Jharkhand High Court
Afsar Ali & Others vs The State Of Jharkhand & Others on 12 July, 2022
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Writ Jurisdiction)
W.P. (C) No. 975 of 2020
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Afsar Ali & Others .... ..... Petitioners
Versus
The State of Jharkhand & Others .... ..... Respondents
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO ............
For the Petitioners : Mr. Manoj Prasad, Advocate. For the Respondents/State : Mr. Gaurav Raj, A.C. to Mr. Sachin Kumar, AAG-II.
For the Respondents/CCL : Mr. Vikash Kumar, Advocate.
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06/12.07.2022.
Heard, learned counsel for the petitioners, Mr. Manoj Prasad, learned counsel for the respondents / State, Mr. Gaurav Raj, A.C. to learned AAG-II, Mr. Sachin Kumar and learned counsel for the respondents / CCL, Mr. Vikash Kumar.
The petitioners have filed this writ petition for a direction upon the respondents to release the compensatory amount on account of acquisition of land appertaining to Khata No. 02, Plot No. 22, measuring an area of 16.86 acres located at P.O. - Topa, Kuju Project, Kuju, Ramgarh in the year 1996-97. The respondent - CCL is undertaking mining operation without resettlement of the petitioners under "Resettlement and Rehabilitation Policy" adopted by Corporation under which an employment is provided to the affected family members in lieu of acquisition of 2 acres of land.
Learned counsel for the petitioners, Mr. Manoj Prasad has submitted, that the land of Khata No. 02, Plot No. 22, measuring 16.86 acres was allotted to raiyat i.e. father of the petitioners, which are as follows:-
(i) Jafruddin Mian, who is father of petitioner no. 1 - Afsar Ali.
(ii) Izharuddin, who is father of petitioner no. 2 - Jabaz Alam.
(iii) Mobarak Hussain, who is father of petitioner no. 3- Md.
Mokimuddin.
(iv) Md. Ashraf, who is father of petitioner no. 4 - Naushad Ansari
(v) Abdul Hamid, who is father of petitioner no. 5 - Irshad Alam.
The land was settled by the Ramgarh Raj way back in the year 1944, on the basis of a Hukumnama. Ramgarh Raj used to realize the -2- rent from the predecessors of the petitioners and issued rent receipts, which have been brought on record as Annexure-1 Series to the writ petition.
Learned counsel for the petitioners has further submitted, that the name of the predecessors of the petitioners were maintained by the Ramgarh Raj in the Rent Rolls and after vesting of Zamindari, the ex-landlord filed the return to the State, showing the possession of the petitioners and showing them the proper settlee of their respective land, which have been brought on record as Annexure-2 & 2A to the writ petition.
Learned counsel for the petitioners has further submitted, that after vesting of the Zamindari, the State of Bihar has recognized the petitioners and their predecessors-in-interest as tenant and issued rent receipts since 1950, which have been brought on record as Annexure-3 Series to the writ petition. The rent receipts are of dated 30.01.1959 onwards.
Learned counsel for the petitioners has further submitted, that petitioners are in possession of the land as they were doing agriculture and other activities. The land has been taken by the State and handed over to the CCL, but since the petitioners have not been given the Raiyati Manyata and thus petitioners have filed Raiyati Manyata Case No. 231/1989-90.
Learned counsel for the petitioners has further submitted, that the on the report of the Circle Officer, the Additional District Land Acquisition Officer, Hazaribagh has recommended, the case of the petitioners to be considered them for raiyati Manyata before the Additional Collector, Hazaribagh and the Additional Collector, Hazaribagh has approved the same. The relevant portion is at Page- 30 of the writ petition.
Learned counsel for the petitioners has further submitted, that pursuant to the notice issued under the signature of Project Officer, Kuju Colliery as contained in Letter No. 49 dated 01.08.2019, brought on record as Annexure-5 to the writ petition, the petitioners have applied for grant of compensation and rehabilitation by -3- providing employment and thus the case has been filed before this Court.
The State has filed counter-affidavit dated 06.02.2021, on behalf of respondent nos. 4 & 5, duly sworn by Sri. Rakesh Kumar Srivastava, son of Late K.B. Prasad, the then Circle Officer, Mandu, as he has been authorized to swear on behalf of the answering respondents without disclosing that who has authorized him.
Learned counsel for the petitioners has further submitted, that certain paragraphs i.e. Paragraph nos. 7, 10 & 11 of the counter- affidavit are very important, which may profitably be quoted hereunder:-
7. That the petitioner has claim over 16.86 acres land of Plot No. 22, Khata No. 02, located at P.O. Topa, outpost Kuju, P.S. - Mandu, Hazaribagh, now Ramgarh, on the basis of a Sada Hukumnama said to be released by Manager, Ramgarh Wards of estate, but unregistered document is not admissible as evidence under law.
