Jharkhand High Court
Ishwar Das Charitable Trust vs The State Of Jharkhand Through The ... on 19 July, 2021
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 771 of 2020
1. Ishwar Das Charitable Trust, Chittaranjan Avenue, West Bengal
through its Trustee Dilip Kumar Tibrewal
2. Kailash Kumar Tibrewal
3. Dilip Kumar Tibrewal
4. Motilal Tibrewal ... ... Petitioners
Versus
1. The State of Jharkhand through the Deputy Commissioner, Godda
2. The Sub-Divisional Officer, Mahagama, Godda
3. The Circle Officer, Mahagama, Godda
4. Nagar Panchayat, Mahagama through its Executive Officer,
Mahagama, Godda
5. Rajiv Ranjan Bhagat ... ... Respondents
W.P.(C) No. 1824 of 2020
Rajiv Ranjan Bhagat ... ... Petitioner
Versus
1. The State of Jharkhand
2. The Deputy Commissioner, Godda
3. The Sub-Divisional Officer, Mahagama, Godda
4. The Circle Officer, Mahagama, Godda
5. Nagar Panchayat, Mahagama through its Executive Officer,
Mahagama, Godda
6. Kailash Kumar Tibrewal
7. Dilip Kumar Tibrewal
8. Motilal Tibrewal ... ... Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioners : Mr. Sumeet Gadodia, Advocate For the Respondent-State : Mr. Vijyant Verma, AC to AAG-IV For the Respondent No. 5 : Mr. Lukesh Kumar, Advocate [In W.P.(C) No. 771 of 2020] For the Petitioner : Mr. Lukesh Kumar, Advocate For the Respondent-State : Mr. Suresh Kumar, SC (L&C)-II For the Respondent Nos.6 to 8 : Mr. Sumeet Gadodia, Advocate [In W.P.(C) No. 1824 of 2020]
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Order No. 08 Dated: 19.07.2021 The present writ petitions are taken up today through Video conferencing.
Both these writ petitions have been preferred for quashing and setting aside the order dated 10.02.2020 passed by the Sub-Divisional Officer, Mahagama in R.M Case No. 35 of 2018, whereby direction has been issued for taking over possession of Dharamshala/Smriti Bhawan and handing over the same to Nagar 2 Panchayat, Mahagama till the title dispute between the parties is settled through the competent court of civil jurisdiction. Further prayer has been made for quashing and setting aside the order as contained in memo no. 204 dated 10.02.2020, whereby direction has been given by the Sub-Divisional Officer, Mahagama for handing over the Dharamshala/Smriti Bhawan to the Executive Officer, Nagar Panchayat, Mahgama with an order to him to operate the said Dharamshala for the benefit of general public.
2. W.P.(C) No. 771 of 2020 has been taken as lead case for deciding the present writ petitions wherein the petitioner of W.P.(C) No. 1824 of 2020 has been impleaded as respondent no. 5.
