Orissa High Court
Asutosh Mohapatra And Others vs Sk. Manwar Alli And Others … Opposite … on 31 March, 2026
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P(C) Nos. 24461, 7690, 7693, 7694,7696, 7698, 7772, 7797, 21983,
24185, 24207, 24423, 34745 of 2025 with W.P(C) Nos. 1069, 4483,
5117 of 2026
WP(C) No.24461 of 2025
Asutosh Mohapatra and others ... Petitioners
-versus-
Sk. Manwar Alli and others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioners : Mr. S.S. Bhuyan,
Advocate
Ms. S.Mohapatra,
Advocate
Mr. S Sahoo, Advocate.
-versus-
For Opposite Parties : Mr. S. K. Rath
Advocate.
WP(C) No.7690 of 2025
Kanak Manjari Sundaray ... Petitioner
-versus-
Satyabhama Sundaray
and others ... Opposite Parties
W.P.(C) No.24461/2025 and batch cases Page 1 of 37
Advocates appeared in the case through hybrid mode:
For Petitioner : M/S. N.K. Sahu, Sr. Advocate
Mr. Shib Shankar Mohanty,
Advocate
Mr. J. Dash, Advocate
Mr. A.P. Bose, Advocate
Mr. Ranjan Kumar Rout Ray,
Advocate
Mr. A.K. Das, Advocate
Mr. J. Sahoo, Advocate
Mr. K.L. Barik, Advocate.
-versus-
For Opposite Parties : M/S S.S.Rao(Sr.Adv.),
Sukant Kumar Nayak,
Advocate
S.S.K. Nayak, Advocate
B.B. Sahoo, Advocate
S. K. Routray, Advocate
Basudev Mohapatra,
Advocate
Prasanna Panda, Advocate
S. E. Haque, Advocate
B. K. Mohanty, Advocate
S.Sailaja, Advocate
M/S. Nityananda
Behuria, Advocate
Nityabrata Behuria,
Advocate
Braja Bhusan Sahoo,
Advocate
WP(C) No.7693 of 2025
Kanak Manjari Sundaray ... Petitioner
W.P.(C) No.24461/2025 and batch cases Page 2 of 37
-versus-
Satyabhama Sundaray
and others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : M/S. N.K. Sahu, Sr. Advocate
Mr. Shib Shankar Mohanty,
Advocate
Mr. A.P. Bose, Advocate
Mr. Ranjan Kumar Routray,
Advocate
Mr. A.K. Das, Advocate
Mr. J. Sahoo, Advocate
Mr. K.L. Barik, Advocate.
-versus-
For Opposite Parties : M/S S.S.Rao(Sr.Adv.),
Sukant Kumar Nayak,
Advocate
S.S.K. Nayak, Advocate
B.B. Sahoo, Advocate
S. K. Routray, Advocate
Basudev Mohapatra,
Advocate
Prasanna Panda, Advocate
S. E. Haque, Advocate
B. K. Mohanty, Advocate
S.Sailaja, Advocate
M/S. Nityananda
Behuria, Advocate
Nityabrata Behuria,
Advocate
Braja Bhusan Sahoo,
Advocate
W.P.(C) No.24461/2025 and batch cases Page 3 of 37
WP(C) No.7694 of 2025
Kanak Manjari Sundaray ... Petitioner
-versus-
Satyabhama Sundaray
and others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : M/S. Yashobanta Dash,
Sr.Advocate
Mr. Shib Shankar Mohanty,
Advocate
Mr. B.P. Nanda, Advocate
Mr. A.P. Bose, Advocate
Mr. Ranjan Kumar Rout Ray,
Advocate
Mr. A.K. Das, Advocate
Mr. J. Sahoo, Advocate
Mr. K.L. Barik, Advocate.
-versus-
For Opposite Parties : M/S S.S.Rao (Sr.Adv.),
Sukant Kumar Nayak,
Advocate
S.S.K. Nayak, Advocate
B.B. Sahoo, Advocate
S. K. Routray, Advocate
Basudev Mohapatra,
Advocate
Prasanna Panda, Advocate
S. E. Haque, Advocate
B. K. Mohanty, Advocate
S.Sailaja, Advocate
M/S. Nityananda
W.P.(C) No.24461/2025 and batch cases Page 4 of 37
Behuria, Advocate
Nityabrata Behuria,
Advocate
Braja Bhusan Sahoo,
Advocate
WP(C) No.7696 of 2025
Kanak Manjari Sundaray ... Petitioner
-versus-
Satyabhama Sundaray
and others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : M/S. Yashobanta Dash,
Sr. Advocate
Mr. Shib Shankar Mohanty,
Advocate
Mr. B.P. Nanda, Advocate
Mr. A.P. Bose, Advocate
Mr. Ranjan Kumar Rout Ray,
Advocate
Mr. A.K. Das, Advocate
Mr. J. Sahoo, Advocate
Mr. K.L. Barik, Advocate.
