Swapan Kumar Seal vs Superintendent Of Police, Vigilance Department, Cuttack And Another

DR. A.K.RATH, J

This writ petition challenges the order dated 18.12.2017 passed by the Tahasidlar, Danagadi, Jajpur, opposite party no.2, whereby and whereunder,

the opposite party no.2 deferred the hearing of the Mutation Case No.438 of 2017, since the records of the case has been seized by the Vigilance

Department.

The case of the petitioner is that by virtue of a compromise decree dated 29.02.1944, Manmath Kumar Seal, father of the petitioner became the

exclusive owner of an area of Ac.105.28 dec. of land of Mouzas-Kandaba, Dhanurjaypur, Jamuposi and Baliapal in the district of Jajpur. Delivery of

possession of the property was made to the father of the petitioner and rent was accepted from him. Manmath died leaving behind his widow, six sons

and one daughter. The property was the joint property. By means of a Registered Partition Deed dated 22.11.1969, Ac.13.32 dec. of land was allotted

in favour of the petitioner, out of which, Ac.3.45 dec. of land out of Plot No.426/438 and Ac.9.87 dec. of land appertaining to Khata No.43/1504, Plot

No.1/437 of Mouza-Dhanurjaypur is the subject matter of dispute. On 13.3.2012, petitioner filed an application for demarcation of the land allotted to

him before the opposite party no.2 Annexure-3. Since no demarcation was made, he approached the Collector, Jajpur. By order dated 19.3.2012, the

Collector directed the Tahasidlar for demarcation of the land within thirty days. Thereafter, petitioner filed Mutation Case No.276 of 2012 before the

opposite party no.2 for mutation of the property. The opposite party no.2 directed the Amin for measurement/demarcation of the suit property before

mutation, as there was forest land in the area. On 04.07.2012, measurement of the suit land was done in presence of the petitioner and representatives

of the Forest and Revenue Department. Amin submitted a report on 5.7.2012 stating that he has identified the suit property and found the same being

distinct and separate from any forest land. The petitioner filed W.P.(C) No.14969 of 2012 before this Court for a direction to the opposite party no.2

to dispose of the mutation case. The writ petition was disposed of on 29.9.2014 with a direction to the Tahasildar to dispose of the Mutation Case

No.276 of 2012 within a period of three months from the date of production of the order. By order dated 27.11.2014, the opposite party no.2 rejected

the petition of the petitioner holding that his predecessor had already disposed of the mutation case by order dated 03.08.2012. Assailing the said order,

he filed Appeal No.61 of 2014 before the Sub-Collector, Jajpur. The appeal was dismissed on 25.07.2015. Thereafter, petitioner filed revision case u/s.

32 of the Orissa Survey and Settlement Act, vide OSS Case No.138 of 2015. The revision was disposed on 28.11.2015 with an observation that the

opposite party no.2 should be authorized to do the mutation in respect of the said village or Government in Revenue and Disaster Management

Department should be moved accordingly. The Secretary Board of Revenue was directed to write to Principal Secretary, Revenue and Disaster

Management Department. On 04.02.2016, the Secretary, Board of revenue wrote a letter to the Principal Secretary to Govt., Revenue & Disaster

Management Department explaining the situation prevailing at village Dhanurjaypur due to Notification dtd.23.04.1980 and order for suspension of the

settlement operation issued in 1991. On 19.03.2016, the opposite party no.2 issued a letter to ADM, Jajpur stating therein that the settlement operation

is kept under suspension by notification of the Government in the year 1991. But de-notification has not yet been received from Government and

requested for compliance of the order of Member, Board of Revenue. By order dated 30.04.2016, the Tahasildar intimated the petitioner that no action

can be taken on the mutation case unless and until the de-notification order is received in respect of the suit land. Thereafter, the petitioner filed W.P.

(C) No.10066 of 2016 for disposal of mutation case. While the matter stood thus, the State Government in exercise of powers conferred u/s.3(2) of

Orissa Survey and Settlement Act, 1958 de-notified to cancel the proceeding relating to Survey and Settlement operation and settlement of rent in

respect of 29 villages of Jajpur district including the village of the petitioner Dhanurjaypur on 01.06.2017 (Annexure-7). The petitioner filed a Misc.

