Binodini Mallick @ Kanhar Vs State of Odisha

_______________________________________________________ For Petitioners : Mr. G.N. Mishra, Sr. Advocate Mrs. P.P. Mohanty, Advocate For Opp. Parties : Mr. S.N. Patnaik, [Addl. Government Advocate] Mr. A.K. Panda, Advocate [Opp. Party No.3] _______________________________________________________ CORAM:

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JUSTICE SASHIKANTA MISHRA

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JUDGMENT 23^rd July, 2026

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SASHIKANTA MISHRA, J.

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Order dated 31.12.2005 passed by the Sub-Collector,

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Kandhamal in R.M.C. No.8 of 2005 and order dated 11.06.2009 passed by the Additional District Magistrate (ADM), Kandhamal in R.M.A. No.4 of 2007 are impugned in the present Writ Petition.

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BRIEF FACTS

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The case land situates in Mouza-Jiringipada in

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Kandhamal district appertaining to Plot No.643 under Khata No.140 measuring area H0.02OR. Originally, the property stood recorded in the name of one Srikar Kanhar. After his death, his son namely, Mahendra Kanhar inherited the property and possessed the same. A sale deed was executed and registered by said Mahendra Kanhar on 22.05.1999 in respect of the case land, transferring the same in favour of the present Opposite Party No.3 for consideration. According to the petitioners, who are the daughter and widow of said Mahendra Kanhar, the sale deed was executed by practising fraud and without delivery of possession. Further, there was no legal necessity to sell the land but Mahendra Kanhar being a drunkard, was influenced to

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Page 2 of 12

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do so. That apart, though Mahendra Kanhar belongs to the Scheduled Tribe (Kandha) and the Opposite Party No.3 belongs to General Caste, no permission under Section 3(1) of the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulation of 1956 (for short, Regulation) was obtained from the competent authority. A proceeding was initiated by the Sub-Collector, Kandhamal under Section 3-B (3) of the Regulation for enquiry into the genuineness of the transaction. Without appreciating the matter in its proper perspective, the Sub-Collector, by order dated 31.12.2025 closed the case. Feeling aggrieved, the petitioners preferred appeal before the Additional District Magistrate, which also came to be dismissed. According to the petitioners, the recorded owner was made to sign the sale deed on 22.05.1999 by practising fraud but the permission to sell the property was granted only on 15.09.1999. As such, there was no prior permission of the competent authority as required under the Regulation for which the sale transaction is void. Subsequent grant of permission cannot legalize the transfer. The above aspects, according to the petitioners were not considered by

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both the authorities below. The petitioners have therefore, filed

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this Writ Petition seeking the following relief.

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“It is therefore, prayed that this Hon’ble Court may be graciously please to admit the writ petition, issue notice to the Opposite Parties call for the LCR and after hearing the parties set aside the impugned orders dated 31.12.2005 and dated 11.06.2009 under Annexure-6 and 7 and may pass such other order/orders as deemed just and proper.

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And for this act of kindness, the petitioner shall as in duty bound ever pray.”

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The State has not filed any counter but learned State counsel preferred to make oral arguments.

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Counter affidavit has been filed by the Opposite Party No.3. It is stated that because of legal necessity Mahendra Kanhar decided to sell the land in question and thus approached the Opposite Party No.3. He applied for necessary permission before the Sub-Collector, Kandhamal, which was granted by order dated 16.09.1999. The sale deed was executed and registered on 18.09.1999 that is, after grant of permission, payment of consideration and delivery of possession. The Opposite Party No.3 has peacefully possessed the land ever since. She also filed a return before the Sub-Collector, Kandhamal under Section 3(B) (1) of Amendment Regulation (1)

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of 2002 leading to registration of R.M.C No.8 of 2005. The SubCollector, after verifying the documents and recording the statement of Mahendra Kanhar, Opposite Party No.3 and other witnesses, allowed the case. The petitioners preferred appeal before the A.D.M but the same was also dismissed after considering the materials on record. It is also stated that the petitioners created disturbance in the peaceful possession of Opposite Party No.3 in 2002 for which, she initiated a proceeding under Section 144 of Cr.P.C. vide M.C. No.118 of 2002, wherein her possession was confirmed.