-versus-
For Opposite Parties : M/S S.S.Rao (Sr.Adv.),
Sukant Kumar Nayak,
Advocate
S.S.K. Nayak, Advocate
B.B. Sahoo, Advocate
S. K. Routray, Advocate
Basudev Mohapatra,
Advocate
W.P.(C) No.24461/2025 and batch cases Page 5 of 37
Prasanna Panda, Advocate
S. E. Haque, Advocate
B. K. Mohanty, Advocate
S.Sailaja, Advocate
M/S. Nityananda
Behuria, Advocate
Nityabrata Behuria,
Advocate
Braja Bhusan Sahoo,
Advocate
WP(C) No.7698 of 2025
Kanak Manjari Sundaray ... Petitioner
-versus-
Satyabhama Sundaray
and others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : M/S. Yashobanta Dash,
Sr.Advocate
Mr. Shib Shankar Mohanty,
Advocate
Mr. A.P. Bose, Advocate
Mr. Ranjan Kumar Routray,
Advocate
Mr. A.K. Das, Advocate
Mr. J. Sahoo, Advocate
Mr. K.L. Barik, Advocate.
-versus-
For Opposite Parties :M/S S.S.Rao (Sr.Adv.),
Sukant Kumar Nayak,
Advocate
S.S.K. Nayak, Advocate
W.P.(C) No.24461/2025 and batch cases Page 6 of 37
B.B. Sahoo, Advocate
S. K. Routray, Advocate
Basudev Mohapatra,
Advocate
Prasanna Panda, Advocate
S. E. Haque, Advocate
B. K. Mohanty, Advocate
S.Sailaja, Advocate
M/S. Nityananda
Behuria, Advocate
Nityabrata Behuria,
Advocate
Braja Bhusan Sahoo,
Advocate
WP(C) No.7772 of 2025
Kanak Manjari Sundaray ... Petitioner
-versus-
Satyabhama Sundaray
and others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : M/S. N.K. Sahu, Sr. Advocate
Mr. Shib Shankar Mohanty,
Advocate
Mr. B.P. Panda, Advocate
Mr. A.P. Bose, Advocate
Mr. Ranjan Kumar Routray,
Advocate
Mr. A.K. Das, Advocate
Mr. J. Sahoo, Advocate
Mr. K.L. Barik, Advocate.
-versus-
For Opposite Parties : M/S S.S.Rao(Sr.Adv.),
W.P.(C) No.24461/2025 and batch cases Page 7 of 37
Sukant Kumar Nayak,
Advocate
S.S.K. Nayak, Advocate
B.B. Sahoo, Advocate
S. K. Routray, Advocate
Basudev Mohapatra,
Advocate
Prasanna Panda, Advocate
S. E. Haque, Advocate
B. K. Mohanty, Advocate
S.Sailaja, Advocate
M/S. Nityananda
Behuria, Advocate
Nityabrata Behuria,
Advocate
Braja Bhusan Sahoo,
Advocate
WP(C) No.7977 of 2025
Kanak Manjari Sundaray ... Petitioner
-versus-
Satyabhama Sundaray
and others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : M/S. N.K. Sahu, Sr. Advocate
Mr. Shib Shankar Mohanty,
Advocate
Mr. B.P. Panda, Advocate
Mr. A.P. Bose, Advocate
Mr. Ranjan Kumar Routray,
Advocate
Mr. A.K. Das, Advocate
Mr. J. Sahoo, Advocate
Mr. K.L. Barik, Advocate.
W.P.(C) No.24461/2025 and batch cases Page 8 of 37
-versus-
For Opposite Parties : M/S S.S.Rao(Sr.Adv.),
M/S Sushant Kumar
Nayak, Advocate
S.S.K. Nayak, Advocate
B.B. Sahoo, Advocate
S. K. Routray, Advocate
Basudev Mohapatra,
Advocate
Prasanna Panda, Advocate
S. E. Haque, Advocate
B. K. Mohanty, Advocate
S.Sailaja, Advocate
M/S. Nityananda
Behuria, Advocate
Nityabrata Behuria,
Advocate
Braja Bhusan Sahoo,
Advocate
WP(C) No.21983 of 2025
Asutosh Mohapatra and others ... Petitioners
-versus-
Sk.Manwar Alli and others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioners : Mr. S. Mohapatra,
Advocate
Mr. S.Sahoo, Advocate
Mr. S.S. Bhuyan, Advocate
-versus-
W.P.(C) No.24461/2025 and batch cases Page 9 of 37
For Opposite Parties : Mr. S.K. Rath, Advocate,
Mr. P.K. Panda, Advocate
WP(C) No.24185 of 2025
Asutosh Mohapatra and others ... Petitioners
-versus-
Sk.Manwar Alli and others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioners : Mr. Suryasnata
Mohapatra, Advocate
Mr. S.Sahoo, Advocate
Mr. S. S.Bhuyan, Advocate
-versus-
For Opposite Parties : Mr. Soubhagya Kumar
Rath, Advocate
WP(C) No.24207 of 2025
Asutosh Mohapatra and others ... Petitioners
-versus-
Sk.Manwar Alli and others ... Opposite Party
W.P.(C) No.24461/2025 and batch cases Page 10 of 37
Advocates appeared in the case through hybrid mode:
For Petitioners : Mr. S. Mohapatra,
Advocate
Mr. S.Sahoo, Advocate
Mr. S.S. Bhuyan, Advocate
-versus-
For Opposite Parties : None.
