Correction of ROR in respect of factual position existing prior to publication of ROR is not permissible. Executive instructions cannot override statutory provisions.

JUDGMENT :

A. Pasayat, J. - Order passed by the Commissioner of Land Records and Settlement, Orissa (in short, 'the Commissioner') directing correction of settlement records in terms of the finally published record-of-rights (in short, 'ROR') till a competent Court corrects the entry, is the subject-matter of challenge in this application. The Tahasildar was directed to correct the records accordingly, Prayer of Chema Mohanty, opp. party No. 3 in that regard was accepted.

2. The vital point involved is whether the Tahasildar in exercise of power conferred under Rule 34 of the Orissa Survey and Settlement Rules, 1962 (in short, 'the Rules') framed under the Orissa Survey and Settlement Act, 1958 (in short, 'the Act') can change or alter an entry in the finally published ROR in a Mutation Proceeding, for any event which occurred prior to the date of final publication of the ROR. Reliance is placed by the petitioner on the instructions issued by the Board of Revenue (vide Annexure-5) to contend that it is permissible.

3. The background facts as set out by the parties essentially are as follows :

Natabar Mohapatra, grand-father of petitioner No. 1 Harihar, was recorded as intermediary of Bramhottar Niskar interest in Sabik Khata No. 112 of village Bindhanima measuring A 6.24 in Tigiria ex-State. The said interest vested u/s 3A of the Orissa Estates Abolition Act, 1951, (in short, 'the OEA Act') on 16.4.1964. After death of Natabar, on 11.5.1964 Natabar's son Rama Chandra (father of petitioners 1 to 6), and husband of petitioner No. 7) was settled with seven plots of the vested lands in O.E.A. Case No. 394 of 1964-65 on payment of salami and arrear rent. On 8.2.1969, rent schedule was granted. On 17.6.1974 Chema Mohanty (opp. party No. 3) was held to be a sikimi tenant in O.L.R. Case No. 16 of 1973-74 u/s 4(l)(i) of the Orissa Land Reforms Act, 1960 (in short, 'the Land Reforms Act') in respect of A 3.05 d. out of the aforesaid A 6.26 d. covering four plots. In Crl. Misc. Case No. 22 of 1975 Chema was declared to be in possession, on the basis of the order passed in the O.L.R. Case. On 31.5.1976 petitioners filed O.L.R. Appeal No. 4 of 1975 against the order passed in O.L.R. Case No. 16 of 1973 which was dismissed. On 30.6.1979 O.L.R. Revision No. 50 of 1976 was allowed and the case was remanded for hearing after substitution of the necessary parties. The Revenue Officer substituted the petitioners in O.L.R. Case No. 16 of 1973-74 by order dated 7.8.1981. On 10.1.1984, opposite party No. 3 filed a petition to convert the O.L.R. Case to a petition u/s 36-A of the Land Reforms Act but the same was rejected. On 27.3.1985 Chema was recorded in the ROR on the basis of an order in the earlier case, i.e. O.L.R Case No. 16 of 1979 dated 17.6.1976. On 27.2.1986 the Revenue Officer on remand dismissed Chema's O.L.R. case as not maintainable. So appeal or revision was filed by opposite party No. 3. In the year 1987, petitioners filed Mutation Case No. 1134 of 1987 u/s 16 of the Act read with Rule 34(l)(c)(d) of the Rules in respect of the four plots recorded in the name of opp. party No. 3 before the Tahasildar, Tigiria. The mutation case was allowed vide order dated 28.2.1989 (Annexure-2). Opposite party No. 3's appeal (Mutation Appeal No. 4 of 1989) was dismissed on 11.1.1995. By the impugned order passed on 24.7.1996, the Commissioner set aside the orders passed by the Tahasildar and the appellate order and gave direction to the effect that the party aggrieved is at liberty to move the Board of Revenue to challenge the ROR and may move the Civil Court. The record was to be corrected as per the finally published ROR till the competent Court corrects the entry.

4. Primary stand of the petitioners in support of the application is that as per the Government Instructions contained in Annexure-5, the Tahasildar was required to correct the ROR (which was issued by superseding the previous instructions). Same inter alia provides that the Tahasildar wil