Jharkhand High Court
Md. Hasnan vs The State Of Jharkhand on 19 June, 2018
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, Ratnaker Bhengra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L. P. A. No. 445 of 2009
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1. Md. Hasnan
2. Md. Jafar Hussain
3. Md. Mazhar Hussain
4. Md. Mazhar Parvage
5. Rehana
6. Hasina Bibi ...Appellants vs.-
1. The State of Jharkhand
2. The Deputy Commissioner, Godda
3. The Sub Divisional Officer, Godda
4. Rajendra Kiskoo
5. Binpin Kiskoo
6. Sipati Tuddu ... Respondents
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CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Appellants : Mr. Jai Prakash Jha, Sr. Advocate M/s. Shree Prakash Jha & Aishwrya Prakash, Advs.
For the Respondents : Mr. Amit Kumar Verma, Adv.
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By Court Heard learned Senior Counsel for the appellants and learned counsel for the Respondent-State.
2. Private respondents have not entered appearance in this appeal despite valid service of notice even through paper publication, both pre admission and post admission stage.
3. Original writ petitioner stands substituted on his death by his legal heirs i.e., four sons and two daughters during pendency of appeal. His widow also died on 2nd February, 2016 before original writ petitioner/appellant would be substituted after his death.
4. Order dated 27th September, 2007 (Annexure-1 to the writ petition) passed by Sub Divisional Officer, Godda in Revenue Miscellaneous Case No. 75/2005-06 was under challenge in the writ petition, whereby learned Sub Divisional Officer, Godda had held inter alia as follows:
2.(i) Opposite party/writ petitioner had violated the provisions of Santhal Parganas Tenancy (Supplementary Provision) Act, 1949 and the terms of settlement by selling part of the land settled to him instead of undertaking construction thereupon,
(ii) Settlement made in favour of opposite party was in violation of Sections 28 and 33 of the Act of 1949. As such the settlement made in his favour under Settlement Case No. 344/75-76 dated 3rd December, 1975 was itself cancelled.
5. It is pertinent to mention here that the instant Revenue Miscellaneous Case No. 75/2005-06 was instituted by the applicants, Rajendra Kisku, Vipin Kisku, Sipahi Tuddu, Betaka Tuddu, three of whom were the respondents in the writ petition and in the present appeal, on the allegation that 25 decimals of land under Plot no. 412 of Mauza Gangata Khurd under Ward No. 4, Thana-Godda Town, District-Godda was illegally settled in his favour in Settlement Case No. 344/75-76 by order dated 3rd December, 1975 as opposite party therein was not a Zamabandi Raiyat of Mouza- Gangata Khurd and had a house in Godda Town itself. He was employed as a driver in Government department and that the settlement was against the interest of tribal and non-tribal members of Village- Gangata Khurd. The settlement made in favour of opposite party/writ petitioner was, therefore, contrary to law and fit to be cancelled. Miscellaneous case was decided after hearing the applicants/private respondents herein, opposite party/writ petitioner and on perusal of the reports pursuant to the order of remand passed in Revenue Miscellaneous Case No. 35/2006-07 by the Court of Deputy Commissioner, Godda.
6. Learned Single Judge, however, disposed of the writ petition with a liberty to the writ petitioner to prefer an appeal under Section 57 of Santhal Pargana Tenancy Act, 1949 on the ground of availability of alternative efficacious remedy.
7. Learned Senior Counsel for the appellants has submitted that learned Sub Divisional Officer committed a serious error of law by reopening the issue of settlement of land in favour of the writ petitioner, 3. though the same had attained finality by virtue of judgments passed by learned Court of VIIth Additional District Judge (Fast Track Court No.4) Godda dated 12th April, 2005 (Annexure-4 to the writ petition) in Title Appeal No. 24/2003/03/2004 (Md. Asghar Hussain vs. Prem Nandan Kumar & another), upheld by this Court in Second Appeal No. 143 of 2005 vide judgment dated 9th March, 2006. Writ petitioner was the plaintiff in Title Suit No. 24 of 2001, wherein he had sought a declaration that the suit property (25 decimals of land in Plot No. 412 of Mouza- Gangata Khurd in Settlement Case No. 344/1975-76) was his exclusive land. He had prayed for a decree of recovery of possession in his favour and a declaration that the defendant had illegally and forcibly trespassed over the suit property (Schedule-A). He had also sought consequential relief of eviction of defendant as trespasser of the suit land and for recovery of possession. Permanent injunction was also sought for. Learned Sub-Judge -I, Godda had dismissed the suit by judgment and decree dated 19th September, 2003/30th September, 2003. Plaintiff/writ petitioner, however, succeeded before the First Appellate Court and also before the Second Appellate Court. The issue, therefore, was no longer open to be agitated before the Revenue Officer of the rank of Sub Divisional Officer in such circumstances. The impugned order amounted to an act of impropriety by over turning the finality attached to the issue of settlement in his favour in view of the judgment rendered by this Court in Second Appeal No. 143 of 2005.
