Jharkhand High Court
Ashok Kumar Singh Son Of Late Satyadeo ... vs The State Of Jharkhand on 11 July, 2024
Author: Subhash Chand
Bench: Subhash Chand
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.6606 of 2012
Ashok Kumar Singh son of Late Satyadeo Singh resident of village
Shreenagar P.O. Shankardih, P.S. Chandi, District Nalanda, Bihar at
present residing at Mohalla Chaneshwar Ghat, Professor's Colony,
P.S. Biharshariff, P.O. & District Nalanda, Bihar..... ... Petitioner
Versus
1. The State of Jharkhand
2. Commissioner, North Chota Nagpur Division, Hazaribag.
3. Deputy Commissioner, Hazaribagh.
4. Additional Collector, Hazaribagh.
5. Land Reforms Deputy Collector, Hazaribagh.
6. Circle Officer, Sadar, Hazaribagh.
7. Makhola Devi widow of Late Nawal Kishore Singh.
8. Manoj Kumar Singh.
9. Chandrakant Singh.
10. Manish Kumar Singh.
Respondent nos.8 to 10 are sons of Nawal Kishore Singh.
Respondent nos.7 to 10 are residents of Boddom Bazar,
Hazaribagh, P.O., P.S. & District Hazaribagh.
11. Veena Devi.
12. Pusha Devi
13. Mala Devi
14. Nita Devi
15. Poonam Devi
Respondent nos.11 to 15 are daughters of Satyadeo Singh and
are residing at Mohalla Chaneshwar Ghat, Professor's Colony, P.S.
Biharshariff, P.O. & District Nalanda, Bihar.
16. Muneshwari Devi w/o Binod Kumar Singh Chouhan.
17. Binod Kumar Singh Chouhan s/o Late Bansi Singh.
Both r/o Village Pratappur, P.O.-Pathara, P.S. Itkhori, District
Chatra
.. .... .... Respondents
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CORAM : HON'BLE MR. JUSTICE SUBHASH CHAND
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For the Petitioners : Mr. Ajit Kumar, Sr. Advocate For the Respondent-State : Mr. Ashutosh Anand, A.A.G.-III Mr. Sahbaj Akhtar, A.C. to A.A.G.-III For the Respondent No.11 : Mr. Mukesh Kumar Dubey, Advocate For the Respondent No.12 : Mr. Manoj Kumar Choubey, Advocate
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C.A.V on 27.06.2024 Pronounced on 11.07.2024
1. The present writ petition has been directed on behalf of the petitioner Ashok Kumar Singh against The State of Jharkhand and others with the prayer to quash the order dated 25th September, 2003 passed by the Land Reforms Deputy Collector, Sadar, Hazaribagh (the respondent no.5) in Mutation Appeal Case No.18 of 2003, whereby the appeal filed by the respondent nos.7 to 10 against the order passed by the Circle Officer, Sadar, Hazaribagh in Mutation Case No.413 of 2003-04 was allowed. Further the writ of certiorari is also sought to quash the order dated 25th March, 2004 passed by the Additional Collector, Sadar, Hazaribag (the respondent no.4) in Mutation Revision No.06 of 2003, whereby the revision preferred by the petitioner was dismissed against the order dated 25th September, 2003 passed in Mutation Appeal No.18 of 2003. Further the writ of certiorari is also sought to quash the order dated 22nd November, 2011 passed by the Commissioner, North Chota Nagpur Division, Hazaribagh in Mutation Revision No.106 of 2004 by which the revision of the petitioner against the order dated 25th March, 2004 has been rejected. The petitioner has also prayed for issuance of direction to the concerned respondents to cancel the Jamabandi which has been opened in favour of the respondent nos.7 to 10 in respect of the land in question.
