 was not given opportunity of hearing in the subsequent proceeding initiated by the Tahasildar to recall the order dated 13.02.2024.

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3. To support the contention that the order dated 17.08.2024 is not appealable under Rule 42 of the Odisha Survey and Settlement Rules, 1962, it is submitted that appeal lies against any ‘final order’ made under Rule 41 and the order passed by the Tahasildar dated 17.08.2024 cannot be said to be the final order.

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4. Mr. Mohanty, learned AGA in response resubmits that the proceeding i.e. Judicial Misc. Case No. 05 of 2024 was initiated as would be evident from the order passed by the Tahasildar (Annexure-3) after filing of the W.P.(C) No. 17926 of 2023. In the said writ petition

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which is stated to be pending before this Court, the order dated 25.11.2022 passed by the Assistant Settlement Officer, Rental Colony, Bhubaneswar functioning at Major Settlement, Jobra, Cuttack in Misc. Case No. 34 of 2022 directing to record the land in question in favour of the opposite party nos.4 to 10 was challenged.

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It is submitted by the learned counsel for petitioner

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that the petitioner has not been arrayed as a party in the pending W.P.(C) No. 17926 of 2023.

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5. To appreciate the contentions of the learned counsel for the petitioner, the Rules 41, 42 and 43 of OS & S Rules, 1962 are referred to and reproduced herein :

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“41. Manner of disposal of mutation applications. - The mutation applications and the petitions of objection, if any, shall be disposed of after giving the parties an opportunity of being heard and the enquiry to be so held shall be summary in nature.

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42. Appeal. - (1) An appeal from any final order made under Rule 41 shall lie -

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(i) if the original order was made by an Assistant Settlement Officer exercising the powers of the Tahasildar under those rules and working under the administrative control of the Settlement Officer, to the Settlement Officer; and

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(ii) if the original order was made by any other officer exercising the powers of the Tahasildar under these rules, to Sub-divisional Officer.

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(2) Every such appeal must be presented within thirty days from the date of the order appealed against.

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xxx xxx xxx

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43. Review. - Any person considering himself aggrieved by any decision under this Chapter may apply within thirty days from the date of the decision for a review of the order to the Officer, who passed the said order on the ground of any mistake or error apparent on the face of the record and the Officer may, after giving to the parties interested a reasonable opportunity of being heard, pass such order thereon as he thinks fit.”

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6. In view of the clear provision that appeal shall lie

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from the final order under Rule 41, it has to be held that the order impugned in the writ petition is appealable under the Rules, 1962 inasmuch as in the case at hand

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the final order would be the order dated 17.08.2024 in

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rejecting the Mutation case No.10183 of 2023 filed by the petitioner.

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7. It is submitted by learned counsel for petitioner that the petitioner was to file the appeal within thirty days from the date of order i.e. 17.08.2024. The petitioner in good faith pursued the remedy by filing writ petition before this Court, petition having been filed on 10.02.2025.

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Learned counsel for the petitioner further submits that if directed and leave is granted by this Court : petitioner shall file appeal as prescribed in the statute before appellate authority under Rule 42 of the O.S. & S. Rules, 1962 and the period of delay that would be for filing appeal may be condoned by this Court exercising extra-ordinary as well as equitable jurisdiction.

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8. Having heard learned counsel for the petitioner, learned AGA for the State-O.Ps. and considering the

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materials on record as well as the provisions of the Odisha Survey & Settlement Rules, 1962 read with the Act, 1958, it is directed that if the petitioner moves the appellate authority within six weeks by filing a properly constituted appeal along with a petition for condonation of delay in filing the appeal against the order passed by the Tahasildar dated 17.08.2024 in Judicial Misc. Case No. 05 of 2024, the same shall be considered on merits after condoning the period of delay.

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9. Since it has been brought to the notice of this Court that in W.P.(C) No. 17926 of 2023 challenging the order dated 25.11.2022 passed by the Assistant Settlement Officer, Rental Colony, Bhubaneswar functioning at Major Settlement, Jobra, Cuttack in Misc. Case No. 34 of 2022, is still pending, the parties to the present writ petition shall find their remedy if so advised in the said petition.

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10. The writ petition is accordingly disposed of.

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Authorities shall act upon production of the website copy of this order.

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Certified copy of the order impugned annexed to the writ petition marked as Annexure-3 shall be returned to the learned counsel for the petitioner by substituting the same with an attested photocopy within seven working days.

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(M.S.Sahoo) Judge

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Orissa High Court, Cuttack The 10^th April, 2025/dutta

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Signature Not Verified

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Digitally Signed Signed by: AJIT KUMAR DUTTA Reason: Authentication Location: ohc Date: 17-Apr-2025 16:02:46

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Durga Madhab Harichandan v. State of Odisha

Case brief

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Durga Madhab Harichandan v. State of Odisha

Case brief

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