ORISSA HIGH COURT : CUTTACK O.J.C. NO. 584 OF 1998 In the matter of an application under Articles 226 and 227 of the Constitution of India. ------------- Smt. Manorama Mohanty …… Petitioner -Versus- State of Orissa and others …… Opp. Parties For Petitioner : M/s. Sourya Sundar Das, B.R.Das and R..R.Mohanty. For Opp. Parties : M/s. Addl. Govt. Advocate. ----------------------- Decided on 19.08. 2010. -------------------------- P R E S E N T : THE HONOURABLE SHRI JUSTICE M. M. DAS M.M. DAS, J. 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. His 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 2 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 the further case of the petitioner that after purchase, she has constructed a building over the said land and 3 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 4 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: “Though several points were urged in support of the writ application, we find that the order dated 1.12.1993 which is the subject-matter of challenge is not sustainable for the simple reason that the delay in presentation of Mutation Appeal No. 42 of 1993 which is stated to be about nine years was condoned without even notice to the present petitioner who was respondent in the appeal. Such a course should not have been adopted by the Sub-Collector, Anandapur because by passage of time valuable right had accrued in favour of the petitioner and condoning the delay even without hearing her is in gross violation of principles of natural justice. 2. Accordingly, we quash the order dated 1.12.1993 annexed as Annexure-8 to the writ application. Learned counsel for petitioner states that proceeding itself was misconceived and relies on various decisions of this Court. It is open to the petitioner to highlight these aspects when the matter relating to limitation is taken up by the Sub- Collector, Anandapur. The said authority shall proceeding with the matter after due notice to the petitioner. The writ application is disposed of accordingly. Xx xx xx” 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 5 reasons in the order passed on 27.11.1997, allowed the appeal without proper application of judicial mind. 4. Mr. Das, learned counsel for the petitioner submitted that a bunch of cases were decided by the opp. party no. 4 – appellate authority by a common order and the concerned appeal which is the subject-matter of this writ petition is Appeal No. 42 of 1993. He further submitted that the initiation of the appeal after lapse of nine years of the order passed in the Mutation Case without any acceptable reason disclosed for the delay, is unreasonable and uncalled for and the appellate authority also in gross violation of the directions of this Court passed in the previous writ petition filed by the petitioner did not take into consideration all the contentions raised by the petitioner before him. He further contended that paragraph-95 of the Mutation Manual prescribes that the appeal must be presented within thirty days from the date of the order appealed against and the Mutation Manual does not prescribe for a provision like Section 5 of the Limitation Act nor does it say that section 5 of the Limitation Act is applicable to an appeal filed against an order in a Mutation Case. He further submitted that even if section 5 of the Limitation Act is held to be applicable, there was absolutely no ground made out by the opp. party no. 4 for condoning delay of nine years in filing the appeal. It was 6 further contended by the learned counsel that the Sub-Collector could not have excluded the period during which the revision was filed by the opp. party no. 3 before the opp. party no. 2 under section 14 of the Limitation Act as the said revision was also not filed within 30 days from the date of the order passed in the Mutation Case. 5. On perusal of the impugned order, it appears that the opp. party no. 4 – Sub-Collector took up the Mutation Appeal Nos. 40 to 46 of 1996 together, as all the appeals were preferred by the Collector and without assigning any reason, came to the conclusion that delay in filing the appeals have been condoned and the appeals have been admitted and thereafter took up all the appeals for hearing on merit. 