Jharkhand High Court
Mahabir Prasad Jain & Anr. vs State Of Jharkhand & Ors. on 24 August, 2017
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P (C) No. 7739 of 2006
1. Mahabir Prasad Jain
2. Rupchand Jain
Both sons of late Bhowri Lal Jain and resident of Jhumri
Telaiya, Ward No. 7, P.O. & P.S.Telaiya, DistrictKoderma
... ... Petitioners
Versus
1. The State of Jharkhand
2. The Deputy Commissioner, Koderma
3. Sri Ram Chandra Singh, Additional Collector, Koderma
4. The Land Reforms Deputy Collector, Koderma
5. The Circle Officer, Koderma
6. Manoj Kumar Jain
7. Sanjay Kumar Jain
8. Kamal Kumar Jain
Sl. Nos. 6 to 8, all sons of Sri Kailash Chand Jain, resident of
Ward No. 11, Jhumri Telaiya, Near Pani Tanki Jain Mohalla, P.O. &
P.S.Telaiya, DistrictKoderma
9. Ashok Kumar Jain
10. Vinod Kumar Jain
11. Sunil Kumar Jain, son of Late Hiralal Jain
12. Mukesh Kumar Jain
13. Raj Kumar Jain
Sl. Nos. 9, 10, 12 and 13, all sons of Chiman Lal Jain and Sl.
No. 9 to 13, all resident of Jhumri Telaiya, Ward No. 4, P.O. & P.S.
Telaiya, DistrictKoderma ... ... Respondents
with
W.P(C) No. 7106 of 2006
1. Ashok Kumar Jain
2. Vinod Kumar Jain
3. Sunil Kumar Jain, son of Late Hiralal Jain
4. Mukesh Kumar Jain
5. Raj Kumar Jain
Sl. Nos. 1, 2, 4 and 5, all sons of Chiman Lal Jain
All resident of Jhumri Telaiya, Ward No. 4, P.O. & P.S.
Telaiya, DistrictKoderma
... ... Petitioners
Versus
1. The State of Jharkhand
2. The Deputy Commissioner, Koderma
4. The Land Reforms Deputy Collector, Koderma
5. The Circle Officer, Koderma
6. Manoj Kumar Jain
7. Sanjay Kumar Jain
2
8. Kamal Kumar Jain
Sl. Nos. 6 to 8, all sons of Sri Kailash Chand Jain, resident of
Ward No. 11, Jhumri Telaiya, Near Pani Tanki Jain Mohalla, P.O. &
P.S.Telaiya, DistrictKoderma
9. Mahabir Prasad Jain
10. Rupchand Jain
Both sons of Late Bhauri Lal Jain, Jhumri Telaiya, Ward No.
7, P.O. & P.S.Telaiya, DistrictKoderma ... ... Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
W.P(C) No.7739/2006
For the Petitioners : None
For Respondent Nos. 1 to 5 : Mr. Shahil, JC to SC (L & C)
For Respondent Nos. 6 to 8 : Mr. Lalit Kumar Lal, Advocate
Mr. Kundan Kr Ambastha, Advocate
For Respondent Nos. 9 to 13 : Mr. V. Shivnath, Sr. Advocate
Mr. Niraj Kishore, Advocate
W.P(C) No.7106/2006
For the Petitioners : Mr. V. Shivnath, Sr. Advocate
Mr. Niraj Kishore, Advocate
For Respondent Nos.1,2,4&5: Mr. Shahil, JC to SC (L & C)
For Respondent Nos. 6 to 8 : Mr. Dilip Kumar Prasad, Advocate
For Respondent Nos. 9 & 10 : None
Order No. 08 Dated: 24.08.2017
Mr. Ratnesh Kumar, Advocate, submits that though he
was earlier appearing on behalf of the petitioners in W.P(C) No.
7739 of 2006, however, the brief has been taken back by the
petitioners and, therefore, he is not in a position to represent the
said petitioners. Thus, no one appears on behalf of the petitioners
in W.P(C) No. 7739 of 2006.
2. Heard the learned counsel for the parties.
3. Both these writ petitions have been filed for quashing
the revisional order dated 14.10.2006 passed in Mutation
Revision No. 20 of 200203, whereby the respondent no. 3
allowed the revision application of the respondent nos. 6 to 8.