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The petitioners also filed a suit being T.S. No.2 of 2001 in the Court of learned Civil Judge (Sr. Division), Phulbani challenging the validity of the sale deed but the same was dismissed vide judgment dated 18.08.2004. Said judgment was challenged in appeal being R.F.A. No.6/2009/ 26 of 2006 in the Court of learned Adhoc Additional District Judge, Fast Track Court-II, Kandhamal, which was also dismissed vide judgment dated 26.02.2010. The petitioners had filed a Writ Petition being W.P.(C) No.6769 of 2010 before this Court but the same was

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dismissed vide order dated 06.11.2019 on the submission of no

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Page 5 of 12

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instruction with liberty granted to file fresh Writ Petition, if any further cause of action arises. According to the Opposite Party No.3 no fresh cause of action has arisen for which, the present Writ Petition is not maintainable.

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Heard Mr. G.N. Mishra, learned Senior counsel with Mrs. P.P. Mohanty, learned counsel for the Petitioners; Mr. S.N. Patnaik, learned Additional Government Advocate for the State and Mr. A.K. Panda, learned counsel for the Opposite Party No.3.

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Mr. Mishra would argue that both the authorities below have failed to appreciate the vital fact that the sale deed was executed on 22.05.1999, though it was subsequently registered on 18.09.1999. Permission under the Regulation was granted on 16.09.1999 . So, as on 22.05.1999, there was no permission of the competent authority for sale of the land for which, the entire transaction is void as per the provisions of Regulation. Mr. Mishra further submits that even otherwise, the petitioners are admittedly the daughter and widow of the recorded owner Mahendra Kanhar. Since the property in

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Page 6 of 12

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question is their ancestral property, they have a valid share over it, ignoring which the property could not have been sold.

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Mr. Patnaik, learned Additional Government

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Advocate on the other hand, would submit that the competent authority granted permission in favour of the recorded owner to sell the property to Opposite Party No.3 on 16.09.1999 and the property was actually sold with registration of the sale deed being done on 18.09.1999. The Sub-Collector as well as the A.D.M had taken note of this fact and accordingly held the sale transaction to be valid. Findings of the civil Court in the civil suit and appeal filed by the petitioners have also been taken into account.

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Mr. Panda, learned counsel for Opposite Party No.3, on the other hand would submit that the Writ Petition is not maintainable being barred by res-judicata . He submits that on the same cause of action, the petitioners had filed the earlier Writ Petition, which was dismissed on the submission of ‘no instruction’ by their counsel but liberty was granted to file fresh Writ Petition, if any further cause of action arises. Mr. Panda further submits that all the revenue authorities as well as the

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competent civil Courts have ruled in favour of the Opposite Party No.3 concurrently after considering the evidence and materials placed before them. There is therefore, no justified reason for this Court to interfere with the impugned orders.

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As regards the question of maintainability of the present writ application, this Court finds that in the earlier Writ Petition being W.P.(C) No.6769 of 2010, the relief claimed is identical to the one claimed in the present Writ Petition. Undisputedly, the Writ Petition was dismissed for want of instruction. Liberty was granted to file fresh writ petition if further cause of action arises. Thus, ex-facie, there is force in the submission of Mr. Panda that the present Writ Petition filed on identical cause of action cannot be entertained. But then, the above referred order of this Court passed in the earlier Writ Petition was on the submission of the learned counsel for the petitioner that he had no instruction in the matter. The Writ Petition was therefore, dismissed on such ground. Needless to mention, there was no adjudication on merits but the matter was dismissed on the technical ground of ‘no instruction’. This Court is therefore, of the view that dismissal of the earlier Writ

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Petition, in the peculiar facts and circumstances of the case shall not operate as res-judicata .

