Jharkhand High Court
Alauddin Churifarosh vs State Of Jharkhand on 28 June, 2022
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 208 of 2019
1. Alauddin Churifarosh, aged about 60 years, S/o. Late Jainab
Bibi, R/o. Sahpur, P.O.- Sahpur, P.S.- Chainpur, District -
Palamu.
2. Salauddin Churifarosh, aged about 48 years, S/o. Late Jainab
Bibi, R/o. Sahpur, P.O.- Sahpur, P.S.- Chainpur, District -
Palamu.
3. Reyazuddin Churifarosh, aged about 46 years, S/o. Late
Jainab Bibi, R/o. Sahpur, P.O.- Sahpur, P.S.- Chainpur, District
- Palamu.
... ... ... Appellants/Petitioners
-Versus-
1. State of Jharkhand
2. Deputy Commissioner, Palamu at Daltonganj, P.O., P.S.-
Daltonganj, District - Palamu.
3. Ainul Hazue, S/o. Late Kasimuddin Mian, R/o. Village- Sahpur,
P.O.- Sahpur, P.S.- Chainpur, District - Palamu.
... ... ... Respondents/Respondents
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CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellant: Mr. Kalyan Roy, Advocate
Mr. Shashi Bhushan Sah, Advocate
Mr. Sidhartha Roy, Advocate
For the State: Mr. Rakesh Kr. Shahi, A.C. to S.C.(L&C)-I
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Oral Order
06/Dated: 28.06.2022
1) This appeal is directed against the order/judgment dated 05.12.2018 passed by the learned Single Judge of this Court by which the writ petition being W.P. (C) No. 3309 of 2012 has been dismissed.
2) The writ petition was filed by the original writ petitioner Jainab Bibi (since dead and her legal representatives have been substituted) assailing the order dated 10.04.2012 passed by respondent No.2, i.e., Deputy Commissioner, Palamu at 2 L.P.A. No. 208 of 2019 Daltonganj, whereby he has cancelled the Basgit Parcha issued in favour of the original writ petitioner in Case No.09/81-82 by the Circle Officer, Chainpur and consequently, the Jamabandi opened in favour of the writ petitioner was also cancelled.
3) It was urged before the writ court that the husband of the original writ petitioner and the father of respondent No.3 were full brothers. Respondent No.3 claimed half share of the land for which Basgit Parcha was issued in favour of the original writ petitioner by the Circle Officer for a total area of 22 decimal of land. It is also stated in the writ petition that there was a partition between father of respondent No.3 and husband of the original writ petitioner and after the said partition, the original writ petitioner came in possession of the disputed land and she had constructed the house thereupon. It is further stated in the writ petition that the Circle Officer, Chainpur initiated a case bearing Case No.09/81-82 under the Bihar Privileged Persons Homestead Tenancy Act, 1947 (hereinafter referred to as "the Act") and Privileged Persons Parcha was issued in favour of the writ petitioner which has been appended as Annexure 1 to the writ petition. It is further stated that respondent No.3 Ainul Hazue (Haque) never objected to the issuance of said Parcha for more than 20 years and only when father of respondent No.3 died, he filed an application before the Additional Collector, Daltonganj for cancellation of Jamabandi which was opened in favour of the writ petitioner for the land of an area of 0.22 acres of Plot No.1013, appertaining to Khata No.227 of Village Shahpur. The Basgit Parcha issued in favour of the writ petitioner and opening of 3 L.P.A. No. 208 of 2019 Jamabandi subsequently by a correction slip has been appended as Annexures 1 and 2. It is also contended that the rent-receipts were issued in favour of the writ petitioner. However, the statement made in paragraph 6 that respondent No.3 has never objected the issuance of such Parcha gets defeated by the statement made in paragraph 9 itself in which the petitioner has stated that the private respondent (no.3) has filed an application before the DCLR in Misc. Case No.15/83-84 for cancellation of Basgit Parcha issued in favour of the writ petitioner. However, the same was dismissed by the LRDC vide order dated 20.02.1984 itself.
4) It is further stated that respondent No.3 in place of filing an application before the Deputy Commissioner for cancellation of order of issuance of Basgit Parcha, has filed another application before the DCLR, Palamu in Misc. Case No.80/06-07 for the self same relief concealing that he had earlier moved before the DCLR in Misc. Case No.15/83-84. The 2nd petition was also dismissed by an order dated 24.09.2007 and then respondent No.2 filed a petition before the Deputy Commissioner, Palamau against the order passed in Misc. Case No.80/06-07.
5) It is stated in the writ petition that in the appeal before the Deputy Commissioner, the fact that an application was earlier filed in the year 1984 and was dismissed by an order dated 20.02.1984 was completely concealed by the private respondent. However, the appeal has been entertained by the Deputy Commissioner and the Parcha has been cancelled and the 4 L.P.A. No. 208 of 2019 consequent Jamabandi which was running in favour of the writ petitioner has also been cancelled.