WP(C) No.24423 of 2025
Asutosh Mohapatra and others ... Petitioners
-versus-
Sk.Manwar Alli and others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioners : Mr. S. Mohapatra,
Advocate
Mr. S.Sahoo, Advocate
Mr. S.S. Bhuyan, Advocate
-versus-
For Opposite Parties : Mr. R.K. Mohanty, Sr.
Advocate,
Ms. Sumitra Mohanty,
Advocate,
Mr. K.K. Mohapatra,
Advocate,
Mr. S.S. Bhuyan, Advocate,
Mr. P.K. Panda, Advocate
WP(C) No.34745 of 2025
W.P.(C) No.24461/2025 and batch cases Page 11 of 37
Asutosh Mohapatra and others ... Petitioners
-versus-
Sk.Manwar Alli and others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioners : Mr. S. Mohapatra,
Advocate
Mr. S.Sahoo, Advocate
Mr. S.S. Bhuyan, Advocate
-versus-
For Opposite Parties : None
WP(C) No. 1069 of 2026
Uttam Kumar Panigrahi
and others ... Petitioners
-versus-
State of Odisha and others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioners : Mr. Dillip Ku. Mohapatra,
Advocate Mr. Ch. B.
Mohapatra, Advocate
Mr. S. Mohapatra, Advocate
W.P.(C) No.24461/2025 and batch cases Page 12 of 37
-versus-
For Opposite Parties : Mr.P.V. Balakrishna,
Advocate
WP(C) No. 4483 of 2026
Debasis Chakrabarty @ Chakravarty
and another ... Petitioners
-versus-
State of Odisha and others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioners : Mr. Raj Kumar Sutar,
Advocate
Mr. N. Maharana, Advocate
Mr. S. Mohanty, Advocate
-versus-
For Opposite Parties : None
WP(C) No. 5117 of 2026
P. Bhaskar Patro ... Petitioner
-versus-
State of Odisha and others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
W.P.(C) No.24461/2025 and batch cases Page 13 of 37
For Petitioner : Ms. Deepali Mahapatra,
Advocate
-versus-
For Opposite Parties : None
---------------------------------------------------------------------------
CORAM:
JUSTICE SASHIKANTA MISHRA
ORDER
31.03.2026
Sashikanta Mishra, J. In all these Writ Petitions, a common
preliminary question as to maintainable of writ petitions
arises for determination-
Whether an order passed in mutation appeal under
Rule 42 of the Orissa Survey and Settlement Rules,
1962 (OSS Rules) is revisable under Section 32 of the
Orissa Survey and Settlement Act (OSS Act) read with
Paragraph-111 of the Mutation Manual.
In all these cases, the orders passed in different
mutation appeals are impugned.
2. For convenience, the facts of W.P.(C) No.24461/2025
are taken up for consideration.
Facts.
3. One Kulamani Mohapatra was the original recorded
owner of the property in question, who died issueless. The
W.P.(C) No.24461/2025 and batch cases Page 14 of 37
property devolved upon the Petitioners by way of
survivorship and they are in possession. One Birendra
Pattanaik, brother-in-law of late Kulamani, looked after the
education of the children of his brother-in-law. The names
of Kunmun Mohapatra, Anamika Mohapatra, Kabita Sahoo
and Gayatree Mohapatra were recorded in the ROR in the
settlement operation by treating them as successors of late
Kulamani. Subsequently, they illegally alienated the
property through a registered sale deed dtd.20.5.2023 in
favour of the Opp.Party No.1. The Petitioners, therefore,
filed a civil suit being C.S. No.347/2023 in the Court of
learned Civil Judge, Jagatsinghpur for cancellation of the
sale deed and declaration of their right, title and interest.
The Petitioners also filed application under Order XXXIX
Rules 1 and 2 for temporary injunction, which was allowed.
Opposite Party No.1 challenged the order of injunction in
appeal before the learned District Judge, Jagatsinghpur in
F.A.O. No.54/2023, whereby the order of the trial Court
was reversed. Challenging the order of the appellate Court,
the Petitioners have approached this Court in CMP
No.1501/2024, wherein an order of status quo was passed,
W.P.(C) No.24461/2025 and batch cases Page 15 of 37
which is still in operation. In the meantime, the Opposite
Party No.1 filed six mutation cases before the Tahasildar,
Tirtol for correction of ROR on the basis of the sale deed.
All such cases were rejected on the ground that the sale
deed was executed without consent of all the recorded
tenants/legal heirs. Opposite Party No.1 thereafter
preferred appeal being Mutation Appeal No.160/2023
before the Sub-Collector, Jagatsinghpur. Said appeal was
allowed. Challenging such order passed in Mutation
Appeal, the present Writ Petition has been filed.
4. A doubt having arisen as to whether the order of the
appellate authority is revisable before the Board of Revenue
under Section 32 of the OSS Act or not, particularly in view
of the conflicting judgments passed by this Court in
different cases, the matter was heard extensively on this
point.
