Jharkhand High Court
Lekho Prasad Alias Lekho Prasad Chouhan ... vs The State Of Jharkhand And Ors on 18 July, 2017
Author: D.N. Patel
Bench: Ratnaker Bhengra, D.N. Patel
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 525 of 2014
with
L.P.A. No. 540 of 2014
Lekho Prasad @ Lekho Prasad Chouhan @ Lekho Beldar, son of Bipat
Beldar @ Bipat Prasad Chouhan, resident of village Pandeydih, Beldari
Basti, Chanderi, Post Office Sijua, Police Station Tetulmari, District
Dhanbad.
... Petitioner/Appellant
[in both cases]
Versus
1. The State of Jharkhand.
2. The Deputy Commissioner, Dhanbad, Post Office & Police Station,
Dhanbad, District Dhanbad.
3. The Circle Officer, Baghmara, Post Office & Police Station Baghmara,
District Dhanbad.
....Respondents/Respondents
[in both cases]
CORAM: HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RATNAKER BHENGRA
For the Appellant : Mr. Birendra Kumar, Advocate
[in both cases]
For the Respondents : Mr. V.K. Prasad, S.C. (L&C)
Mr. Vineet Prakash, J.C. to S.C. (L& C)
[in L.P.A. No. 540 of 2014]
Mr. Raunak Sahay, J.C. to S.C. (Mines)
[in L.P.A. No. 525 of 2014]
15/Dated: 18th July, 2017
Oral order:
Per D.N. Patel, A.C.J.:
1. These Letters Patent Appeals have been preferred by the original petitioner, being aggrieved and feeling dissatisfied, by the judgment and order dated 11th September, 2014, delivered by the learned Single Judge in W.P.(C) No. 598 of 2013 with W.P.(C)No.1231 of 2013. Both the aforesaid writ petitions were heard together. Common is the petitioner.
2. In these two cases mutation Jamabandi No.35 and mutation Jamabandi No.78 have been cancelled for plot no. 41, one is measuring 11.12 and another is 4.21 Kattha of land. It is alleged by the counsel for the appellant that these two plots were obtained by father of this appellant (original petitioner) much earlier in point of time i.e. 194243.
They are also paying rent of the aforesaid lands since long under Bihar Land Encroachment Act. Proceedings were initiated bearing Encroachment 2 Case No.28/196465 which was decided by the Circle Officer, Baghmara, District Dhanbad vide order dated 07.12.1965 and Jamabandi was created in favour of this appellant. This is the main argument canvassed by the counsel for the appellant. The said order is at Annexure1/A to the Letters Patent Appeal.
3. Counsel appearing for the appellant further submitted that as per Section 4(h) of the Bihar Land Reforms Act, 1950, settlement can be cancelled of the land which is settled after 1960 whereas, in the facts of the present case the land was settled in the year 1943. It is further submitted by the counsel for the appellant that as per Section 22 of Chotanagpur Tenancy Act if a person is recognized as Raiyat he can be evicted only on two grounds viz. by the decree of eviction and in case there is a violation of the condition of the grant of the land. This Section 22 of the Chotanagpur Tenancy Act and Section 25 of the Bihar Tenancy Act, 1885 are pari materia and lastly, it is submitted by the counsel for the appellant that as per Section 19 of the Bihar Tenants Holdings (Maintenance of Records) Act, 1973, there is a presumption of correctness of the entries. All these aspects of the matter have neither been properly appreciated by the Deputy Commissioner, Dhanbad while passing the impugned order in Miscellaneous Case No.20/201112 dated 09.01.2013 which is at Annexure3 to the memo of this Letters Patent Appeal, nor the learned Single Judge has appreciated all the aforesaid aspects while deciding the writ petitions preferred by this appellant hence, the judgment and order passed by the learned Single Judge in W.P.(C) No. 598 of 2013 with W.P.(C) No. 1231 of 2013 dated 11th September, 2014 deserves to be quashed and set aside.