4. For better appreciation of the issue involved, W.P.C No.
7106 of 2006 has been taken as a lead case and the petitioners of
W.P.C No. 7739 of 2006, who are also the proforma respondents in
W.P.C No. 7106 of 2006 are referred as proforma respondents
3
hereinafter.
5. The factual background of the case is that the
respondent nos. 6 to 8 had filed an application for mutation of the
land situated at Mouza Telaiya, Thana No. 244 within Ward No. 4
of Jhumri Telaiya Municipality, District Koderma under Khata No.
216 (old), 281 (new), Plot No. 3336/3512 (old), 7247 (new),
area 4 katha 8 dhurs (hereinafter referred to as "the land") stating
that the same has been purchased by them by registered saledeed
dated 11.09.2001. Thereafter, a general Ishtehar was published
inviting objection. The petitioners filed objection to the said
application stating that the said land has been recorded in the
name of the petitioner's grandmother Chowthi Bai in the Survey
and Settlement operations which was finally published on
02.03.1967. The proforma respondents also made objection stating that the said land is a joint property and is in exclusive possession of the proforma respondents as well as Suresh Kumar Jain (vendor) and since there had been no partition, the vendor Suresh Kumar Jain had no right to sell any part of the property without the consent of the proforma respondents. The respondent no. 5 rejected the mutation application of the respondent nos. 6 to 8 vide order dated 08.03.2002. The respondent nos. 6 to 8 preferred Mutation Appeal no. 2 of 200003 which was also dismissed vide order dated 21.08.2003, against which a revision petition vide Mutation Revision No. 20 of 200203 was filed before the Additional Collector, Koderma which was allowed directing the respondent no. 5 to create the jamabandi in the name of the respondent nos. 6 to 8.
6. Mr. V. Shivnath, the learned Senior Counsel for the petitioners submits that the said land was initially settled by the exlandlord in favour of the petitioners' grandfather Ladu Lal. The said land was recorded in the Khatian in the name of their grandmother and the Khatian was finally published under the 4 provisions of section 83(2) of the Chhotanagpur Tenancy Act, 1908 (hereinafter referred to as "the CNT Act"), which has become final. It is further submitted that against any entry in the record of rights, appeal and revision are provided under Section 89 of the CNT Act. Under Section 90, there is a power of review and Section 87 provides for institution of suit before the Revenue Officer. Against the judgment passed in the suit, appeal is provided under Section 87(2) of the CNT Act. It is further submitted that although the Circle Officer had rejected the application for mutation of the name of respondent nos. 6 to 8, he made an observation in the order that the land has been wrongly recorded in the Khatian in the name of Chowthi Bai, was beyond the jurisdiction of the respondent no. 5. It is further submitted that the respondent no. 3 had no jurisdiction to entertain the revision application in view of Section 16 of the Bihar Tenants Holdings (Maintenance of Records) Act, 1973 (hereinafter referred to as "the Act, 1973"). It is further submitted that Section 16 of the Act, 1973 confers power only to the Collector to hear the revision against the order passed by the Land Reforms Deputy Collector and as such, the Additional Collector had no jurisdiction to entertain the revision application. The revision application was filed in the year 2002, but the same was suddenly decided on 14.10.2006 immediately before the date of retirement of the then Additional Collector by reasons of which the respondent no. 5 was directed to create jamabandi in favour of the respondent nos. 6 to 8, which creates doubt on his impartiality. It is further submitted that although a suit has been filed by the respondent nos. 9 and 10, the same has been filed completely for a different claim with respect to the suit property which has no relevance in the matter.
7. The learned counsel for the respondentState submits that although under Section 16 of the Act, 1973, the revisional power is vested with the Collector, but the word "Collector" has 5 been defined under Section 2(c) which includes an Additional Deputy Commissioner and other officer not below the rank of a Deputy Collector specially empowered by the State Government to discharge all or any of the functions of a Collector. It is further submitted that the Government of Bihar time to time issued instructions regarding mutation proceedings which inter alia provided that the parties may file revision before the Collector or the Additional Collector of the District. It is further submitted that the order passed by the Additional Collector is bonafide and cannot be said to be passed with bad intention or any partiality.
8. The learned counsel for the respondent nos. 6 to 8 submits that the proforma respondent nos. 9 and 10 have already filed Title Suit No. 19 of 2004 on 08.09.2004, in which the petitioners have also been made party defendants which is still pending. It is further submitted that the entry in the record of right was erroneous which gave a rebuttable presumption, but does not create any title. The respondent nos. 6 to 8 are in possession of the land. The petitioners have not produced any chit of paper to show their title over the said land.