3. The factual background of the case as stated in the writ petition is that the petitioner no. 1 - Trust has been constituted by the family members of Tibrewal family for carrying out charitable activities. The land having an area of 10 Katthas situated in Mouza Mahagama, Kamat Khata No. 200, Dag No. 425 (hereinafter referred to as "the said land") was settled by the original landlord namely, Babu Bansidhar Dhandhania for the purpose of establishment of Dharamshala in favour of Babu Ram Awtar Ram Marwari, who is ancestor of the trustee of the petitioner - Trust and the grandfather of the petitioner no. 2. The said land has been in possession of the family members of the settlee since 1939 and though no concrete structure could be established over the said land, temporary structures were made over it for charitable purpose. In the meeting of the board of trustees of the petitioner - Trust dated 18.07.2005, it was resolved to construct permanent structure of Dharamshala for the benefit of general public and thereafter the said Dharamshala was constructed and inaugurated on 02.11.2009. It was operated and managed by the petitioners for charitable purposes for the use of people at large on payment of nominal charges. Names of the ancestors of the petitioner nos. 2 to 4 were already entered in Register-II by creating jamabandi in their name vide Rent Fixation Case No. 1 of 1979-80. The rent of the said land was regularly paid by them and rent receipts were issued till the year 2008-09. In the recent survey conducted in village Mahagama, possession of the land 3 in question has been recorded in favour of the trustee of the petitioner. However, some unscrupulous elements of the society wanted to grab the said Dharamshala from the petitioners. The respondent no. 5 obtained power of attorney from the descendants of original landlord and started creating disturbance in operation of the Dharamshala. As such, the petitioners closed the Dharamshala temporarily. The respondent no. 5 [the writ petitioner of W.P.(C) No. 1824 of 2020] filed a complaint before the Deputy Commissioner, Godda, a copy of which was also sent to the Sub-Divisional Officer, Mahagama, Godda alleging that the petitioner nos. 2 to 4 were trying to grab the said Dharamshala by obtaining the same to start free computer centre and beauty parlour training centre. The respondent no. 5 requested the Deputy Commissioner, Godda to intervene in the matter and to get the lock of the said Dharamshala opened. Thereafter, the Sub-Divisional Officer, Mahagama, Godda directed the Circle Officer, Mahagama to submit report by conducting spot verification. The Circle Officer, Mahagama submitted the report vide letter no. 826 dated 27.11.2017 stating that the said Dharamshala had been constructed by the petitioner no. 2 and was being operated by the petitioner no. 4 by booking the same for marriage, Bhagwat Katha, meeting etc. and there was no beauty parlour being operated on the said premises. However, the Sub-Divisional Officer, Mahagama, Godda initiated proceeding vide R.M Case No. 35 of 2018 and issued notices to the petitioner nos. 2 to 4 for their appearance in the said matter. During the pendency of the said proceeding, the petitioner no. 2 and the respondent no. 5 entered into a compromise and even a petition for compromise was filed requesting inter alia to drop the proceeding. However, the Sub-Divisional Officer, Mahagama, Godda sought legal opinion from the Government Pleader, Civil Court, Godda vide letter dated 14.09.2019 and passed the impugned order based on the legal opinion dated 08.02.2020, whereby the Nagar Panchayat, Mahagama was directed to take over the possession of the Dharamshala till such time the question of title between the petitioners and respondent no. 5 was adjudicated by the competent civil court. Subsequently, order dated 10.02.2020 was passed by the 4 Sub-Divisional Officer, Mahagama, Godda directing to open the lock of the Dharamshala and to hand over the management of the Dharamshala to Nagar Panchayat, Mahagama. On the same day, Godda district administration broke the lock of the Dharamshala and took over the possession of the same.
4. The learned counsel for the petitioners submits that the impugned order passed by the respondent no. 2 is not in exercise of the power under Section 144 and 145 of the Code of Criminal Procedure, 1973 and even if it is assumed that the said impugned order has purportedly been passed in exercise of the said power, then also, the said impugned order is wholly without jurisdiction as respondent no. 2 has exceeded his jurisdiction in passing order to hand over the Dharamshala to Nagar Panchayat, Mahagama for its operation. The respondent no. 2 has though recorded in the impugned order that jamabandi created in the name of ancestors of the trustee of petitioner no. 1 vide R.F. Case No. 1 of 1979-80 dated 29.12.1979 has been cancelled by respondent no. 2 vide order dated 15.04.1980, yet the petitioners have never been communicated the said order of cancellation of jamabandi and even after the said cancellation, the rent receipts have been issued in favour of ancestors of the trustee of the petitioner no. 1. The respondent no. 2 while passing the impugned order has completely ignored the order dated 01.12.1939 earlier passed by the court of Sub-Divisional Officer, Godda, wherein it was specifically recorded that earlier landlord had settled Kamat land in favour of Babu Ram Avtar Ram Marwari - own grandfather of the petitioner no. 2 and since then he was in possession of the said land. It is further submitted that respondent no. 2 completely ignored the fact that the respondent no. 5 had entered into a compromise with the petitioners and both the parties had filed a compromise petition [Annexure-18 to W.P.(C) No. 771 of 2020] before the respondent no. 2 stating that they had decided not to pursue the dispute since respondent no. 5 did not have any claim over the said Dharamshala.