2. Learned counsel for the petitioner submits that the land in question [0.63 ¼ acre under Khata No.79 having several plots in the Village-Kadma] was jointly purchased by Satyadeo Singh (now deceased) and Braj Nandan Singh from the funds of Satyadeo Singh which was admitted by the respondent and even the Jamabandi was running in the joint name. Braj Nandan Singh died leaving behind Nawal Kishore Singh. An application was made by Nawal Kishore -2- W.P.(C) No.6606 of 2012 Singh (now deceased) for mutating the aforesaid land in Mutation Case No.218/1992-93 which was allowed vide order dated 2nd November, 1992 and an appeal being Appeal No.36 of 1993 was preferred before the respondent no.4 by which the order of mutation was set aside by an order dated 26th March, 1996. Thereafter a revision was preferred by Nawal Kishore Singh before the respondent no.2 being Mutation Revision No.72 of 1996 which was dismissed by order dated 5th March, 2002. Considering the fact that Khas Mahal Officer has no jurisdiction to mutate under revenue law, the order of mutation could not have been passed. Before the learned revisional court, the issue of Benami transaction was also raised upon which it was held that it can only be decided by the Civil Court and, therefore, the revision was dismissed and it was also held that the parties were at liberty to file civil suit. 2.1 The petitioner Ashok Kumar Singh son of late Satyadeo Singh made an application before the respondent no.6 to mutate his name in the land in question which was allowed vide order dated 10th May, 2003.
2.2 Against the said order dated 10th May, 2003, an appeal being Mutation Appeal No.18 of 2003 was preferred before the Land Reforms Deputy Collector, Hazaribagh (the respondent no.5) which was decided ex parte vide order dated 25th September, 2003 setting aside the order of the Circle Officer, Hazaribag (the respondent no.6) passed in mutation proceeding. Nawal Kishore after his death left his wife and three sons, namely, Manish Kumar Singh, Manoj -3- W.P.(C) No.6606 of 2012 Kumar Singh and Chandrakant Singh. A revision being MRN No.06 of 2003 was preferred before the Additional Collector, Hazaribagh (the respondent no.4) by the petitioner against the order passed by the LRDC, Hazaribagh (the respondent no.5) wherein the revisional court (the respondent no.4) vide order dated 25th March, 2004 has upheld the order passed by the LRDC, Hazaribag stating that the Circle Officer did not have the power to cancel the running jamabandi and further create the jamabandi in the name of the petitioner. Against the said order dated 25th March, 2004 passed by the respondent no.4, the Mutation Revision No.106 of 2004 was also preferred by the petitioner before the Commissioner (the respondent no.2) anrd the same was also dismissed vide order dated 22nd November, 2011.
2.3 It is further submitted that the order passed by the Khas Mahal Officer in mutation proceeding in regard to the revenue records was without any authority and the said order was affirmed by the impugned orders passed by the learned appellate court and divisional court which have been assailed by the petitioner in this writ petition. The appellate court, who passed order in favour of the petitioner was ex parte and the very order was affirmed by the revisional court without taking into consideration that there was gross violation of principles of natural justice as no opportunity to the petitioner was given in that appeal of being heard. The appellate and revisional courts have held in the impugned orders that remedy to the parties was to file the civil suit and that civil suit was also -4- W.P.(C) No.6606 of 2012 filed on behalf of the respondents which was also dismissed in default.
2.4 Moreover, so far as the Benami transactions which are being vehemently contended on behalf of the respondents, the consideration of the same was paid by late Sri Satyadeo Singh, who purchased the land in his name and also in the name of his brother Braj Nandan Singh, the forefather of the respondents herein and in partition suit it was admitted on behalf of the Braj Nandan Singh that the land in question was exclusive of Satyadeo Singh, as such, the land in question is also not hit by the provisions of Benami Transactions act. In view of above contended to allow the present writ petition and set aside the impugned order.