10. That it is important to say that Halka Karamchari was competent to issue rent up to 31.03.1957. Later on, Anchal Adhikari was empowered to pass order for issue of rent.
11. That so far as the order passed by the Additional Collector, Land and Revenue dated 27.03.1990 (Annexure-4) is concerned, it is not lawful. District Land Acquisition Officer is not a revenue officer and ancestors of petitioners filed petition before D.L.A.O., Hazaribagh for Raiti Manyata and D.L.A.O. Called for report from Anchal Adhikari, Mandu who submitted report and D.L.A.O., Hazaribagh recommended claim of the petitioners and on that basis Additional Collector, Hazaribagh without going into the depth of the matter has merely written that "Perused the report and proposal Circle Officer and Additional D.L.A.O. Therefore, proposal for raiyati approval accepted."
Hence all action and exercise of power of D.L.A.O, Hazaribagh is beyond jurisdiction and allow of Raiyati manyata proposed by Additional Collector, Hazaribagh is also not justified. It is a settled principle of law that any order passed beyond jurisdiction has got no legal validity and such Raiyati Manyata certificate is not considerable."
(Emphasis Supplied) -4- Learned counsel for the petitioners has further submitted, that it can only be possible in the State of Jharkhand, that a Subordinate Officer like the Circle Officer can comment upon wisdom and decision taken by the Superior Officer and thus, the Circle Officer has made a remark with respect to the order passed by the Additional District Land Acquisition Officer, Hazaribagh and the Additional Collector, Hazaribagh are concerned. This shows the functioning of the revenue authority in the State of Jharkhand and reason for pendency of the cases before the High Court and other courts.
Learned counsel for the petitioners has further submitted, that till date, this Court is aware of the Gair Majarua Aam, Gair Majarua Khas or Gair Majarua Malik land, but now another word is coming in the counter-affidavit without any supporting document as stated by the Circle Officer in Paragraph-15 of the counter-affidavit, dated 06.02.2021, which may profitably be quoted hereunder:-
15. That the land of Khata No. 02, Plot No. 22, Area of 46.50 acres land is recorded as Gair Mazurwa Khas land and nature of land is mentioned as Jungle.
Learned counsel for the petitioners has further submitted, that without showing any notification, the Circle Officer got a nightmare and declared the land to be Jungle and thus put the petitioners in such a herculean task because of incompetency of the revenue authority, so that this Court may not pass any order and dismiss the writ petition, directing the petitioners to move before the competent Civil Court.
Learned counsel for the petitioners has further submitted, that there is no consonance in the working of the revenue department viz- a-viz the CCL, till then, the State of Jharkhand has claimed the land to be Gair Majarua Khas land (Jungle) and the CCL by filing counter affidavit dated 18.03.2021 through Sunil Kumar, son of Late Lal Babu, Staff Officer (P&P), Kuju Area, mentioned at para-8 that this land is lease hold land. This Court may consider the submissions of learned counsel for the respondents nos. 1, 4 & 5 viz-a-viz respondent nos. 2 & 3 with respect to the land. The State is claiming this land to be Gair Majarua Khas (Jungle), which is not known to -5- the revenue compendium and CCL is claiming the land to be Lease Hold Land without mentioning the number of the lease granted by the State to whom, as such this Court may take cognizance of the matter.