Submissions
5. Heard Mr. B.B. Bhuyan, learned Senior counsel with
Mr. S.S.Bhuyan, Mr. N.K.Sahu, learned Senior counsel
with Mr. S.S.Sahu, Ms. Deepali Mahapatra, Mr. Bijay
Mohapatra and Mr. R.K.Mohanty, learned Senior counsel
W.P.(C) No.24461/2025 and batch cases Page 16 of 37
with Mrs. Sumitra Mohanty for the Petitioners. Also heard
Mr. S.N.Patnaik, learned Addl. Government Advocate and
Smt. J. Sahoo, learned Addl. Standing Counsel, for the
State.
6. Learned Senior counsel Mr. B.B.Bhuyan submits that
the revision under Section 32 of the OSS Act cannot be
treated as an alternative remedy for a person aggrieved by
order passed in Mutation Appeal. He further submits that
the power of revision can be exercised by the Board of
Revenue suo motu only against orders passed by Revenue
authorities against whose decision no appeal lies.
Alternatively, Mr. Bhuyan argues that this Court,
exercising writ jurisdiction has plenary powers and can
exercise jurisdiction even if alternative remedy is available.
7. Learned Senior counsel Mr. N.K.Sahu refers to
different statutory provisions such as Section 16 of the of
the OSS Act and Rules 32,33,34,35,41,42 and 43 of the
OSS Rules, 1962. He also refers to Section 32 of the OSS
Act to submit that the expression “from whose decision no
appeal lies” clearly implies that the order passed in
Mutation Appeal is not included in its purview. With regard
W.P.(C) No.24461/2025 and batch cases Page 17 of 37
to Para-111 of the Odisha Mutation Manual, 1962, Mr.
Sahu submits that the same being in the nature of an
executive instruction and not authenticated in the manner
prescribed under Article 166(2) of the Constitution nor
notified in the official gazette, does not have force of law.
Mr. Sahu further submits that the power under Section 32
can be exercised in relation to an order passed before
publication of the ROR. The statute provides specific
remedy to any person aggrieved by final publication of ROR
under Section 15 of the OSS Act.
8. Ms. Deepali Mahapatra also refers to Paragraph 111
of the Mutation Manual to submit that the same is not
‘Law’ within the meaning of Article 13(3)(a) and13(3)(b) of
the Constitution of India. It is a mere executive instruction
having no binding force. Ms. Mahapatra submits that any
person aggrieved by the final publication of ROR can seek
redressal under Section 15(b) of the OSS Act.
9. Mr. Bijay Mohapatra, while adopting the arguments
made by the two Senior counsel and Ms. Mohapatra,
further submits that the word ‘officer’ appearing in Section
32 has not been specifically defined in the OSS Act. Section
W.P.(C) No.24461/2025 and batch cases Page 18 of 37
2(2) refers to Asst. Settlement Officer, Section 2(3) refers to
Chief Survey Officer, while Section 2(10) refers to
Settlement Officer and Section 2(13) refers to Survey
Officer. So according to Mr. Mohapatra, any orders passed
by these authorities alone are subject to revisional
jurisdiction under Section 13. Referring to the OSS Rules,
Mr. Mohapatra submits that the word ‘Tahasildar’ has
been defined as the Chief Officer in charge of revenue
administration of a Tahasil and includes an Additional
Tahasildar and any other officer who has been appointed to
discharge any of the functions of the Tahasildar. As per
Rule 42, appeal lies to the Settlement Officer if the order is
made by the Asst. Settlement Officer exercising power of
the Tahasildar or to the Sub-Divisional Officer if the order
is passed by any other officer exercising the powers of
Tahasildar. Mr. Mohapatra also refers to the provisions
under the Act and Rules relating to revision and submits
that the same are not available against any order passed in
mutation appeal.
10. As against the contentions noted above, learned
Senior counsel Mr. R.K.Mohanty submits that there are
W.P.(C) No.24461/2025 and batch cases Page 19 of 37
conflicting judgments of this Court. He refers to a
judgment of Jaysankar Agarwal v. Collector, Puri and
another1 and the judgment rendered in Sushanta Kumar
Das v. Sub-Collector, Bhubaneswar & Others2 by a co-
ordinate Bench of this Court. In the first judgment, it has
been held that the order passed in mutation appeal is not
revisable. In later judgment, a contrary view has been
taken by holding that order passed in mutation appeal is
revisable.
11. Also, the learned counsel for the Petitioners further
submits that even if this Court finds that the order passed
in mutation appeal is revisable under Section 32 of the
OSS Act, the same cannot be treated as an absolute bar to
the maintainability of the writ petitions. Placing reliance on
the judgments of the Supreme Court in Whirlpool
Corporation v. Registrar of Trade Marks3 and Godrej
Sara Lee Ltd. v. Commr. (AA)4, , it is contended by the
learned counsels that the power of this Court under Article
226 of the Constitution is plenary in nature and can be
1
2004(1) OLR 538
2
W.P.(C) No.1031/2013
3
(1998 )8 SCC 1
4
(2009) 14 SCC 338
W.P.(C) No.24461/2025 and batch cases Page 20 of 37
exercised notwithstanding the availability of an alternative
remedy.