3. Per contra, learned counsel for the respondent submitted that admittedly the land in question was in joint name of Late Sri Satyadeo Singh and Braj Nandan Singh, the forefather of parties to the writ petition and the Khas Mahal Officer has mutated the name of both the legal heirs of Late Sri Braj Nandan Singh and Satyadeo Singh. So far as the plea raised by the learned counsel for the petitioner that sale deeds were Benami transaction, the issue in regard to the same could have been decided by the Civil Court in a title suit. The decision of title and possession in regard to the land in question of which basis is Benani purchase cannot be decided in the writ petition. The petitioner is claiming the title over the share of land of the respondent as well for the same he could not be permitted in this writ petition. In view of contended to dismiss the -5- W.P.(C) No.6606 of 2012 present writ petition.
4. In order to decide the legality and propriety of the impugned orders which have been assailed in this writ petition, it would be pertinent to go into the back drop of the matter in dispute between the parties following which the impugned order passed by the appellate and revisional court which are being assailed in this writ petition.
5. It is the admitted fact to both the parties that in Mutation Case No.218 of 1992-93, the order was passed on 2nd November, 1992 by the Khas Mahal Officer in regard to the land of Khata No.79 comprising therein various plots total area 1.44 ½ acre situated in village Kadma. This mutation order was passed in favour of forefather of the respondents.
5.1. Aggrieved from the order dated 2nd November, 1992 passed by Khas Mahal Officer Mutation Appeal No.36 of 1993 was preferred before Additional Collector, Hazarribagh (the respondent no.4) by Satyadeo Singh against Manoj Kumar Singh and others. The said mutation appeal was decided by the respondent no.4 vide order dated 26th March, 1996 in which the order of mutation passed by the Khas Mahal Officer in favour of the legal heirs of Nawal Kishore Singh, despite his being alive was mutated, the same was set aside. This order is Annexure No.5 of the supplementary affidavit filed on behalf of the petitioner dated 19th March, 2024. From perusal of this order, it is found that the learned appellate court also observed that -6- W.P.(C) No.6606 of 2012 the mutation order passed by the Khas Mahal Officer was without any jurisdiction and in the Partition Suit No.102 of 1981, the defendant Manoj Kumar Singh has admitted that the land in question which was purchased by the plaintiff Satyadeo Singh by way of Benami transaction in the sale, the Braj Nandan or his legal heirs have no right or interest. In arbitration, it was also held that whole of the land in question was handed over to Satyadeo Singh. Accordingly, in view of above, the jamabandi in the name of legal heirs of Braj Nandan Singh was cancelled.
5.2. Against the order dated 26th March, 1996 passed by the learned Additional Collector, Hazaribag in Mutation Appeal No.36 of 1993, the Mutation Revision No.72 of 1996 was preferred before Commissioner, North Chota Nagpur Division, Hazaribag (the respondent no.2) Manoj Kumar Singh vs. Satyadeo Singh, this revision was dismissed vide order dated 5th March, 2002 and the order passed by the learned Additional Collector, Hazaribag in Mutation Appeal No.36 of 1993 dated 26th March, 1996 was upheld. The copy of this judgment is Annexure No.1 of this writ petition. It was also held by the revisional Court that the order passed by the Khas Mahal Officer was bearing inherent illegality and the same was rightly set aside by the appellate court. So far as the Benami transaction entered into before the enactment of the new provisions of the Benami Transactions (Prohibition) Act, 1988 is concerned, the same issue can be decided by the Civil Court alone. It was also held since the issue was to be decided by the Civil Court, so the -7- W.P.(C) No.6606 of 2012 revisional court did not remand the case to the Circle Officer and held that the parties if willing may file the civil suit. As such, the order passed by the Additional Collector, Hazaribag was upheld.
