Jharkhand High Court
Nirmal Tiwari And Anr. vs State Of Bihar (Now Jharkhand) And Ors. on 22 April, 2008
Equivalent citations: 2008 (2) AIR JHAR R 827
Author: D.G.R. Patnaik
Bench: D.G.R. Patnaik
JUDGMENT D.G.R. Patnaik, J.
1. The petitioners have prayed for quashing the order dated 7.9.1996, passed by the Additional Collector, Palamau (respondent No. 2) in Misc. Case No. 27 of 1995-96, whereby the Additional Collector has passed the impugned order canceling the Jamabandi earlier created in favour of the petitioners. Prayer has also been made for quashing the order dated 4.3.1997 passed by the respondent No. 2, whereby the petitioners prayer for review of the earlier order dated 7.9.1996 was rejected.
2. The petitioners have asserted their claim over the disputed lands on the basis of the facts stated as under:
That the petitioners are the occupancy Raiyats amongst others in respect of the lands under Khata No. 28, Plot No. 691 area 1.30 acres, Plot No. 871 area 27 decimals with village Hisra Pokhraha.
Although the aforesaid land originally belonged to the ex- landlord of the village, namely Kanhaiya Dayal Singh, which was later recorded in the name of one Niranjan Dusadh in the cadastral survey records of rights finally framed and published in the year 1919.
The ex-landlord filed Title Suit No. 736 of 1919 against the said Niranjan Dusadh and 25 other Raiyats for correction of the entries by removing the name of the defendants, whose names have been wrongly entered in the records of rights and also for a declaration that the lands including the disputed lands are Bakast land of the landlords.
The Title Suit No. 736 of 1919 was decreed in favour of the ex-landlord vide Decree dated 12.2.1920 (Annexure-1).
In the Execution proceedings vide Execution Case No. 215 of 1920, the delivery of possession of the disputed lands including the suit lands was effected in favour of the landlord/decree holder.
The said Estate of the ex-landlord Kanhaiya Dayal Singh was under the management of the Manager, Ward and Encumbered Estate in the year 1935. The Manager settled the land in Plot No. 871 Khata No. 28, area measuring 1.30 acres in favour of one Feku Kurmi in the year 1937 and had put the settlee in possession of the aforesaid lands.
Feku Kurmi enjoyed the peaceful possession and occupation of the lands by paying rent without any obstruction or objection from Niranjan Dusadh or his successors.
Feku Kurmi had died leaving behind his two sons namely, Lakhan Choud-hary and Bishun Choudhary.
After inheriting their father's properties, both Lakhan Choudhary and Bishun Choudhary had transferred the land of Plot No. 871 area measuring 1.30 acres in favour of one Kamalpurti Devi by virtue of a registered sale deed dated 27.4.1953.
Kamalpurti Devi continued to enjoy peaceful possession of the land purchased by her by paying rent.
The transferee, Kamalpurti Devi by virtue of a registered sale-deed dated 2.11.1968 sold the lands measuring 1.30 acres in Plot No. 871 to one Sone Kumari Devi (petitioner No. 2).
Eversince, after purchase of the land, the petitioner No. 2 has been coming in peaceful and cultivating possession of the land by paying rent and obtaining receipts thereof.
In the new survey settlement operation, the petitioner No. 2 was found in peaceful cultivating possession of the aforesaid lands and, accordingly a preliminary survey parcha was issued in her name in respect of 1.30 acres of land in Plot No. 871.
Later the aforesaid 1.30 acres of land in Plot No. 871 was acquired by the State Government for the purpose of constructing a canal and after due enquiry the amount of compensation for the acquisition of the land was paid to petitioner No. 2.
It was during the aforesaid Land Acquisition proceeding that the respondent No. 4, Bipat Manjhi filed an objection. After due enquiry made by the Circle Officer and his field staff, the objection of the respondent No. 4 was rejected and the amount of compensation was paid to petitioner No. 2.
Later the instance of the respondent No. 4, in a proceeding under Section 144, CrPC in the year 1983, which was registered as Misc. Case No. 659 of 1983, after considering the documents filed by the petitioners, as opposite party, the rule of restraint was vacated in favour of the petitioners and made absolute against the respondent No. 4.
The other piece of land measuring 27 decimals in Plot No. 691 was settled by the ex-landlord Shankar Dayal Singh in favour of the petitioners predecessor Reghubir Tiwary.
The settlee continued to remain in peaceful possession of the land and to pay rent thereof.
Later in the year 1944, consequent upon a partition in the family of Raghubir Tiwary vide Partition Suit No. 1 of 1944, the 27 decimals of land in Plot No. 691 was allotted to the Takhta of Laxman Tiwary, who was the father of the petitioner No. 1.
On the death of Laxman Tiwary in the year 1966, the petitioner No. 1 and the other heirs of Laxman Tiwary inherited Laxman Tiwary's properties. Later in the year 1982, following a partition in the family of the Laxman Tiwary, 27 decimals of land in Plot No. 691 was allotted to the exclusive share and Takhta of respondent No. 1. On the basis of the decree in the Partition Suit No. 79 of 1982, the name of the petitioner No. 1 was mutated in the Revenue records in respect of the 27 decimals of land in Plot No. 891 and he has been paying rent for the same.
