Jharkhand High Court
Jagdeo Mahto vs Commissioner, North Chotanagpu on 10 February, 2009
Equivalent citations: AIR 2009 JHARKHAND 152, 2009 (2) AIR JHAR R 795, (2009) 2 JCR 153 (JHA), (2009) 76 ALLINDCAS 744 (JHA)
Author: Amareshwar Sahay
Bench: Amareshwar Sahay
LETTERS PATENT APPEAL NO. 425 OF 2006
Against the judgment dated 09/08/2006, passed by the learned Single
Judge in W.P. (C) No. 881 of 2002.
Jagdeo Mahto ....... PETITIONER/APPELLANT
- VERSUS-
The Commissioner, North Chotanagpur Division, Hazaribagh and others
...RESPONDENTS/RESPONDENTS
For the Appellant : Mr. Indrajit Sinha, Advocate.
Mr. V.K. Prasad, Advocate.
For the State : Mr. Ram Prakash Singh, J.C. to G.P. - II
For the Respondent No.6: Mr. Anil Kumar Sinha, Sr. Advocate.
Mr. Rahul Kumar, Advocate.
For the Respondent No.8: Mr. Manjul Prasad, Advocate.
Mr. Praveen Kumar, Advocate.
Mr. D.K. Pathak, Advocate.
PRESENT
HON'BLE MR. JUSTICE AMARESHWAR SAHAY.
HON'BLE MR. JUSTICE R.R. PRASAD
JUDGMENT
C.A.V. ON 20/01/2009 DELIVERED ON 10 /02/2009
Amareshwar Sahay, J. In this appeal, the appellant has challenged the order dated
09.08.2006passed in W.P.(C) No. 881 of 2002 by which the learned Single Judge, disposed of the writ petition without interfering with the orders which were challenged in the writ petition. The learned Single Judge by relying on a decision of the Patna High Court in the case of "Sitaram Choubey Vs. State of Bihar reported in 1993(2) PLJR 255" held that creation of Jamabandi neither creates any right and title in favour of one or other nor cancellation of Jamabandi extinguishes right and title of actual owner and, therefore, the impugned orders will not affect the right and title of actual owner and further that the disputed question of fact cannot be decided in the writ jurisdiction. It was observed that the aggrieved person may move the Court of competent jurisdiction for appropriate relief.
LETTERS PATENT APPEAL NO. 425 OF 2006 2
2. The facts in short are that the appellant/writ petitioner filed the aforesaid W.P.(C) No. 881 of 2002 before this Court challenging the order dated 08.07.2001 passed by the Land Reforms Deputy Commissioner, Ramgarh as well as the Order dated 24.04.2001 passed by the Additional Collector, Hazaribagh as also the Order dated 18.12.2001 passed by the Commissioner, North Chhotanagpur Division, Hazaribagh whereby, Jamabandi running in the name of the petitioner with respect to Plot No. 122 under Khata No. 69 situated in Village - Murramkalan, measuring 1.04 Acres, was ordered to be cancelled and Jamabandi was ordered to be opened in the name of Babulal Mahato, the original Respondent No. 5, who is now dead.
3. The case of the writ petitioner/appellant are that the lands of Khata No. 69 and 52 of Mouza Murramkalan were auction sold in execution of a rent decree against the recorded tenants, namely Sadhu Mahto and Bhairo Mahto and were purchased by the Ex-landlord Umraon Singh and others. Subsequently, the grand father of the appellant, namely, Guna Ram Koiri had been granted settlement of various lands on 13.11.1919 under Khata No. 69 comprised within Plot Nos. 122, 183, 184, 285 and 286, having total area of 2.01 Acres and Khata No. 52, comprised within Plot no. 162 measuring an area of 1.76 Acres in Mouza Murramkalan by the Ex-landlord Umraon Singh and others.
Pursuant to such settlement, the grand father of the appellant, who became the raiyat of the lands settled in his favour, paid rent to the ex- landlord. Subsequently, the Chhotanagpur Banking Association, by virtue of an auction sale, had purchased the proprietory interests of the ex-landlord and became the landlord so far as the grandfather of the appellant is concerned and thus, realised rent from him and on receipt of which executed rent receipts in favour of Guna Ram Koiri.
LETTERS PATENT APPEAL NO. 425 OF 2006 3 After coming into force of the Bihar Land Reforms Act, the Chhotanagpur Banking Association had filed a return under the Bihar Land Reforms Act showing Guna Ram Koiri as its raiyat. After the vesting of the lands with the State Government, a Jamabandi was created in favour of Guna Ram Koiri and his name was entered in Register II and rent was realised from the said Raiyat by the erstwhile State of Bihar.
In the year 1956 - 57, Plot Nos. 285 and 286, Khata No. 69, measuring 69 decimals, were acquired for construction of Ramgarh Block. In exercise of their raiyati rights, the heirs of late Guna Ram Koiri had also sold Plot No. 182 and 183 of Khata No. 69 to one Inder Singh and others through a registered Sale Deed dated 11.02.1965, they got their names mutated and entered in Register-II.
