Jharkhand High Court
Shishir Kumar Choudhary vs Collectariate on 21 August, 2015
Author: P.P. Bhatt
Bench: P.P. Bhatt
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI.
W.P. (C) No. 3081 of 2013
with
Cont. Case (C) 967 of 2013
...
Shishir Kumar Choudhary ...... Petitioner
-V e r s u s-
The State of Jharkhand & Others ... Respondents
...
CORAM: - HON'BLE MR. JUSTICE P.P. BHATT.
...
For the Petitioner : - M/s. D. K. Dubey, S.S. Choudhary
and A. K. Thakur, Advocates.
For the State : - Mr. V. K. Prasad, S.C. (L&C)
and Mr. Vineet Prakash, J.C. to S.C. (L&C).
...
12/21.08.2015The petitioner by way of the present writ petition under Article 226 of the Constitution of India, has prayed for quashing and setting aside the order dated 15th April, 2013 (Annexure - 6), whereby the learned Commissioner, Santhal Parganas Division, Dumka reviewed the earlier order dated 02.06.2012 passed by his predecessor Commissioner in RMR No. - 21 of 2011-12 and cancelled the settlement made in favour of the petitioner way back on 03rd February, 1973 by the Sub-Divisional Officer which was affirmed by Deputy Commissioner vide its order dated 31.08.1976 in Rev. Misc. Appeal No. 9 (A) of 1973-74.
2. Heard the learned counsel for the petitioner and the learned counsel for the State and also perused the materials placed on record.
3. Brief facts of the case:
The brief facts of the case are as under:-
That the lands under Khata No. 20, Plot No. - 287 of Mouza - Siktia, District - Godda are recorded as "Waste Land" in Record of Rights. Learned Sub Divisional Officer , Godda settled the aforesaid 4 acres lands in favour of ancestor of the petitioner in Settlement Case No. - 66 of 1972 -73 vide order dated 03.02.1973 for the purpose of establishment of Small Scale Industry. The said settlement order was challenged by '16 Annas Raiyats' before the learned Deputy Commissioner in Rev. Misc. Appeal No. - 9(A) of 1973 - 74 who confirmed the said settlement vide order dated 31.08.1976. After 34 years of settlement, Circle Officer, Godda submitted a report for cancellation of settlement and the same was reported as Settlement Cancellation Case No.- 2/2007-08 but the learned Sub Divisional Officer, Godda dismissed the aforesaid case and reconfirmed the settlement vide order dated 30.08.2007.2
Again after four years, Circle Officer, Godda initiated a Cancellation Case No.- 43 of 2010-11 and recommended for cancellation of settlement before the Sub Divisional Officer, Godda and the Sub Divisional Officer, Godda in turn passed an order dated 15.03.2011 and thereby recommended for cancellation of the settlement. This recommendation was also approved by Deputy Commissioner Godda on 16.03.2011. On the very next date i.e. on 17.03.2011, Sub Divisional Officer, Godda passed the order for cancellation of settlement (Annexure- 4). Aggrieved by this order, petitioner filed revision before the Commissioner, Santhal Paraganas Division, Dumka being R.M.R. No. - 21 / 2011-12. The said revision was allowed by the Commissioner vide order dated 02.06.2012 (Annexure - 5) and thereby the order of Sub Divisional Officer, Godda, which was approved by the Deputy Commissioner was ordered to be set aside. Against this order, a review petition was filed on behalf of the Circle Officer before the successor Commissioner and the same was allowed vide impugned order dated 15.04.2013 (Annexure- 6). The petitioner being aggrieved and dissatisfied by the said order of the review court filed this writ petition.
4. Submissions of learned counsel for the Petitioner:
The learned counsel for the petitioner by referring to the order of settlement dated 03.02.1973 (Annexure -1), submitted that the settlement was made in favor of the father of the petitioner after following due process of law such as inviting objections if any from '16 Anna Raiyats' and calling feasibility report from 'Kanoongo'. The said order of settlement was also confirmed by the Deputy Commissioner, Santhal Pargana, Dumka vide order dated 31.08.1976 passed in Revenue Miscellaneous Appeal No. - 9 (A) of 1973-74 and as such the same cannot be reviewed and disturbed after about 37 years as the settlement was made in accordance with Government policy and law.
The learned counsel for the petitioner further submitted that the learned Deputy Commissioner in its order very well observed that the Sub Divisional Officer before recommendation of the settlement in favour of the petitioner has taken into consideration the overall development of the sub- divisional town and industry in general.
The learned counsel for the petitioner further submitted that the order passed by the Commissioner after 37 years in Review petition is not in consonance with the provision of law and therefore, the said order deserves to 3 be set aside by this Court and the order of settlement passed in favour of the petitioner way back in 1973, which was confirmed by the Deputy Commissioner, is required to be upheld or reconfirmed. Like-wise the observations and the reasons assigned by the Commissioner in its order dated 2.6.2012 are in accordance with law and also supported by the judicial precedents and settled legal proposition and therefore, the original order of settlement may also be restored and confirmed.