Analysis and findings
12. It would be profitable at the outset to refer to the
scheme of the OSS Act in so far as the same relates to
preparation of RORs. Chapter III is titled ‘Record of Rights’
under which Section 11 confers power on the Government
to prepare RORs, Section 12 provides for preliminary
publication of draft RORs and hearing of objections by the
Asst. Settlement Officer. Appeal lies against the order
passed under Section 12 to the Settlement Officer under
Section 12A. Final publication of RORs is governed by
Section 12B. Once the ROR has been finally published,
the Board of Revenue has power to exercise revisional
jurisdiction under Section 15. Section 16 provides that the
map and the RORs shall be kept up-to-date and
maintained. If the need arises to effect any changes in the
ROR finally published, the procedure therefor is laid down
in the Rules. Be it noted that the OSS Rules, 1962 have
been framed by the State exercising power under Section
43 of the Act.
W.P.(C) No.24461/2025 and batch cases Page 21 of 37
13. The word ‘Mutation’ has not been expressly defined
either in the Act or in the Rules.
The Law Lexicon (2nd Edition) defines ‘Mutation’
as follows;
“A significant or basic alteration of the name of a
person by the name of another in relation to property
in the record showing right or title to the property”
14. Thus, plainly speaking, mutation refers to change and
in the present context to the entries in a record of right.
Chapter-IV contains Rule 34, which deals with correction
of RORs and map and reads as follows:
“34. Grounds on which correction of the record-
of-rights and map is to be made – The Tahasildar
may on application in that behalf of any person
interested or on receipt of a report from any of his
subordinate officers or on receipt of a notice from the
Registrar or Sub-Registrar appointed under the Indian
Registration Act, 1908, or from a Court or on his own
motion, order [* * *] any charge of any entry in the
record-of-rights according to the rules hereinafter
prescribed on any one or more of the following
grounds, namely :
(a) that all persons interested in any entry in the
record-of-rights wish to have it changed;
(b) that by a decree in a civil suit, any entry therein
has been declared to be erroneous;
(c) that being founded on a decree or order of a Civil
Court or on the order of any competent authority, the
entry therein is not accordance with such decree or
order;
(d) that such decree or order has subsequently been
varied on appeal, revision or review;
(e) that any entry therein has no relationship with the
existing facts; andW.P.(C) No.24461/2025 and batch cases Page 22 of 37
(f) that by preparation of a survey record under
Chapter II of the Act, any change is necessitated in
the record-of-rights”
15. An entry in the ROR can be changed on any one or
more of the grounds enumerated under Rule 34. Rule 35
relates to registration of proceedings for change in RORs
and reads as follows;
“35. Registration of proceedings- All proceedings
commenced on a report, application or otherwise
under this Chapter shall be registered as mutation
cases and each such case shall be numbered and
entered in register in Form No.8 to be called the
Mutation Register:
Provided that changes in any entry of the record-of-
rights arising out of an order to decree of Revenue or
a Civil Court or the order of a Tribunal constituted
under any law for the time being in force shall be
numbered and entered in the Register as separate
cases and carried out by the Tahasildar immediately
on receipt of such order or decree, as the case may
be, and it shall not be necessary to commence a
Mutation Proceeding for that purpose.”
16. These cases are to be registered as mutation cases.
Rule 41 provides the manner of disposal of mutation
applications. Rule 42 provides the remedy of appeal and
reads as follows:
“42. Appeal- (1)An appeal from any final order made
under Rule 41 shall lie -(i)if the original order was
made by an Assistant Settlement Officer exercising
the powers of the Tahasildar under those rules and
working under the administrative control of the
Settlement Officer, to the Settlement Officer; and(ii)if
the original order was made by any other officer
exercising the powers of the Tahasildar under theseW.P.(C) No.24461/2025 and batch cases Page 23 of 37
rules, to Sub-divisional Officer.(2)Every such appeal
must be presented within thirty days from the date of
the order appealed against.”
17. Now, it is to be considered whether the order passed
under Section 42 can be revised by any higher authority. It
is significant to note that Section 42-A provides for revision
and reads as follows:
“42-A. Revision- the Collector may, of his own motion
or otherwise, call for and examine records of any
proceedings in which orders have been passed under
Rules 34, 42 and 43 by the Tahasildar (or any Officer
authorized by him under Rule 34) of Sub-Collector, as
the case may be, in respect of any Govt. land, for the
purpose of satisfying himself that such order was not
passed under mistake of fact or owing to any fraud or
misrepresentation or on account of any material
irregularity of procedure and may pass such order
thereon as he thinks proper:
Provided that no order shall be passed under this
rule, unless the person affected by the proposed order
has been given a reasonable opportunity of being
heard in the matter:
Provided further that no proceedings under this rule
shall be intimated after the expiry of thirty years from
the date of order.”
18. As can be seen, an order passed under Rule 42 is
revisable but only in respect of Government land. It is
argued that had it been the intention of the legislature to
provide the remedy of revision in respect of all lands-
Government and private- it would have stated so in Rule
W.P.(C) No.24461/2025 and batch cases Page 24 of 37
42-A instead of limiting it to Government lands only. Thus,
according to learned counsel for the petitioners, from the
scheme of the Act and Rules as reflected in the relevant
provisions quoted herein-before, the order passed under
Rule 42 is not revisable in so far as it relates to land other
than Government lands.
