MANORAMA MOHANTY Vs. STATE OF ORISSA

JUDGEMENT

(1.) The Petitioner in this writ petition calls in question the order dated 27.11.1997 passed by the Sub-Collector, Anandpur in Mutation Appeal No. 42 of 1993 under Annexure-7. The Petitioner has also raised a question of jurisdiction of the Sub-Collector in entertaining the said appeal as well as a ground that the said order is perverse.

(2.) The facts leading to the said appeal disclose that the disputed land measuring an area of Ac.0.46 decimals out of Ac.1.82 decimals in mouza-Fakirpur under sabik khata No. 222 appertaining to plot No. 885 corresponding to Hal khata No. 1373 and plot Nos. 310/1/6361 and 310/ 6296/6362 originally belonged to one Bala Mallik, S/o. Gadei Mallik and was recorded in his name on rayati status in the 1914-15 settlement. There was a devastating flood in 1927-28 in river Baitarani on the bank of which the disputed land is situated, converting the said land into "BALICHARA". It is the case of the Petitioner that instead of such change of status of the land, said Bala Mallik remained in possession of the said land. During Hal settlement operation, the recorded tenant being very old and illiterate could neither take any steps to get his name recorded in the record of rights nor he could know about the settlement operation and the land was recorded as "ABADAJOGYA ANABADI" with a forcible possession note in favour of one Damodar Satpathy in the year 1975. Bala Mallik died after final publication of the R.O.R. in 1975. Hrs son, namely, Maku Mallik, who is the successor-in-interest, filed Mutation Case No. 580 of 1983 under paragraph-18 of the Orissa Mutation Manual which are a set of executive instructions for implementing the provisions of the Orissa Survey and Settlement Act, 1958 read with Chapter-IV of the Orissa Survey and Settlement Rules framed thereunder. During the pendency of the said mutation proceeding, an enquiry was conducted by the R.I., who found Maku Mallik, S/o. Bala Mallik to be in cultivating possession over the said property. Bala Mallik was survived by three sons and as one of his sons Maku Mallik was in possession, the other co-sharers filed affidavits before the Tahasildar in the said Mutation Case. The Tahasildar by his order dated 8.3.1983 disallowed the said Mutation Case. Maku Mallik preferred Mutation Appeal No. 8 of 1983 before the Sub-Divisional Officer, Anandpur, who allowed the appeal by his order dated 7.3.1984 and remanded the matter back to the Tahasildar. After remand, the Tahasildar issued general proclamation and also individual notices were duly served. As no objection was received in response to such notices, by order dated 30.5.1984, he allowed the Mutation Case. The entry in the R.O.R. was accordingly corrected in favour of said Maku Mallik. In the year 1984, Maku Mallik applied for permission under Section 22 of the O.L.R. Act to transfer the case land in favour of the Petitioner and obtained such permission on 10.10.1984 in Anumati Case No. 38 of 1984. After obtaining-such permission, he sold the property to the Petitioner on 12.10.1989 by a registered sale deed and the Petitioner claims to be the owner in possession over the said property from the date of purchase and paying rent regularly. She also got her name mutated in the record of rights by filing Mutation Proceeding No. 495 of 1985, which was allowed on 29.1.1986. It is further case of the Petitioner that after purchase, she has constructed a building over the said land and is possessing the same. Mutation Revision Case No. 32 of 1989 was filed by the Collector, Keonjhar before the Commissioner, land Records and Settlement, Cuttack-opp. party No. 2 against the order dated 12.10.1989 (although no such order existed in the Mutation Case No. 495 of 1985). The said revision was dismissed by the opp. party No. 2 on 21.10.1991 as not maintainable. However, liberty was granted to the opp. party No. 3 to file appeal before the opp. party No. 4 directing the opp.party No. 4 to consider the question of delay, if any. After the said order dated 21.10.1991, the opp. party No. 3-Collector did not prefer any appeal for two years and finally on 1.12.1993, an appeal was filed which was numbered as Mutation Appeal No. 42 of 1993 under the provisions of paragraph-92 of the Orissa Mutation Manual. Along with the appeal memo, a petition was filed under Section 5 of the Limitation Act on the ground that a revision was pending in Mutation Revision Case No. 32 of 1989 and reasonable time has lapsed due to official correspondences and procedure for legal advice of legal advisor. The Petitioner alleges that the copy of the said application for condonation of delay was not served on her but the Sub-Collector-opp. party No. 4 allowed the said application for condonation of delay ex parte on 23.12.1993 for which the Petitioner approached this Court in O.J.C. No. 9865 of 1993. This Court by order dated 3.1.1994 allowed the writ petition and quashed the order dated 1.12.1993 by which the delay was condoned ex parte by passing the following order:

(3.) Impliedly, therefore, this Court remitted the matter back to the appellate authority to hear the application for condonation of delay by affording an opportunity of hearing to the Petitioner. The Petitioner has alleged that the appellate Court without appreciating all the contentions raised on behalf of the Petitioner and even without condoning the delay by ascribing reasons in the order passed on 27.11.1997, allowed the appeal without proper application of judicial mind.