WP(C)/23435/2025 of BASANTI MOHANTY Vs STATE OF ODISHA on 20 July 2026

JUDGMENT

By the Bench;

1. This matter is taken up through hybrid mode.

2. Petitioner in this writ petition seeks to assail the order dated 31st October, 2022 (Annexure-5) passed by the Sub-Collector, Bhubaneswar in Mutation Appeal No.199 of 2019, while dismissing the appeal, he confirmed the order passed by the Tahasildar, Jatni in Mutation Case No.8158 of 2014.

2.1. The Petitioner also assails the order dated 2nd May, 2025 (Annexure-7) passed by the Tahasildar, Jatni in Mutation Case No.1709 of 2025.

3. Mr. Mukherji, learned Senior Advocate appearing for the Petitioner submits that the land pertaining to Plot No.476/488/545 of Khata No.178/1 to an extent of Ac.1.100 decimals in Mouza: Bada Nuagaon under Jatni Tahasil in the district of Khordha (for brevity, ‘the leasehold property’) was leased out in favour of one Kanhu Bhoi in W.L. Case No.272 of 1962-63 by the Tahasildar, Jatni. Out of the leasehold property, said Kanhu Bhoi alienated Ac.0.200 decimals (for brevity, ‘the case land’) to one Fagu Maharana by virtue of registered sale deed dated 23rd October, 1964 and delivered possession.

3.1. Subsequently, said Fagu Maharana sold the case land to the Petitioner vide registered sale deed dated 2nd July, 1988 and delivered possession to her. Since then, the

Petitioner is in possession of the case land exercising her right, title and interest over the same. In course of time, the Petitioner made an application for mutation of the case land before the Tahasildar, Jatni on 22nd October, 2014, which was registered as Mutation Case No.8158 of 2014. The Tahasildar, Jatni vide his order dated 9th July, 2018, dropped the Mutation Case holding that the original Khata No.230 was under „Anabadi‟ status. The status of the current Record of Rights is „Dakhal Satwa Sunya‟. Thus, holding that the case land to be a part of leasehold property, dropped the Mutation Case. Being aggrieved, the Petitioner preferred Mutation Appeal No.199 of 2019 before the Sub-Collector, Bhubaneswar, who by his order dated 31st October, 2022 (Annexure-5), dismissed the appeal on the very same ground.

3.2. In the meantime, letter No.3063/R&DM dated 28.01.2021 was issued by the Revenue and Disaster Management Department, Government of Odisha, to all the Collectors of the districts, wherein it was indicated that the Revenue and Disaster Management Department, Government of Odisha vide his letter No.47582 dated 12.10.1990 had issued a set of instructions titled ‘Rayati Jami Record Kariba Pranali O Satwaa Satwa Niyamabali‟. In the said set of instructions, it was clearly indicated that, in course of settlement operation in the undivided districts of Puri, Cuttack and Balasore, the land recorded in ‘Bajyapti Sthitiban‟, „Dakhal Satwa Bisista‟ and „Dakhal Satwa Sunya‟ will be recorded in ‘Sthitiban‟ status. It was also instructed to all the Tahasildars to correct the Record of Rights accordingly. Thus, the Petitioner filed a subsequent Mutation Case, i.e., Mutation Case No.1709 of 2025, which was also dismissed vide order dated 2nd May, 2025 (Annexure-7). Assailing the same, the Petitioner has filed this writ petition.

