Jharkhand High Court
Balbhadra Sahu vs The State Of Jharkhand Through The ... on 29 August, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.140 of 2024
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1. Balbhadra Sahu, aged about 91 years, S/o Late Rungtu Sahu,
R/o Village Nawagarh, P.O. Raidih, P.S. Raidih, Distt. Gumla
(Jharkhand).
2. Sahodar Sahu, aged about 86 years, S/o Late Rungtu Sahu, R/o
Village Nawagarh, P.O. Raidih, P.S. Raidih, Distt. Gumla
(Jharkhand)
3. Santosh Sahu, aged about 35 years, S/o Late Loknath Sahu
4. Satish Sahu, aged about 32 years, S/o Late Loknath Sahu, Both
R/o Village Nawagarh, P.O. Raidih, P.S. Raidih, Distt. Gumla
(Jharkhand)
5. Birendra Sahu, aged about 41 years, S/o Late Udaypal Sahu
6. Vivek Sahu, aged about 30 years, S/o Late Udaypal Sahu
Both R/o Q.No.17A, Vikas Colony, P.O.+P.S. Raidih, Distt. Gumla
(Jharkhand) .... .... Appellants/Respondents
Versus
1. The State of Jharkhand through the Deputy Commissioner,
Gumla, R/o-P.O. & P.S. & Distt.-Gumla, Jharkhand.
2. The Circle Officer, Raidih, at Raidih, P.O.-Nawagarh, P.S.-Raidih,
Dist.-Gumla, Jharkhand.
.... .... Respondents/Respondents
3. Ramchandra Sahu, S/o Late Fanindra Sahu.
4. Rajkishore Sahu, S/o Late Fanindra Sahu
5. Radheshyam Sahu, S/o Late Fanindra Sahu.
All residents of village-Nawagarh, P.O.-Raidih, P.S.-Raidih, Dist.-
Gumla, Jharkhand
.... .... Respondents/Petitioners
CORAM : HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Appellants : Mr. L.C.N. Shahdeo, Advocate
Mr. Yash Raj Gupta, Advocate
For the State : Mr. Manish Mishra, GP-V
Mrs. Varsha Ramsisaria, AC to GP-V
For the Pvt. Resp. : Mr. Rahul Kr. Gupta, Advocate
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06/Dated: 29.08.2024
Per Sujit Narayan Prasad, J.
I.A. No.7895/2024
1. This interlocutory application has been preferred under Section 5 of the Limitation Act for condoning the delay of 13 days in preferring 1 this Letters Patent Appeal.
2. Heard.
3. In view of the submissions made on behalf of the parties and the averments made in the interlocutory application, we are of the view that the appellants were prevented by sufficient cause in preferring the appeal within the period of limitation.
4. Accordingly, I.A.No.7895 of 2024 is allowed and delay of 13 days in preferring the appeal is condoned.
L.P.A. No.140 of 2024 Prayer
5. The instant appeal under Clause-10 of Letters Patent is directed against the order/judgment dated 15.02.2024 passed by the learned Single Judge of this Court in W.P.(C) No.4786 of 2017, whereby and whereunder, while allowing the writ petition, the order passed by the Deputy Commissioner, Gumla in Revenue Revision No.38 of 2014-15 dated 12.06.2017, has been quashed and set aside. Factual Matrix
6. The brief facts of the case, as per the pleading made in the writ petition, required to be enumerated, which reads as under:-
7. It is the case of the writ petitioners/respondents herein that the grandfather of the writ petitioners namely Bhola Sahu got the land settled, from the ex-landlord by a registered deed of Kabuliayat, which was subsequently settled by Hukumnama. Hence, Bhola Sahu and thereafter, his sons and grandsons are having absolute right, title and possession of the land bearing R.S Plot No. 1720, Khata no. 41 of village- Nawagarh, area 2.18 Acres.
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8. It is the further case of the writ petitioner that on vesting of the Zamindari, the Zamindar submitted return and the revenue authority recognized the right, title and possession of Bhola Sahu and created Jamabandi in his name and opened Register II.
9. Accordingly, on payment of revenue, government issued revenue rent receipt in the name of the Bhola Sahu alone. In the year 1980, the government acquired some portion of the land from Bhola Sahu for construction of road and Bhola Sahu was paid compensation of Rs. 4336/- in Land Acquisition Case no. 29 of 1957-58.