Case No.14494 of 2017 to dispose of Mutation Case in terms of de-notification. On 22.8.2017, the petitioner withdrew W.P.(C) No.10066 of 2016

with liberty to file appropriate application before the Tahasildar, Danagadi, in view of de-notification. Mutation Case No.438 of 2017 was accordingly

refilled on the basis of de-notification vide Annexure-7. By order dated 18.12.2017, the opposite party no.2 passed order that mutation case cannot be

proceed as records have been seized by the Vigilance Department in Vigilance Case No.53 of 2010 in a case not related to the suit property.

According to petitioner, Vigilance Case has no connection with regard to the property of the petitioner. The land of Manmath Kumar Seal has been

partitioned by a Registered Sale Deed dated 22.11.1969. The suit property has been allotted in favour of the petitioner. Barun Kumar Seal, brother of

Manmath was allotted an area of Ac.9.37 dec. from Plot No.426/438 under Khata No.43/1504 of Mouza-Dhanurjaypur. His brother alienated the

property to one M/s. Mohan Project Contractors Pvt. Ltd. by means of a registered sale deed dated 24.10.2008. The sale was detected by the

Vigilance Department to be an outcome of fraud by falsely projecting the Kisam of the land. Accordingly Vigilance Case No.53 of 2010 was initiated

against the Sub-Registrar, Sukinda for alleged violation of Inspector General of Registration instruction, which corresponds to T.R. Case No.8 of 2018

of the Vigilance Court, Cuttack. The allotment made by the petitioner is totally distinct and separate, which had been identified upon due demarcation

under Annexure-6. With the factual scenario, the petitioner seeks for a direction to the Tahasidlar, Danagadi, opposite party no.2 to dispose of the

Mutation Case No.438 of 2017 and for a direction to the Superintendent of Police, Vigilance Department, Cuttack, opposite party no.1 to transmit the

case records to opposite party no.2, enabling the latter to dispose of the same.

A counter affidavit has been filed by the Deputy Superintendent of Police, Vigilance, Cuttack Division, Cuttack on behalf of opposite party no.1

taking the following stand â€

“3. That it is humbly submitted that on 24.10.2008 accused Arun Ku. Seal sold his share of land measuring Ac.13.32 dec. out of Ac.17.27 dec. from Plot No.2/55,

Khata No.9/1504, Mouza-Jamuposi to accused D. Sitaram vide Registered Sale Deed No.868 dated 24.10.2008 of Sub-Registered, Sukinda. On the same day accused

Debanshu Kumar Seal and accused Subhansu Kumar Seal also sold their share of rest land measuring Ac.3.95 dec. under same plot no. and khata no. of Mouza-

Jamuposi along with another plot measuring Ac.9.37 dec. in Plot No.1/437 (which they have shown in the RSD as changed plot no.426/438) in Khata no.43/1504,

Mouza-Dhanurjaypur total amounting to Ac.13.32 dec. to the same accused D. Sitaram vide RSD No.869 dated 24.10.2008 of Sub-Registrar, Sukinda. In both the

RSDs, the vendors have falsely shown kisam of land as ‘Biali’, i.e., Agricultural land against Plot no.2/55 of Mouza-Jamuposi and Plot no.1/437 of Mouza-

Dhanurjaypur instead of showing the actual kisam of both the plots as “Salua Jungleâ€. Accused person like the Ex-Sub-Registrar in-charge, Sukinda, Dist.Jajpur,

the Tahasildar, Vyasnagar, Dist:Jajpur, the Revenue Inspector, Duburi Revenue Circle under Vyasanagar Tahasil and Sr. Clerk in-charge of OLR Section, Vyasanagar

Tahasil allowed execution of both the Deeds and released the RSDs in favour of the accused purchaser Sri D. Sitaram without verifying the kisam of the land as

required under the guidelines issued by Inspector General of Registration, Odisha, Cuttack in his letter No.IX-62-2003-5564 dated 25.8.2005 with criminal intent. The

said guideline stipulates that all the District Sub-Registrars and Sub-Registrars of Odisha should release the deeds/documents supported with the registration after

making 100% verification of the kisam of the land in the Record of Rights Registers maintained in the Tahasil offices.