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Coming to the merits of the case, this being a certiorari proceeding this Court would like to keep in perspective the law relating to the limitations on exercise of such jurisdiction by this Court vis-à-vis orders passed by the quasi-judicial authorities. It is well settled that the Court issuing a writ of certiorari acts in exercise of supervisory and not appellate jurisdiction, which implies that the Court will not review findings of fact recorded by the inferior Court or Tribunal even if appears to be erroneous. The judgment of the constitution Bench of the Supreme Court passed in the case of

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Hari Viswa Kamakha Vrs. Ahamad Ishaque¹ , may be referred to wherein it was held that a writ of certiorari under Article 226 of the Constitution can be issued only when there is a failure of justice by error in jurisdiction or breach of principles of natural justice. Reference may also be had in this regard to

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1 AIR 1955 SC 233

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the case of Santhalal Gupta Vrs. Modern Co-operative Group Housing Society Limited .²

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Coming to the facts of the present case, it is seen that the challenge by the petitioners are to the orders passed by the Sub-Collector, Kandhamal exercising jurisdiction under Section 3B-3 of the Amended Regulation (1) of 2002 and the A.D.M., Kandhamal under Section 3(3) of Regulation 2 of 1956. Perusal of the impugned order reveals that both the authorities have based their findings on the basis of the evidence and materials placed before them. Nothing has been placed before this Court to show as to what error of jurisdiction the said authorities committed in passing the impugned orders. It has also not been shown as to how the concurrent factual findings are erroneous being perverse or not in consonance with the evidence on record. This Court therefore, finds no justified reason to interfere with the factual findings rendered by the authorities below.

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Nevertheless, a point of law having been raised, this Court deems it proper to examine the same. It is argued that by

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2 2010 13 SCC 336

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applying the doctrine of relating back the date of execution of the sale deed must be deemed to be 22.05.1999. Admittedly, on that date there being no permission granted by the competent authority under the Regulation, the sale deed registered on 18.09.1999 has to be treated as invalid.

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This Court is not impressed with the above argument. This is for the reason that Section 3 of the Regulation is mandatory in the absence of which, the transaction is rendered invalid. It is borne out from the materials on record that the sale deed was scribed on 22.05.1999 with the vendor (Mahendra Kanhar) endorsing his signature and the date on the body of the deed. As there was no permission on that date, the deed was obviously not valid. But as on 18.09.1999, that is, the date of its registration, permission had been granted. It is to be noted that ordinarily, a document conveying title takes effect from the date of its execution but when it involves the member of the Scheduled Caste or Scheduled Tribe the same cannot be held to be valid unless it is preceded by permission from the competent authority. So, till permission is obtained a document, even if

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executed, remains a paper transaction only without bearing any legal effect and becomes valid only from the date permission is granted. The doctrine of relating back in the present case cannot therefore, be applied and the sale must be held to have been validly made only on 18.09.1999 that is, after granting of the permission. The fact of grant of permission has also been inserted subsequently on the body of the sale deed and the subsequent signature of the presenter (Mahendra Kanhar) bears the date 18.09.1999. The doctrine of relating back can be applied only if the document was executed validly in the eye of law at the relevant time.

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For the foregoing reasons therefore, the contentions raised on behalf of the petitioners are unacceptable for which, this Court is not persuaded to interfere with the impugned orders.

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In the result, the Writ Petition is dismissed.

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..……..…………………. (Sashikanta Mishra), Judge

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The High Court of Orissa, Cuttack Signature Not Verified

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23^rd July, 2026 Puspanjali Ghadai, Jr. Stenographer Digitally Signed Signed by: PUSPANJALI GHADAI Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 24-Jul-2026 11:22:39

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Binodini Mallick @ Kanhar v. State of Odisha

Case brief

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Binodini Mallick @ Kanhar v. State of Odisha

Case brief

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