Jharkhand High Court
Smt Shakuntala Patodia vs State Of Jharkhand And Others on 1 December, 2014
Equivalent citations: 2016 (2) AJR 318, (2015) 3 JLJR 188 (2015) 2 JCR 281 (JHA), (2015) 2 JCR 281 (JHA)
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 6878 of 2012
Smt. Shakuntala Patodia ... ... Petitioner
Versus
1. State of Jharkhand
2. The Deputy Commissioner, Ranchi
3. The SubDivisional Officer, Sadar, Ranchi
4. The Deputy Collector Land Revenue, Ranchi
5. Circle Officer, Namkum, Ranchi ... ... Respondents
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
For the Petitioner : Mr. P.P.N. Roy, Sr. Advocate
Mrs. Pragati Prasad, Advocate
For the State : Mr. Ashutosh Kr. Singh, J.C. to S.C. (Mines)
07/01.12.2014Seeking quashing of order dated 04.11.2011 in Misc. Appeal No. 135 R 15/200203 and quashing of order dated 26.05.1998/28.05.1998 in Case No. 3 R 8/199697, the petitioner has approached this Court.
2. The brief facts of the case are that, by a registered deed of sale dated 16.01.1982, the petitioner purchased land comprised in Revisional Survey Plot No. 2196 appertaining to Khata No. 162 in Khewat No. 5 admeasuring an area of 1 acre situated at village Arra, P.S. Namkum, District Ranchi. Vide Mutation Case No. 91 R 27/198182, after due verification and enquiry, the name of the petitioner was mutated and correction slip was issued. Thereafter, rent receipt acknowledging payment of rent by the petitioner was also issued. On 16.10.2002, the petitioner came to know that on the recommendation of the Land Reforms Deputy Collector vide order dated 26.05.1998/28.05.1998, the jamabandi standing in the name of the petitioner has been cancelled by the SubDivisional Officer, Ranchi vide order dated 28.05.1998. Misc. Appeal No. 135 R 15/200203 was filed challenging order dated 26.05.1998/28.05.1998. The mother of the petitioner namely, Gaitri Devi Dhundhari approached this Court in W.P.(C) No. 4554 2 of 2007 in which this Court directed the Deputy Commissioner, Ranchi to dispose of the Misc. Appeal within a period of 3 months and vide order dated 04.11.2011, the respondent no. 2 dismissed the Misc. Appeal No. 135 R 15/200203. The land in Plot No. 2169 under Khata No. 5 in village Arra was settled in favour of one Punit Kuwar on 12.05.1943, who continued to pay rent to the exlandlord till the date of vesting of jamindari. After the death of the said Punit Kuwar, her son Banmali Narayan Tiwari, the vendor of the petitioner, inherited the property of his deceased mother. After vesting of jamindari, the name of Punit Kuwar was entered in Register II and she was recognised as raiyat by the then State of Bihar.
3. A counteraffidavit has been filed on behalf of the respondent nos. 2 to 5 stating that, for annulment of the doubtful jamabandi in respect of land comprised in P.S. No. 178, Khata No. 162 in Plot No. 2169 created in the name of the petitioner, a Misc. Case proceeding bearing No. 3 R 8/199697 was initiated by the Circle Officer, Namkum. After receiving the enquiry report of the concerned Revenue Karamchari and the Circle Inspector, Namkum, the record was forwarded to the Land Reforms Deputy Collector, Ranchi for further action. The report of the Circle Officer discloses that the land in question is not in possession of the jamabandi raiyat and it is recorded as "Gair Mazarua Malik"
land in the Revisional Survey Record of Rights. After vesting of intermediaries rights, no return was filed by exlandlord and thus, the land remained "Gair Mazarua" land. In the absence of any return, neither the jamabandi with respect to the land in question was created on the eve of vesting of jamindari rights nor any entry was made at the time of "Bujharat".
