Asutosh Mohapatra And Others vs Sk. Manwar Alli And Others … Opposite … on 31 March, 2026

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    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

    SPONSORED

    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; and

    W.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 these

    W.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 257

    W.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



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