The learned counsel for the petitioner by referring the recommendation made to the Deputy Commissioner by the Sub Divisional Officer which was initiated by the Circle Officer, for cancellation of settlement on 15th March, 2011 and approval given by the Deputy Commissioner by putting his signature on the very next day i.e. on 16th March, 2011 and order of cancellation passed by the Sub Divisional Officer on next day i.e. on 17th March 2011, submitted that the entire exercise of cancellation was made so hurriedly within 3 days at different level as if they were bent upon to cancel the settlement anyhow.
It is further submitted that except putting signature no reason whatsoever has been assigned by the learned Deputy Commissioner while approving the said recommendation made by the Sub Divisional Officer, Godda on 16th March 2011 and in view of this approval on the very next day i.e. on 17th March, 2011, the Sub Divisional Officer, Godda passed an order of cancellation of settlement.
It is also submitted that the Circle Officer, Sub-Divisional Officer and the Deputy Commissioner have acted in a hasty, arbitrary and capricious manner, which becomes clear from the time gap between the aforesaid three orders. It clearly indicates that within three days, all the authorities have considered the case for cancellation of settlement, which was confirmed by Deputy Commissioner more than 37 years ago. It is further submitted that the order passed by the Deputy Commissioner, dated 16th March, 2011 whereby approval was given for cancellation of settlement is not a speaking order and not a single reason has been assigned by the Deputy Commissioner while approving the recommendation of the Sub-Divisional Officer, Godda. The said order is also violative of principle of natural justice.
It is further submitted that thereafter, the petitioner challenged the said decision of the Sub Divisional Officer before the Commissioner in revision and the Commissioner vide its order dated 02.06.2012, set aside the 4 order passed by the Sub Divisional Officer, Godda on the ground that the learned Sub Divisional Officer and the Deputy Commissioner, Godda both have committed error in law by misusing the provision under Section- 33 of the S.P.T. Act in cancellation of the settlement which was made with the ancestors of the petitioners before three decades. It is submitted that the learned Commissioner while setting aside the said orders, also observed that both the authorities have acted arbitrarily and exceeded in exercise of jurisdiction and power vested with them in cancellation of the settlement which was made before 37 years, which is against the spirit of law. It is also submitted that the learned Commissioner after careful consideration of the facts and circumstances, allowed the revision field by the petitioner and set aside the order passed by the Sub Divisional Officer, Godda.
The learned counsel for the petitioner submitted that the jurisdiction of review court is very narrow and limited wherein the learned Commissioner is permitted to see only the factual mistake or any factual error apparent on the face of record but in the instant case the learned successor Commissioner has passed an order dated 15.04.2013 (Annexure 6) and thereby exercised the jurisdiction of the appellate court which is not permissible under the law. It is further submitted that the impugned order does not contain any reason as required under Section- 60 of Santal Parganas Tenancy (Supplementary Provisions) Act, 1949 for review of the earlier order hence the impugned order dated 15.04.2013 (Annexure 6) is in clear contravention of Section- 60 of the Santal Parganas Tenancy (Supplementary Provisions) Act, 1949 and deserves to be set aside. It is also submitted that cancellation proceedings and orders passed in this regard suffers from delay and latches as it not open and permissible under law to initiate such proceedings at a belated stage.
5. Submissions of the learned counsel for the Respondents:
As against that, the learned counsel appearing for the Respondent-State Government vehemently opposed and submitted that the review petition was filed by the Circle Officer before the Commissioner in February, 2013 and the said review petition was decided by the successor Commissioner vide its order dated 15th April, 2013 by holding that the settlement was made under Section- 27 and 28 of the Santhal Pargana Tenancy (supplementary provision) Act, 1949 and since the conditions stipulated under Section - 27 and 28, are not followed, the settlement deserves to be cancelled u/s33of the Act; and therefore, the 5 decision taken by Deputy Commissioner, based on the recommendation of the Sub Divisional Officer is in accordance with law and the decision taken by predecessor Commissioner is not in consonance with the provisions of law.
Learned counsel for the respondent state Government referred to and relied upon the decision of the Supreme Court in Meghmala and Ors v. G. Narasimha Reddy & Ors. reported in (2010) 8 SCC 383, wherein at paragraph- 28 to 30 it was held that the allotment which was made in favour of the petitioner was a fraudulent settlement/allotment and therefore affirmation made by the Deputy Commissioner is also not legal and valid.
It is further submitted that the settlement of land is liable to be cancelled under Section - 33 of the Santhal Pargana Tenancy (supplementary provision) Act, 1949. It is further pointed out that the Circle Officer had sent his report to the Sub Divisional Officer, Godda, for cancellation of the settlement as the land in question was not cultivated/used for the purpose within a period of five years from the date of settlement. According to the learned counsel for the respondent- State Government, if the land, in question, is not put to use within a period of five years, it is open for the State Government to initiate proceedings for cancellation of settlement at any point of time.
