Jharkhand High Court
Sanju Turi & Ors vs The State Of Jharkhand & Ors on 7 November, 2019
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 2120 of 2007
Sanju Turi & Ors. ... ... Petitioners
Versus
The State of Jharkhand & Ors. ... ... Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
-----
For the Petitioners : Mr. Sandeep Verma, Advocate Mr. Sumit Kumar, Advocate For the Respondent-State : Mr. Subhash Chandra Prakash, AC to SC (L&C)-I For the Respondent No. 6 : Mr. Ayush Aditya, Advocate
-----
Order No. 11 Dated: 07.11.2019 The present writ petition has been filed for quashing order no. 20/2005 dated 13.04.2005 (Annexure-4 to the writ petition) passed by the respondent no. 3 - the Deputy Commissioner, Deoghar in Misc. Case No. 55/1998-99 by which the land measuring 2.12 acres of Dag No. 128, Khata No. 41 situated at Mouza-Karnibad, P.S.-Kunda, District- Dumka (now Deoghar) has been settled in favour of the respondent no. 6 which, according to the petitioners, is contrary to the provisions of Section 28 of the Santhal Parganas Tenancy Act, 1949 (hereinafter referred to as "the SPT Act") as the respondent no. 6 is neither the jamabandi raiyat nor the permanent resident of the said mouza/village. The petitioners have further prayed for quashing the order dated 19.02.2007 passed by the respondent no. 2 -the Commissioner, Santhal Pargana Division, Dumka in R.M.A. No. 32/2005-06 as contained in Annexure-5 to the writ petition by which the appeal preferred by the petitioners has been dismissed.
2. In course of argument, the learned counsel for the petitioners submits that admittedly, the respondent no. 6, who is an ex-serviceman, is neither a jamabandi raiyat nor a permanent resident of the concerned village. The respondent no. 3 has thus committed an error in settling the land in question in favour of the respondent no. 6 contrary to the express provisions of Section 28 of the SPT Act. In support of his argument, the learned counsel for the petitioners puts reliance on the judgment rendered by the Hon'ble Patna High Court on 06.03.2000 (during the period of unified State of Bihar) passed in the case of "Sheikh Allauddin & Ors. Vs. State of Bihar & Ors." reported in 2 2000 (2) BLJR 1084, the relevant paragraph of which reads as under:
"4. Section 28 of the Act contemplates that regard shall be had to the following considerations in addition to the principles recorded in the record of rights.
(a) fair and equitable distribution of land according to the requirements of each raiyat and his capacity to reclaim and cultivate;
(b) any special claim for services rendered to the village community, society or State;
(c) contiguity or proximity of the wasteland to jamabandi land of the raiyat;
(d) provision for landless labourers who are bona fide permanent residents of the village and are recorded for a dwelling house in the village.
5. All the pre-requisites for settling wasteland and vacant holdings connote that the settlee must be a jamabandi raiyat or must be permanent raiyat or must be permanent resident of the village and they are recorded in the records of right. From the materials on record, it appears that the Sub-divisional Officer before making the settlement of the land in question in favour of the petitioners had not even called for a report from the village Pradhan nor had verified the records of right. There is nothing in the writ application to show that the petitioners are jamabandi raiyats of the village and they have been recorded under Clause 16 of the records of right."
3. The judgment rendered by the learned Single Judge of the Patna High Court (during the period of unified State of Bihar) in the case of "Sheikh Allauddin" (supra) has also been followed by the learned Single Judge of the Jharkhand High Court in the case of "Baldeo Mandal Vs. The State of Bihar & Ors." reported in 2006 (3) JLJR
663.
4. On the contrary, the learned counsel for the respondent no. 6 submits that the learned Single Judge of the Patna High Court, vide judgment dated 23.09.1996 (during the period of unified State of Bihar) in the case of "Mihir Kumar Jha Vs. The State of Bihar & Ors." reported in 1997 (1) PLJR 716, while considering the provisions of Section 28(b) of the SPT Act, has held as under:
"13. For the reasons aforesaid the order of the Deputy Commissioner cancelling the settlement of wasteland with petitioner as also the order passed by the Commissioner cannot be sustained in law. In my opinion, the settlement made by the Sub-divisional Officer is not against any of the mandatory provisions of the said Act. In other words, the said Act does not in express term debar the authorities to make settlement of wasteland with non-jamabandi raiyats. In the result this writ application is allowed and the impugned orders dated 22.03.1985 and 20.05.1985 passed by the Deputy 3 Commissioner and the Commissioner of Santhal Parganas as contained in Annexures 1 and 2 respectively are quashed."
5. The judgment rendered by the learned Single Judge of the Patna High Court in the case of "Mihir Kumar Jha" (supra) has further been relied by the learned Single Judge of this Court in the case of "Purusottam Modi Vs. The State of Jharkhand & Ors." passed in W.P.(C) No. 4890 of 2005 decided on 31.10.2012.
6. Thus, there appears conflicting views of the learned Single Judges of Jharkhand High Court and Patna High Court (during the period of unified State of Bihar) while making interpretation of Section 28 of the SPT Act.
7. Hence, I deem it appropriate to refer the matter before the learned Division Bench of this Court for the purpose of authoritative pronouncement on the said issue.
8. Let this matter be placed before Hon'ble the Acting Chief Justice for assigning the same to the appropriate Division Bench of this Court.
(Rajesh Shankar, J.) Manish