6. It is also found from the material on record that Nawal Kishore Singh filed a Title Suit No.40 of 2002 against Satyadeo Singh and after death of Satyadeo Sigh his legal heir, Ashok Kumar Singh was also substituted. The said suit was dismissed for not taking steps for service of notice to the defendants on 23rd April, 2004. The order-sheet of Title Suit No.40 of 2002 which was instituted in the Court of Munsif, Hazaribagh (Nawal Kishore Singh vs. Satyadeo Singh), it is found that this suit was dismissed for default and this order is Annexure No.3 of the writ petition. Admittedly, the plaintiff of this Title Suit never made any effort for restoration of this suit and this is also admitted to both the parties that no title suit is pending now.
7. In the meantime, Ashok Kumar Singh son of Satyadeo Singh had moved an application being Mutation Case No.413 of 2003-04 before the Circle Officer, Hazaribag for mutating his name in the land in question and this mutation was allowed vide order dated 10th May, 2003. This mutation order is Annexure SA-1 of the supplementary affidavit dated 28th November, 2023 filed on behalf of the petitioner. From this very order, it is found that proper publication and proclamation was made as per revenue rules for service to the opposite parties and taking into consideration all the -8- W.P.(C) No.6606 of 2012 orders which were earlier passed in Mutation Appeal No.36 of 1993 and Mutation Revision No.72 of 1996, the learned Circle Officer ordered to cancel the name of Manish Kumar Singh son of Nawal Kishore Singh from jamabandi and the name of Ashok Kumar Singh son of Satyadeo Singh was ordered to be mutated in regard to the land in question in jamabandi.
8. Aggrieved from the order passed by the Circle Officer, Hazaribag dated 10th May, 2003, Mutation Appeal No.18 of 2003 was filed by Manoj Kumar Singh and Ors. vs. Ashok Kumar Singh in the court of Land Reforms Deputy Collector, Hazaribag. This appeal was allowed and the order dated 10th May, 2003 passed by the Circle Officer, Hazaribag in Mutation Case No.413 of 2003-04 was set aside vide order dated 25th September, 2003. This order is Annexure No.2 of this writ petition. Aggrieved from the order dated 25th September, 2003, the Mutation Revision No.06 of 2003 was preferred (Ashok Kumar Singh and Others vs. Nawal Kishore Singh and Ors.). This mutation revision was also dismissed by the revisional court (the respondent no.4) vide order dated 25th March, 2004 which is Annexure No.4 of this writ petition. The Second Revision No.106 of 2004 was also preferred before the Commissioner, North Chota Nagpur Division, Hazaribag (the respondent no.2) against the order dated 25th March, 2004 by Ashok Kumar Singh and the same was also dismissed on the ground that the second revision was not maintainable and the order passed by the revisional court of Additional Collector, Hazaribag (the -9- W.P.(C) No.6606 of 2012 respondent no.4) in Mutation Case No.06 of 2003 was affirmed.
9. During pendency of this writ petition, an intervention application was also moved on behalf of the respondent nos.16 and 17 in this writ petition who had purchased the part of the land in question and on their intervention application they were also impleaded as respondent nos.16 and 17 in this writ petition in compliance of the order dated 17th April, 2018.
10. From perusal of very impugned order passed by the learned appellate and the revisional court, whereby the order passed in Mutation Case No.418 of 2003-04 passed by the Circle Officer, Hazaribag has been set aside, it is evident that initially learned appellate court while passing the order dated 25th September, 2003 in Mutation Appeal No.18 of 2003 allowed the same as ex parte. There is no order passed by the learned appellate court in regard to the deemed service of notice to the respondents and held that since hotly disputed question of title being involved between the parties, the same can be decided by the Civil Court and same is pending, therefore, the order passed by the Circle Officer, Hazaribag was set aside. The Jamabandi running in the name of the respondent Manoj Kumar Singh and Ors. was upheld. It is the settled law that the Khas Mahal Officer was not authorized to pass any order of mutation and the same is passed in case in hand is illegal being without jurisdiction and that illegality cannot be allowed to continue as the order passed by the Khas Mahal Officer was restored by the appellate and revisional court by passing the impugned orders.