Learned counsel for the Respondent State further argued that over and above Section- 33 of Santhal Pargana Tenancy (supplementary provision) Act, 1949 the Deputy Commissioner/ Sub Divisional Officer are also empower to draw the proceedings u/s - 42 of the act for ejectment of a person in unauthorized possession of land which is in contravention of the Santhal Pargana Tenancy (supplementary provision) Act, 1949.
In the facts of the present case the Deputy Commissioner/ Sub Divisional Officer did nothing wrong and the order passed is legal, valid and should not be interfered with. Alternatively it is also submitted that the respondents are also empowers to pass such order under Section- 53 (6) of the Santhal Pargana Tenancy (supplementary provision) Act, 1949.Further it is submitted that under section - 60(1) Santhal Pargana Tenancy (supplementary provision) Act, 1949, the Commissioner is fully entitled to review any order passed by him or his predecessor. If the predecessor Commissioner had not properly considered the provisions of law and has misinterpreted certain provisions of law and therefore the learned Commissioner in exercise of its powers vested in him u/s 60 of the Act has passed reasoned order which may not be interfered with by this Court.
In this regard counsel for the respondent - state referred to and relied upon 6 paragraph- 19 of the decision of the Hon'ble Supreme Court rendered in case of Ram Sunder Ram-Vs.-Union of India reported in (2007) 13 SCC 255 (paragraph- 19) and submitted that if provisions of law are not correctly mentioned in the order, the same cannot ipso facto vitiate the proceeding and such order can sustain.
Further the learned counsel for the respondent state government has placed reliance on the decision reported in (2004) 12 SCC 278 (paragraph- 8) N. Mani v. Sangeetha Theatre& Ors. wherein it is held that quoting of wrong provision of law cannot take away the jurisdiction of the competent authority and such order cannot be vitiated on the sole ground.
It is further submitted that the question of limitation raised by the learned counsel for the petitioner is also not applicable in the instant case as the purpose for settlement of land has not been achieved or fulfilled. In such circumstances, the State Government is at liberty to initiate proceedings at any stage under the Act. It is further submitted that the question of limitation does not come in the way of the Respondent-State Government in exercise of its powers for cancellation of settlement, though it has been made after 37 years. It is further submitted that the settlement in the instant case was made under section - 27 and section- 28 of the Santhal Pargana Tenancy (supplementary provision) Act, 1949, and as such the decision referred by the learned counsel for the petitioner is not applicable to the facts and circumstances of the present case.
Learned counsel for the Respondent State further submitted that since earlier recommendation of Circle Officer made in the year 2007 was refused by the then Sub Divisional Officer, the said Circle Officer again made fresh recommendation by carrying out fresh proceeding in respect of said land in March, 2011. The said recommendation made by Circle Officer was approved by the Sub Divisional Officer with the recommendation to Deputy Commissioner and the recommendation made by the Sub Divisional Officer on 15th March, 2011 was approved by the Deputy Commissioner on 16th March, 2011. Thereafter, the order regarding cancellation was passed by the Sub Divisional Officer on 17th March, 2011. Hence, all the three consecutive orders passed by the authorities concerned were passed in accordance with law after following due process of law. It is also submitted that review petition filed by the Circle Officer vide Review Petition dated 02.02.2013, was considered by the successor Commissioner, in exercise of its powers under section- 60 of the Act, and thereby earlier order dated 02.06.2012 passed by his predecessor 7 Commissioner was reviewed and set aside vide order dated 15.04.2013.
6. Reasons :
Having regard to the above submissions and on perusal of the material placed on record it become clear that the land was settled in favour of the father of the petitioner way back in 1973 by the Sub Divisional Officer, Godda and the said settlement was confirmed and approved by the Deputy Commissioner in 1976 in accordance with law. After more than 30 years in the year 2007 attempt was made by the Circle Officer to cancel the settlement. But Sub Divisional Officer by its reason order dated 30.08.2007 dismissed the proposal of Circle Officer on the ground that the land in question was settled in favour of the petitioner in accordance with law and accordingly the name of the ancestor of the petitioner was entered into Jamabandi Register - II and since than they are in possession of the same. Moreover the appeal preferred by '16 Anna Raiyats' for cancellation of settlement was rejected / Dismissed on merit vide order dated 31.08.1976 in RMA cases No.- 9A of 73-74. The said order was never challenged by any of the aggrieved party. Thus it has attained finality and therefore it would not be just and proper to initiate any proceedings for cancellation at this juncture as initiation of any such proceeding will be beyond jurisdiction.
7. Subsequently the Circle Officer, Godda suo muto initiated proceeding and recommended to the Sub Divisional Officer for cancellation of settlement made in favour of the petitioner on the ground that only boundary wall has been constructed and no other development has taken place on the site, but the Sub Divisional Officer vide its order dated 30th August, 2007 (Annexure - 3) declined to interfere with the recommendation made by the Circle Officer by assigning reason that it would be beyond jurisdiction and not just and proper for him to interfere and review the order of settlement, which has been affirmed by the Deputy Commissioner while dismissing R.M.A. No. 9 A of 1973-74 before more than 37 years. Thus, the proceeding initiated by the Circle Officer has been dropped and rejected by the Sub Divisional Officer.