Learned counsel for the petitioners has further submitted, that it is in the State of Jharkhand, where a vacuous statement is being made, that issuance of rent receipt was not by the competent authority, but till date, the revenue authority has not come up before this Court with affidavit that who are the competent authority for grant of rent receipt or for passing mutation order or for maintenance of the record. But for the first time, in the counter affidavit dated 06.02.2021 filed by the respondent nos. 1, 4 & 5, a document has been brought on record, at least issued by the then Deputy Commissioner, Hazaribagh to all the Circle Officers as contained in Memo No. 382/Revenue, Hazaribagh dated 05.02.1985 as Annexure- A, where a decision has been taken, which is as follows:-
"22-01-85 dks gqbZ ftyk leUo; lfefr dh cSBd esa ;g Li"V fd;k tk pqdk gS fd deZpkjh xSjet:vk ekfyd tehu dh mlh tekcUnh dh jlhn n[ksaxs ftudk fuEufyf[kr vk/kkj ;k vkSfpR; gksA 1- 31-3-57 rd vxj tehUnkjh jlhn ds vk/kkj ij deZpkjh }kjk igyh jlhn dkVh x;h gksA 2- ;fn 1965 rd vapy vf/kdkjh ds vkns'k ls u;h tekcUnh dk;e dh x;h gksA 3- ;fn 1965 ds ckn vuqeaMy inkf/kdkjh ds vkns'k ls tekcUnh dk;e dh x;h gksA 4- ;fn cUnkscLrh vfHkys[k esa fn;s x;s vkns"kkuqlkj ipkZ ds vk/kkj ij tekcUnh dk;e dh x;h gksA 5- ;fn fdlh U;k;ky; ds vkns"k }kjk tekcUnh dk;e djus dk vkns"k fn;k x;k gksA mi;ZqDr vk/kkj ij gh iath 2 esa vkSFkhfjVh Qksj psat ds LrEHk esa vius gLrk{kj ls izfof"V ds mijkUr gh laxzgdRRkkZ jlhn dkVsaxsA vU; ekeys esa tcrd l{ke inkf/kdkjh dk vuqeksnu izkIr ugha gks tkrk gS rcd jlhn Lfkfxr j[kh tk;sxh vkSj laxzgdRRkkZ vko";d tkWp i"pkr bls fu;fer djus ;k foyksfir djus dk izLrko vius vapy vf/kdkjh dks nsxsaA bl vkns'k dk v{kj"k% ikyu vko";d gksxkA bl vkns"k dks mYYka?ku djus okys ds fo:èk foHkkxh; dk;ZokbZ ds vfrfjDr dkuwuh -6- dkjZokbZ dh tk;sxhA tks vHkh deZpkjh bl vkns'k dk mYya?ku djsa muds lsok] foHkkxh; dkjZokbZ ls lekIr djus gsrq dkjZokbZ dh tk;A Learned counsel for the petitioners has thus submitted, that all the mess of the system has been created by the revenue authority, as such, this Court may pass appropriate order in accordance with law.
Learned counsel for the respondents / State, Mr. Gaurav Raj, A.C. to learned AAG-II, Mr. Sachin Kumar has submitted, that this affidavit should not have been filed by the State, but to assist this Court properly in adjudication of the issue, the State may be given an opportunity of filing fresh counter-affidavit by competent authority.
Learned counsel for the respondents / CCL, Mr. Vikash Kumar has submitted, that the detail of lease hold property has not been given, as such to clarify the stand of the CCL, he may be allowed to file affidavit in this regard.
Be that as it may, let an affidavit be filed by the competent authority i.e. General Manager, Land and Revenue, CCL as well as competent authority on behalf of the State separately within a period of two weeks from today.
The Chief Secretary, Government of Jharkhand in consultation with the Additional Chief Secretary, Revenue, Registration and Land Reforms Department, Government of Jharkhand are requested to peruse the counter-affidavit filed by the Circle Officer, Mandu. As per this Court, it is beyond the jurisdiction of the Circle Officer to comment upon his Superior. This is only happening in the State of Jharkhand because of attitude adopted by the respondent authority allowing the Circle Officer to file affidavit. It seems to this Court, that the Circle Officers are more closer to the Deputy Commissioner of the district and thus, such irregularity and illegality are being committed in judicial record.
Under the aforesaid circumstances, this Court directs that if, the Chief Secretary, Government of Jharkhand and the Additional Chief Secretary, Revenue, Registration and Land Reforms Department, Government of Jharkhand, think proper, initiate a departmental enquiry against the Circle Officer for using such word -7- as well as record a remark in the Service Record of Deputy Commissioner for discharging his duty in such lethargic and callous manner authorizing a junior officer to swear affidavit commenting upon his Superiors. Even if, the facts warrants such comment upon a Superior, it should not be done by a Subordinate, rather better course ought to have been that the Deputy Commissioner, being the superior of both authorities, ought to have filed the counter affidavit, so as to maintain discipline in the department, as such the Superior Authority may proceed in accordance with law.
The Chief Secretary, Government of Jharkhand is directed to issue letter that who is the competent authority to file affidavit before this Court.
The affidavit must be filed in detail by the State on all the above issues.
State counsel is directed to produce the entire writ petition before the Chief Secretary, Government of Jharkhand as well as the Additional Chief Secretary, Revenue, Registration and Land Reforms Department, Government of Jharkhand for their kind perusal and necessary action.
Let the photocopy of the counter-affidavit dated 06.02.2021 be sent to the office of Chief Secretary, Government of Jharkhand, the Additional Chief Secretary, Revenue, Registration and Land Reforms Department, Government of Jharkhand and the Deputy Commissioner, Ramgarh through FAX / e-mail for their perusal and and necessary action in accordance with law.
Put up this case on 27.07.2022 under the same heading.
(Kailash Prasad Deo, J.) Sunil/-