6. With regard to Mutation Appeal No. 42 of 1993 which relates to the disputed property claimed by the petitioner, the opp. party no. 4 in the impugned order after noting the facts of the case has held as follows in the said order:- “………The respondent being aggrieved against the orders dt. 1.12.1993 of this Appellate court filed O.J.C. No. 9865/93 before the Hon’ble High Court of Orissa. In the writ, the Hon’ble High Court of Orissa vide valued orders dt.3.1.94 quashed the orders and directed to proceed the matter after due notice to the petitioner. With respectful consideration of the valued orders, after hearing the respondent, delay in filing the appeal has been condoned and appeal has been admitted for hearing. Xx xx xx” 7 7. It further appears that the opp. party no.4 referring to the order passed in Mutation Revision Case No. 29 of 1989 by the Commissioner came to a wrong conclusion that the orders in Mutation Appeal No. 8 of 1983 has been overruled by the Board of Revenue and held as follows:- “ xx xx xx When in 1975 settlement the case land has been recorded in favour of the State, Maku had no absolute title to apply for permission U/s. 22 of the O.L.R. Act. Dexterously he had obtained permission in O.L.R. Case No. 38/84. Orders in Mutation Appeal No. 8/83 has been over ruled by the Board of Revenue, Orissa in M.R.C.No.29/89 vide orders dt.2.8.93. So this appellate court is not inclined to accept the submission of the respondent. Hence, the submission of the A.G.P. stands.” 8. It appears from the documents produced that the revision case filed by the opp. party no. 3 – Collector before the opp. party no. 2 was after five years of the passing of the order in the Mutation Appeal No. 8 of 1983 on 7.3.1984 and the revisional court did not set aside the order passed in the said Mutation Appeal. Therefore, the Sub-Collector in the impugned order has committed an error of record by holding that the order passed in Mutation Appeal No. 8 of 1993 was over ruled by the Board of Revenue. 9. With regard to the question as to whether sections 5 and 14 of the Limitation Act can be applied to a Mutation Appeal, it appears that in sections 34 and 35 of the Orissa Survey and Settlement Act, 1958, it is provided as follows:- 8 “34. Limitation of applications - Subject to the provisions of the next following section, every appeal presented and application made after the period of limitation specified therefor shall be dismissed although limitation has not been set up as a defence”. “35. Application of the Indian Limitation Act, 1908- Subject to the provisions of this Act, the provisions of the Indian Limitation Act 9 of 1908, except Sections 6, 7, 8,9, 19 and 20 shall apply to all appeals and applications mentioned in Section 34.”. It is, therefore, clear that sections 5 and 14 of the Limitation Act have application to a Mutation Appeal. The grounds stated in the condonation application by the Collector in the Mutation Appeal were that the delay has occurred due to wrong filing of the case before the Board of Revenue by way of revision and, therefore, the period of pendency of the said revision should be excluded from computing the limitation period under section 14 of the Limitation Act. Sub-section (1) of section 14 of the Limitation Act prescribes as follows: “14. Exclusion of time of proceeding bona fide in court without jurisdiction. – (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction other cause of a like nature, is unable to entertain it. (2) & (3) xx xx xx” 9 10. From the above provisions, it is clear that it is only the period for which the revision was pending before the Board of Revenue can be excluded, while computing the period of limitation for filing the appeal, if the said revision was wrongly filed within 30 days of the date of the order challenged in the said revision, as the period of limitation prescribed for filing an appeal is 30 days from the date of the order appealed against. But, then, the said revision having been filed about 5 years after the date of the order passed in the Mutation Case, the said period of five years prior to filing of the revision was required to be explained by the Collector in the appeal, which was not done. Even after the order was passed by the Board of Revenue giving liberty to the Collector to file the appeal, the Collector waited for two years to file such appeal. These aspects not being taken into account by the appellate authority – opp. party no.4 and no reason having been assigned whatsoever, while holding that the delay in filing the appeal has been condoned and he having passed no specific order condoning the delay, he should have dismissed the appeal as barred by time. Even on merit, the appellate authority has mis-directed itself by committing an error of record in holding that the order passed in Mutation Appeal No. 8 of 1983 was set aside by the revisional authority. 10 11. In view of such conclusion, this Court has no hesitation to quash the order dated 27.11.1997 passed by the opp. party no. 4-Sub-Collector in respect of Mutation Appeal No. 42 of 1993 and directing the opp. party no.1-State to maintain the record in respect of the disputed property in the name of the petitioner. Ordered accordingly. 12. In the result, the writ petition is allowed, but in the circumstances, without cost. ……………………… M.M. Das, J. Orissa High Court, Cuttack. August, 19th , 2010/Biswal. 11