8. Thereafter another attempt was made by the Circle Officer to initiate the proceedings before Sub Divisional Officer in the year 2011 to cancel the settlement which was approved by Deputy Commissioner way back in 1976, while hearing the appeal preferred by '16 Anna Raiyat'. The Sub Divisional Officer on the basis of requisition moved by Circle Officer prepared proposal on 15.03.2011. The said proposal was approved by Deputy Commissioner on 8 16.03.2011 and thereafter on the basis of approval given by Deputy Commissioner the Sub Divisional Officer passed an order dated 17.03.2011 for cancellation of settlement on the following two grounds, mainly:- (i) that the petitioner did not fulfill the object of the settlement and (ii) there is no provision in Santhal Pargana Tenancy (Supplymentary Provision)Act 1949 for settlement of land for industrial purpose. According to Sub Divisional Officer the settlement made in favour of the ancestor of the petitioner was nullity. The said order cannot sustain in view of the following facts and circumstances of the case.
Regarding point No. -1, it has come in the order of commissioner dated 02.06.2012 in revision petition that the purpose for which the settlement with the ancestors of the petitioner was made was fully complied with and besides several structures, machineries were also installed. Further ,on perusal of Annexure - 2 of the petition which was the order passed by the Deputy Commissioner, Dumka in Rev. Misc. Appeal No. 9 (A) of 1973 -74, learned Deputy Commissioner observed that the firm of the ancestors of the petitioner was registered by the industries department of the Government. So, it cannot be said that the ancestors of petitioner who were running "Choudhary & Company" did not fulfill the object of the settlement as stated by the Sub Divisional Officer, Godda in impugned order dated 17.03.2011.
Regarding Point No -2, Sub Divisional Officer Godda said that there is no provision for settlement of land for Industrial purpose. This observation of Sub Divisional Officer was arbitrary and irrational. Section- 28 of Santhal Pargana Tenancy Act, 1949 clearly provides the principle to be followed in settling waste land or vacant holding. Section- 28 (b), specifically provides that in settling waste land, any special claim for services rendered to the village community, society or state shall be considered. As discussed in point No. 1, ancestors of the petitioner, by establishing and running an Industry was serving the village community, society and to the state. So, the ancestors of the petitioner who were running "Choudhary & Company" were contributing in overall development of Sub-divisional town an Industry in general, which was continued by their legal heirs and successor.
Moreover on perusal of the above referred three proceedings dated 15.03.2011, 16.03.2011 and 17.03.2011 it becomes clear that entire proceedings were concluded within three days by all the three authorities. This fact clearly indicates that the concerned authorities have acted in a hasty manner without 9 affording any reasonable opportunity of being heard to the petitioner. The said act on the part of concerned authorities is arbitrary, capricious and unlawful manner. Thereafter revision was preferred by the petitioner vide R.M.R. No. - 21 of 2011-12 before the Commissioner who rightly set aside the said order dated 16th March 2011/17th March 2011 by assigning detail reasons. Thereafter third attempt was made by Circle Officer by way of filing review before successor Commissioner, who set aside the order of his predecessor in exercise of power of review conferred u/s 60 of the Act and thereby cancelled the settlement which was made before 37 years.
The above referred sequences of order are glaring example of misuse and abuse of powers by the various authorities of the State.
While analyzing facts of the present case, it appears that this case is an example of blatant misuse and abuse of power by authorities of the State while discharging their administrative and quasi judicial functions.
So far the decision referred by the respondent State government in the case of Meghmala Vs. G.Narasimha Reddy reported in (2010) 8 SCC 383 (paragraph- 28 to 30) is concerned it deals about a case of fraud, which is not applicable in the facts and circumstance of the present case. Mere taking the plea of "Fraud" during argument in this court is not sufficient. The plea of "Fraud" was neither raised nor proved before any of the authorities during the earlier proceedings.
The Hon'ble Supreme Court in Gayatri Devi & Ors v. Shashi Pal Singh reported in AIR 2005 SC 2342 (paragraph- 16) as emphasized about "fraud" where it has been held that "Fraud must necessarily be pleaded and proved. In the entire history of the litigation nothing was pleaded, much less proved, as fraud. We cannot countenance the plea of fraud without any basis." Record of the present case revels that the respondents have never raised plea of fraud in earlier proceeding and for the first time therefore the court has raised it and as such the same cannot be accepted.
This Court while exercising its supervisory powers and jurisdiction under Article 226 of the Constitution of India needs to examine the legality and validity of the orders passed by the authority in discharge of their administrative quasi judicial and judicial functions. The impugned order has been passed by learned Commissioner, Santhal Pargana Division, Dumka, in exercise of its power to review.
Therefore the first question arises for consideration is as to whether the 10 court of review while reviewing the case has exceeded its jurisdiction?