ROR in Sabik Khata no.9 of Mozua-Jamuposi of the year 1928 obtained from District Record Room, Cuttack, reveals that owner of the plots of land in the said Sabik

Khata is Krutibas Bhupati Harichandan Mohapatra (ex-intermediary of Sukinda Estate) and name of tenant is Anabadi, i.e. land belongs to State, in which alleged

Sabik Plot no.2 measuring Ac.42.50 dec. is of kisam “Salua Jungleâ€. Similarly, ROR in Sabik Khata No.43 of Mouza-Dhanurjaypur of year 1928 reveals that owner

of the land in the Sabik Khata was Krutibas Bhupati Harichandan Mohapatra (ex-intermediary of Sukinda Estate) and name of tenant is Anabadi, i.e. land belonged to

State, in which alleged Sabik Plot no.1 measuring Ac.41.40 dec. is of kisam “Salua Jungleâ€​.

After registration of Sale Deeds of both the plots of land, accused purchaser Sri Sitaram D. applied to Tahasildar, Vyasanagar for conversion of said purchased lands

for non-agricultural purpose, i.e. for industrial use. Both the applications were signed by D. Sitaram without any date. Both the applications were received by

Tahasildar Sri Subrat Kumar Behera and instituted case No.66/09 u/s.8(A) of the OLR Act for the conversion application Sri D. Sitaram for Mozua-Dhanurjaypur and

Case No.67/09 under the same Act for Mouza-Jamuposi and passed orders in both the OLR cases dated 28.1.2009 and directed R.I., Duburi to furnish a detail report

on verification of field position and ROR position without following the provisions of Rule-29 and 39 of Orissa Mutation Manual. Thereafter, Narahari Mohanta, the

then R.I., Duburi submitted his enquiry report in both the OLR cases showing kisam of the alleged plots of land as “Biali†basing on which accused Tahasildar Sri

Behera allowed conversion in both the OLR cases in favour of Sri Sitaram D on 30.1.2009. As per the orders of Tahasildar, accused Sri Sitaram D. deposited the

required premium vide Rent Receipt No.AM884281 dated 4.2.2009 and Rent Receipt No.AM884282 dated 4.2.2009 with R.I., Duburi. Accused Record Keeper Sri

Mishra maintained those records in his own handwritings in this regard and accused Tahasildar Sri Behera disposed of both the OLR cases on 6.2.2009 passing

orders in favour of accused applicant Sri Sitaram D. allowing conversion of the alleged plots of land for industrial purpose without obtaining clearance from Kalinga

Nagar Development Authority as required under the provisions of Rule 8-A(1)(i) as both the plots of land converted are coming under KNDA limits and also without

perusing the Tenant Ledger of both the Mouzas or Sabik ROR of both the suit plots as both are of kisam “Salua Jungle†in the Sabik ROR of which change of

kisam cannot be effected as per Section 2 of Forest (Preservation) Act, 1980 as well as orders of the Hon’ble Apex Court dated 12.12.1996 passed in W.P.(C)

No.202/95. Besides, Sri Behera, Tahasildar and R.I., Duburi did not adhere to the provisions of Rule 3, Rule 4 and Rule 10-A(1) & (2) r/w. Rule-14 of the Orissa Land

Reforms (General) Rules, 1965. Accused Tahsildar Sri Behera allowed conversion of the alleged forest land to industrial purpose illegally within a period of only 10

days from the date of application (i.e. 29.1.2009) till the date of final orders for disposal (i.e. 6.2.2009).

When the fact of conversion of forest land came to the notice of District Administration, particularly on the direction of Collector, Jajpur, Sri Sailendra Kumar

Dwivedy, Addl. Sub-Collector, Jajpur enquired into the matter on 4.9.2009 and submitted his detail report on 23.9.2009 declaring kisam of alleged plots of land in both

the above OLR cases as Salua Jungle (Forest Land) and conversion of forest land to industrial purpose/other purposes is violation of the provisions of Section 2 of

the Forest Conservation Act, 1980. He also made accused R.I. and accused Tahasildar, responsible for conversion with unusual haste. He also fixed responsibility on

accused Sri Jamuda, Ex-I/c Sub-Registrar, Sukinda for violation of instructions of IGR, Orissa issued in letter no.5564, dated 25.8.2005.

Against such conversion orders, the Tahasildar, Vyasanagar in OLR 8(A) Case No.66/09 and 67/09, appeals were filed by Sri Braja Kishore Malik, Revenue Supervisor

of Dangadi Tahasil in the Court of Sub-Collector, Jajpur on 8.10.2009, Sub-Collector, Jajpur, in his final orders dated 4.12.2009 set aside the orders passed by

Tahasildar, Vyasanagar in both the OLR cases against which Sri Sitaram D. preferred appeal in the Court of A.D.M., Jajpur on 19.12.2012. A.D.M., Jajpur has also

upheld the orders passed by the Sub-Collector, Jajpur dated 4.12.2009 in disposing the appeal.

