Jharkhand High Court
Ashwani Prasad Sah @ Nirgun Prasad Sah ... vs The State Of Jharkhand on 12 December, 2022
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 7144 of 2013
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Ashwani Prasad Sah @ Nirgun Prasad Sah son of Late Biru Sah resident of Dwarichak Pathargama, P.O. and P.S. Pathargama District Godda ... Petitioner Versus
1.The State of Jharkhand
2.The Deputy Commissioner, Godda.
3.The Additional Collector, Godda, P.O. & P.S. Godda, District-Godda.
4.The Deputy Collector Land Reform, Godda, P.O. & P.S. - Godda, District-Godda.
5.The Circle Officer, Pathargama, P.O. & P.S. - Pathargama, District-Godda.
6.(a).Shankuntla Devi W/o late Sargun Sah 6(b).Krishna Murari S/o late Sargun Sah Both residents of village Dwarichak P.O. + P.S.- Pathargama, District Godda
6.(c). Renu Devi, W/O Sri Vijay Prasad (Teacher), D/o late Sargun Sah resident of Mohalla Gorhatta Chowk, P.S. Mojahidpur, P.O. Mirjanhaat, District Bhagalpur (Bihar) 6(d).Rekha Devi , W/o Saligram Sah, D/O late Sargun Sah R/o Menhdipur , P.S. Parwatta, P.. Menhdipur, Distt- Khagaria (Bihar).
6.(e).Mala Devi W/o Sri Prince Kumar, D/O late Sargun Sah, R/o Deepnagar, P.O. + P.S. Joksar, District Bhagalpur (Bihar).
6(f).Ragini Devi, W/O Deepak Sah, D/o late Sargun Sah, R/o village + P.O. -Mirjanhaat, P.S. - Mojahidpur, Distt.
Bhagalpur (Bihar). .... Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner : Mr. Manoj Kumar Sah, Adv Ms. Puja Kumari, Adv For the Res-State : Mr. Rishi Raj Verma, AC to SC III For the Private Res : Mr. Rajesh Kumar, Adv.
Mr. Manindra Kr. Sinha, Adv.
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Order No. 12/Dated: 12 December, 2022 th The instant writ petition, filed under Article 226 of the Constitution of India, for quashing of order dated 2 22.07.2011 passed by respondent no. 5- the Circle Officer, Pathargama, by which, the order of mutation with respect to land in question in favour of private respondent no. 6 has been passed; and for quashing order dated 04.07.2012 passed by respondent no. 4-the Deputy Collector Land Reforms, Godda whereby and whereunder the appeal being Mutation Appeal No. 01 of 2011 preferred against order dated 22.07.2011 has been dismissed; as also for quashing of order dated 17.08.2013 by which the revision being R.M.R. No. 07 of 2012 preferred against the appellate order has been dismissed.
2. The brief facts of the case, as per the pleadings made in the writ petition, read as under:
The Basauri land of Dag No. 15 appertaining to Khata No. 28 of village Dwarichak measuring an area of one Khatta was owned and acquired by Biru Sah, the father of petitioner and respondent no. 6 by virtue of sale deed dated 17.12.1968. The said Biru Sah died sometimes in the year 1995 leaving behind his two sons - the petitioner and respondent no. 6 - who jointly inherited the property in question in equal share.
On 02.05.2011, the respondent no. 6 filed an application before the Circle Officer, Pathargama for mutation of his name, being Mutation Case No. 09 of 2011 with respect to 11 Dhur 15 Dhurki of the land, which was 3 allotted in his share in Panchayti Batwara (family arrangement) which took place between the two brothers on 19.10.1992 during the lifetime of their father, which was allowed vide order dated 22.07.2011, against which the petitioner preferred appeal being Mutation Appeal No. 01 of 2011, which was dismissed vide order 04.07.2012. Thereafter, the petitioner preferred revision being R.M.R. No. 07 of 2012 which was dismissed vide order dated 17.08.2013.
The petitioner being aggrieved with order dated 22.07.2011 passed by respondent no. 5- the Circle Officer, Pathargama, by which, the order of mutation with respect to land in question in favour of private respondent no. 6 has been passed and appellate order dated 04.07.2012 passed by respondent no. 4-the Deputy Collector Land Reforms, Godda in Mutation Appeal No. 01 of 2011 as also against order dated 17.08.2013 by which the revision petition being R.M.R. No. 07 of 2012 preferred against the appellate order have been dismissed, preferred the instant writ petition invoking extraordinary jurisdiction of this Court conferred under Article 226 of the Constitution of India.
3. It is apparent from the material available on record, so far as factual aspect is concerned that the land in question has been apportioned by way of family 4 arrangement by the deceased father of the petitioner in presence of local Panchayat in between the two sons i.e, the petitioner and respondent no. 6 on 19.10.1992 wherein the petitioner and respondent no. 6 were also the signatory and they are in peaceful possession of their share.
The private respondent no. 6, who is one of co- sharers has given application before the respondent no. 5- Circle Officer, Pathargama for entering his name in revenue records i.e., Register-II, which was allowed vide order dated 22.07.2011 by which the name of the respondent no. 6 was directed to be entered in the revenue record. However, the petitioner being aggrieved with the order passed by the Circle Officer, Pathargama preferred appeal as also revision, which were dismissed.
