Research › Search › Judgment

Orissa High Court · body

2010 DIGILAW 488 (ORI)

PRAVAKAR SWAIN v. TAHASILDAR, AUL

2010-07-20

SANJU PANDA

body2010
JUDGMENT : Sanju Panda, J. - petitioners have filed this writ petition challenging the order dated 28.3.2005 passed by the Sub-Collector, Kendrapara in Mutation Case No.347 of 2003. 2. The petitioners filed Mutation Case No.347 of 2003 for mutation of the land in question in their names on the basis of the order passed by the Tahasildar, Aul in OLR Case No. 137 of 1983. In the said OLR case, the land was settled in their names as Stitiban raiyat. They were paying rent regularly in pursuance of the said settlement. They are in possession of the property uninterruptedly. Opposite party no.1 directed the R.I. to make an inquiry regarding possession of the petitioners in respect of the disputed land. After making an inquiry, the R.I submitted report that the petitioners are in possession of the land. He submitted corresponding Hal plots of the Sabik Plots. The case was then placed before the Addl. Tahasildar, who vide order dated 27.6.2003 after examining the report of the R.I. and the OLR records, directed to mutate the names of the petitioners in respect of the disputed land i.e. Hal Plot No.1108 with an area of Ac.0.15 decimals in a separate khata by deleting the same from the Government Khata No. 1854. After the appeal period was over, the ROR was corrected. 3. While the matter stood thus, Sub-Collector, Kendrapara, opposite party no.2, during his visit to the Tahasil Office on 19.2.2005 inspecting the records set aside the order dated 27.6.2003 without giving any notice to the petitioners and directed the Tahasildar to take follow up action. Accordingly, on the direction of opposite party no.2, the names of the petitioners were cancelled, previous status of the disputed land was reflected in the ROR with intimation to the R.I. and parties were informed through notice and public proclamation. After knowing the said proclamation, the petitioners have filed the present writ petition. 4. Learned counsel for the petitioners submitted that the Sub-Collector has no jurisdiction to set aside the order passed by the Tahasildar without issuing notice to the petitioners. Since the Tahasildar had corrected the ROR as per Section 47 of the Orissa Mutation Manual, the Sub-Collector should not have reviewed the same. Therefore, the impugned order is liable to be set aside. 5. Learned Addl. Since the Tahasildar had corrected the ROR as per Section 47 of the Orissa Mutation Manual, the Sub-Collector should not have reviewed the same. Therefore, the impugned order is liable to be set aside. 5. Learned Addl. Government Advocate appearing for the State, relying on the counter affidavit filed by opposite party no.1, submitted that in the Sabik Jamabandi Register, the disputed land had been recorded as Government land under Khata No.917, Plot No.908/2980 measuring an area of Ac.0.14 decs, in mouza-Salianch under Anabadi status. The kissam of the Plot was recorded as "Gadia". The petitioners submitted a rent schedule that the case land was settled in their favour vide OLR Case No. 137 of 1987 by the Tahasildar, Aul which was not available in the office as the same had been destroyed. The fact remains that in the Sabik record-of-rights no correction was effected as per OLR Case No. 137 of 1987. He further submitted that the village was under settlement operation and the power and authority of the Tahasildar had already ceased during said settlement operation. On 9.12.2002, the petitioners applied for mutation of the disputed land on the basis of the rent schedule for which Mutation Case No.347 of 2003 was initiated. The rent schedule is not a final document. On the contrary, the rent schedule is normally issued at the time of proceeding of the OLR Case. Showing the settlement of the disputed land in their favour, the petitioners filed rent schedule to grab the land which is meant for public purpose i.e. Gadia. The Hal ROR was published in the year 1991. Therefore, the power of the Tahasildar had ceased after publication of the Hal ROR with effect from 30.9.2001. Accordingly, the Sub-Collector, Kendrapara, opposite party no.2, has rightly passed the impugned order dated 19.2.2005. Therefore, the same need not be interfered with. 6. From the rival submissions of the parties and after perusal of the records, it appears that after disposal of the OLR case, the settlement operation was started in the area. Therefore, the power of the Tahasildar to correct the ROR had ceased. It is the admitted fact that final Hal ROR was published in the year 1991. The OLR Case was disposed of prior to final publication of the ROR. 7. Therefore, the power of the Tahasildar to correct the ROR had ceased. It is the admitted fact that final Hal ROR was published in the year 1991. The OLR Case was disposed of prior to final publication of the ROR. 7. This Court in OJC No. 9621 of 1996 (Harihar Mohapatra v. Commissioner of Land Records and Surveys) has held that the correction of ROR and maps to be made on the grounds enumerated in Rule 34 of the Orissa Survey and Settlement Rules, 1962 has to be based on cause of action which arose after preparation of ROR. Otherwise, grant of opportunities to make objection and prefer appeal becomes a meaningless exercise. It cannot be certainly the legislative intent that a person who fails to file an objection and/or prefer an appeal can overcome the prescription of time prescribed for the aforesaid purpose by resorting to Rule 34. Therefore, Rule 34 cannot be resorted to by making an application in respect of a cause of action which arose prior to the publication of the ROR. In view of the aforesaid observations of this Court, the Government issued a notification on 6th May, 1999 referring to the Departmental Letter dated 3.1.1991 specifically stating that the correction of ROR by the Tahasildar through a mutation proceeding in respect of the factual position which was existing prior to the publication of the ROR is beyond the scope of Rule 34 of the Orissa Survey and Settlement Rules, 1962. In case any party is aggrieved about an erroneous entry in the finally published ROR and any cause of action arose prior to the publication of the ROR, the appropriate legal remedy has been provided u/s 15, Section 25 and Section 42 of the Orissa Survey and Settlement Act, 1958. The aggrieved party has the option of filing a revision petition before the Board of Revenue within one year of publication of ROR or filing a Civil Suit within three years. The said instruction was also clarified that earlier instruction dated 3.1.1991 was superseded. 8. Law is also well settled that ROR neither creates title nor extinguishes the title. 9. In view of the above position, the Tahasildar had no jurisdiction to correct the said ROR under Rule Section 47 of the Orissa Mutation Manual. 10. Hence, this Court is not inclined to interfere with the impugned order. Accordingly, the writ petition is dismissed. 8. Law is also well settled that ROR neither creates title nor extinguishes the title. 9. In view of the above position, the Tahasildar had no jurisdiction to correct the said ROR under Rule Section 47 of the Orissa Mutation Manual. 10. Hence, this Court is not inclined to interfere with the impugned order. Accordingly, the writ petition is dismissed. Final Result : Dismissed