9. Although, no one appears on behalf of the proforma respondents [petitioners in W.P.(C) No.7739 of 2006], however, I have gone through the relevant documents placed on record in W.P.C No. 7739 of 2006 as well as the counteraffidavit filed by the respondents dated 25.04.2014. In the said counteraffidavit, the proforma respondents have stated that the said land including other lands were acquired by Dedraj Jain through registered patta in the year 1925 and thereafter, he constructed house thereon. Dedraj Jain died leaving behind his widow namely, Chandri Bai and four sons namely, Mansukhrai Jain, Jagarnath Jain, Mangilal Jain and Bhauwari Lal Jain. The property was partitioned, however, the said land was kept joint for maintenance of Chandri Bai and after her demise, the same also devolved upon her four 6 sons. It is further submitted that the petitioners and Suresh Kumar Jain (adopted son of Jagarnath Jain) being the only surviving descendants became the joint owner of the said land, but Suresh Kumar Jain illegally sold the said land to the respondent nos. 6 to 8 without the consent of the proforma respondents.
10. The petitioners have raised the preliminary objection with regard to the revisional order on the ground that the Additional Collector had no jurisdiction to entertain the revision application under Section 16 of the Act, 1973. It is submitted that it is only the Collector who can entertain the revision. In support of the aforesaid contention, the learned counsel for the petitioners relies on the judgment passed in "Shankar Shukla Vs. State & Ors." reported in 2000 (3) PLJR 839. In paragraph no. 3 of the said judgment, the learned Single Judge has held as under:
"3. Mr. Mahesh Narain Parbat, learned counsel appearing for the petitioner, submitted that no jurisdiction could be conferred upon an authority by consent of the parties and the Addl. Collector could not assume the legal authority to hear and dispose of a revision simply because the revision petition was filed before him. The submission is well founded and it must, therefore be accepted. It is plain and clear that section 16 of the Act confers the revisional power only on the Collector of the District and the Addl. Collector has no power to hear and decide a revision petition. The order dated 24.7.99 passed by the Addl. Collector, Siwan is, therefore, quite invalid and it is accordingly, set aside."
11. In the case of "Lalman Mahto & Ors. Vs. State of Jharkhand & Ors." reported in 2010 (1) JLJR 475, a Bench of this court held as under: "11. Patna High Court in the aforesaid case of Kapildeo Singh and others (supra) after discussing the provisions of section 2 (c) of the Bihar Tenants Holdings (Maintenance of Records) Act, 1973 and section 16 of the said Act have held that according to the definition of Collector as envisaged in section 2 (c) of the Bihar Tenants Holdings (Maintenance of Records) Act, 1973, the Collector includes Additional Collector, Additional Deputy 7 Commissioner and any other officer not below the rank of Deputy Collector specially empowered by the State Government to discharge all or any of the functions of the Collector under the Act. So, unless there is a notification by the State Government specially empowering the Additional Collector or any other authority mentioned in the definition clause to discharge the function of the Collector, they cannot be treated as Collector in terms of the aforesaid provisions. It has further been held by the Patna High Court in the aforesaid judgment that a bare reading of the provision of sect16 of the Act shows that the word used in section 16 is not the Collector as defined in section 2 (c) of the Act, but it provides that the revision will lie before the Collector of the district. The legislature with the clear intention has provided this power to be exercised by the Collector of the district itself and by no other authority and thereby held that the revision would lie only before the Collector of the district and not before the Additional Collector. Consequently, the order passed by the Additional Collector in the said case was quashed holding that the Additional Collector has no jurisdiction to decide the revision."
12. The question as to whether the Collector includes Additional Collector under Section 16 of the Act was referred to a Division Bench of Patna High Court in the case of "Kapildeo Singh & Ors. Vs. State of Bihar & Ors." reported in 2003 (2) PLJR 431, wherein the Division Bench in paragraph nos. 9, 10 and 11 held as under:
"9. Mutation proceedings are filed under section 14 of the Act before the Anchal Adhikari. The provision of appeal is provided under section 15 of the Act before the Deputy Collector Land Reforms and the said order is final subject to revision under section 16 of the Act which runs as follows :
16. Revision The Collector of the district may, on an application made to him in his behalf or for the purpose of satisfying himself as to the legality or propriety of any order made under this Act or the rules made thereunder by any authority or officer call for and examine the record of any case pending before or disposed of by such authority or officer and pass such order as he thinks fit : Provided that the Collector shall not entertain any application from any person, aggrieved by any order, 8 unless it is made within thirty days from the date of the order: Provided further that no order modifying, altering, or setting aside, any order made by such authority or officer shall be passed by the Collector unless the parties concerned have been given a reasonable opportunity of being heard.