6) It is contended before the writ court that the Deputy Commissioner does not have any authority to pass an order in appeal as no appeal lies before the Deputy Commissioner, but surprisingly, he has allowed the application filed on behalf of respondent No.3 without even petition having been filed for condonation of delay and the Basgit Parcha has been cancelled. As a consequence thereof, the Jamabandi has also been cancelled.
7) The learned Single Judge has considered almost all the factual aspects of the case as mentioned above, in the impugned judgment as also the judgment cited by the writ petitioner of Patna High Court rendered in Ganga Ram Bhagat and others Vs. Deputy Commissioner, Santhal Parganas, Dumka and another [1977 PLJR 246] holding in paragraph 14 of the said judgment that the Deputy Commissioner has no power to review or revise the orders passed by the Anchal Adhikari acting as a Collector under the said Act and as a consequence thereof, the notice asking the petitioner to vacate the disputed land was quashed. Another judgment of Patna High Court was relied upon as rendered in Latif Mian Vs. State of Bihar [1998(2) PLJR 723) to the extent that the Circle Officer also does not have any power to review his own order under the Act if any Parcha is issued under the said Act as per the provision of Section 18, the order passed under the aforesaid Act is final subject to provision of Section 21.
5 L.P.A. No. 208 of 2019
8) However, the 2nd judgment, which has been cited as above, clarifies the fact that 1977's judgment of Patna High Court appears to be reviewed as Section 21 was inserted or added by the Legislature vide Amendment Act 11 of 1989. Meaning thereby that at the time of passing of the order in 1977, that provision was not available, therefore, the Patna High Court has held that the Deputy Collector does not have any power, but by subsequent amendment, as stated above, such power has been given to the Collector of the District to examine and call for the records and take a decision in accordance with law.
9) It appears that case of the private respondent was that the original petitioner had property in her name and as per the provision of Section 2(h) of the Act, is prerequisite for a person to be declared to be a privileged person under the Act and the condition is that he should not be holding land exceeding 1 Acre. It is submitted that much was said about concealment of respondent No.3 but nothing was said by the writ petitioner regarding suppression of the fact that the original petitioner at the time of grant of Parcha by the Circle Officer was holding land more than 1 acre and, therefore, the Parcha itself was ab initio void.
10) The private respondent has also placed reliance upon a decision of the Patna High Court rendered in Narayan Sah Vs. State of Bihar [2004 (3) PLJR 424] holding that setting aside order of Collector would result in revival of the illegal order. Accordingly, the court restrained itself from exercising the power under Article 226 of the Constitution of India in the given situation. 6 L.P.A. No. 208 of 2019
11) Another judgment was also relied by the private respondent which has been considered in the impugned order itself, i.e., rendered in Rajendra Sah Vs. State of Bihar [2006(2) PLJR 443] reiterating the same principle for refusal of the exercise of power under Article 226 of the Constitution of India.
12) Relying upon the same and the facts and circumstances of the case, the learned Single Judge though has expressed that the order passed by the Deputy Commissioner may be without jurisdiction but still the Court would not be inclined to set aside the impugned order as the same would revive the Parcha issued by the Circle Officer for which the petitioner is not at all entitled as he was admittedly holding property more than 1 acre at the time of issuance of the Parcha. The aforesaid order has been assailed before us.
13) Mr. Kalyan Roy, learned counsel appearing for the writ petitioner-appellant, at the strength of provisions laid down under Section 21 has submitted that though there is a power under Section 21 to call for the records and examine the same regarding its correctness conferred upon the Collector of the District, but ultimately he can only remand the matter to the Collector under the Act for a fresh decision, but in the case in hand, he has himself decided that the issuance of Parcha was incorrect and closed the proceeding without remanding the same.
14) This is not in dispute that Collector of the District has got power on application exercising suo motu power to call for and examine records of any case as per Section 21 of the Privileged Persons Homestead Tenancy Act, 1947 and this is also a fact 7 L.P.A. No. 208 of 2019 that if any illegality is found, he can set aside the order and remand the matter for fresh consideration and this is further a fact that in the present case he has only set aside the order but has not remanded the matter to the Collector under the Act.
15) To that extent the order may be wrong but in our view, since before the learned Single Judge it could not be contested by the writ petitioner by making a statement that the writ petitioner was not having land of more than 1 Acre at the time of issuance of the Parcha, the order of issuance of Parcha itself was void and without jurisdiction as any person who was having a land more than 1 acre, could not have been issued Parcha in any event by the Circle Officer who happened to be the Collector under the Act.
16) Therefore, in our considered view, the stand taken by the learned Single Judge that in the given case, there was no requirement of interference in the order impugned for the aforesaid reason exercising the power under Article 226 of the Constitution of India, the same cannot be faulted with. We do not find any reason for interference in the order passed by the learned Single Judge.
17) In the result, this appeal is dismissed.
(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.) Manoj/vk N.A.F.R.