5. The learned counsel appearing on behalf of the respondent no. 5 submits that the said land belonged to Nigam 5 Kumar Dhandhania - S/o Late Deoki Nandan Dhandhania, Navneet Kumar Dhandhania - S/o Late Mahabir Prasad Dhandhania and Sanjay Kumar Dhandhania - S/o Late Hari Prasad Dhandhania and the land is recorded in the revenue records as well as Khatian in the name of their forefathers as Kamat land. In the year 2011, they executed registered power of attorney and appointed the respondent no. 5 as their attorney to look after their properties including the said Dharmashala. The respondent no. 5 filed Revenue Misc. Case No. 35 of 2018 before the respondent no. 3 and during the pendency of the said case, the dispute between the petitioners and the respondent no. 5 was settled on the following terms:
(i) The keys of the Dharamsala in question will be kept in the custody of the petitioners;
(ii) The petitioners will be free to take decisions regarding the policies for running the Dharamsala in question;
(iii) The petitioners may take help, if required, of respondent no. 5 to work together for the welfare of the public at large to the extent of operation of the Dharamshala in question.
6. The learned counsel for the respondent-State submits that neither the petitioners nor the respondent no. 5 could substantiate the claim by adducing sufficient documents before the respondent no. 2. They did not submit any document to prove the alleged settlement in favour of the settle by submitting Zamindari return which is treated as a conclusive proof of the ownership of the land. The compromise entered between the petitioners and the respondent no. 5 does not only involve the property of Dharamshala, but also other land of the same jamabandi which appear to be transferred by the dubious power of attorney and as such, the parties were directed to get their rival claims adjudicated before the Civil Court so that authorities could handover the said property to the rightful owner for smooth functioning of Dharmshala so as to ensure its public utility. The concerned parties were claiming the said land through different 6 rent fixation documents which were subject matter of verification in R.M Case No. 35 of 2018 and as such, they were asked to submit the documents which could substantiate their rival claims and when they failed to do so, the respondent no. 2 passed the impugned order to handover the possession of the Dharamshala to Nagar Panchayat till the dispute regarding the claim of the parties was settled by the competent Civil Court. The petitioners and respondent no. 5 worked in collusive manner for their own benefit and they also entered into a compromise before the Court of Principal and Sessions Judge, Godda in Revision Case No. 40 of 2018 suggesting their involvement in land grabbing activities. It is further submitted that under the Santhal Pargana Tenancy Act, 1949, the respondent no. 2 can initiate civil/revenue proceeding and pass order as he deems fit in the interest of justice. It is also submitted that the power of attorney claimed to have been executed in favour of the respondent no. 5 was not executed by all of descendants of Late Dwarika Prasad Dhandhaniya. The concerned parties were claiming right over the land in question through manufactured documents for which FIR No. 87 of 2017 was lodged against the petitioners and others by the Circle Officer, Mahagama for the offences under Section 406/420/467/468/471/120B of IPC. The legality of the said power of attorney has been challenged by the respondent no. 3 in the court of Sub-Judge-I, Godda.
7. Heard the learned counsel for the parties and perused the materials available on record. The order of the respondent no. 3 passed in Revision Miscellaneous Case No. 35 of 2018 has been challenged in the writ petition which was started on an application filed by the respondent no. 5 claiming himself to the attorney of the recorded raiyats and putting forth his right to take care of the said Dharamshala, the possession of which, according to him, was fraudulently taken over by the petitioner nos. 2 to 4 convincing him that the said place would be used for running training centre for beauty parlour as well as computer classes free of cost and when he was out of station, they put lock in it. The respondent no. 2 observed in the impugned order that three land fixation cases were initiated for 7 the same land. The said land is Kamat land and the same cannot be settled in favour of any raiyat. The respondent no. 2 prima facie found that the said settlement was made to defeat the provisions of the Bihar Land Reforms Act, 1950 and the jamabandi was subsequently opened on the basis of the said settlement. Having observed that, the respondent no. 2 issued notices to the petitioners as well as the respondent no. 5 for filing their respective show cause. Finally, vide impugned order dated 10.02.2020, the respondent no. 2 held that both the parties failed to show any document to prove their title over the said land. It was also observed that Kamat landlords did not settle the said land to anyone. Had there been any settlement, the name of the settlee would have shown in the return filed by the Zamindar, thus the said land is a government land and the jamabandi opened for the said land is liable to be cancelled. Having observed so, the respondent no. 2 handed over the Dharamshala to Nagar Panchayat, Mahagama till the dispute of the title between the parties was adjudicated by a competent Civil Court. Pursuant to the order of the respondent no. 2, the lock of the Dharamshala was opened and now the same is in possession of the Nagar Panchayat.