8. Learned Senior Counsel for the appellants, however, has on being confronted with the other finding relating to violation of the terms of settlement and the provisions of the Act of 1949 in selling the property in favour of another person without making any construction thereupon submitted that the same is a separate issue altogether. However, according to him, the settlement granted in his favour in Settlement Case No. 344/1975-76 by the order of Sub Divisional Officer dated 3.12.1975 could not have been reopened in any circumstances.
9. Learned counsel for the appellants has relied upon the following judgments in support of his submission that presence of the alternative remedy does not act as a bar to exercise of extraordinary discretionary 4. jurisdiction of the Court under Article 226 of the Constitution of India in all circumstances:
(i) Harbanslal Sahnia and another Vs. Indian Oil Corporation Ltd. and others [ (2003) 2 SCC 107);
(ii) Shree Madhav Mills Pvt. Ltd Vs. The Union of India & Ors. ( 1985 BBCJ 425).
10. Learned counsel for the State submits that learned Single Judge has declined to exercise his extraordinary jurisdiction under Article 226 of the Constitution of India on the ground of availability of alternative remedy of appeal to the appellant under Section 57 of S.P.T Act. The S.D.O., Godda had upon remand by the Deputy Commissioner, Godda decided Revenue Miscellaneous Case No. 75/2005-06 after considering the case of the parties and the reports of the Revenue Officials. All grounds of law and fact can be agitated by the appellant before statutory forum of the appellate authority under Section 57 of the Act of 1949. Learned counsel for the State has however not been able to countenance the plea raised on behalf of the appellant that the question of settlement decided in the previous litigation in Title Suit No. 24/2001, Title Appeal No. 24 of 2003/3 of 2004 and Second Appeal No. 143 of 2005 had attained finality in favour of writ petitioner/appellant herein.
11. We have considered the submission of learned counsel for the parties in the light of relevant material pleadings and documents on record relied upon by them. In the light of conspectus of facts and documents referred to above, we proceed to examine the issue at hand. As is evident from the order of VIIth Additional District Judge, Godda dated 12th April, 2005 in Title Appeal No. 24 of 2003/3 of 2004 (Annexure-4 to the connected record i.e. writ petition), the writ petitioner was the appellant being aggrieved by the judgment and decree dated 19.9.2003/ 30.9.2003 passed in Title Suit No. 24 of 2001 by learned Court of Sub-Judge-I, Godda, whereunder the suit seeking declaration of his right, title and ownership over the suit property and for a decree of recovery of possession was dismissed. As noticed hereinabove, the plaintiff/appellant had sought a declaration in respect of his exclusive ownership, title and possession over the suit land comprising 25 decimals in Plot No. 412 of 5. Mouza- Gangata Khurd in Settlement Case No. 344/1975-76 by the order of S.D.O, Godda dated 3.12.1975. This piece of land and settlement was itself made the subject matter of proceeding in Revenue Miscellaneous Case No. 75/2005-06 by the applicants/private respondents herein on which learned S.D.O., Godda passed the impugned order dated 27th September, 2007 in the terms noted above which aggrieved the writ petitioner to approach this Court in W.P.(C) No. 697 of 2008. The First Appellate Court, Godda framed the following issues for consideration:
"1. Is the suit as framed maintainable?
2. Is the suit barred by law of limitation, estopple, waiver and acquisence?
3. Is the suit bad for non-joinder and mis-joinder of parties & can it proceed without impleading Sunaina Devi as party?
4. Did the appellant had taken Settlement of Plot No.-412 of Mauza Gangta Khurd comprising an area of 25 decimal in settlement case No. 344/75-76 and took delivery of possession in Rev. Case No. 3/76-77 of the Court of the sub-divisional officer, Godda and did that possession was confirmed on 15.6.76 by N.A.C Godda vide holding No. - 1334/63?
5. Did the plaintiff constructed house on the suit land after getting delivery of possession of the same?
6. Did the Defendant has right to challenge the settlement order of S.D.O., Godda?
7. Is the defendant Jamabandi Raiyats of Mauza Sonadiha, P.S. Poraiyahat and has right to challenge the settlement order of S.D.O. Godda?
8. Is the settlement order dated 25.3.51 made in favour of Sunaina Devi by Banailee Estate, valid, U/s 27 of the S.P.T Act?