4. Counsel for the appellant has relied upon the decision reported in:
(a) 1990 (2) PLJR 819;
(b) AIR 1983 Pat. 121;
(c) 1978 BBCJ 323 and has submitted that the Jamabandi created on the basis of settlement much earlier in point of time could not have been cancelled by the Deputy Commissioner, Dhanbad vide order at Annexure3 to the memo of this Letters Patent Appeal.3
5. It is also submitted by the counsel for the appellant that Case No.386/2009 initiated under Section 87 of the Chotanagpur Tenancy Act and the Revenue Officer has decided the matter in favour of this appellant vide order dated 23rd March, 2011 which is at Annexure2 to L.P.A. No. 525 of 2014. This aspect of the matter has also neither been properly appreciated by the Deputy Commissioner, Dhanbad while passing the impugned order at Annexure3 nor has been appreciated by the learned Single Judge while deciding the writ petitions.
6. Counsel for the respondents State submitted that the so called Case bearing No. 388 of 2009 was not meant for the properties for which the order at Annexure3 is passed. The property referred to in the writ petition is for Khata No. 38 whereas the suit is decided for another property i.e. Khata no.77. It is further submitted by the counsel for the State that land in question is a GairAbad land which is vested in the State Government after abolition of Zamindari System. Miscellaneous Case No. 20/201112 initiated by the State against Lekho Prasad.
7. It is further submitted by the counsel for the respondentsState that no Jamabandi can be created in an encroachment matter. Absolutely fraudulent are the documents of Miscellaneous Case No. 20/201112. Moreover, when the so called encroachment matter was initiated there is no reference of rent receipt etc. If this appellant is claiming ownership of the land from 1943, there is no question whatsoever arises of Jamabandi to be created in Miscellaneous Case No. 20/201112. This is a fraudulent document.
8. It is submitted by the counsel for the respondentsState that if this appellant is seeking ownership upon the property from the year 1943 then there was no question whatsoever arises for so called encroachment proceedings. All the papers of encroachment proceeding bearing no.28/196465 are false and fabricated and no Jamabandi can be created on the basis of the order passed in such type of proceedings. This aspect of the matter has been clearly narrated in the order passed by the Deputy Commissioner, Dhanbad in the order dated 9th January, 2013 which is at Annexure3 to the memo of this Letters Patent Appeal.
9. It is further submitted by the counsel for the respondentsState that the whole case of the appellant is based upon false and fabricated 4 documents. Fraud vitiates the whole proceedings and hence, Government has all power, jurisdiction and authority to cancel the mutation entry which was carried out in favour of this appellant. Jamabandi cannot be created without an order of the competent authority and hence, the said Jamabandi was cancelled by the order of the Deputy Commissioner, Dhanbad dated 9th January, 2013 (Annexure3 to the memo of this LPA).
10. It is further submitted by the counsel for the respondentsState that if this appellant is claiming ownership upon the property in question the same can be claimed in a suit and not in a writ petition under Article 226 of the Constitution of India. Mutation entry and the ownership are absolutely different.
11. Counsel for the respondents is relying upon the decision rendered in 1993(2) PLJR 255 para20, 25 and 26. By the virtue of this judgment rent receipt never creates any right of ownership nor Jamabandi creates any right of ownership and hence, if this appellant is claiming any ownership upon the property in question civil suit ought to have been filed by this appellant. This aspect of the matter has been properly appreciated by the learned Single Judge while deciding the writ petitions preferred by this appellant and hence, these Letters Patent Appeal may not be entertained by this Court.
Reasons
12. Having heard counsels for both the sides and looking to the facts and circumstances of the case, we see no reason to entertain these Letters Patent Appeals mainly for the following facts and reasons:
(i) The properties involved in these Letters Patent Appeals is Jamabandi no.35, Mouza 270, Khata no. 38, plot no. 41 at measuring 11.12 Kattha. Another property is Jamabandi no. 78, Mouza 270, Khata no. 38, Plot no. 41 at measuring 4.21 Kattas of land situated at village Pandendih, District Dhanbad.
(ii) It is alleged by this appellant (original petitioner) that for Jamabandi no. 35, the property in question was owned by the father of the petitioner viz. Bipat Belda from 16th November, 1942. So far as Jamabandi no.78 is concerned on the basis of encroachment proceeding bearing no.28/196465 the Circle Officer, Baghmara passed an order dated 07.12.1965 in favour of this appellant. This 5 order is at Annexure1/A. By virtue of this order Jamabandi was created in favour of this appellant, but, infact both the properties were owned by father of this appellant from 1942.