The above argument appears acceptable on the face of
it, but on deeper scrutiny, it is not so. While it is true that
the Rules do not specifically provide a remedy of revision
against orders passed under Rule 42 (appellate orders) in
respect of lands other than Government lands but absence
of the same cannot be treated as an absolute bar against
revision, more so as there is no provision in the Rules
debarring the same. The contrary view would impinge upon
the general power of revision conferred on the Board of
Revenue by the statute under Section 32. It is trite law
that Rules being subordinate legislation cannot override
the main statutory enactment. Reference in this regard
may be had to the case of Babaji Kondaji Garad v. Nasik
W.P.(C) No.24461/2025 and batch cases Page 25 of 37
Merchants Coop. Bank Ltd.5, wherein the Supreme Court
observed as follows:
15. Section 73-B provides a legislative mandate.
Rule 61 has a status of subsidiary legislation or
delegated legislation. Bye-law of a Cooperative
society can at best have the status of an article of
association of a company governed by the Companies
Act, 1956 and as held by this Court in Cooperative
Central Bank Ltd. v. Additional Industrial Tribunal,
Andhra Pradesh [(1969) 2 SCC 43 : (1970) 1 SCR 205]
the bye-laws of a Cooperative society framed in
pursuance of the provision of the relevant Act cannot
be held to be law or to have the force of law. They are
neither statutory in character nor they have statutory
flavour so as to be raised to the status of law. Now if
there is any conflict between a statute and the
subordinate legislation, it does not require elaborate
reasoning to firmly state that the statute prevails over
subordinate legislation and the bye-law if not in
conformity with the statute in order to give effect to
the statutory provision the rule or bye-law has to be
ignored. The statutory provision has precedence and
must be complied with. Further the opinion of the
Deputy Registrar as expressed in his circular dated
February 1, 1979 and his letter dated June 4, 1979
has no relevance because his lack of knowledge or
misunderstanding of law as expressed in his opinion
has no relevance. The High Court relying upon the
aforementioned two documents observed as under:
XX XX XX.”
[Emphasis added]
Reiterating the same, the Supreme Court in a recent
case of Nova Ads v. Metropolitan Transport Corpn.6 has
held that the Rules cannot override statute.
5
(1984) 2 SCC 50
6
(2015) 13 SCC 257W.P.(C) No.24461/2025 and batch cases Page 26 of 37
19. Before proceeding further, it would be proper to refer
to the provision under Section 32 of the Act, which is
reproduced below:
“32. Power to call for and revise proceedings of
Revenue Officers- The Board of Revenue may call for
the record of any Proceeding [any Officer] from whose
decision no appeal lies if such Officer appears to have
exercised a jurisdiction not vested in him by law or to
have failed to exercise a jurisdiction so vested or while
acting in the exercise of his jurisdiction to have
contravened some express provision of law affecting the
decision on the merits where such contravention has
produced a serious miscarriage of justice and the Board
of Revenue after hearing the parties if they attend, shall
pass such order as it deems fit.”
(Emphasis Added)
This is obviously a general power conferred on the
Board of Revenue to be exercised in cases indicated
therein.
20. Admittedly, neither the Act nor the Rules provide for
any further appeal against the order passed under Rule 42.
Much has been argued as regards the status of Mutation
Manual. This Court does not deem it necessary to examine
whether the said Manual can be treated as ”Law” within
the meaning of Article 13(a) of the Constitution of India or
not. It is common ground that it is an executive instruction
meant to supplement the provisions of the Act and Rules
and not act contrary thereto. Paragraph-111 of the manual
W.P.(C) No.24461/2025 and batch cases Page 27 of 37
has been referred to by learned counsel for the Petitioners
to urge that the nature of proceeding under Section 32 of
the Act has been clarified. The paragraph reads as follows:
“111. Under Sec. 32 of the Act, the Board of Revenue have
powers, with or without petition, to call for and revise any
proceedings before any Officer from whose decision no appeal
lies. The fact that the Board of Revenue have been vested with
this power of revision of any proceedings at any time does not
mean that any party to a mutation proceeding can, as a matter
of course, move the Board for changing an order passed by a
subordinate authority. The statutory rule does not provide for a
second appeal or revision after the first appeal and in the
absence of such a specific provision the general powers
conferred by Sec. 32 cannot be invoked to utilise the Board of
Revenue as a Court of second appeal. Powers of control and
supervision by the superior authority are discretionary and the
authorities exercising such powers are not ordinarily disposed
to interfere except in the following classes of cases, namely:
(a) where a subordinate officer has improperly refused to
exercise a jurisdiction vested in him, or
(b) where such officer in the exercise of the jurisdiction has
failed in his duty or has contravened some express provision of
law affecting the decision on the merits, and where such
contravention has produced a serious miscarriage of justice, or
(c) generally where it is necessary for the purpose of preventing
gross abuse or gross injustice.”