(a) Before analyzing the order of the review court the guideline regarding scope of review provided by the Hon'ble Apex Court in the Case of Inderchand Jain (D) through Vs. Motilal (D) through, reported in (2009) 14 SCC 663, is required to be followed. Paragraph 10 and 11 reads as under:-
10. It is beyond any doubt or dispute that the review court does not sit in appeal over its own order. A re-hearing of the matter is impermissible in law.
It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. It is also trite that exercise of inherent jurisdiction is not invoked for reviewing any order.
11. Review is not appeal in disguise. In Lily Thomas v. Union of India2 [AIR 2000 SC 1650], this Court held:
"56. It follows, therefore, that the power of review can be exercised for correction of a mistake and not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated an appeal in disguise."
(b) Further Section- 60 of the Santhal Pargana Tenancy (supplementary provision) Act, 1949 deals with the power of review court. Section 60 reads as follows:-
"60. Review. - (1) The Commissioner may, for sufficient reasons to be recorded in writing, review any order which has been passed by himself or a predecessor in exercise of any power conferred by this Act.
(2) An officer subordinate to the Commissioner shall not review any order made by him or by a predecessor, except for the purpose of correcting a clerical error other error or, manifestly the result of an oversight, without previously obtaining, -
(a) in the case of a Deputy Collector or a Sub-Divisional Officer, the permission of the Deputy Commissioner; and
(b) in the case of the Deputy Commissioner or the Additional Deputy Commissioner, the permission of the Commissioner. "
Thus, on plain reading of Section- 60 of the Santal Parganas Tenancy (Supplementary Provisions) Act, 1949, it can be said in unambiguous term that review application can be filed before the authority for a limited purpose only and that too for the purpose of correcting a clerical error or other error or manifestly the result of an oversight. In the instant case aforesaid provision is blatantly violated and misused by the authorities.
(c) On this issue, Hon'ble Patna High Court in case of Umrailli Mian & Ors.-versus-The State of Bihar & Ors. reported in 2004 (2) P.L.J.R. 666 while discussing the scope of review under Section- 60 of the Santal Parganas Tenancy (Supplementary Provisions) Act, 1949 held that Act empowers the Commissioner to review the order for sufficient reasons but this does not mean that the Commissioner can review the order with a view to reappraise the materials on record without finding any error apparent on record or similar other legal infirmities. Relevant paragraph of the aforesaid Judgment is 11 reproduced herein below: -
"10. Review is not the substitute of appeal. By its very nature it requires reconsideration of the earlier matter on certain well settled grounds. Though section 60 of the Act says sufficient reasons, but that does not mean that review will be permitted only because a different view can be taken on reappraisal of the matter or by giving second thought. Review is permitted on well settled grounds, namely, error apparent on the record or some other similar grounds such as omission to consider relevant provisions of law. From perusal of the impugned order it appears that the Commissioner reheard the parties afresh and has reconsidered the matter as if he was sitting in appeal over his own order. He has stated that after hearing the counsel for the respondents-1st set he found force in the submission and accordingly allowed the review. In our view, review does not permit to rehear the matter as an appellate forum which has been done by the Commissioner and accordingly on this ground the order passed by the Commissioner in review is vitiated."
(d) In the instant case, as discussed above, the settlement of land made by the Sub Divisional Officer, Godda was approved by the Deputy Commissioner, way back in 1976. After about thirty years the Circle Officer made an attempt to cancel the settlement by initiation of proceeding in the year 2007. The proposal made by Circle Officer was dismissed by Sub Divisional Officer by assigning detailed reason. Thereafter another attempt was made in the year 2011 by Sub Divisional Officer to take up the matter under review after obtaining approval from Deputy Commissioner as required u/s 60 of the Act. But as discussed above the Deputy Commissioner as well as Sub Divisional Officer both have exceeded in their jurisdiction while exercising powers of review. The Sub Divisional Officer or Deputy Commissioner has no power or authority to sit in appeal while exercising powers of review, in view of the settled proposition of law discussed above. Likewise the Commissioner has no power or authority to sit in appeal over the order passed by his predecessor, while exercising power under review. The order passed under review itself makes it clear that the said order is glaring example of arbitrary exercise of power and the same is illegal and bad in law. Moreover the order passed by the successor Commissioner, Santhal Pargana Division, Dumka in review dated 15.04.2013 is also beyond the scope of review and ex-facie illegal.
Moreover, the general rule of limitation prescribed under Section 64 shall be applicable in the instant case. Section 64 of the Santal Parganas Tenancy (Supplementary Provisions) Act, 1949 provides as under : -
"64. General rule of limitation. - All applications made under this Act, for which no period of limitation is provided elsewhere in this Act, shall be made within one year from the date of the accruing of the cause of action :
Provided that there shall be no period of limitation for an application under Section 42."12
(e) In view of the aforesaid provision, the limitation prescribed under Section- 64 of the Santal Parganas Tenancy (Supplementary Provisions) Act, 1949 has already elapsed long ago and therefore, the initiation of proceedings after more than 30 years for cancellation of settlement is bad in law and cannot sustain in view of the aforesaid provision. The learned counsel for the petitioner has also referred to Section- 64 of the Santal Parganas Tenancy (Supplementary Provisions) Act, 1949 and submitted that the general rule of limitation is applicable in the instant case.