The petitioner claimed that Khewat No. 5 was redeemed by Jagniwas Narayan Tiwary and Jagdip Narayan Tiwary however, she did not produce any evidence. It is not even 3 disclosed how the said land in Khewat No. 5 was redeemed by those persons. The documents produced by the petitioner disclose that the said land stands recorded in the name of one Batuk Krishna Banerjee and Ashish Kumar Banerjee in the Revisional Survey Khewat and thus, Jagniwas Narayan Tiwary and Jagdip Narayan Tiwary had no right to settle the land in question in favour of the petitioner. The mother of the petitioner namely, Gaitri Devi Dhundhari filed documents in Misc. Case No. 118 R 15/200001 disclosing that on 29.01.1941 the said Jagniwas Narayan Tiwary and Jagdip Narayan Tiwary had mortgaged the entire property in Khewat No. 5 to one Mrs. Leela G. Muthu through a registered deed for a sum of Rs. 9,767/ for repayment of Jarpesgi to Babu Batha Kisto Banerjee and Ashish Kumar Banerjee and thus, the said Jagniwas Narayan Tiwary and Jagdip Narayan Tiwary could not have settled the land in question on 09.12.1941. The petitioner has based her claim on the basis of a forged and fabricated unregistered documents. The basis of the petitioner's claim to the land in question, has no evidentiary value in the eyes of law as, these documents are not admissible in view of the provisions of Indian Registration Act. The jamabandi in the present case seems to have been opened by playing fraud as exlandlord has no right to settle the land in favour of any other persons, after mortgaging the same by a registered deed with Mrs. Leela G. Muthu
4. Heard the learned counsel appearing for the parties.
5. Relying on orders passed by this Court and Patna High Court, Mr. P.P.N. Roy, the learned Senior Counsel for the petitioner submits that a long running jamabandi cannot be cancelled by the SubDivisional Magistrate. Once a jamabandi is created in the name of transferee, the only course open to the respodentState of Jharkhand was to prefer an appeal or revision and since, in this case no appeal or revision was filed challenging jamabandi in the 4 name of the petitioner, the SubDivisional Officer has no jurisdiction to cancel the jamabandi in the name of the petitioner.
6. The learned counsel appearing for the respondentState of Jharkhand reiterated the stand taken in the counteraffidavit and submitted that after receiving the enquiry report, a proceeding for suspicious jamabandi was started. On the recommendation of the Land Reforms Deputy Collector, the SubDivisional Officer, Ranchi has cancelled the jamabandi. The learned counsel further submitted that once it is detected that a jamabandi has been created in suspicious circumstances, the Revenue Authorities have power to conduct an eqnuiry into the matter and pass appropriate orders. The power of the State Government exercised through the Revenue Authorities cannot be challenged merely by citing abstract of settled laws. The law settled by the Courts has to be applied in the facts of the case. It is submitted that the decisions cited by the learned Senior Counsel for the petitioner are not relevant in the facts of the present case.
7. I have carefully considered the submissions of the counsel for the parties and perused the documents on record.
8. A perusal of order dated 26.05.1998 reveals that on the report of Halka Karamchari, the Circle Officer, Namkum started Misc. Case No. 3 R 8/199697 for cancelling the suspicious jamabandi. A notice was issued to the opposite party however, the notice could not be served upon her and therefore, a notice was published in the daily newspaper namely, "Ranchi Express" on 28.02.1989. However, the opposite party did not appear in the proceeding. The Circle Officer has recorded that the land in question is not in possession of anyone and it is recorded as "Gair Mazarua" land in R.S. Khatian. The Land Reforms Deputy Collector vide order dated 28.05.1998 forwarded the record of the case with a recommendation to cancel jamabandi in the name 5 of the petitioner/opposite party which was accepted by the SubDivisional Officer, Sadar, Ranchi vide order dated 28.05.1998. The petitioner claims that for the first time on 16.10.2002, she came to know that the jamabandi running in her name has been cancelled by the SubDivisional Officer, Ranchi. She immediately preferred Misc. Appeal No. 135 R 15/200203. The petitioner claims that she purchased the land in question through a registered saledeed dated 16.01.1982 from one Banmali Narayan Tiwari and thereafter, she applied for mutation which was registered as Mutation Case No. 91 R 27/198182. After the mutation was granted in her name, she started paying rent to the State. It is further asserted that the original tenure holders namely, Jagniwas Narayan Tiwary and Jagdip Narayan Tiwary orally settled the land in Plot No. 2169 through customary Hukumnama dated 09.12.1941 with Punit Kuwar. After the death of Punit Kuwar, the vendor of the petitioner namely, Banmali Narayan Tiwari being the legal heir of Punit Kuwar, came in possession of the land and got his name mutated. The Deputy Commissioner has recorded a finding that the appellant failed to prove the settlement made by the landlord in favour of her predecessorininterest. The Deputy Commissioner further took notice of the fact that after having mortgaged the property in the name of one Mrs. Leela G. Muthu, the said Jagniwas Narayan Tiwary and Jagdip Narayan Tiwary had no right to settle the land with predecessorininterest of the appellant on 09.12.1941. The Deputy Commissioner has recorded that the appellant has based her claim on forged and fabricated documents.