(Emphasis added)
21. The words employed in paragraph-111 are self-
explanatory. It is clarified in no uncertain terms that
Section 32 does not provide a forum of second appeal in
the garb of revision. It is well settled that appeal is a
creature of statute. Unless the statute expressly provides
the remedy of appeal, no authority can exercise such
W.P.(C) No.24461/2025 and batch cases Page 28 of 37
power. As already stated, neither the Act nor the Rules
provide the remedy of appeal against an order passed
under Rule 42 of the Act. That being so, paragraph-111 in
so far as it mentions that the general power conferred by
Section 32 cannot be invoked to utilize the power of Board
of Revenue as a Court of Second Appeal, cannot in any
manner encroach upon such power conferred on the Board
of Revenue by the statute to revise an appellate order.
Otherwise, it would be a case of an executive instruction
overriding the statute, which needless to mention, cannot
be countenanced in law. Thus, this Court holds that
neither the Rules nor the executive instruction (Mutation
Manual) can operate to curb the power of the Board of
Revenue conferred by Section 32 of the Act. It is in this
context that the expression ‘from whose decision no appeal
lies’ occurring in Section 32 is to be understood. As already
stated, neither the Act nor the Rules provide for further
appeal against the order passed by the appellate authority
under Rule 42 of the Rules. There is, therefore, no reason
as to why the afore-quoted expression shall not be held to
W.P.(C) No.24461/2025 and batch cases Page 29 of 37
be applicable to orders passed by the appellate authority
also.
22. It is to be noted that the power under Section 32 is
subject to the limitations expressly mentioned therein,
namely; (i) If the officer appears to have exercised a
jurisdiction not vested in him by law; or (ii) to have failed
to exercise his jurisdiction so vested; or (iii) while acting in
the exercise of his jurisdiction, has acted in contrary of
some express provision of law affecting the decision on the
merits resulting in serious miscarriage of justice.
23. It may be mentioned in passing that this power is
more or less similar to the power of revision conferred
under Section 115 of C.P.C. The legislature in its wisdom
has narrowed the scope of challenge in revision to orders
passed by sub-ordinate Revenue Officers. Obviously, this
cannot be a ground to by-pass the remedy of revision and
invoke the extra-ordinary writ jurisdiction of this Court.
This Court therefore, holds that the order passed by the
appellate authority under Rule 42 of the Act is revisable
under Section 32 of the Act.
W.P.(C) No.24461/2025 and batch cases Page 30 of 37
24. As regards the contention of the learned counsel for
the petitioners regarding the maintainability of the writ
petition, this Court has given its anxious consideration to
the submissions. There is no dispute with regard to the
proposition of law laid down in Whirlpool Corporation
(Supra) that the existence of an alternative remedy does not
operate as an absolute bar to the exercise of writ
jurisdiction. It is well settled that, in exceptional cases,
such as (i) where the writ petition has been filed for
enforcement of any of the Fundamental Rights guaranteed
under Part III of the Constitution, (ii) where there has been
violation of the principles of natural justice, (iii) where the
order or proceeding is wholly without jurisdiction, or (iv)
where the vires of a statute is under challenge, this Court
may entertain a writ petition notwithstanding the
availability of an alternative remedy.
However, it is equally well settled that the power
under Article 226 being discretionary in nature, is not to be
exercised routinely. Where the statute provides an
efficacious remedy for redressal of grievance, this Court
would be slow in entertaining a writ petition bypassing
W.P.(C) No.24461/2025 and batch cases Page 31 of 37
such statutory remedy. The rule of exhaustion of
alternative remedy is a rule of self-imposed restraint and is
founded on sound principles of judicial discipline.
In the present batch of cases, none of the exceptions as
noted above are attracted. The grievance raised pertains to
the correctness of orders passed in mutation appeal by the
appellate authority within its jurisdiction. Mere allegation
of illegality in such orders cannot be a ground to invoke
writ jurisdiction by bypassing the statutory remedy.
Precedents
25. Learned Senior counsel Mr.R.K.Mohanty has argued
that there are conflicting judgments rendered by different
benches of this Court. Mr. Mohanty first refers to the
judgment passed by a coordinate Bench in the case of
Sushanta Kumar Das (Supra) wherein it was held that
revision is maintainable against an order passed in
‘mutation appeal’. Mr. Mohanty further cites the judgment
of this Court in the case of Jaysankar Agrawal (Supra),
wherein it was held that the ‘mutation order’ passed under
Chapter-IV of the Rules being appealable, that order is not
revisable under Section 32. In the case of Maheswar
W.P.(C) No.24461/2025 and batch cases Page 32 of 37
Nayak vs. Commissioner Land Records and Settlement
and others7 another Bench held that there is no scope for
undertaking a revision exercise under Section 32 against
an order passed in mutation appeal.
26. The earliest judgment cited at the bar being that in
the case of Jaysankar Agrawal (supra), it would be
proper to first refer to it. The Court, in the said judgment
referred to different provisions contained in Chapter-IV of
the Rules and observed as follows:
“Be that as it may, Section 32 of the Act provides the
power of Revision on the Board of Revenue against
non-appealable orders to consider legality and
propriety of such order and also to examine
jurisdictional error in such orders. Therefore, the
mutation order passed under Chapter IV of the Rules
being appealable, that order is not revisable under
Section 32. Section 33 of the Act provides that
Government by Notification, may delegate the power
of the Board of Revenue to an officer not below the
rank of Revenue Divisional Commissioner. On a
combined reading of the aforesaid provisions it is
seen that the provision of law in the Act and the Rules
has not invested power or jurisdiction on the Collector
to entertain a Misc. application to set aside an order
of mutation or to revise the same with an order of
remand.”