(f) In fact specific case of the respondent authority that settlement was made u/s 27& 28 of the Santal Parganas Tenancy (Supplementary Provisions) Act, 1949. Section 27 and 28 reads as under:-
27. Settlement of waste land to be made by patta in prescribed form-
Settlement of waste land shall be made by a patta or amalnama in the prescribed form. The patta or amalnama shall be prepared in quadruplicate, one copy shall be given to the raiyat concerned, one copy shall be sent to the Deputy Commissioner, one copy shall be sent to the landlord and the fourth shall be retained by the village headman or mulraiyat, as the case may be.
28. Principles to be followed in settling waste land or vacant holdings- In making settlement of waste land or vacant holdings regard shall be had to the following considerations in addition to the principles recorded in the record-of- rights,-
(a) fair and equitable distribute 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 waste land 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.
It also appears that proceeding has been initiated u/s - 33 of the Act on account of alleged breach of condition against the petitioner. So, it would be relevant to see the provision of Section - 33 of the the Santhal Pargana Tenancy (supplementary provision) Act, 1949. Section- 33 of the Act reads as under:-
"33. Settlement of waste land liable to be set aside if not cultivated within five years.- In the event of any land settled as aforesaid not being brought under cultivation within a period of five years from the date of settlement, it shall be open to the Deputy Commissioner on an application made by a jamabandi raiyat, the village headman, mulraiyat or the landlord, as the case may be, to set aside the settlement and to make such resettlement as is permissible under this Act or any law or anything having the force of law in the Santal Parganas."
In view of the aforesaid provision the Deputy Commissioner is authorized/ empower to set aside the settlement if the land so settled u/s 27&28 of the Act is not cultivated or in other words if we say not put to use within five years on the basis of an application made by a 'Jamabandi Raiyat', the village headman 'mulraiyat' or the landlord as the case may be. There is nothing on the record to show that proceedings u/s 33 of the Act was initiated on the basis of an 13 application made either by 'Jamabandi Raiyat' or by the village head-man, 'Mulraiyat' or the land lord. But in this case suo moto proceeding for cancellation of settlement was initiated by the Circle Officer. Moreover powers u/s 33 of the Act are required to be exercised keeping in mind general rule of limitation prescribed u/s 64 of the Act where limitation of 1 year is provided. Thus if at all the land in question was not put to use within five years from the settlement as prescribed u/s 33of the Act the proceedings were require to be initiated within 6 years meaning thereby 5 years limitation as provided u/s 33 and 1 year limitation prescribed u/s 64 of the Act. Any initiation of proceedings or action taken thereafter is not permissible under law and deserved to be set aside.
In this context the settled proposition of law as laid down in Mohamad Kavi Mohamad Amin v. Fatmabai Ibrahim, reported in (1997) 6 SCC 71, is pertinent at paragraph 2. Hon'ble Apex Court held as follows:-
"2. Although Mr. Bhasme, learned counsel appearing for the appellant took a stand that under Section - 63 of the Act aforesaid, there should not be any discrimination amongst the agriculturists with reference to the State to which such agriculturist belongs. But according to him even without going into that question the impugned order can be set aside on the ground that suo motu power has not been exercised within a reasonable time. Section 84-C of the Act does not prescribe any time for initiation of the proceeding. But in view of the settled position by several judgments of this Court that wherever a power is vested in a statutory authority without prescribing any time-limit, such power should be exercised within a reasonable time. In the present case the transfer took place as early as in the year 1972 and suo motu enquiry was started by the Mamlatdar in September 1973. If sale deeds are declared to be invalid the appellants is likely to suffer irreparable injury, because he has made investments after the aforesaid purchase. In this connection, on behalf of the appellant reliance was placed on a judgment of Justice S. B. Majmudar (as he then was in the High Court of Gujarat)in State of Gujarat v. Jethmal Bhagwandas Shah disposed of on 01.03.1990, where in connection with Section 84-C itself it was said that the power under the aforesaid section should be exercised within a reasonable time. This Court in connection with other statutory provisions, in the case of State of Gujarat v. Patil Raghav Natha and in the case of Ram Chand v.Union of India has impressed that where no time-limit is prescribed for exercise of a power under a statute it does not mean that it can be exercised at any time; such power has to be exercised within a reasonable time. We are satisfied that in the facts and circumstances of the present case, the suo motu power under section 84- C of the Act was not exercised by the Mamlatdar within a reasonable time. Accordingly, the appeal is allowed. The impugned orders are set aside. No costs".