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W.P.(C) No.6606 of 2012
11. So far as the legality and propriety of the impugned order by which the Circle Officer, Hazaribag had cancelled the order passed by the Khas Mahal Officer and ordered to mutate the name of the petitioner in Jamabandi of the land in question, it is found that the learned Circle Officer, Hazaribag has taken into consideration all the orders passed in the previous litigation in which up to the revisional court the order passed by the Khas Mahal Officer in regard to the mutating the name of the respondents in Jamabandi of land in question was quashed.
12. It is the settled law that serious disputed questions of fact in regard to the right, title and interest in regard to any property cannot be decided either in the mutation proceeding or in the writ petition. In the writ petition under Article 227 of the Constitution of India, the Writ Court, who has supervisory jurisdiction upon the sub-ordinate Courts of the State has to see the legality and propriety of the impugned orders passed by the court below. The jurisdiction of the Writ Court under Article 227 of the Constitution of the India is very much akin to the revisional jurisdiction, wherein only law point can be looked into and the Writ Court cannot sit as an appellate Court and finding of fact cannot be inferred with unless and until the same is perverse.
12.1. The Hon'ble Apex Court in the case of M/S Garment Craft Versus Prakash Chand Goel reported in 2022 Livelaw SC 39 at
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W.P.(C) No.6606 of 2012paragraph 18 has held as under :-
"18. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported.............................................."
12.2. The Hon'ble Apex Court in the case of Vadivelu v. Sundaram reported in (2000) 8 SCC 355 has held that the revisional powers of High Court under Article 227 of the Constitution of India can be exercised and trial court's order can be set aside where there has been error of jurisdiction or flagrant violation of law as laid down by the Hon'ble Apex Court. The paragraph 26 of the said judgment reads as under :-
"26. ................. The counsel for the appellant contended that the powers of the revisional court are not as wide as the powers of the appellate court and, therefore, the learned Single Judge should not have set aside the order passed by the Election Tribunal. We do not find any force in this contention. When there is error of jurisdiction or flagrant violation of the law laid down by this Court, by exercising the revisional powers, the court can set aside the order passed by the Tribunal to do justice between the parties. The illegality committed by the Election Tribunal has been corrected by the revisional order........................"
13. From perusal of the impugned orders, it is found that the learned appellate court and the revisional court by passing the impugned orders have held that the title suit was pending between the parties, therefore, the order passed by the learned Circle Officer, Hazaribag in Mutation Case No.418 of 2003-2004 was illegal and restored the order of Jamabandi in favour of the respondents, the legal heirs of Braj Nandan which was mutated by Khas Mahal officer in Jamabandi. The mutation order which was illegal without jurisdiction passed by the Khas Mahal Officer, the same was sanctified by the
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W.P.(C) No.6606 of 2012appellate and revisional court which are being assailed in this writ petition; while the same cannot be sanctified. 13.1. The Hon'ble Apex Court in the case of State of Orissa and Ors. vs. Mamta Mohanty reported in (2011) 3 SCC 436 at paragraph 37 has held as under :
"37. It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin."
14. So far as the disputed question of title is concerned in regard to the land in suit so as to Benami transaction certainly same can be decided by the Civil Court and the Title Suit No.40 of 2002 was also dismissed in default on 24th March, 2006. Admittedly, no civil suit is pending between the parties, therefore, the order dated 10th May, 2003 passed by the Circle Officer, Hazaribag in Mutation Case o.418 of 2003-04 by which the order passed by the Khas Mahal Officer in regard to Jamabandi of land of Khata No.79 was cancelled and the name of Ashok Kumar Singh was mutated, the same bears no illegality reason being in the earlier proceeding of mutation in which the order passed by the Khas Mahal Officer was challenged up to the revisional court and it was held that in Partition Suit No.902 of 1981, the legal heirs of Late Sri Braj Nandan Singh had admitted that the land in question was released in family arrangement in favour of Stayadeo Singh much prior to
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W.P.(C) No.6606 of 2012institution of partition suit in the year 1981, as such, prima facie the mutation order passed by the learned Circle Officer, who relied the order passed by the learned appellate and revisional court in Mutation Appeal No.36 of 1993 and Mutation Revision No.72 of 1996 is found legal because the Section 4 of the Benami Transactions (Prohibition) Act, 1988 is not retrospective and the same is not applicable to the pending suits prior to enforcement of the Act, 1988.