4. Mr. Mukherji, learned Senior Advocate submits that this Court vide its judgment dated 2nd May, 2025 in W.P.(C) No.15355 of 2024, taking note of the aforesaid instruction, passed the following order. “10. On perusal of the Guidelines/Instructions, namely, „Raiyati Jami Record Kariba Pranali O Satwaa Satwa Niyamabali‟, i.e., procedure to record raiyati land and regulations regarding status of the land, it clearly indicates that the said Instructions/Guidelines were issued in terms of Memorandum No.29854 dated 25th June, 1990, which dealt with recording of Government land. At para-23 of the said Guidelines/Instructions, it is clearly stated that as per Section 4 of the Odisha Tenancy Act, 1913, Raiyats are of three categories, namely, „Chirastayee Jama Raiyat‟, „Dakhal Satwa Bisista Raiyat‟ and „Dakhal Satwa Sunya Raiyat‟. It is also stated at para-23 in some places „Stithiban Raiyat‟ are recorded as „Chirastayee Jama Bisista‟ and „Bahel Chirastayee Jama‟ etc. In all such cases, the land which are recorded under „Bajyapti Stithiban‟, „Dakhal Satwa Bisista‟ or „Dakhal Satwa Sunya‟ during settlement proceeding in the undivided districts of Puri, Cuttack and Balasore should be recorded under „Stithiban‟ status. Thus, in para-23 of the Guidelines, it is stated in clear terms that if the lands are settled under the provisions of the Odisha Tenancy Act, 1913 under „Bajyapti Stitiban‟, „Dakhal Satwa Bisista‟ or „Dakhal Satwa Sunya‟ status should be recorded under the „Raiyati‟ status, as alleged in the counter affidavit and submitted by Mr. Mishra, learned ASC. On a close reading of the aforesaid Guidelines, it clearly emanates that during settlement operation, if a land has been recorded under „Bajyapti Sthitiban‟, „Dakhal Satwa Bisista‟ or „Dakhal Satwa Sunya‟ status, the same should be recorded under „Stithiban‟ status in undivided districts of Puri, Cuttack and Balasore. In rest of the areas of State of Odisha, it should be recorded under „Raiyati‟ status. Nowhere in the said Guidelines, it is stated that if the land is settled under Odisha Tenancy Act, 1913 under „Bajyapti Sthitiban‟/„Dakhal Satwa Bisista‟/„Dakhal Satwa Sunya‟ status, then it will be recorded under „Stithiban‟ status. It appears that the Tahasildar, Bhubaneswar has misread the instructions imparted at para-23 of the Guidelines.

11. No doubt, Odisha Tenancy Act, 1913 has been referred to in the said Guidelines. But the Guidelines does not speak of change of status of the land to „stithiban‟ status, only when the tenants of aforesaid three categories, namely, „Bajyapti Stithiban‟/„Dakhal Satwa Bisista‟/„Dakhal Satwa Sunya‟ are settled under the provisions of the Odisha Tenancy Act, 1913.”

5. Subsequently, the Revenue and Disaster Management Department issued clarification for recording of the land under ‘Dakhal Satwa Sunya‟ status in supersession of the previous instruction. The said instruction was issued vide notification No.RDM-CHS-PGOT-0303-2020 23868/ R & DM dated 2nd July, 2025 (Annexure-E/1 to the additional affidavit filed by the Opposite Party No.5). In the said notification, the earlier set of instructions was superseded. Assailing the same, different writ petitions were filed before this Court. The writ petitions so filed, were taken up together and W.P.(C). No.2870, 2873 and 2888 of 2026 (Gargi Dash

Vs. State of Odisha & others) were taken up as the lead cases to decide the batch of cases. This Court, taking note of different case laws as well as provisions of law, vide its judgment dated 22nd May, 2026, held as follows in Paragraphs 23 and 24:- “23. At this stage, the Government issued two purportedly clarificatory letters superseding the letter dated 28.01.2021. By letter dated 19.06.2025, it was held that only lease granted for agricultural purpose can be recorded as sthitiban/raiyati status but those granted for non- agricultural purposes to various organisations, industrial, commercial and public sector undertakings, corporations, local authorities and entrepreneurs etc. shall be recorded as 'pattadar' and not 'sthitiban'. This letter was followed by letter dated 02.07.2025, wherein it was held that the earlier letter dated 28.01.2021 does not specify which RORs are subject to change from 'dakhal satwa sunya' to 'sthitiban'. Accordingly, said letter was withdrawn and the following directions were issued. "1. After publication of the RoR (Record of Right), if any RoR was prepared by the Tahasildar or any Revenue Authority basing on lease of Government land with "swatwa" recorded as "Dakhal Swatwa Sunya", it shall henceforth be changed to "Pattadar" in the existing RoR.