Further in case of State of Gujarat v. Patil Raghav Natha reported in (1969) 2 SCC 187 Hon'ble Apex Court at Paragraph 11 and 12 held as follows:
"11. The question arises whether the Commissioner can revise an order made under Section 65 at any time. It is true that there is no period of limitation prescribed under Section 211, but it seems to us plain that this power must be exercised in reasonable time and the length of the reasonable time must be determined by the facts of the case and the nature of the order which is being revised.
13. We are also of the opinion that the order of the Commissioner should be quashed on the ground that he did not give any reasons for his conclusions. We have already extracted the passage above which shows that after reciting the various contentions he baldly stated his conclusions without disclosing his reasons. In a matter of this kind the Commissioner should indicate his reasons, 14 however briefly, so that an aggrieved party may carry the matter further if so advised."
These cases are relevant and appreciable to the facts and circumstances of the present case.
(g) Apart from the above, the Civil Court jurisdiction is barred and the authorities are exercising judicial powers in deciding cases under the Santhal Pargana Tenancy (supplementary provision) Act, 1949 and therefore the principle of Res judicata is also applicable in the facts and circumstances of the present case. The principles laid down in Section 11 of the CPC is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts of competent jurisdiction and it is also in public interest that individuals should not be vexed twice over with the same kind of litigation. Section 11 of the CPC reads as under:-
"11 Res judicata.- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."
The main object of Section-11 of the C.P.C. is to prevent multiciplity of the proceedings and accords finality to an issue, which directly and substantially had arisen in the former suit between the same parties or their privies, had been decided and became final, so that the parties are not vexed twice over. Vexatious litigation would be put an end to and the valuable time of the court is saved. It is absolutely based on public policy as well as private justice. It applies to all judicial proceedings whether civil or otherwise. It equally applies to the present case.
9. Therefore the stand taken by the learned counsel for the respondent state appears to be unjust, improper and beyond the record as it do not reflect in any of the proceedings or order passed by the respective authority.
The argument advanced by the learned counsel for the state with respect to applicability of Section- 42 of the Santhal Pargana Tenancy (supplementary provision) Act, 1949 in the instant case also cannot be accepted as the land in question was neither encroached upon, by the petitioner nor it was reclaimed or acquired or come into possession of agriculture land in contravention of the provision of the Act. or any law or anything having force of law in Santhal Parganas. It is pertinent to note that settlement of waste land was made in favor of the ancestor of the petitioner. Thus none of the ingredients of u/s 42 of the Act are satisfied in the instant case. The land in question was not an 'agricultural land' and therefore there is no question of exercise of the power u/s 42 of the Santhal 15 Pargana Tenancy (supplementary provision) Act, 1949 arises at all.
Likewise another alternative submission which was never pleaded before, regarding application of the provision as contained in Section- 53 and 53 (6) of the Santhal Pargana Tenancy (supplementary provision) Act, 1949, are also not applicable and not relevant in the instant case as nowhere in any of the proceedings or orders there is any reference of invoking section- 53 and 53(6) of the Santhal Pargana Tenancy (supplementary provision) Act, 1949. However assuming for the sake of argument that the land in question was settled in favor of the ancestor of the petitioner in exercise of powers vested u/s 53 of the Santhal Pargana Tenancy (supplementary provision) Act, 1949. and the procedure prescribed under the said provision while making settlement was duly followed. The 'Mulraiyats' (original raiyats) were given an opportunity to submit their objections before the Deputy Commissioner and thereafter settlement was made in favor of the ancestor of the petitioner. More over as it revels from the order that the land in question was put to use within five years from the date of settlement for which it was settled. Therefore there is no question of exercise of powers u/s. 53(6) Santhal Pargana Tenancy (supplementary provision) Act, 1949. Moreover Section- 53 of the Santhal Pargana Tenancy (supplementary provision) Act, 1949 has been held to be void and unconstitutional. In the case of Buddinath Mishra v. State of Bihar reported in AIR 1970 Pat 358. Therefore, question of exercising power u/s. 53 of the Act does not arise when settlement was made in the years 1972-73 and prior to that Section- 53 of the Santhal Pargana Tenancy (supplementary provision) Act, 1949 was declared void.
Thus considering totality of the facts and circumstances of the case respondents have no power or authority under law to cancel the settlement which was made in favor of the ancestor of the petitioner way back in 1972-73.
10. Thus in view of aforesaid facts and circumstances, it appears that the settlement made in favour of the ancestors of the petitioner in accordance with law way back in 1973 was approved and confirmed by the Deputy Commissioner, Santhal Pargana, Dumka. It further appears from the order passed by the Commissioner, Santhal Pargana, Dumka that even conditions were also fulfilled. However, some mischievous elements occupying official positions with malice and ulterior motives initiated proceedings after more than 37 years of settlement in a very arbitrary and capricious manner. The said decision was set aside by the superior authority by discussing and assigning detailed reasons that such act is not permissible under law. However once again 16 the said decision was taken in Review by his successor Commissioner at the behest of some mischievous elements who is for one reason or other bent upon to cancel the settlement made before 37 years. The proposition of law and judicial pronouncement discussed above do not permit such order to be passed after lapse of 37 years. Therefore, having regard to the facts and circumstances of the present case and also the settled legal proposition discussed above, the impugned order dated 15.04.2013 passed by the Commissioner in Review deserves to be set aside.