9. Is the plaintiff has any right and title over the suit land?
10. Has the plaintiff any cause of action for Suit?
11. Is the plaintiff entitled for the reliefs as claimed?
12. Is the plaintiff entitled for any other reliefs?
12. The appeal was decided on contest. Issue No. IV referred to above related to the question of settlement of Plot No. 412 of Mouza- Gangata Khurd comprising 25 decimals of land in Settlement Case No. 344/75-76 and the delivery of possession thereof in Revenue Case No. 3/76-77. Learned Appellate Court proceeded to analyze the evidence on record and dealt with each of the issues one after the other. Issue No. VI and VII were first taken up and answered against the defendant in favour of plaintiff. Issue No. III relating to non-joinder and mis-joinder of party was 6. also decided in favour of the writ petitioner/appellant herein. Learned Court thereafter examined the Issue No. VIII which related to a settlement order dated 25th March, 1951 in favour of Sunaina Devi by Banailee Estate and answered it in favour of the appellant against the defendant. Thereafter Issue Nos. IV, V, IX and X were taken together for adjudication. After consideration of the entire materials on record, learned Court held as under:
" On the other hand the defendant, as discussed above has filed bogus and fake papers regarding the title and possession of his mother-in-law over the suit land. So it can not be said that the alleged settlement and delivery of possession is doubtful and illegal. Accordingly, I come to the conclusion that the plaintiff has validly taken the suit land in settlement vide Settlement Case No.-344/75-76 and took delivery of possession in Rev. Case No.- 3/76-77 of the Court of S.D.O., Godda. He has got right title over the suit and the plaintiff has valid cause of action for the suit. Accordingly, these issues are decided in favour of the plaintiff. But so far as the issue No.-5 is concerned, this issue is decided against the plaintiff as plaintiff has not been able to prove that after the said delivery of possession by the Court of S.D.P, Godda he constructed a house over the same and was residing in that house."
13. Learned Court accordingly held the plaintiff entitled for the reliefs claimed. It also held that the defendant no. 1 had illegal possession over the suit land. The suit was decreed in favour of the plaintiff/appellant by setting aside the judgment of learned Sub-Judge-I, Godda. This was challenged by the aggrieved defendant in Second Appeal No. 143 of 2005. By the judgment dated 9th March, 2006 (Annexure-5 to the writ petition), learned Single Judge of this Court found no merit in the second appeal and accordingly dismissed it. As such the very question of settlement of land in favour of the appellant herein in respect of Plot No. 412, Mouza- Gangata Khurd, Area 25 decimals under Settlement Case No.-344/75-76 vide order dated 3.12.1975 of S.D.O, Godda stood decided and became final. In such circumstances, it was not open for the S.D.O, Godda to question the said settlement unless leave was sought from this Court upon proper application and exceptional grounds made to reopen an issue 7. settled up to this Court. That part of the order of S.D.O, Godda suffers from serious errors of law and impropriety. We are of the opinion that this Issue was therefore not open for adjudication by the Appellate Authority under S.P.T.Act, 1949. That part of the findings of the S.D.O, Godda contained in the impugned order dated 27.09.2007 cannot be sustained in the eye of law and accordingly it is quashed. As such the order of learned Single Judge relegating the writ petitioner to avail the alternative remedy of statutory appeal, so far that part of the impugned order is concerned was not proper in the eye of law.
14. However, remaining part of the order dated 27.9.2007 passed by S.D.O., Godda relates to a violation of the provisions of the Act of 1949 and the terms and conditions of the settlement as the appellant was found to have allegedly transferred the land in question in favour of the third party and not undertaken construction thereupon. This fact was not an issue before the learned Courts in the earlier proceedings in Title Suit No. 24 of 2001,Title Appeal No. 24 of 2003/3 of 2004 and Second Appeal No. 143 of 2005 and may be a subsequent development. It depends upon question of fact to be adequately addressed by the concerned statutory authority under S.P.T Act, 1949. On that score, we are satisfied that the remedy of appellant lies in appeal before the Forum created under S.P.T Act, 1949 where such question of fact can be raised and adjudicated upon. It is also made clear that in case the appellate court arrived at a finding on the question of violation of terms and conditions of the settlement and the provisions of S.P.T Act, 1949 against the appellant on account of any transfer of land made through sale or otherwise and/or any other violation thereof, the appellate authority would not be inhibited in passing any order as is permissible under law including upholding the order of cancellation of settlement on that score.
15. The order of learned Single Judge relegating the applicant/writ petitioner to avail the statutory remedy of appeal under Section 57 of S.P.T Act, 1949 shall be confined to the cancellation of the settlement based on the findings relating to the violation of the terms and conditions of the settlement and the provisions of the Act of 1949 in that 8. respect as held by the S.D.O., Godda by the order dated 27.9.2007 impugned in the writ petition. This appeal is therefore partly allowed in the manner and to the extent indicated hereinabove.
(Aparesh Kumar Singh, J) (Ratnaker Bhengra, J) Jharkhand High Court, Ranchi Dated 19th June, 2018 JK/NAFR