14.1. The Hon'ble Apex Court in the case of Amittri Devi and another vs Sampuran Singh and another reported in AIR 2011 SC 773 has held that Section 4(1) of Benami Transactions (Prohibition) Act No.45 of 1988 are not retrospective, so not applicable to the pending suits prior to the enforcement of the Act. The paragraph 16 of the said judgment reads as under :
"16.The High Court has clearly erred in ignoring the binding judgment of a Bench of three Judges of this Court in R. Rajagopal Reddy (supra). By this decision, this Court had reversed its earlier judgment in Mithilesh Kumari (supra) and had held in terms that suits filed prior to the application of the Act would not be hit by the prohibition under Section 4 of that Act. Section 4(1) of the Benami Transactions (Prohibition) Act, 1988 reads as follows:
"Prohibition of the right to recover property held benami. - (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property."
While reversing the earlier decision of this Court in Mithilesh Kumari (supra), a Bench of three Judges observed in para 11 of R. Rajagopal Reddy (supra) as follows :-
"Before we deal with these six considerations which weighed with the Division Bench for taking the view that Section 4 will apply retrospectively in the sense that it will get telescoped into all pending proceedings, howsoever earlier they might have been filed, if they were pending at different stages in the hierarchy of the proceedings even up to this Court, when Section 4 came into operation, it would be apposite to recapitulate the salient feature of the Act. As seen earlier, the preamble of the Act itself states that it is an Act to prohibit benami transactions and the right to recover property held benami, for matters connected therewith or incidental thereto. Thus it was enacted to efface the then existing right of the real owners of properties held by others benami. Such an Act was not given any retrospective effect by the legislature. Even when we come to Section 4, it is easy to visualise that sub-section (1) of Section 4 states that no suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other shall
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lie by or on behalf of a person claiming to be the real owner of such property. As per Section 4(1) no such suit shall thenceforth lie to recover the possession of the property held benami by the defendant. Plaintiff's right to that effect is sought to be taken away and any suit to enforce such a right after coming into operation of Section 4(1) that is 19-5-1988, shall not lie. The legislature in its wisdom has nowhere provided in Section 4(1) that no such suit, claim or action pending on the date when Section 4 came into force shall not be proceeded with and shall stand abated. On the contrary, clear legislative intention is seen from the words "no such claim, suit or action shall lie", meaning thereby no such suit, claim or action shall be permitted to be filed or entertained or admitted to the portals of any court for seeking such a relief after coming into force of Section 4(1)." (Emphasis supplied)."
15. In view of the discussions made hereinabove, the order passed by the learned Circle Officer, Hazaribag in Mutation Case No.418 of 2003-04 dated 10th May, 2003 bears no infirmity and the order passed by the learned appellate court dated 25th September, 2003 passed by the Land Reforms Deputy Collector, Sadar, Hazaribagh in Mutation Appeal Case No.18 of 2003, the order dated 25th March, 2004 passed by the Additional Collector, Sadar, Hazaribag in Mutation Revision No.06 of 2003 and the order dated 22nd November, 2011 passed by the Commissioner, North Chota Nagpur Division, Hazaribagh in Mutation Revision No.106 of 2004 need interference and this writ petition deserves to be allowed.
16. Accordingly, the aforesaid impugned orders are, hereby, set aside and this writ petition is allowed.
17. Pending interlocutory application(s), if any, stand disposed of.
(Subhash Chand, J.) Rohit/AFR
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