2. Further, changes already effected basing upon the letter dated 28.01.2021, altering the "swatwa" from "Dakhal Swatwa Sunya" to "Sthitiban" or any other "Swatwa" in the RoR prepared by the Tahasildars or any Revenue Authority while settling the Government land on lease shall be recorded under "Pattadar" status. This exercise should be completed within a month and compliance should be submitted by all the Collectors.

3. Any RoR framed and published under OT Act, 1913 by the Settlement Authority having been recorded with "Swatwa" as "Bajyapti Sthitiban" "Dakhal Swatwa Sunya" "Dakhal Swatwa Bisista" shall be dealt in accordance with Paragraph 23 of the said instruction titled "Rayati Jami Record Kariba Pranali O Satwaa Satwa Niyamabali."

This letter was the subject matter of challenge before this Court in the case of Chandra Prakash Rath (supra). After analysing the law relating to prospective application of executive instructions, this Court held that ROR of the petitioner therein could not have been corrected to pattadar status basing on the letter dated 02.07.2025 as the status had already been corrected from 'dakhal Satwa sunya' to sthitiban prior to issuance of the same.

24. As regards applicability of the letters referred to hereinbefore, there can be no doubt that they cannot be treated as 'Law' within the meaning of Article 13 of the Constitution of India so as to have any binding force. Of course, this Court is conscious of the fact that the same principle would also apply to the 1990 Niyamabali as it lacks statutory force, but then, according to this Court, an administrative order/executive instructions, even if not issued under Article 162 of the Constitution, can still be relied upon/acted upon, if it has stood the test of time, more so, if the same is based on or reflects the statutory intent.”

This Court also discussed the relevant provisions of Odisha Tenancy Act, 1913 as well as Odisha Land Reforms Act, 1960 and summarised its findings as under:- “31. Having regard to the foregoing narration, this Court summarizes its findings/conclusions as follows:

(i) A person holding land in lease being a raiyat within the meaning of Section 4(1 )(f) of OLR Act is entitled to hold such land with permanent, heritable and transferable rights as per Section 6

of the OLR Act subject to limitations imposed under Section 6-A.

(ii) The 1990 Niyamabali implicitly acknowledges the above right as reflected in paragraph-23 thereof.

(iii) As already held in Jagannath Sahu (supra),paragraph-23 of the Niyamabali does not place any restriction for recording of the status of such land as sthitiban.

(iv) The land of the petitioner was originally settled under a valid lease which was never resumed or cancelled.

(v) The lessee validly transferred the land in favour of the petitioner which has never been questioned.

(vi) The nature of the land has been converted from agriculture to homestead thereby implicitly acknowledging occupancy status of the land holder.

(vii) Recording of the land as pattadar at this belated stage would amount to turning the clock back, which in turn would be contrary to the order of conversion.”

6. Mr. Mukherji, learned Senior Advocate, therefore, submits that the Sub-Collector, Bhubaneswar as well as the Tahasildar, Jatni committed error of law in rejecting the claim of the Petitioner to record her name in respect of the case land under “Sthitiban” status.

7. Mr. Biswal, learned Additional Standing Counsel referring to the counter affidavit, raises a plea with regard to the validity of the sale as well as the flow of recording of the land under different status. He further submits that the judgment passed in Gargi Dash (supra) and batch of cases is under challenge in W.A. No.922 of 2026, which is yet to be taken up for consideration. He, therefore, submits that the writ petition should await disposal of the writ appeal.

7.1. It is further submitted by Mr. Biswal, learned Additional Standing Counsel that Kanhu Bhoi, who was the lessee, sold the case land in favour of said Fagu Maharana by virtue of a registered sale deed. There is no material available on record to show that permission under the provisions of the Odisha Land Reforms Act, 1960 was taken prior to alienation of the property.

7.2. He further submits that, since the name of Fagu Maharana was not mutated in respect of the case land, the question of recording of the case land in the name of the Petitioner under ‘Sthitiban‟ status does not arise. It is also submitted that the order under Annexure-5 is revisable under Section 32 of the Odisha Survey and Settlement Act, 1958. He, therefore, submits that the writ petition being devoid of any merit is liable to be dismissed.

