Jharkhand High Court
Basarat Ansari vs State Of Jharkhand & Others on 3 August, 2022
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Writ Jurisdiction)
W.P. (C) No. 5941 of 2019
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Basarat Ansari .... ..... Petitioner
Versus
State of Jharkhand & Others .... ..... Respondents
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO ............
For the Petitioner : Md. Shadab Bin Haque, Advocate.
Mr. Nitesh Kumar, Advocate.
For the Respondents/State : Mr. Deepankar, A.C. to Mr. Rajiv Ranjan, Advocate General.
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06/03.08.2022.
Learned counsel, Md. Shadab Bin Haque, assisted by learned counsel, Mr. Nitish Kumar, on the instruction of learned counsel for the petitioner, Ms. Priyanka Boby has submitted, that the writ petition was filed on 25.10.2019 before this Court for a direction upon the respondent No.4- Additional Collector, Garhwa and respondent No.5-Circle Officer, Garhwa to open jamabandi in the name of petitioner for the land situated in village Chama, Khata No. 109, Plot No. 536, Area 1.21 acres and Plot No. 541, area 0.15 acre, total area - 1.36 acre and to issue malgujari rent receipt for this land in the name of the petitioner.
Learned counsel for the petitioner has further submitted, that prior to Zamindari Abolition Act, 1950, ex-landlord / Ranka King Giriwar Narayan Prasad Singh Bahadur, settled land in favour of the petitioner's father by way of Sada Patta on 17.05.1944, who happened to be his raiyat. The land is situated in Village - Chama, Thana No. 227, Tauji No. 89, Khewat No.1 in Garhwa District, having Khata No. 109, Plot No. 536, Area 1.21 acre and Plot No. 541, Area 0.15 acres, total area of 1.36 acres and boundary :-
North: Banarsi Sao & others, South: Kacchi Road, East Banarsi Sao & others, West:Pacca Road.
Learned counsel for the petitioner has further submitted, that as per the RS khatiyan record of rights for the land published under Section 83 (2) of the Chotanagpur Tenancy Act, 1908, this land has -2- been recorded as gair mazarua malik, having type jungle-jhari. Prior to the Zamindari Abolition, petitioner's father paid rent through the Zamindari receipts, which was issued in his name. The return shown vide Indemnity Case No. 3 of 1953-54, was also opened in his name. The petitioner along with his father and other family members remained in peaceful, right, title & possession over the land for last 70 years.
Learned counsel for the petitioner has further submitted, that subsequently, father of the petitioner Ali Hasan Ansari has donated the aforesaid land to the petitioner by way of an affidavit in non- judicial stamp of Rs.100/- before the Notary Public, Garhwa on 13.01.2015, which has been brought on record as Annexure-1 to the writ petition.
Learned counsel for the petitioner has further submitted, that petitioner on 13.02.2015, filed a petition before the Deputy Collector Land Reforms, Garhwa, for opening jamabandi in his name for the aforementioned lands, but no action has been taken, even though the petitioner has approached before Public Grievance Cell of Hon'ble Chief Minister as well as the Deputy Secretary-cum-In-charge Officer, Public Grievance Cell, Ranchi and petitioner also sought information with regard to the demarcation of the plot.
Learned counsel for the petitioner has further submitted, that upon application of the petitioner, the Circle Officer, Meral has submitted false and erroneous enquiry report to the Additional Collector, Garhwa through letter No. 151 dated 27.02.2016, stating therein that :-
(i) Total area in Plot No.536 is 8.80 acres and after deducting 2.79 acres Khatiyani area, remaining area left is 6.01 acres;
(ii) Total area in Plot No. 541 is 1.79 acres and after deducting 0.33 acres Khatiyani area, remaining area left is 1.46 acres;
(iii) Further it is found that in remaining area forest department's building & agricultural farm, Charwaha -3- School, Common Road, Mahavir Place, High School- Peska's Playground & Traveler's Shade are situated.
(iv) Forest Department through Memo No. 51 dated 11.02.2016 has raised objection that in Khata No. 109, plot no. 536, in recent survey, they have obtained title of 1.07 acres.