10. In the year, 1981, there was a survey operation, in which , the brothers of Bhola Sahu namely Rungtu Sahu and Deonath Sahu who were the father of the respondents (appellants herein), fraudulently, influenced the survey authority and inserted their names by showing the forged panchyati deed of the partition, against which Fanindra Sahu made objection. The Assistant Settlement Officer, registered survey objection case no. 31 of 1981 and after inquiry passed order dated 02.12.1981 for deleting the name of Rungtu Sahu and Deonath Sahu from the revenue records which has not been challenged and thus, the same has reached finality.
11. As in the year 2014, the respondent no. 3 to 8 were trying to enter upon the land, by showing the joint revenue rent receipt in the name of Bhola Sahu and others, the petitioners enquired the matter and found that the Circle Officer, Raidih has passed the order dated 31.10.2013 in Mutation Case no. 42R27/2013-14 without giving opportunity to be heard to the original Jamabandi holders, i.e. the petitioners and also without following the provision of law of mutation. It 3 is asserted by the petitioners that the respondent no. 2 has only jurisdiction to mutate the name on the basis of the succession, partition, and transfer.
12. Thereafter, the respondent no. 3 to 8, applied for mutation on the ground of succession, by showing forged deed of partition, claiming themselves to be the successor of the Jamabandi Raiyat. The Circle Officer, Raidih being the respondent no. 2 passed the order that respondent nos. 3 to 8, are the heirs of the Jamabandi Raiyats and on that basis, mutation was allowed.
13. It is submitted that though the respondent nos. 3 to 8 are not the direct descendants of of Bhola Sahu rather the petitioners are the only direct descendants and thus heirs of Bhola Sahu. Accordingly, the petitioner filed the Mutation Appeal No. 04 of 2014 and the D.C.L.R. /SDM, Gumla.
14. After going through enquiry of the record and after hearing the parties, the D.C.L.R. /SDM, Gumla set aside the mutation order of the Circle Officer vide his order dated 09.10.2014 in Mutation Appeal No. 04 of 2014.
15. The respondent nos. 3 to 8 filed a revision before the Deputy Commissioner, Gumla and though the complicated question of succession and partition, cannot be decided in mutation proceeding and as such, revisional authority, has no jurisdiction to enter into the merits of the claims of the parties, once it was clearly demonstrated before it that no notice was served upon the petitioners, by the Circle Officer and the same itself was sufficient to dismiss the revision, but the Deputy Commissioner, having illegally set aside the said order passed 4 by the D.C.L.R. /SDM, Gumla.
16. It is evident from the factual aspect that the appellants/respondents had filed an application under Section 14 of the Bihar Tenant's Holdings (Maintenance of Records) Act, 1973 (hereinafter referred to as the 'Act, 1973') for creation of mutation and issuance of rent receipt being Mutation Case No.42R27/2013-14. The same was allowed, however, without issuing notice to the writ petitioners. The writ petitioners had preferred an appeal under Section 15 of the Act, 1973. The appellate authority, the Deputy Collector Land Reform has quashed and set aside the said order by taking into consideration primarily the fact that in the record of rights, the adjudication has already been made under Section 83 of the Chhotanagpur Tenancy Act, 1908 (hereinafter referred to as the ' CNT Act, 1908').
17. The appellants/respondents, being aggrieved with the said order, have preferred revision before the Revisional Authority by taking recourse of Section 16 of the Act, 1973. The Deputy Commissioner, Gumla has quashed and set aside the said order passed by the appellate authority.
18. The respondents/writ petitioners, being aggrieved with the order passed by the Deputy Commissioner in Revenue Revision No.38 of 2014-15, has preferred writ petition being W.P.(C) No.4786 of 2017 by taking the ground that the revisional authority, has no jurisdiction to enter into the merits of the claims of the parties, once it was clearly demonstrated before it that no notice was served upon the petitioners, by the Circle Officer and the same itself was sufficient to dismiss the 5 revision, but the Deputy Commissioner, had set aside the said order passed by the D.C.L.R./SDM, Gumla.
19. The learned Single Judge has taken into consideration the aforesaid fact and has come to the conclusion that the matter is of serious dispute of title and as such, while allowing the writ petition, the order passed by the Deputy Commissioner, Gumla has been set aside with a liberty to the respondent nos.3 to 8 so advised, they may file the Title Suit for establishing their title.
20. The appellants-respondents, being aggrieved with the order passed by the learned Single Judge, have preferred the present appeal.