The petitioner No. 1 was also found in cultivating possession of the aforesaid land during the recent Survey Settlement Operation and in confirmation thereof a preliminary Parcha (Annexure-3) was issued in his name.
Thus since, after mutation by the revenue authorities the names of the petitioners have been running continuously in the revenue records and on the basis of the same rent receipt (Annexure-4 series) were issued to them.
In spite of the above stated facts, the Circle Officer Daltonganj entertained an application of the respondent No. 4 and forwarded a recommendation to the Deputy Collector, Land Reforms Daltonganj for cancellation of the demand running in the name of the petitioners in respect of the suit lands.
An enquiry proceeding was initiated by the Deputy Collector, Land Reforms in which the petitioner and the respondent No. 4 had submitted their respective statements. The respondent No 4 claimed that he is the descendant of Niranjan Dusadh in whose name the land under Khata No. 28 total area measuring about 4.71 acres was originally recorded and out of the same area of 3.66-6/4 acres is still running in the name of the respondent No. 4. By-order dated 24.1.1996 (Annexure-5), passed in Miscellaneous Case No. 29 of 1995-96, the Deputy Collector. Land Reforms recorded his finding that the disputed lands have been coming in possession of the petitioners and that the respondent No. 4 has never been in possession of the same. Accordingly, the Deputy Collector Land Reforms forwarded the records of Misc. Case No. 29 of 1995-96 to the Additional Collector, Daltonganj (respondent No. 2) with his report of enquiry containing his recommendation that the Revenue records be corrected on the basis of the peaceful possession of the lands in favour of the petitioners.
Both parties appeared before the Additional Collector and produced all their respective documents in support of their claim over the disputed lands.
The respondent No. 2 by his order impugned dated 7.9.1996 (Annexure-6) cancelled the long running demand of the petitioners in respect of the said lands.
The petitioners thereafter filed a Review application before the respondent No. 2, against the order dated 7.9.1996. However, by order dated 4.3.1997. (Annexure-7), passed in Misc. Case No. 29 of 1995-96, the respondent No. 2 rejected the Review application with an observation that the petitioners may file an appeal against his order.
Since, at the relevant time, the Divisional Commissioner of Palamau was transferred and the Commissioner of South Chhotanagpur Division Ranchi, who was enjoying looking alter the Palamau division but was not holding Court at Palamau Division since September, 1996, the petitioners have filed to present writ application.
3. The petitioners have assailed the impugned orders of respondent No. 2 as being wholly without jurisdiction, illegal and arbitrary. Mr. V.K. Tiwary, learned Counsel for the petitioners would argue that the petitioners have preferred the writ application before this Court against the impugned orders, since there was no efficacious, alternative remedy immediately available to them and there was absolutely no legal basis for canceling the long running demand of the petitioners and the respondent No. 2 had acted without jurisdiction in a most arbitrary and illegal manner without application of judicial mind. The impugned orders is also perverse and unsustainable in law as because, the respondent No. 2 had no jurisdiction to go behind the decree of the competent civil Court and decide the question of title and possession in a summary revenue proceeding.
Learned counsel argues further that the petitioner had acquired occupancy rights over their holdings and in absence of an evidence or even allegation that the earlier orders of mutation in respect of the disputed lands recorded by the revenue authorities in favour of the land was obtained by fraud of misrepresentation, the respondent No. 2 had no jurisdiction to go behind the orders of the Revenue authorities and to differ with the recommendation of the Deputy Collector. Land Reform Palamau.
4. It may be mentioned that vide order dated 12.1.1998, operation of the impugned orders contained in Annexures-6 and 7 was stayed by this Court. Though notices were served on the respondents the respondent No. 4 (Private respondent) had alone filed his counter affidavit.
5. Countering the contention of the petitioners claim in writ application the respondent No. 4 has raised the following objections.
(i) That the present writ application of the petitioners is not maintainable as because the petitioners have not availed the efficacious alternative remedy of filing an appeal/Revision before the Collector of the District and that the Additional Collector (respondent No. 2) in exercise of his original jurisdiction of making correction in the entries in the revenue records, had decided the issue by cancelling the long running demand in the name of the petitioners and confirming the demand of the respondent No. 4 and there is no illegality in the impugned orders.
(ii) That the land in Khata No. 28, is the Raiyati land of the respondent No. 4 and it was not part of the suit properties in Title Suit No. 736 of 1919 and, as such a valid demand was already running in favour of the respondent No. 4 on the ground of, he being the legal heir of the original raiyat Niranjan Dusadh.
6. Mr. Sameer Saurabh, learned Counsel for the respondent No, 4 (private respondent) would argue that a proper scrutiny of the decree of Title Suit No. 736 of 1919 (Annexure-1) would reveal that the kinds in Khata No. 28 was not part of the suit lands in the aforesaid title suit but by suppressing this fact and by entering into legal transactions, the petitioner in collusion with the interested persons, obtained purchase and rent receipt in their names and thus a duplicate demand was opened in the names of the petitioners, despite the fact that the demand in respect of the suit lands was already running in favour of the respondent No. 4. The respondent No. 4 had, therefore, filed an application before the Circle Officer for cancellation of the duplicate demand running in the names of the petitioners. The matter was ultimately considered by the Additional Collector (respondent No. 2), who on being satisfied that the documents produced by the respondent No. 4 are genuine, had passed the impugned order cancelling the demand running in the name of the petitioners.