Aggrieved thereof, the petitioner is before this Court for quashing and setting aside the order passed by the revenue authorities mainly on the ground that the revenue authorities has only relied upon the family arrangement, which is nothing but a unregistered document and, therefore, the orders passed by the revenue-authorities are not sustainable in the eyes of law since there is no consideration as to why the name of respondent no. 6 has been entered in the revenue record on the basis of unregistered document i.e. by way of family arrangement. 5
4. While on the other hand, Mr. Rishi Raj Verma, learned AC to SC III, appearing for the respondents-State of Jharkhand has submitted that there is no error in the orders passed by the revenue-authorities since the revenue authorities have taken into consideration the peaceful possession of respondent no. 6 and the petitioner over the land in question which has been shared by the deceased- father in their favour by way of family arrangement.
It has been submitted that at the time of mutation the revenue authorities are only required to see the possession of the party concerned over the land in question and the same having been confirmed, as per the report of the concerned Circle Inspector and only thereafter the order has been passed by the Circle Officer under the relevant Act. Further, the appellate as also the revisional authority having found no error in the decision of the original authority has declined to interfere with the original order passed by the concerned Circle Officer and as such prayer has been made that the orders passed by the revenue authorities may not be interfered with.
5. Mr. Rajesh Kumar, learned counsel being assisted by Mr. Manindra Kr. Sinha, learned counsel for the respondent no. 6 has adopted the argument advanced by learned counsel for the respondents-State, however, in addition thereto submission has been made in defence of 6 the order passed by the revenue authorities that the petitioner and respondent no. 6 are in peaceful possession of the land in question on the basis of record shown in the family arrangements, which has been done by the deceased-father and as such there is no reason to make opposition if the application has been made for mutating the name of respondent no. 6, one of the co-sharer.
It has further been submitted that the writ petitioner is not disputing the aforesaid position rather is in peaceful possession of his share as has been earmarked by way of family arrangement.
It has been submitted that so far the contention raised on behalf of petitioner that the unregistered deed cannot be a basis of mutation, submission has been made that for the purpose of mutation the requirement of law is to see the peaceful possession of the land in question and in the case in hand, as reported by the Circle Inspector to the Circle Officer about the peaceful possession of both the parties i.e., the petitioner and respondent no. 6 and thereafter, order for mutation has been passed, which has been affirmed by the appellate as well as by the revisional authority, as such prayer has been made that orders passed by the revenue authorities may not be interfered with.
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6. This Court has heard learned counsel for the parties and perused the documents available on record particularly the impugned orders passed by the original authority (Circle Officer), appellate authority and the revisional authority, which are under challenge in this writ petition.
However, before proceeding further, it would be apt and proper for this Court to go through the power and scope of writ Court to exercise the power conferred under Article 226 for issuance of writ of certiorari.
Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in Syed Yakoob Vrs. K.S. Radhakrishnan & Ors, [A.I.R. 1964 477 Supreme Court], wherein at paragraph no. 7 their Lordships have been pleased to held as under:-
"7.The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals : these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal Acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising 8 it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point 11 and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised."
In another judgment of Hon'ble Apex Court in the Case of Sawarn Singh & Anr. Vrs. State of Punjab & Ors reported in (1976) 2 SCC 868 their Lordships while discussing the power of writ under Article 226 for issuance of writ of certiorari has been please to hold at paragraph nos.12 and 13 as under:
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"12. Before dealing with the contentions canvassed, it will be useful to notice the general principles indicating the limits of the jurisdiction of the High Court in writ proceedings under Article 226. It is well settled that certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by inferior courts or tribunals. A writ of certiorari can be issued only in the exercise of supervisory jurisdiction which is different from appellate jurisdiction. The Court exercising special jurisdiction under Article 226 is not entitled to act as an appellate court. As was pointed out by this Court in Syed Yakoob case, "this limitation necessarily means that findings of fact reached by the inferior court or tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be."
"13.In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice."
In another judgment rendered by Hon'ble Apex Court in the case of Pepsico India Holding Private Limited Vrs. Krishna Kant Pandey reported in (2015) 4 SCC 270 their Lordships while discussing the scope of Article 226 and 227 of the Constitution of India in the matter of interference with the finding of the tribunal has been pleased to hold by placing reliance upon the judgment rendered in the case of Chandavarkar Sita 10 Ratna Rao Vrs. Ashalata S. Guram reported in (1986) 4 SCC 447 at paragraph 14 has held as under:-
"14.While discussing the power of the High Court under Articles 226 and 227 of the Constitution interfering with the facts recorded by the courts or the tribunal, this Court in Chandavarkar Sita Ratna Rao v. Ashalata S. Guram [(1986) 4 SCC 447] , held as under:
"17. In case of finding of facts, the Court should not interfere in exercise of its jurisdiction under Article 227 of the Constitution. Reference may be made to the observations of this Court in Bathutmal Raichand Oswal v. Laxmibai R. Tarta [(1975) 1 SCC 858 : AIR 1975 SC 1297] where this Court observed that the High Court could not in the guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal. The High Court was not competent to correct errors of facts by examining the evidence and reappreciating. Speaking for the Court, Bhagwati, J. as the learned Chief Justice then was, observed at AIR p. 1301 of the Report as follows:
'7. The special civil application preferred by the appellant was admittedly an application under Article 227 and it is, therefore, material only to consider the scope and ambit of the jurisdiction of the High Court under that article. Did the High Court have jurisdiction in an application under Article 227 to disturb the findings of fact reached by the District Court? It is well settled by the decision of this Court in Waryam Singh v. Amarnath [AIR 1954 SC 215] (AIR p. 217, para 14) that the "power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee [AIR 1951 Cal 193] , to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors".