Arguments of the appellants
21. Mr. L.C.N. Shahdeo, learned counsel appearing for the appellants-respondents has taken the following grounds in assailing the impugned judgment:-
(i) It has been submitted that the Deputy Commissioner, Gumla, while considering the issue has taken into consideration the order passed by the appellate authority, wherein, the ground has been taken that the order passed by the Circle Officer, which has been quashed and set aside mainly on the ground that no notice was issued to the writ petitioners and as such, while quashing the said order, the matter ought to have been remitted before the authority by providing adequate opportunity of hearing.
(ii) It has been submitted that the order of appellate authority has been challenged before the Deputy Commissioner. The Deputy Commissioner has appreciated the aforesaid fact and the order passed 6 by the Deputy Collector Land Reform, has been quashed and set aside on the ground that if the notice was not issued to the writ petitioners, the matter ought to have been remitted before the Circle Officer.
(iii) The aforesaid order cannot be said to suffer from an error, reason being that, if the notice has not been issued by any of the party before any forum, the requirement is to remit the matter for hearing afresh after providing an opportunity of hearing to the respective parties, but it should not have been dealt with on merit without providing opportunity of hearing to either of the parties.
The Deputy Commissioner, after taking into consideration the aforesaid fact has quashed the order passed by the appellate authority but, the aforesaid fact has not been taken into consideration by the learned Single Judge, therefore, the order/judgment passed by the learned Single Judge suffers from an error and hence, not sustainable in the eye of law.
Arguments of the State-Respondent
22. While on the other hand, Mrs. Varsha Ramsisaria, learned AC to GP-V appearing for the respondent-State has defended the impugned order/judgment mainly on the ground that the order has been passed by the statutory authority under Section 83 of the CNT Act, 1908. Further, it has been submitted that the order under Section 83 of the Act, 1908 has never been challenged before the higher forum, as such, the Deputy Commissioner, Gumla, ought to have taken into consideration which has been considered by the appellate authority in right perspective on the principle that if there is no scope of disputing the fact, then, where is the question of remitting the matter for fresh 7 hearing.
23. Learned State Counsel, based upon the aforesaid argument, has submitted that the order passed by the learned Single Judge, therefore, suffers from no error.
Arguments of the Pvt. Respondents
24. Mr. Rahul Kumar Gupta, learned counsel for the Pvt. Respondents/writ petitioners has submitted that admittedly no notice was issued by the Circle Officer at the time when the application was filed under Section 14 of the Act, 1973. When the matter was challenged before the appellate authority, the appellate authority after consideration of the fact that the order has been passed under Section 83 of the Act, 1908 which attained its finality, hence, the appellate authority has quashed and set aside the same. However, the matter was not remitted before the Circle Officer and while doing so, it cannot be said that the appellate authority has committed any error, in view of the fact that the order which has been passed under Section 83 of the Act, 1908, is not in dispute.
25. The appellants/respondents have challenged the order passed by the appellate authority before the revisional authority but the aforesaid vital aspect of the matter of the order having been passed under Section 83 of the Act, 1908, has not been taken into consideration, even though, the said fact is not in dispute.
26. The Deputy Commissioner, without considering the said fact, has quashed and set aside the order passed by the appellate authority.
27. The learned Single Judge has appreciated the same and has taken into consideration the order passed under Section 83 of the Act, 8 1908 which has attained its finality and the same has not been taken into consideration in right perspective by the Deputy Commissioner, which led the learned Single Judge to interfere with the order passed by the Deputy Commissioner by quashing and setting it aside by allowing the writ petition, however, reserving liberty to the respondent nos.3 to 8, appellants herein, to file the title suit for establishing their title.
28. Learned counsel, on the basis of the aforesaid pretext, has submitted that the order passed by the learned Single Judge cannot be said to suffer from an error.
Analysis
29. We have heard the learned counsel for the parties and gone across the finding recorded by the learned Single Judge in the impugned order.
30. The fact which is not in dispute in this case is that the title of dispute appears to be over the land in question. The appellants/respondents have made an application under Section 14 of the Act, 1973. The said provision stipulates that if any application is being filed before the Circle Officer or the authority having been conferred with the competence to decide the issue under Section 14 of the Bihar Tenant's Holdings (Maintenance of Records) Act, 1973, the objection is to be made, for ready reference, Section 14 of the Act, 1973 is being referred as under:-
"14. Requisition and disposal of mutation case.-(1) On receipt of notice under Sections 4, 5, 6, 7, 8, 9 and 10 or an application under Sections 11 and 12 or a report under Section 13, the Anchal Adhikari shall start a 9 mutation proceeding and after entering it in the mutation case register which shall be maintained in the prescribed form shall cause such enquiry to be made as may be deemed necessary.