(Emphasis Added)
The above was a case where the Collector exercised
jurisdiction to set aside an order passed in a mutation
7
(O.J.C. No.7134/2001)
W.P.(C) No.24461/2025 and batch cases Page 33 of 37
case. The Court held that neither the Act nor the Rules
vested jurisdiction with the Collector to exercise appellate
or supervisory jurisdiction, noting that under Rule 42,
Settlement Officer/Sub-Divisional Officer is the appellate
authority. Since the mutation order passed under Chapter-
IV of the Rules is appealable, the same is not revisable
under Section 32. Obviously, the facts of the said case are
entirely different from the present cases, where the
question is whether the order passed by the appellate
authority is revisable or not.
27. The next case is that of Maheswar Nayak (supra),
wherein the Court considered the effect of Section 32 and
Paragraph-111 of the Mutation Manual and observed as
follows;
” xxx xxx xxx xxx xxx xxx xxx
7. Reading through the provisions at Section 32 of the
Act, 1958, this Court finds, in the Section 32 of the
Act, 1958 power lies with the Board of Revenue or the
Commissioner and for the notification therein such
power is to be exercised only involving the
proceedings undertaken by the Revenue Officers.
Section 32 further discloses that the Revision power is
to be exercised involving the proceedings of the
Revenue Officer, but however, where there is no scope
of appeal. Similarly reading through the provision at
paragraph no.111 of the Mutation Manual this Court
again finds, there has been further clarification to the
provision involving revisional power of the Board of
Revenue or any authorized Officer. For there is raising
of doubt, whether a proceeding U/s.22(2) of the O.S.S.
W.P.(C) No.24461/2025 and batch cases Page 34 of 37
Act, 1958 will be an appeal in the eye of law or an
original proceeding? This Court here takes into
account the provision at proviso (c) of the rule 59 of
the O.S.S. Rules, 1962, which reads as follows:
“(c) Proceedings relating to publication of the
combined draft record-of-rights and Settlement Rent
Roll, filing of objections to any entry therein or
omission therefrom, disposal of such objections,
revision of rent by the Assistant Settlement Officer,
sanction of the settled rent and modification of order
of the Assistant Settlement Officer, by the Settlement
Officer shall be carried on in accordance with
provisions of Sections 21 and 22 and Rules 26 and
27:
Provided that an application under Clause (b) of
Subsection (2) of Section 22 shall be deemed to be an
appeal under Section 12-A and no separate appeal
shall lie under the said section
This Court for the clarification through the
proviso (c) of Rule 59 of the O.S.S, Rules, 1962 finds,
there should be no doubt that the proceedings
undertaken in exercise of power under Subsection 2
of Section 22 is appeal.
8. Reading both the provisions and keeping in view
that undisputedly the original proceeding is already
taken care of in appeal vide Appeal No.2299 of 1983
under the provisions of Section 22(2) of the Act, 1958,
this Court is of the clear opinion that there was no
scope for undertaking a revision exercise U/s.32 of
the Act, 1958.
In the circumstance, this Court finds, the
revision itself is not entertainable. Impugned order
involving the Revision No.3972 of 1997 arising out of
Appeal No.2299 of 1983 remains void and
unenforceable. For the decision of this Court holding
the revision per se not entertainable, there is no
necessity to go to any other aspect involving challenge
to the revision order.
In the above case, the matter involved challenge
to an order passed under Section 22(2) of the Act. Section
22 relates to settlement of rent and does not concern
orders passed in mutation proceedings, which are governed
W.P.(C) No.24461/2025 and batch cases Page 35 of 37
by Section 16 of the Act and the corresponding Rules
contained in Chapter-IV of the Rules. The cited case is
therefore, clearly distinguishable from the facts of the
present case.
28. In the case of Sushanta Kumar Das (supra), a co-
ordinate Bench held that a revision should have been filed
against the order passed in mutation appeal instead of
filing writ petition.
29. This Court, after independently analyzing the
statutory provisions and the scheme and object embedded
therein, as narrated hereinbefore, feels persuaded to follow
the reasoning adopted in Sushanta Kumar Das (supra)
and holds accordingly.
Conclusion
30. Thus, from a conspectus of the analysis of the
relevant statutory provisions and the precedents cited at
the bar, coupled with the contentions raised and the
discussions made, this Court holds that the order passed
in Mutation Appeal is revisable under Section 32 of the
OSS Act. Consequently, the Writ Petitions are held not
maintainable.
W.P.(C) No.24461/2025 and batch cases Page 36 of 37
31. In the result, the Writ Petitions are disposed of leaving
it open to the Petitioners to prefer revision under Section
32 of the Act against the impugned order, if so advised.
…………………………….
Sashikanta Mishra,
Judge
Ashok Kumar Behera
Signature Not Verified
Digitally Signed
Signed by: ASHOK KUMAR BEHERA
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 06-Apr-2026 11:33:42
W.P.(C) No.24461/2025 and batch cases Page 37 of 37