Jharkhand High Court
Nandlal Tibrewal And Anr vs The State Of Jhakrhand And Ors on 23 March, 2017
Equivalent citations: 2017 AJR 188, (2017) 4 JCR 50 (JHA)
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 1553 of 2016
1. Nandlal Tibrewal
2. Uttam Kumar Tibrewal @ Uttam Kumar ....... Petitioners
Vrs.
1. The State of Jharkhand
2. The Deputy Commissioner, Godda
3. The Additional Collector, Godda
4. The Circle Officer, Mahagama, Dist. Godda ..... Respondents
.......
CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH
For the Petitioners : M/s Indrajit Sinha, Lukesh Kumar
For the Respondents : M/s V.K.Prasad, S.C.(L&C), Vineet Prakash
& Sahil, both J.C to S.C.(L&C)
04/23.03.2017Heard learned counsel for the petitioners and the State.
2. The Deputy Commissioner, Godda by the impugned order dated 26.2.2016 (Annexure-14) passed in Misc. Petition No. 03/2015-16 has affirmatively held that the land in question under Mouza Chamgora Darun Balia, Thana no. 560 within Anchal Mahagama, District Godda, where there are two jamabandis having an area of 21-15-16 Dhur are registered as 'Pradhan Ka Jote' as per the Gantzer's Settlement in the name of Mahavir Prasad Pradhan; Vilasi Ram; Hari Prasad Ram S/o Janki Ram; Koum Agarwal, Thana- Mahagama. In 'A misil' and 'B misil' extracts also it is shown as 'Pradhan Ka Jote'. During the period when the village was Khas, the descendants of erstwhile Pradhan i.e. Nandlal Tibrewal, Petitioner no.1 and others were depositing rent. The Deputy Commissioner, Godda however has observed that applicants / petitioners herein have not shown any provisions of Santhal Pargana Tenancy (Supplementary Provisions) Act, 1949 for carrying out constructions. He has summarily held that restraint on constructions would be maintained as no raiyat under the Act of 1949 has a right to change the nature of 'Jamabandi' piece of land.
3. This aggrieved the petitioners to approach this Court once again in the present writ petition after the previous round of litigation in W.P.C. No. 1762 of 2015, where under by order dated 1.7.2015, Annexure-10, the writ petition was dismissed with the following observation:-
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"In so far as order dated 08.01.2015 is concerned, I am of the opinion that the same is intended at preserving the nature of the property in question. It is an interim measure and therefore, at this stage question of jurisdiction would not arise. Considering the aforesaid facts, I am of the opinion that the present writ petition is liable to be dismissed. However, a liberty is granted to the petitioners to approach the Deputy Commissioner within a period of two weeks and to produce relevant records and if satisfied the Deputy Commissioner can issue appropriate direction to the Circle Officer, within next four weeks. The writ petition stands disposed of in the aforesaid terms. I.A. No. 2447 of 2015 is dismissed".
4. Learned counsel for the petitioner has referred to the provisions of Section 4(viii) - 'Holding', 4(xiii)- 'Raiyat', 4(xix)- "Tenant" and 4(xxiii)- "Village Head Man" in the 1949 Act. He has also referred to the provisions of Section 10 of the Act, which according to him clearly recognizes the 'mulraiyat ka jote' as private holding and 'mulraiyati jote' as official holding. Learned counsel for the petitioner has also adverted to the provisions of Chapter-III under the heading 'Raiyat' , which prescribes under Section 12, Classes of Raiyats. Under Section 13 thereof, the right of raiyat in respect of use of land has also been described as under:-
"13. Rights of raiyat in respect of use of land-(1) A raiyat may use the land comprised in his holding,-
(a) in any manner which is authorized by local usage or custom, or
(b) irrespective of any local usage or custom, in any manner which does not materially impair the value of the land or render it unfit for the purpose of cultivation. (2) The doing of anything on the holding that is permitted by Section 15, Section 16, Section 17 or Section 18 shall not be deemed materially to impair to the value of the land or to render it unfit for cultivation".
5. Learned counsel for the petitioner then submits that under Section 18 of the Act of 1949 falling under the same Chapter, a 'raiyat' has right to erect building, kutcha or pucca on his holding for domestic or agricultural purpose for himself and his family. No plausible reason is made out for refusing constructions of house over his 'Pradhan Ka Jote' land ( private holding). The Deputy Commissioner, Godda has without application of mind refused permission to the petitioners to carry out constructions over their -3- land recorded as 'Pradhan ka Jote' even at the time of Gantzer's Settlement. Therefore petitioners have been compelled to move this Court.
6. Respondent State in their counter affidavit have supported the impugned order. One or the other finding of the Revenue Authority have been referred to in the Counter affidavit. Though the Deputy Commissioner, Godda has evidently recorded the piece of land as 'Pradhan Ka Jote' in the impugned order, however, it is contended that under the provisions of the Act of 1949, the nature of 'Jamabandi' land cannot be changed. Therefore the order of restraint has been passed.
7. Considered the submission of the learned counsel for the parties in the light of relevant facts and provisions of 1949 Act referred to herein above. From perusal of the impugned order it does not appear that proper application of mind has been made on behalf of Respondent no.2, Deputy Commissioner, Godda on the instant question keeping into light the various provisions of the Act of 1949; any 'customary law' or 'usage' prevalent in the area, where such activities of constructions over a 'Jamabandi' land recorded as 'Pradhan Ka Jote' is prohibited specifically. In the absence of speaking order on that issue and discussion on this aspect also relating to the 'usage' or 'customary law' in that regard and the lack of pleadings on record, this Court is not in a position to come to a definite finding. The Deputy Commissioner, who is a custodian of revenue records of a District is therefore obliged to render a specific finding on the instant issue in the light of the observations made herein above as well as in accordance with law.
8. The matter is therefore remanded to the Deputy Commissioner, Godda to take a fresh decision on the instant issue relating to restraint on the construction proposed by the petitioners on the land -4- in question after due opportunity and hearing to the parties within a reasonable time, preferably 12 weeks from the date of receipt of copy of this order. It goes without saying that dependent upon the decision taken by the Deputy Commissioner, Godda on the instant subject, consequences would flow.
9. The writ petition is disposed of accordingly. I.A. No. 807 of 2017 also stands disposed of in view of the order passed hereinabove.
(Aparesh Kumar Singh, J.) Kamlesh / A. Mohanty