7. On the point of maintainability of the writ application it had been held by a catena of decisions of the Apex Court that despite existence of an alternative remedy, the writ Court may exercise its discretion in jurisdiction of judicial review in cases, where the Courts and tribunal have inherent jurisdiction or if there has been violation of the principle of natural justice.
In the case of Virappa Pillai v. Raman and Raman Ltd. reported in SCR 594, the Supreme Court has held that writs referred to under Articles 226 of the Constitution are obviously intended to enable the High Court to issue them:
In grave cases, where the subordinate tribunals or bodies officer, act wholly without jurisdiction or in excess of it in violation of the principles of natural justice, or refused to exercise their jurisdiction vested in them or there is an error apparent on the face of the records, and such act, omission, error or excess has rested in manifest injustice.
8. In the instant case, the respondent No. 4 has claimed that he is successor in interest of late Niranjan Dusadh in whose name disputed land was recorded in the cadastral survey record of right 1990 and it has, however, not been denied by the respondent No. 4 the ex-landlord had instituted a suit in the Court of the Munsif vide Title No. 736 of 1919 against the said Niranjan Dusadh and 25 other person for cancellation of their names on the ground that their names were wrongly entered in the Revenue records. The decree passed by the Court of Munsif (Annexure-1), confirms that Niranjan Dusadh was the defendant No. 25, in the said suit and the lands in Plot Nos. 690 and 871 finds mentioned against his name in the decree. Annexure 2 also confirms that the decree of the Court of Munsif was executed by the delivery of possession of the lands including the lands in plot No. 690 and 871 under the decree holder. The sale deeds referred to by the petitioners on the basis of which they have advanced their claim of acquiring the disputed land, have not been denied or disputed by any of the respondents including the respondent No. 4. It is not denied that in the last survey operations, the petitioners were found in possession of the disputed land. It is also not disputed that in confirmation of the possession a preliminary Parcha was issued in favour of the petitioners. It is also not disputed that the objection raised by the respondent No. 4 against creation of the Jamabandi in the names of the petitioners and his claim over the disputed lands was rejected by the Revenue authorities and the rents paid by the petitioners pursuant to the Jamabandi are being accepted by the Revenue authorities since more than 20 years. The order dated 4.1.1996, passed by the Deputy Collector, Land Reforms confirms that it was the petitioners who were all along been found to be in possession of the disputed lands and the respondent No. 4 had never been in possession of the same. It is not disputed that a land acquisition proceeding in respect of land in plot No. 871 was initiated in which the objection raised by the respondent No. 4 against the petitioners claim for compensation was rejected by the concerned authorities and the amount of compensation paid to the petitioners.
9. The above facts clearly confirms that by the Jamabandi created in favour of the petitioners accepting them as the tenants under the State and accepting rent from them for several decades, it creates a valuable legal right in favour of the petitioners and such valuable right cannot be taken away except through the procedure established by law. It is deemed that the petiioners have acquired occupancy rights by remaining in possession of the disputed lands for decades and they cannot be ejected from the lands except in the manner as provided under Section 22 of the Chhotanagpur Tenancy Act, 1908, since the concerned areas within which the disputed lands fall is governed by the Chhotanagpur Tenancy Act, 1908. The Additional Collector has no jurisdiction to cancel the petitioners continuous Jamabandi and determine the tenancy rights otherwise than as provided under law, the consequence of which would lead to the ejectment of the petitioners from their holding. It is apparent that the Additional Collector has acted arbitrarily without any authority of law in passing the order of cancellation. The Additional Collector has further ignored not only the fact that the lands under Plot No. 691 and 871 were restored to the ex-landlord/decree holder by virtue of the execution of the decree passed in the Title Suit No. 736 of 1919 but has also ignored the fact that the names of the petitioners was mutated in the Revenue records after they were found in possession of the disputed lands during the survey settlement operations. The contention of the respondent No. 4 that the disputed lands were not involved in the aforesaid Title Suit No. 736 of 1919, since the Khata number has not been specifically mentioned, therein is misconceived. Such objections raised by the respondent No. 4 was rejected by the competent revenue authorities whereafter the mutation of the names of he petitioners was confirmed and rents are being accepted from them since long and furthermore, that the petitioners have been coming in possession of the disputed lands since decades and had acquired occupancy rights over the lands in question. The impugned order dated 7.9.1996 passed in Misc. Case No. 29 of 1996, by the Additional Collector, Palamau (respondent No. 2) is thus, wholly illegal and without jurisdiction, and under such circumstances, the writ jurisdiction of this Court can certainly be invoked to quash the impugned orders.
10. In view of the above facts, this writ application is allowed.
11. The impugned orders dated 7.9.1996 passed by the respondent No. 2 is hereby quashed. There is however, no order as to costs.