Jharkhand High Court
Smt. Swarnlata Devi vs State Of Jharkhand And Ors. on 17 July, 2003
Equivalent citations: 2003(2)BLJR1627, [2003(3)JCR416(JHR)], 2004 AIR - JHAR. H. C. R. 1348, 2004 A I H C 2279, 2003 BLJR 2 1627, (2003) 3 JLJR 724, (2003) 3 JCR 416 (JHA)
Bench: P.K. Balasubramanyan, R.K. Merathia
ORDER
1. This appeal is filed by respondent No. 3 in WP (C) No. 3064 of 2001 of the file of this Court. That writ petition was filed by her challenging the recognition or appointment of the appellant as Pradhan of village Kurma in the district of Godda under the provisions of the Santhal Parganas Tenancy (Supplementary) Provisions Act, 1949. One Nageshwar Mishra was the Pradhan. He died on 16.7.1981. On 9.12.1982, the appellant, the eldest daughter of Nageshwar Pradhan, was appointed as the Pradhan. A rival claim to the post of Pradhan was raised by respondent No. 3 herein. The order of the authority recognizing the appellant as Pradhan was challenged in an appeal before the Deputy Commissioner, Godda. The appellate authority set aside the order of the Sub-Divisional Officer and remanded the case for a fresh consideration after issuance of notices to the raiyats in Form A. The order of the appellate authority was upheld in revision by the Commissioner, Santhal Parganas Division, Dumka, by his order dated 1.8.1994. There was further challenge to that order before the High Court of Judicature at Patna in CWJC No. 7892 of 1994. The High Court at Patna by judgment dated 7.4.2000, refused to interfere since the matter had only been remanded. On the facts and in the circumstances of the case, it thought it desirable to direct the Sub-Divisional Officer to take a decision about the appointment of the village Pradhan in accordance with law and after due notices to the raiyats as prescribed under Rule 3 of the Santhal Parganas Tenancy (Supplementary) Rules, 1950.
2. Subsequent to the said direction, by order dated 1.6.2001, the Sub-Divisional Officer, Godda, appointment the appellant, the eldest daughter of Nageshwar Mishra, as the Pradhan of the village. The said order was directly challenged before this Court by respondent No. 3 herein essentially on the ground that the Sub-Divisional Officer had not issued notices to all the raiyats as directed by the High Court while passing the order and hence the order was illegal and unsustainable. Though an objection was raised on behalf of the appellant and the writ petitioner had an efficacious alternative remedy under the Act and hence it was not a case for exercise of jurisdiction by this Court under Article 226 of the Constitution of India, the same was brushed aside by the learned Single Judge. Taking the view that notices to all the Jamabandi raiyats of the village was necessary, the learned Single Judge set aside the order of the Sub-Divisional Officer and remanded the proceeding to the Sub-Divisional Officer for a fresh decision after notices to all the raiyats. Feeling aggrieved by the decision of the learned Single Judge, the appellant who was appointed as Pradhan by the Sub-Divisional Officer, has filed this appeal.
3. The main contention raised on behalf of the appellant is that the village in question was a Pradhani village and not a khas village and hence Section 5 of the Act had no application and Section 6 thereof was attracted and the elaborate procedure for ascertaining the consent of the Jamabandi raiyats need not be followed and, in any event, in the case on hand, there was adequate notice by the Sub-Divisional Officer who passed the order recognizing or appointing the appellant as the Pradhan and in that situation, the learned Single Judge was in error in interfering with the appointment of the appellant as the Pradhan. This is met by counsel for the contesting respondent by contending that the parties are bound by the order of remand by the Patna High Court in CWJC No. 7892 of 1994 and in the said judgment, it has been clearly directed that notices must be given under Rule 3 to the Jamabandi raiyats of the village and since no such notice was issued by the Sub-Divisional Officer, the learned Single Judge was justified in interfering with the order of the Sub-Divisional Officer. It is contended that even otherwise, even in respect of non khas village, the Sub-Divisional Officer was bound to follow the procedure laid down in Rule 3 of the Rules and ascertain the wishes of the raiyats before appointing a Pradhan in place of the deceased. It is therefore submitted that the learned Single Judge having only directed the service of proper notices on the Jamabandi raiyats before taking a decision, there was no reason for this Court to interfere in this appeal.