(2) The Anchal Adhikari shall issue a general notice and also give notice to the parties concerned to file objection, if any, within fifteen days of the issue of the notice. On receipt of objection, if any, the Anchal Adhikari shall give reasonable opportunity to the parties concerned to adduce evidence, if any, and of being heard and dispose of the objection and pass such orders as may be deemed necessary.
(3) In cases in which no objections are received the Anchal Adhikari shall dispose them of within one month of the date of expiry of filing objection and in cases in which objections are received, the Anchal Adhikari shall dispose them of in not more than three months from the date of expiry of the period of filing objections."
31. Herein, it is the admitted fact is that while entertaining the application filed under Section 14 of the Act, 1973, no objection was invited from the respondents/writ petitioners. The competent authority has passed order in favour of the appellants. The same has been challenged by the private respondents/writ petitioners before the appellate authority by taking recourse of Section 15 of the Act, 1973.
32. The plea was taken of providing no opportunity and the further plea that the order having been passed under Section 83 of the CNT Act, 1908, has not been challenged before the higher forum. The appellate authority, on consideration of the aforesaid aspect, has quashed and set aside the order passed by the Circle Officer.
33. The said order has been carried to revision, in view of the 10 provision of Section 16 of the Act, 1973 and the plea was taken that if the notice was not issued then the proper recourse available to the appellate authority was to remit the matter before the original authority for consideration of the issue afresh.
34. However, the same was objected by taking the plea that there is already an entry made in view of the provision of Section 83 of the CNT Act, 1908. But, the Deputy Commissioner has not considered the issue of the order having been passed under Section 83 of the Act, 1908 and on consideration of the fact that the appellate authority ought to have remitted the matter before the Circle Officer, has quashed and set aside the order passed by the appellate authority.
35. The same has been considered by the learned Single Judge and by appreciating the fact about the order passed under Section 83 of the CNT Act, 1908, wherein, the order was passed on 02.12.1991 in Survey Objection Case No.31 of 1981.
36. The learned Single Judge has quashed and set aside the order passed by the Deputy Commissioner on the pretext that when there is already adjudication of the entry to be made in the record of right in view of the provision of Section 83 of the Act, 1908 by the competent authority then where is the question of fresh consideration under the Act, 1973 by the Circle Officer or the other authority who has been conferred with its competency, which is the subject matter of the present appeal.
37. The ground has been taken on behalf of the learned counsel for the writ petitioners/respondents herein that notice since was not issued which was taken as a ground by the appellate authority in quashing and 11 setting aside the order passed by the Circle Officer but the appellate authority ought to have remitted the matter before the Circle Officer and the aforesaid aspect of the matter has been taken into consideration by the Deputy Commissioner.
38. The aforesaid ground appears to be well founded but the same requires its consideration on the basis of the factual aspect which governs the present case as also by taking into consideration the principle whether in each and every case the natural justice is required to be followed, even though, the same amounts to empty formality or futile exercise.
39. The law is well settled in this regard that the principle of natural justice cannot be exercised, which is having no straight jacket formula but it is to be followed depending upon the facts of the individual case.
40. The principle is that if the factual aspect is not in dispute and when there is no chance of change in the outcome then for what purpose the principle of natural justice is to be observed.
41. The aforesaid issue has been taken into consideration by the Hon'ble Apex Court in the case of Escorts Farms Ltd. Vs. Commissioner, Kumaon Division, Nainital, U.P. & others, (2004) 4 SCC 281, wherein at paragraph no.64 it has been held which reads as under:
"64. Right of hearing to a necessary party is a valuable right. Denial of such right is serious breach of statutory procedure prescribed and violation of rules of natural justice. In these appeals preferred by the holder of lands and some other transferees, we have found that the terms of government grant did not permit transfers of land without permission of the State as grantor. Remand of cases of a group of transferees who were not heard, would, therefore, be of no legal 12 consequence, more so, when on this legal question all affected parties have got full opportunity of hearing before the High Court and in this appeal before this Court. Rules of natural justice are to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. In view of the legal position explained by us above, we therefore, refrain from remanding these cases in exercise of our discretionary powers under Article 136 of the Constitution of India."
42. In Dharampal Satyapal Ltd. Vs. Deputy Commissioner of Central Excise, Gauhati and Ors., (2015) 8 SCC 519, their Lordships have held at paragraph-39 which is being reproduced as under:
"39. We are not concerned with these aspects in the present case as the issue relates to giving of notice before taking action. While emphasizing that the principles of natural justice cannot be applied in straitjacket formula, the aforesaid instances are given. We have highlighted the jurisprudential basis of adhering to the principles of natural justice which are grounded on the doctrine of procedural fairness, accuracy of outcome leading to general social goals, etc. Nevertheless, there may be situations wherein for some reason- perhaps because the evidence against the individual is thought to be utterly compelling- it is felt that a fair hearing "would make no difference"- meaning that a hearing would not change the ultimate conclusion reached by the decision maker."