During investigation, original records relating to OLR 8(A) Case No.66/09 and 67/09 of Tahasildar, Vyasanagar and true copy of registered sale deed No.868 and 869

both dated 24.10.2008 of Sub-Registrar, Sukinda duly attested by accused Sri Jamuda, Ex-Sub-Registrar I/c. were sent for GEQD examination. GEQD, Vigilance,

Cuttack has furnished the examination report in letter No. DEC-30/14/157/DC.Vig.CTC dated 9.4.2014 and No.DEC-107/15-210/DC.Vig.CTC dated 29.10.2015 confirming

handwriting and signature of accused persons in respective questioned documents.

That after completion of the investigation, it was established that the (i) accused Subrat Kumar Behera, the then Tahasildar, Vyasanagar Tahasil (ii) Sudarsan

Mishra, Sr. Clerk of Jajpur Tahasil, (iii) Narahari Mahanta, Ex-RI, Duburi and (iv) accused Jitendra Kumar Jamuda, Sub-Registrar I/c. Sukinda, hatched a conspiracy

and showed undue official favour to the (v) accused Sri Sitaram D. the M.D. of M/s. Mohan Project Constructions Pvt. Ltd., Hyderabad, (vi) accused Arun Kumar

Seal, S/o. Late Manmath Kumar Seal, (vii) accused Debanshu Kumar Seal and (viii) accused Subranshu Kumar Seal by executing Sale Deeds pertaining to Forest Land

and allowed conversion of the said Forest land for use of industrial purpose particularly by violating the existing rules and manipulating official land records and

thereby cheated the Govt.

Consequent thereto a Charge Sheet was filed against the aforesaid four Govt. officials and the said private accused persons including the brother and relations of the

petitioner on 25.07.2017 u/s. 13(2) r/w 13(1)(d) of P.C. Act, 1988, 420/468/471/120-B IPC and Sec.3-B of Forest (Conservation) Act, 1980. Now, the matter/trial is

pending before the Court of learned Spl. Judge, Vigilance, Cuttack in T.R. Case No.8 of 2018. It is apposite to note that all the documents/records seized by the

Vigilance Deptt. have been produced/kept in the Malkhana of the learned Court below. For better appreciation, the photo copy of the Mal challan/record challan

containing the documents/records, are filed herewith as Annexure-A.

That it is further humbly submitted that out of the four private accused persons involved in Vigilance P.S. Case No.53 of 2010 (TR No.8 of 2018), three accused

persons, namely, Arun Kumar Seal, Debanshu Kumar Seal and Subhranshu Kumar Seal, are the brothers and relations of the present petitioner and Late Manmath

Kumar Seal is their common ancestor.â€​

Mr. Ramakanta Mohanty, learned Senior Advocate for the petitioner submits that the suit land originally belonged to father of the petitioner. After

his death, the suit land has been partitioned amongst the brothers and sister of the petitioner. The suit property fell to the share of the petitioner. The

petitioner has filed mutation case. The vigilance case has no bearing with regard to the alleged transaction made by his brothers. Petitioner is not an

accused in the vigilance case. The petitioner has been running from pillar to post for disposal of Mutation Case No.438 of 2017. He has been caught

between Scylla and charybdis.

Per contra, Mr. Sangram Das, learned Standing Counsel for the Vigilance Department on behalf of opposite parties submits that the records has

been seized pertaining to Vigilance Case No.53 of 2010. The investigation of the case is still in progress. Thus, it is not possible on the part of the

Vigilance Authority to transmit the case records.

From the counter affidavit, it is evident that the brothers of the petitioner alienated huge chunk of area in favour of M/s. Mohan Project Contractors

Pvt. Ltd. by falsely projecting the Kisam of the land. The sale was detected by the Vigilance Department for the outcome of fraud. Part of the

petitioner’s land was also found to be forest land. In view of the fact that investigation of the case is still in progress, no direction can be issued to

the Vigilance Department to transmit the records of the land of the petitioner to Tahasildar, Danagadi, opposite party no.2 for hearing of the Mutation

Case No.438 of 2017. As such, the prayer sought for by the petitioner cannot be allowed. The petition is accordingly dismissed.

………………………..