4. Clause 3 of Schedule V of the San-thai Pradhan Tenancy (Supplementary) Rules provides that the office of the Headman being hereditary, the next heir who is fit, should be the Headman. If the heir be a minor, he may be appointed Headman with a Sarbrokhar to manage for him until he attains majority. A person may be refused succession for reasons to be recorded if he is considered unfit for the post. It is therefore, the case of the appellant that the village in question being a non-khas village and the position of the Headman of a non-khas village being hereditary and she being the eldest daughter of the deceased Pradhan and there being to incapacity or disqualification attached to her, she was rightly appointed as the Pradhan by the Sub-Divisional Officer. Learned counsel for the respondent No. 3 sought to challenge Clause 3 of Schedule V of the Rules by contending that the same was violative of Article 16 of the Constitution. Learned counsel contended that the office of the village Headman was an office of profit and in support, relied on the decision in Gazula Dasharatha Rama Rao v. State of Andhra Pradesh, AIR 1961 SC 564, wherein Section 6(1) of the Madras Hereditary Village Office Act, 1895 was struck down as being violative of Article 16 (1) and (2) of the Constitution of India. We are not satisfied that respondent 3 can be permitted to urge this contention at this stage in this appeal in the circumstances of this case. It is not seen that such a contention was urged even before the learned Single Judge while arguing the writ petition. We are, therefore, not adverting to or answering this contention raised on behalf of respondent No. 3. We proceed on the basis that for the purpose of this case, the said rule is also valid. Rule 3 of the Rules lays down the manner in which consent of Jamabandi raiyats has to be ascertained in the manner of appointment of Headman under Section 5 of the Act. But on a scrutiny of Section 5 of the Act, it is seen that, that section has application only in the matter of appointment of a village Headman for a khas village. Section 6 refers to the appointment of a Headman of a village which is not a khas village, by providing that on the death of Headman, the same has to be reported within three months of the death to the Deputy Commissioner with a view to appoint a village Headman in the prescribed manner. It is in this context that the clause in Schedule V are relevant and Clause 4 thereof clearly shows that the next of heir of the deceased Headman, unless he is disqualified, shall be the successor Headman of the village. The procedure laid down in Rule 3 of the General Rules is seen to relate to the appointment of Headman on application under Section 5 of the Act.
5. We have already noticed that Section 5 relates to the appointment of village Headman of a khas village. In the case on hand, the village is not a khas village. Therefore, the office of the Pradhan, prima facie, is hereditary in nature and the next heir who is fit, is entitled to be the Headman. But Rule 3(5) of the General Rules prescribes that in making the appointment of a Headman under Section 5 or 6 of the Act, the Deputy Commissioner shall, as far as possible, follow the rules prescribed in Schedule V except where the rules, of which Clause 3 forms a part, expressly or by necessary implication, provides otherwise. It is the contention of the learned counsel for respondent 3 that the learned Single Judge of the Patna High Court while remanding the matter had this in mind while directing that the procedure prescribed by Rule 3(2) be followed and even if the direction contained in that judgment is taken to be not fully correct, it was not open to this Court to go behind that judgment which is in the nature of an order of remand, which is inter-parties, which has become final as between the parties and as far as the High Court is concerned, though in the ultimate challenge if any, before the Supreme Court, the said order could also be challenged. But as far as this Court is concerned, it was a Court of co-equal jurisdiction and was bound by the earlier order.
6. There is considerable force in the submission raised on behalf of respondent No. 3. At the same time, we find that going by Schedule V with particular reference to clause 3 thereof, it has to be held that the office of the Headman relating to the village in question is a hereditary office. In that context, the primary question for consideration is whether the person claiming to succeed was in any manner disqualified or is to be held to be unfit for the post. In considering that question under Rule 3 of the General Rules, the Sub-Divisional Officer may be competent to ascertain the views of the Jamabandi raiyats of the village. The Sub-Divisional Officer cannot proceed, as if somebody has to be elected for the post of Headman on the death of the Headman even as regards a non-khas village. The order of remand passed in CWJC No. 7892 of 1994 has to be understood, as far as possible, consistent with the relevant rules governing the question and the provision under which the application is made. In this case, the application was made by the appellant under Section 6 of the Act and not under Section 5 of the Act. If so understood in the context, the direction by the learned Single Judge for compliance with Rule 3 can only be understood as compliance with that Rule consistent with Clauses 3 and 4 of Schedule V by giving notice for ascertaining the fitness of the appellant to succeed to the post. The learned Single Judge in the judgment under appeal, in our view, has not understood the scope of the order of remand made earlier by the High Court of Judicature at Patna in its proper perspective and consistent with the relevant provisions of the Act and the Rules. In that situation, the said decision calls for interference to the extent of clarifying the legal position, though we find it not necessary to interfere with the direction to the Sub-Divisional Officer to re-consider the claim of the appellant afresh. But, it is to be clarified that the reconsideration has to be in terms of Clauses 3 and 4 of Schedule V of the Rules and the ascertainment of the wishes of the Jambandi raiyats is only for the purpose of ascertaining the fitness of the appellant to hold that post and only if the appellant is found unfit to hold the post, the question of appointment of a successor, a new Headman, with the consent of at least two-thirds of the Jambandi raiyats would arise.
In the result, in view of the discussions made above, we partly allow this appeal and modifying the direction of the learned Single Judge, direct the Sub-Divisional Officer to ascertain the views of the Jambandi raiyats of the village on the question of fitness of the appellant to succeed to the post in terms of Clauses 3 and 4 of Schedule V of the Rules by proceeding in terms of Rule 3(5) of the General Rules. In case the appellant is found to be unfit for holding the post of village Headman, the Sub- Divisional Officer will proceed in terms of Rule 3 of the main Rules and appoint a fresh Headman with the consent of at least two-third of the Jamabandi raiyats of the village. In view of the fact that this dispute has been pending for a long time, we direct the Sub-Divisional Officer to expedite the proceeding and take a decision on the appointment of the Headman for the village in question as expeditiously as possible and, at any rate, within four months from the date of receipt of this order.