Learned counsel for the petitioner has further submitted, that no enquiry was conducted either by the Circle Officer, Meral or by the Revenue Authorities, to verify the possession of petitioner and his father upon the lands they are claiming to be under their right, title and possession and also the respondent authorities have not passed the impugned order till 06.09.2015.
Learned counsel for the petitioner has further submitted, that a counter affidavit has been filed by respondent no. 3 on 06.01.2020, whereby the respondent has claimed this land to be the forest land vide notification dated 09.01.1953, but the said notification itself shows that no enquiry under Section 29(3) of the Indian Forest Act has been dealt with and, as such, till the land has not been enquired under Section 29(3) of the Indian Forest Act, the land in question cannot be of the State.
Learned counsel for the petitioner has placed reliance upon the judgment passed by the learned Single Judge in WP(C) No. 3959 of 2017 with WP(C) No. 4654 of 2017, which have been disposed of by the learned Single Judge on 25.10.2018 and against the said judgment of the learned Single Judge, the State has preferred Letters Patent Appeal before the Honble Division Bench in LPA No. 542 of 2019 with LPA No. 566 of 2019, which have been dismissed by a common order dated 12.04.2022, as such, even if the State is claiming the land to be a forest land, these lands cannot be considered to be a forest land as the petitioner is in peaceful possession over the same and the State may go before the appropriate court of law for declaration of the same.
learned counsel for the respondents / State, Mr. Deepankar, A.C. to learned Advocate General, Mr. Rajiv Ranjan has submitted, -4- that from perusal of the writ application, it appears that this writ petition has been filed with a oblique motive as direction ought to have been sought before the respondent Nos. 4 and 5, who are Additional Collector, Garhwa and Circle Officer, Garhwa, but the application has been filed before the Deputy Collector Land Reforms, Garhwa who is respondent No.6.
Learned counsel for the respondents / State has further submitted, that after vesting of the estate, the ex-intermediary of the State of Bihar or the State of Jharkhand has never recognized the petitioner's right over the land, therefore, petitioner may seek appropriate relief before the appropriate Court. Though, the learned counsel for the respondents / State, Mr. Deepankar has clearly submitted, that it is incumbent upon the Deputy Commissioner of the District to look into such cases, pending before the subordinate revenue officers, as such, this Court may direct the Deputy Collector Land Reforms, Garhwa to dispose of the application, filed by the petitioner, in accordance with law.
In reply, learned counsel for the petitioner has submitted, that though the counter affidavit has been filed with latest position, but no whisper with respect to Annexure-2 of the writ petition, regarding application of the petitioner filed before the Deputy Collector Land Reforms, Garhwa on 13.02.2015 and its status.
Considering the rival submissions of the parties and looking into the facts and circumstances of the case, it appears that the petitioner has only preferred this writ petition for a direction upon the respondents-State to decide his application, which is pending before the Deputy Collector Land Reforms, Garhwa, but erroneously prayer has been made to direct the Additional Collector, Garhwa and Circle Officer, Garhwa to dispose of the application.
This Court is surprised to see the function of the State, let a show cause notice be issued to the Deputy Collector Land Reforms, Garhwa as to why such application is pending before him since 13.02.2015?
-5-The Deputy Commissioner, Garhwa is directed to inspect all the subordinate revenue office, so that such application with regard to opening of jamabandi/ fixation of rent/ mutation shall not be kept pending more than 90 days. If, such applications are kept pending, the Deputy Commissioner, Garhwa is directed to initiate proceeding against the erring officer.
Accordingly, this writ petition is disposed of with a direction to the petitioner to approach before the Deputy Collector Land Reforms, Garhwa for disposing of his application filed on 13.02.2015, which has been brought on record as Annexure-2 to the writ petition.
The Deputy Collector Land Reforms, Garhwa, if already not decided the said application till date, shall decide the same within a period of 30 days from the date of appearance of the petitioner, considering all the submissions by passing a reasoned order in accordance with law.
(Kailash Prasad Deo, J.) Sunil/-