8. It is clear from the aforesaid facts that no proceeding under Section 4(h) of the Act, 1950 was initiated by the competent authority of the State to cancel the settlement of the said land claimed to have been made by the ex-landlord in favour of the ancestors of the petitioners. In absence of any finding of the competent authority with approval of the State Government, the respondent no. 2 held that the title of the said land is with the State. The petitioners and the respondent no. 5 who claimed their respective title over the said land, had compromised the dispute and as such, the respondent no. 2 did not have any authority to continue with the said proceeding. Had there been any claim of the State over the said land, a separate proceeding under Section 4(h) of the Act, 1950 would have been initiated for cancellation of the alleged settlement or the State would have filed title suit in the Civil Court for determination of title over the said land. In the present case, rent receipts have continuously been issued in favour of the petitioners 8 and they brought on record sufficient documents before this Court to show their possession over the said Dharamshala. The report of the Circle Officer, Mahagama dated 27.11.2017 also supports the contention of the petitioners that the said Dharamshala was constructed by them and they were in possession of the same. The State Government or its officers cannot be permitted to disturb long possession of the petitioners over the said Dharamshala. Even it is assumed that the petitioner nos. 2 to 4 are in illegal possession of the said land over which Dharamshala has been constructed by them, the respondent authority cannot be allowed to evict them by arbitrarily use of the power. Interestingly, after vesting of jamindari, the State did not object the possession of the petitioners over the said land for more than fifty years till the complaint was filed by the respondent no. 5 against them. The manner in which the respondent no. 2 evicted the petitioners from the said Dharamshala, is indicative of colourable exercise of power. It is well settled that the action by the State authority, whether administrative or executive, has to be fair and in consonance with the statutory provisions and rules. Even if no rule is in force to govern a particular executive action, still such action, especially if it can potentially affect the rights of the parties, should be just, fair and transparent. Arbitrariness in state action, even where any rule vests discretion in an authority, is impermissible.
9. Though an illegal jamabandi is liable to be cancelled, yet for taking such an action, there must be a proper proceeding instituted by a competent authority and the order is required to be passed after affording due opportunity of hearing to the affected parties. The respondent no. 2 himself recorded in the impugned order that the jamabandi opened for the said land was liable to be cancelled and thus till any such order was passed by a competent authority in accordance with law, the possession of the petitioners could not have been disturbed. This Court is of the considered view that since the said proceeding was initiated on the application of the respondent no. 5, the same was bound to be dropped after a compromise between the petitioners and the respondent no. 5 was arrived at. If the respondent no. 2 was of prima facie view that the 9 settlement of the said land was made just to defeat the purpose of the Act, 1950 and the jamabandi was wrongly opened in the name of the petitioners, he should have recommended the competent authority to initiate appropriate proceeding as permissible under law. However, till then the possession of the petitioners was not liable to be disturbed.
10. In view of the aforesaid reasons, the order dated 10.02.2020 passed by the respondent no. 2 in R.M. Case No. 36 of 2018 and the consequential order issued vide memo no. 204 dated 10.02.2020 are hereby quashed and set aside.
11. The writ petitions are accordingly allowed. It needless to mention here that this Court has not gone into the merits of respective claims of the parties with regard to their title over the said land and all the parties are free to take appropriate legal recourse as permissible under law, if so advised, for determination of their respective rights over the said land.
(Rajesh Shankar, J.) Manish/AFR