11. As discussed above, the settlement which was made in accordance with law, cannot be reviewed after lapse of 37 years under the provision of Santhal Pargana Tenancy Act, 1949. The attempt made by the authorities for cancellation of settlement is absolutely abuse and misuse of power and therefore such order on the face of it is illegal and deserve to be set aside.
Petitioner was in continuous peaceful possession of the property. He perfected his title to the said property which can be inferred from the fact that the said property was entered in the record of rights in the predecessor - in - interest of the petitioner.
Before reaching to any conclusion, it is necessary to mention that the land was settled only for the Industrial purpose. As it reveals from the order of commissioner the purpose for which land was settled has been complied / fulfilled and several structures and machineries were established within five years of the making of the settlement and as such, the provisions of Section- 33 of the Santhal Pargana Tanency Act. was not applicable in this context. The Commissioner, Santhal Pargana, Dumka have acted in an arbitrary manner and cancelled the settlement after about more than 37 years of the settlement, which is against the spirit of law. It further appears that while affirming the order of settlement in R.M.A No. 9(A) of 1973 -74, the Deputy Commissioner put condition that if the land in question do not put to use within a year, the Government authorities were given liberty to apply for cancellation of settlement. In the instant case, as it emerges from the record that the land in question was put for the use for which it was settled. Therefore, there was no occasion for the respondent to apply for cancellation as there was no breach of the condition.
Assuming for the sake of argument that there was a breach of condition, than in that case it was open for the authorities to move for cancellation within a period of one year as per the order of Deputy Commissioner. Even if the 17 powers are exercised under Section- 33 of the Santhal Pargana Tenancy (supplementary provision) Act, 1949, then also the authority is required to initiate proceedings for cancellation within a period of five years if not cultivated. But, in the instant case, there is no question of cultivation as the land was allotted for Industrial purpose. However, taking into consideration the period of limitation at the most, action could have been initiated within a period of six years, considering five years under Section- 33 and one year given by the Deputy Commissioner by way of condition as also general provision of limitation as prescribed under Section- 64 of the Santhal Pargana Tenancy (supplementary provision) Act, 1949. But, as it reveals from the record for the first time in 2007, the Circle Officer moved for cancellation which was apparently after lapse of more than 30 years which is not permissible under the law.
Even if, when there is no specific period of limitation prescribed for exercise of the revisional jurisdiction, such power cannot be exercised an abnormal belated stage without any cogent explanation for such delay. In this regard I may also refer to the decision of Hon'ble Apex Court in the case of JT Collector Ranga Reddy Dist. & Anr. Vs. D. Narsing Rao & Ors. (2015) 1 SCR where the Hon'ble Apex Court, while referring various decisions discussed in detail about the powers of revisional authorities in exercise of revisional jurisdiction. The hon'ble Apex Court held that what should be the reasonable period of limiation while exercising revisional jurisdiction where no limitation is prescribed under the law.
The relevant para of the aforesaid judgment is reproduced herein below: -
"11. To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay may have led to creation of third party rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaciton to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority."
Thus, limitation prescribed in Section- 64 of the Santhal Pargana Tenancy (supplementary provision) Act, 1949 has already elapsed long ago.
18The proceeding initiated after 31 years for the cancellation of settlement, infringes the valuable statutory right of the petitioner.
Conclusion:
The impugned order dated 17.03.2011 (Annexure -4) passed by the learned Sub Divisional Officer, Godda and impugned order dated 15.04.2013 (Annexure -6) passed by the commissioner in review petition are contrary to settled proposition of law.
12. In view of the above discussions, this writ application is allowed. Accordingly, the order dated 15th April, 2013, passed by the learned Successor Commissioner, Santhal Parganas Division, Dumka in RMR No. 21 of 2011-12 (Annexure-6) and impugned order dated 17.03.2011 (Annexure-4) passed by Sub Divisional Officer, Godda is hereby quashed and set aside.
Accordingly, the order dated 02.06.2012 passed by the learned Commissioner, Santhal Pargana Division, Dumka in Revision case i.e. RMR No. 21 of 2011-12 is restored. Consequently, the settlement made with predecessor in interest of the petitioner by the Sub Divisional Officer vide settlement Case No. - 66 of 1972-73 vide order dated 03.02.1973 which was affirmed by the then Deputy Commissioner, Santhal Pargana Division, Dumka vide order dated 31.08.1976 passed in Revenue Miscellaneous Appeal No. 9 (A) of 1973-74 is ordered to be restored and confirmed.
13. Writ petition is allowed accordingly.
(P.P. Bhatt, J.) APK/A.F.R. 19 Cont. Case (C) No. 967 of 2013 ...
14. Since the main writ petition is finally decided and disposed of by this Court, the contempt proceedings filed against interim order does not survive and stands disposed of accordingly.
(P.P. Bhatt, J.) APK