9. The record of the case further discloses that the land in question is recorded as "Gair Mazarua" land and after the vesting of intermediaries right, no Jamindari return was filed by the exlandlord and thus, the land remained "Gair Mazarua" land held and possessed by the State. No jamabandi was created at the eve 6 of vesting of Jamindari rights nor any entry was made at the time of Bujharat. The claim of the petitioner that Khewat No. 5 was redeemed by Jagniwas Narayan Tiwary and Jagdip Narayan Tiwari is not supported by any documentary evidence.
10. In "Jamaluddin Ahmad Vs. S.D.O., Khagaria & Ors.", reported in 1979 BBCJ 605, though the land was released pursuant to notice under Section 10(2) of the Land Reforms (Fixation of Ceiling of Area and Acquisition of Surplus Land) Act, 1976, a part of the land was settled with another person. The settlee claimed himself a settled raiyati of the village and he also claimed to have acquired the status of an occupancy raiyat. No counteraffidavit was filed on behalf of the State. I find that the facts in the present case are entirely different from the facts in Jamaluddin Ahmad's case. In "Harihar Singh & Anr. Vs. Additional Collector", 1978 BBCJ 323, in the counteraffidavit the State admitted that the petitioner was a settled raiyati of the village and he had occupancy right in the land held by him as a raiyat. The Additional Collector, after simply issuing notice, without considering any document, cancelled the jamabandi and therefore, the High Court held the cancellation of jamabandi illegal. The facts in other cases relied on by the learned Senior Counsel are also entirely different from the facts of the case in hand. I am of the opinion that the cases cited by the learned Senior Counsel for the petitioner do not advance the case of the petitioner. The contention of the petitioner that no opportunity was afforded before order dated 26.05.1998/28.05.1998 was passed is no longer significant because the Deputy Commissioner has granted sufficient opportunity of hearing to the petitioner.
11. Mr. P.P.N. Roy, the learned Senior Counsel further submitted that the only provision under which a jamabandi could have been cancelled was under Section 4h of the Bihar Land Reforms Act, 1950 however, the said provision is also not 7 attracted in the present case as, the settlement in favour of the predecessorininterest of the petitioner was long before the appointed date, that is, 01.01.1946. I find that the observation of the Division Bench in "Harihar Singh & Anr. Vs. The Additional Collector" (supra), suggests that power under Section 4h of the Bihar Land Reforms Act can be exercised in cases of the present nature. I am also of the opinion that whether the power has been exercised by the Deputy Commissioner under Section 4h of the Bihar Land Reforms Act, 1950 or not is immaterial, because creation of jamabandi itself does not create right, title or interest in favour of a person. Jamabandi is only an evidence of the possession of a person over the land. In the present case, it has been found that the petitioner is not in possession of the property in question. In "State of Jharkhand Vs. Taurian Infrasturcture Pvt. Ltd.", 2014 1 JBCJ 155 (HC), the Division of this Court has held that the Circle Officer and the Deputy Commissioner are not precluded from considering the evidence, on the basis of which a party is claiming possession. The Deputy Commissioner has observed that the petitioner has based her claim on the basis of forged and fabricated documents. In "Meghmala & Ors. Vs. G. Narasimha Reddy & Ors.", (2010) 8 SCC 383, the Hon'ble Supreme Court has observed thus;
33. "Fraud is an intrinsic, collateral act, and fraud of an egregious nature would vitiate the most solemn proceedings of the courts of justice. Fraud is an act of deliberate deception with a design to secure something, which is otherwise not due".
12. In view of the above discussion, I find no merit and accordingly, the writ petition is dismissed.
(Shree Chandrashekhar, J.) Manish/A.F.R.