NANIGOPAL LENKA Vs. COLLECTOR, BALASORE

JUDGEMENT

(1.) THIS writ petition is for a direction for quashment of the order passed by the learned Tahasildar, Bhograi -O.P. No. 2 under Annexure -1 with a direction to allow the mutation in favour of the petitioner within a specific period in pursuance of a judgment passed by the learned Civil Judge (Junior Division), Jaleswar vide Annexure -2. Case of the petitioner is that during major settlement operation the land pertaining to Plot No. 778 measuring Ac. 0.05 decimals was wrongly recorded in the name of the State under Rakhit Khata No. 499 for which the petitioner after serving notice under Section 80 C.P.C. on the Collector, Balasore (O.P. No. 1) instituted Title Suit No. 330 of 1996 in the Court of the learned Civil Judge (Junior Division), Jaleswar for declaration of his right, title and interest over the said land. In the suit, the State of Orissa represented by the Collector did not file W.S. but participated in the proceeding through the learned A.G.P. The said suit was decreed on contest against the State of Orissa vide judgment dated 17.7.2007 and thereafter decree was sealed and signed on 25.7.2007. No appeal was preferred against the said judgment and decree. So when the decree reached its finality the petitioner filed application for mutation but the learned Tahasildar -O.P. No. 2 passed a cryptic order rejecting the same observing that the land in question is objectionable in nature and the petitioner is found to be not in possession of the land in question. The Tahasildar -O.P. No. 2 has filed counter wherein it is stated that on the petitioner's application that Mutation Misc. Case No. 2916 of 2007 was registered and the R.I., Kakhada was directed to conduct field enquiry and submit report followed by spot verification conducted by the Tahasildar himself. On such enquiry, it was found that a portion of the case land has been converted into concrete road and rest of its area is being used as Nayanjori. Since the petitioner was not in possession of the case land, the impugned order was passed dropping the Mutation Proceeding. It is further contended that the case land stands recorded as 'Gochar' which is highly objectionable in nature.

(2.) ON behalf of the petitioner it is submitted that as per rules changes in any entry of the record -of -rights arising out of a decree of a Civil Court shall be registered in the Mutation Register as a separate case and the changes shall be carried out by the Tahasildar immediately on receipt of such decree and in such a case it is not necessary to commence a Mutation Proceeding for that purpose. In support of this contention attention of the Court is invited to Rule 35 of the Orissa Survey and Settlement Rules, 1962. Therefore, it is argued, the impugned order dropping the Mutation Proceeding is nothing but a colourable exercise of power contravening the rule of law.

(3.) IT is not in dispute that there was a civil suit in which the State of Orissa represented by the Collector contested the petitioner's claim of right, title and interest over the case land and ultimately a decree was passed in favour of the petitioner which has reached its finality, inasmuch as no appeal has been preferred against it. It is also not in dispute that the petitioner presented certified copy of the decree before the Tahasildar to get the land mutated in his name. The impugned order (Annexure -1) reflects that the learned Tahasildar took note of the decree but did not allow mutation solely on the ground that the land was highly objectionable in nature and at the time of spot enquiry it was found that the petitioner was not in peaceful possession over the land.