We are not accepting this contention raised by the counsel for the appellant mainly for the reason that as mentioned in the order passed by the Deputy Commissioner, Dhanbad in order dated 9th January, 2013 in Miscellaneous Case No. 20/201112 (Annexure3) it has been referred that the said order is based on false and fabricated documents. If this appellant is claiming ownership upon the property in question, there was no question of any proceeding for encroachment whatsoever arises. Moreover, in the said proceedings, nothing is mentioned about how the father of this appellant had become owner of the property. By the virtue of an order passed in Encroachment Proceeding no mutation entry can be carried out in favour of this appellant. The stand of this appellant appears to be contradictory. All these aspects of the matters have been mentioned in detail in the order passed by the Deputy Commissioner, Dhanbad dated 09.01.2013 (Annexure3 to the memo of this LPA) which was under challenge in the writ petitions preferred by this appellant.
(iii) It is alleged by the State that the land in question is a GairAbad Malik Land vested in the Government after abolition of Zamindari System and after coming into force Bihar Land Reforms Act, 1950 and therefore, all such illegally created Jamabandi without order of the competent authority have been ordered to be cancelled.
(iv) Counsel appearing for the appellant has also relied upon the Case No. 386 of 2009 which was decided on 23rd March, 2011 (Annexure2 to the memo of L.P.A. No. 525 of 2014). This contention is of no help to the appellant mainly for the reason that the property referred to in Case No. 386 of 2009 is for Jamabandi no. 77 whereas, we are concerned with Jamabandi nos. 35 and 78 .
(v) It appears that the land which was GairAbad Malik Land belongs to the Government for which Jamabandi has been created illegally in the name of private person. Moreover, in view of the Government letter no.914 dated 9th December, 1998, the illegal 6 Jamabandi no. 35, 78, 94 etc. have been cancelled by the Circle Officer, vide memo dated 31st May, 2013.
(vi) Once the fraud is alleged by the State for creation of Jamabandi in favour of the private parties upon the Government land the best remedy available with the private parties is to approach the competent civil court for claiming the title upon the property in question instead of writ petition under Article 226 of the Constitution of India, so that the title upon the property can be established by cogent and convincing evidences.
(vii) Under Section 4(h) of the Bihar Land Reforms Act, 1950, Collector has all power, jurisdiction and authority to make the inquiry in respect of any transfer including settlement or lease of any land. In the facts of the present case, report was also received from the Revenue Officer about the aforesaid property in question and after giving adequate opportunity of being heard an order was passed by the Deputy Commissioner, Dhanbad dated 09.01.2013 (Annexure 3 to the memo of LPA) and it has been held that Jamabandi was created in the name of the father of this appellant by fraud.
13. These aspects of the matter have been properly appreciated by the learned Single Judge while giving reasons for dismissal of the writ petition preferred by this appellant in paragraph nos. 12 onwards in an order dated 11th September, 2014. We are in full agreement with the reasons given by the learned Single Judge for dismissal of the writ petitions preferred by this appellant.
14. By virtue of the mutation entries, the ownership, if any, vested in this appellant is not disturbed at all. If the appellant is claiming any ownership upon the property in question on the basis of some evidence which is in possession of this appellant, always title suit can be filed, in the competent civil court. What is cancelled is nothing, but, mutation entries only, by the Government vide order dated 9th January, 2013 in Miscellaneous Case No.20/201112 (Annexure3). Looking to the said order no error has been committed by the Deputy Commissioner, Dhanbad in deciding the said Miscellaneous Case No. 20/201112.
15. Liberty is reserved with this appellant to claim ownership upon the property in question by filing a civil suit in the competent trial court and 7 the respondentGovernment is also entitled to claim their ownership as and when such suit is filed by this appellant in the trial court.
16. In view of these facts, no error has been committed by the learned Single Judge in deciding writ petitions bearing nos. W.P.(C) No. 598 of 2013 with W.P.(C) No. 1231 of 2013 vide order dated 11th September, 2014.
17. There is no substance in these Letters Patent Appeals and hence, the same are hereby, dismissed.
(D.N. Patel, A.C.J.) (Ratnaker Bhengra J.) VK