8. Heard learned counsel for the parties.

9. Perused the materials on record as well as case laws relied upon.

10. The plea taken by the Petitioner with regard to deferment of hearing of the writ petition due to pendency of the writ appeal is not sustainable, as the writ appeal has not yet been taken up for admission. As such, mere pendency of the writ appeal cannot operate as an order of stay and be an obstacle or impediment in entertaining the present writ petition. This Court in the case of Gargi Dash (supra) has clearly held that the land recorded under 'Dakhal Satwa

Sunya' should be recorded under 'Sthitiban‟ status. The said judgment is still in vogue.

10.1. An objection was also raised by Mr. Biswal, learned Additional Standing Counsel that the sale deed by virtue of which the lessee, namely, Kanhu Bhoi sold the property to Fagu Maharana, is void in the eye of law, as no permission under the provisions of the Odisha Land Reforms Act, 1960 was taken.

11. On perusal of the impugned orders under Annexures-5 and 7, it is manifest that the claim of the Petitioner was not rejected on the ground of invalid sale deed. Thus, in view of the ratio in the case of Mohinder Singh Gill and another Vs. The Chief Election Commissioner, New Delhi and others, reported in AIR 1978 SC 851, wherein it is held that quasi-judicial or an executive order cannot be supplemented by grounds which were not the basis of passing the order. As such, the objection raised by Mr. Biswal, learned Additional Standing Counsel is not sustainable and is overruled.

12. On perusal of the record, it appears that during subsistence of the appellate order under Annexure-5, which is impugned herein, the Petitioner moved the Tahasildar, Jatni in Mutation Case No.1709 of 2025. Instead of challenging the order under Annexure-5, such a mutation case would not be maintainable, when the appellate order under Annexure-5 was in vogue. However, the Appellate

Authority while adjudicating the appeal, i.e., Mutation Appeal No.199 of 2019, did not take into consideration the notification dated 28th January, 2021, which was in vogue then.

13. Mr. Mukherji, learned Senior Advocate also brought to the notice of this Court that, relying upon the said notification as well as set of instructions issued by the Revenue and Disaster Management Department for recording of the land under ‘Bajyapti Sthitiban‟, „Dakhal Satwa Bisista‟ and ‘Dakhal Satwa Sunya‟ status under „Sthitiban‟ status, this Court, in W.P.(C) No.16439 of 2024 (Amulya Kumar Kanungo and another Vs. State of Odisha and others), directed to record the land involved therein under Sthitiban status.

14. Thus, the Appellate Authority, while adjudicating the Mutation Appeal No.199 of 2019, ought to have taken into consideration the notification of the Revenue and Disaster Management Department dated 28th January, 2021 (Annexure-6).

14.1. However, the said notification was superseded by notification dated 2nd July, 2025 (Annexure-E/1), directing to record the land under ‘Dakhal Satwa Sunya‟ status under ‘Pattadar‟ status. The said notification dated 2nd July, 2025 has already been set aside in the case of Gargi Dash (supra) and batch of writ petitions. The said order is still in force.

15. Hence, we have no hesitation to hold that the impugned order under Annexure-5 is not sustainable. Accordingly, the impugned orders under Annexures-5 and 7 are set aside and the matter is remitted to the Sub-Collector, Bhubaneswar to adjudicate Mutation Appeal No.199 of 2019 afresh taking into consideration the ratio decided in Gargi Dash (supra). The entire exercise shall be completed within a period of six weeks from the date of production of the certified copy of this judgment. In order to avoid delay, the parties are directed to appear before the Sub-Collector, Bhubaneswar on 3rd August, 2026 along with certified copy of this judgment to receive further instructions in the matter.

16. Accordingly, the writ petition is disposed of. In the facts and circumstances of the case, there shall be no order as to costs.

Urgent certified copy of this judgment be granted on proper application.

(K.R. Mohapatra)

Judge

(S.K. Mishra)

Judge

Orissa High Court, Cuttack, Dated 20th July, 2026/Prasant Digitally Signed Signed by: PRASANT KUMAR PRADHAN Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 31-Jul-2026 14:07:23 Signature Not Verified