This statement of law was quoted with approval in the subsequent decision of this Court in Nagendra Nath Bora v. Commr. of Hills Division [AIR 1958 SC 398] and it was 11 pointed out by Sinha, J., as he then was, speaking on behalf of the Court in that case: (AIR p. 413, para 30) "30. ... It is, thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi- judicial nature, are not greater than the power under Article 226 of the Constitution. Under Article 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority." It is evident from the ratio laid down by the Hon'ble Apex court in the judgments as referred hereinabove that the scope of High Court sitting under Article 226 of the Constitution of India in exercise of power of judicial review on the finding of the Tribunal is very limited.
7. Now coming to the fact of the case, issue has been raised by learned counsel for the petitioner that on the basis of unregistered document there cannot be mutation which is the sole ground taken by the petitioner in assailing the order passed by the original authority and aforesaid ground is also not taken into consideration by the appellate as well as revisional authority.
The position of law is well settled that the mutation does not create or extinguish right in favour of any party. It is simply an evidence of possession over the land. It is also settled position of law that besides title, mutation is an evidence of possession and therefore, even if a person has 12 got a title that shall not be deemed to be the evidence of possession unless mutation is done and rent receipts are issued in favour of the one or the other, as has been held by this Court in the judgment rendered in Chotanagpur Engineering Works Ltd. Vs. State of Jharkhand [(2006) 1 JCR 80 (Jhr)] in particular paragraph 6, which reads as under:
"6.It is well settled that besides title, mutation is an evidence of possession and therefore even if a person has got a title that shall not be deemed to be the evidence of possession unless mutation is clone and rent receipts are issued in favour of the owner of the building."
Reference in this regard further be made to the recent judgment rendered by Hon'ble Apex Court in Jitendra Singh Vs. State of Madhya Pradesh & Ors [(2021) SCC OnLine SC 802], wherein the Hon'ble Court has been pleased to hold that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title.
For ready reference, the relevant paragraph 7 of the judgment is quoted as under:
"7. Right from 1997, the law is very clear. In the case of Balwant Singh v. Daulat Singh (D) By Lrs., reported in (1997) 7 SCC 137, this Court had an occasion to consider the effect of mutation and it is observed and held that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive 13 value on title. Such entries are relevant only for the purpose of collecting land revenue. Similar view has been expressed in the series of decisions thereafter."
As has been gathered from the pleadings made in the writ petition and the documents and the arguments advanced on behalf of parties within the four corners of the pleadings that the so-called unregistered deed, the deed of family arrangement executed by the deceased-father has not yet been disputed by the parties. It has also been submitted and is available on record, as would appear from the orders passed by the revenue-authorities that both the parties, i.e., the petitioner and private respondents, are enjoying the peaceful possession over the land in question. The private respondents whose possession has not been disturbed as ever since according to the writ petitioner himself as yet no title suit has been preferred while the said family arrangement was executed on 19.10.1992 meaning thereby right from the year 1992 both the parties are in peaceful possession of the land in question. Since the mutation does not create or extinguish a right or title over the land in question, in that view of the matter if any application has been filed by respondent no. 6 before the Circle Officer for mutating his name by inserting his name in the revenue record which has been allowed by the concerned Circle Officer on being satisfied that the 14 possession over the land in question is of private respondent, the same according to considered view of this Court cannot be said to suffer from error reason being that the possession over the land in question of the private respondent is not in dispute herein and mutation since is to be created on the basis of possession, therefore, if in that pretext an order has been passed by the revenue authority by inserting the name of the private respondent in the revenue record, it will be said to be an act performed by the concerned Circle Officer within his domain.
The aforesaid order has been affirmed by the appellate as also by the revisional authority in exercise of appellate and revisional jurisdiction as conferred under the Act and both the authority has find no error and even the revisional authority has taken into consideration the fact that the unregistered deed of family partition has never been challenged before the competent Court of civil jurisdiction by the petitioner.
8. This Court considering the fact in entirety and taking into consideration the position of law regarding power to be exercised by High Court for issuing writ of certiorari, as has been held by Hon'ble Apex Curt in the judgment referred hereinabove, is of the considered view that the writ petitioner has failed to make out a case by 15 showing any apparent error on the face of orders passed by the revenue authorities.
9. Accordingly, the writ petition stand fails and is dismissed.
(Sujit Narayan Prasad, J.) Alankar/-