43. It has been laid down therein that if the factual aspect is not in dispute which impliedly means that there is no chance of change in the outcome then in such circumstances, principle of natural justice if ordered to be followed then the same will amount to empty formality and futile exercise.
44. In the aforesaid judgments, the empty formality and futile 13 exercise have also been dealt with wherein it has been interpreted that the parties since are knowing the result very well due to undisputed fact leading not to change in the outcome then providing an opportunity of chance to rebut, will have no bearing in the outcome and if in such circumstances, the opportunity will be given the same has been considered to be an empty formality and futile exercise.
45. The fact of the present case is being considered on the touchstone of the aforesaid ratio laid down by the Hon'ble Apex Court.
46. Adverting to the factual aspect of the present case, the fact about making entry under Section 83 of the Act, 1908 is not in dispute.
47. Section 83 of the CNT Act, 1908 confers power upon the statutory authority to make an objection against the draft publication of the entry to be made in the record of rights.
48. The adjudicatory authority under Section 83 is require to adjudicate the grievance of the person concerned who have made an application against the draft publication.
49. The Chhotanagpur Tenancy Act also confers power to the appellate authority, revisional authority and even a suit under Sections 84, 89 and 90 respectively.
50. The fact of the case herein is that way back in the year, 1981, a proceeding was initiated in survey objection case no. 31 of 1981 under Section 83 of the CNT Act, 1908, in which, the entry has been made in the record of rights.
51. No appeal or no revision or even no suit has been filed against the order passed under Section 83 of the CNT Act, 1908. This fact has been admitted.
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52. The respondents/appellants herein, even thereafter, have made an application although not under the provision of the CNT Act, rather, under the provision of the Bihar Tenant's Holdings (Maintenance of Records) Act, 1973 for entering their names in the revenue records and for the purpose of issuance of rent receipts.
53. It needs to refer herein that the scope of Bihar Tenant's Holdings (Maintenance of Records) Act, 1973 is different to that of Section 83 of the CNT Act, 1908.
54. Section 83 of the CNT Act, 1908 is making entry in the record of rights and based upon that, the rent receipt is to be issued and if not issued, then the application in such circumstances, can be filed by taking aid of Section 14 of the Bihar Tenant's Holdings (Maintenance of Records) Act, 1973.
55. Admittedly herein, the order has been passed against the appellants/respondents under Section 83 of the Act, 1908 and hence, the very fundamental/basis of issuance of rent receipt under Section 14 of the Bihar Tenant's Holdings (Maintenance of Records) Act, 1973, cannot be said to be available and is not available to the appellants.
56. The appellate authority has considered the aforesaid aspect of the matter while passing the order dated 09.10.2014 passed in Mutation Appeal No.04 of 2014 but the Deputy Commissioner has gone into the issue of issuance of notice without taking into consideration the vital aspect of the matter that the entry has already been made in the record of rights under Section 83 of the CNT Act, 1908.
57. The said aspect of the matter has been taken into consideration by the learned Single Judge, which led the learned Single Judge in 15 quashing and setting aside the order passed by the Deputy Commissioner, Gumla in Revenue Revision No.38 of 2014-15 as also the order dated 31.10.2013 passed by the Circle Officer, Raidih in Mutation Case No.42(R)27/2013-14.
Conclusion
58. This Court, on consideration of the reason assigned by the learned Single Judge which is mainly based upon the order dated 02.12.1981 passed in Survey Objection Case No.31 of 1981, by which, the entry has been made in pursuant to the power exercised under Section 83 of the CNT Act, 1908 which has not been challenged by the appellants herein and hence, according to the considered view of this Court, if the view has been taken based upon the aforesaid factual background by the learned Single Judge, which cannot be said to suffer from an error.
59. This Court, in view of the discussion made hereinabove, is of the view that the order passed by the learned Single Judge therefore suffers from no error.
60. Accordingly, the instant appeal fails and is dismissed.
61. In consequent to dismissal of this appeal, pending interlocutory application(s), if any, stands disposed of.
(Sujit Narayan Prasad, A.C.J.) (Arun Kumar Rai, J.) Rohit/-A.F.R. 16