10. Before proceeding to consider the question which has been referred to the Division Bench, it is to be stated that the powers of appeal and revision are statutory in nature and unless they are conferred by the statute, no authority has inherent power of revision or appeal. Under the statutory provision, if power is vested with a particular authority, then that power has to be exercised by that authority and not by any other authority unless by a statutory provision power has been conferred on the other authority by including that authority in the definition clause. A bare reading of the provision of section 16 of the Act shows that the word used in section 16 is not the Collector as defined in section 2(c) of the Act but it provides that the revision will lie before the Collector of the district. The legislature with the clear intention has provided this power to be exercised by the Collector of the district itself and by no other authority. Thus, the view taken in the aforesaid two cases as well as in the case of Most. Babuni Devi V/s. State of Bihar, 1997(2) PLJR 404 taking the same view, lays down the correct law.
11. Even according to section 2(c) of the Act the Collector includes Additional Collector etc. as provided therein provided there is notification under the provisions of the Act specially authorising them to discharge all or any of the functions of the Collector of the district. In absence of empowerment by notification they cannot discharge the functions of the Collector of the district with regard to any matter. Nothing has been brought on record to show that any notification has been issued specially empowering the Additional Collector to exercise all or any o1 the functions of the Collector under the Act."
13. After going through Section 16 of the Act, 1973 as well as the aforesaid judgments, I am of the considered view that the Additional Collector has no power of revision under the provision of the Act, 1973, unless by a notification, Additional Collector is specifically empowered by the State Government to act as a 9 Collector. So far as the order dated 12.05.2000 passed by a Bench of this Court in C.W.J.C. No. 2733 of 1999(R) [Badri Prasad Modi Vs. State of Bihar & Ors.] is concerned, in that case, it was observed that the Government of Bihar, Revenue Department time to time issued instructions regarding mutation which inter alia provided that the parties may file revision before the Collector or the Additional Collector of the district. However, in the present case, no notification under Section 2(c) of the Act, 1973 empowering the Additional Collector or any other officer to exercise power of revision under Section 16 of the Act was either available before the respondent no. 3 while passing the impugned order dated 14.10.2006 or any such notification has been produced by the learned counsel of the State in course of hearing of this case. Thus, in absence of any notification issued under Section 2(c) of the Act, the power exercised by the respondent no. 3 - Additional Collector, Koderma as a revisional authority is without jurisdiction and the same cannot be legally sustained.
14. The writ petition is thus, allowed. Consequently, the order dated 14.10.2006 passed by the respondent no. 3 - Additional Collector, Koderma, in Mutation Revision No. 20 of 200203 is setaside. However, liberty is given to the respondent nos. 6 to 8 to file a revision with delay condonation application before the Collector of the district against the order passed by the respondent no. 4, who shall consider the revision petition after taking into consideration the fact that the respondent nos. 6 to 8 were prosecuting their case under wrong forum.
15. It also needs to be mention here that the petitioners have set out a claim as to the right and title to the said land by stating that the said land is recorded in the finally published record of right in the name of their grandmother Chowthi Bai and any observation made by the courts below that the land has been wrongly recorded in the Khatian in the name of Chowthi Bai, 10 was beyond jurisdiction. I am of the view that whatever observation made by the respondent nos. 4 and 5 with respect to the entry of the name of Chowthi Bai in the record of right while dealing with a mutation case was beyond jurisdiction. It is settled principle of law that the revenue authority while dealing with a mutation case, which is purely an administrative act, shall look into only the possession of a person upon the land in question because the entry in the revenue record is merely for the purpose of collecting rent and it will neither create nor extinguish title of any person. So far as the respective claims of the petitioners and proforma respondents with regard to their title upon the said land are concerned, it appears from the pleading that the proforma respondents have filed a civil suit, wherein the petitioners have also been made party defendants. Under such circumstance, it is advised to them to put their respective claims before the concerned Civil Court.
16. With the aforesaid observations/directions, the writ petition is disposed of.
(Rajesh Shankar, J.) Manish/A.F.R.