Sometime in the year 1990, on the basis of a report of the Circle Amin, a proceeding being Misc. Case No. 2/1990 - 91 was initiated in respect of Khata No. 69 and 52 had been initiated which included the land in dispute. In the said proceeding notices were issued to the original respondent no. 5 namely Babulal Mahato (since deceased) pursuant to which he appeared and filed his objection and similarly, the appellant also appeared and the matter was contested, interalia, with regard to the land in question also.
The Circle Officer, by an order dated 06.10.1990 held that the Jamabandi opened and running in the name of the appellant did not require any reconsideration and thus, ordered that the same should be continued and consequently, directed the matter to be placed before the Land Reforms Deputy Collector, who in terms of order dated 12.03.1991 dropped the proceedings of Misc. Case No. 2/1990 - 91. The orders passed in aforesaid Misc. Case No. 2/1990 - 91 were never challenged and, thus, the same attained finality.
LETTERS PATENT APPEAL NO. 425 OF 2006 4 After a lapse of almost 10 years, the original respondent no. 5 Babulal Mahato (since deceased), filed an application on 25.05.2000 before the Circle Officer, Ramgarh praying for assessment of rent in respect of the disputed lands referred to hereinbefore, which was registered as Rent Assessment Case No. 3/2000 - 01.
Upon notice, the appellant appeared and filed his show cause reiterating as to how he has acquired the right and title over the disputed lands.
4. According to the appellant, the Circle officer, vide an order dated 26.06.2000, without considering the objection of the appellant in its proper perspective as well as the orders passed in Misc. Case No. 2/1990 - 91, recommended cancellation of the jamabandi running in the name of the appellant, interalia, on the ground that the Jamabandi opened and running in the name of the appellant was doubtful. The Circle Officer further directed that the Jamabandi be opened in the name of original respondent No. 5 and rent be realised from him and consequently forwarded the same to the Land Reforms Deputy Collector. The Land Reforms Deputy Collector, Hazaribagh, upon receipt of the records from the Circle Officer, vide an order dated 08.07.2000, ordered cancellation of the appellant's Jamabandi and entering the name of original respondent No. 5 in the Register-II.
5. Being aggrieved by and dissatisfied with the aforesaid order dated 08.07.2000, the appellant preferred an appeal before the Additional Collector, Hazaribagh, being Misc. Case No. 12 of 2000, which was dismissed in terms of order dated 24.04.2001.
6. Against the aforesaid order dated 24.04.2001, a revision was preferred before the Commissioner, North Chhotanagpur Division, Hazaribagh LETTERS PATENT APPEAL NO. 425 OF 2006 5 being Jamabandi Revision No. 48/2001 which was also dismissed by order dated 18.12.2001.
7. Thereafter, the writ petitioner/appellant, by filing W.P.(C) No. 881 of 2002, challenged the aforesaid order passed by the Circle Officer, Land Reforms Deputy Collector as well as of the Commissioner. As already noticed above, the writ petition was disposed of by the impugned Order dated 09.08.2006, which is under challenge in this appeal at the instance of the writ petitioner.
8. It is relevant to mention here that during the pendency of the writ petition, the original Respondent No. 5 - Babulal Mahato died and thereafter, the present Respondent Nos. 5 to 8 were substituted in his place who happened to be the transferees of the disputed land.
9. Mr. Indrajit Sinha, learned counsel appearing for the appellant firstly submitted that the proceeding of Rent Assessment Case No. 3/ 2000 - 01 was barred by principle of resjudicata and hence, it was not maintainable. Elaborating his arguments, he submitted that since the issue as to whether Jamabandi in the name of the tenant should be allowed to be continued, was already decided earlier in Misc. Case No. 2/1990 - 91, therefore, the same could not have been allowed to be reagitated and reconsidered in a subsequent proceeding in view of the fact that Babulal Mahato had appeared and contested the earlier case being Misc. Case No. 2/1990 - 91 and therefore, the application filed by him for assessment of rent was not maintainable.
Mr. Indrajit Sinha next contended that it is not disputed that Jamabandi in favour of the appellant and his predecessor in interest had been running since vesting of the land under Bihar Land Reforms Act with the erstwhile State of Bihar and therefore, this long standing Jamabandi could not LETTERS PATENT APPEAL NO. 425 OF 2006 6 have been cancelled by the authorities concerned. In this regard, reliance has been placed by learned counsel in the cases reported in 2001(1) JLJR 75, 2003(3) JLJR 793, 2004(1) JLJR 718 and 2005(1) JCR 329.
10. On the other hand, Mr. Anil Kumar Sinha, learned Senior Counsel appearing on behalf of the Respondent No. 6 submitted that the arguments of the appellant that the order passed in Misc. Case No. 2/ 1990 - 91 has reached its finality since it was never challenged and hence, the proceeding was barred by principles of res-judicata, is not at all tenable and correct. As a matter of fact, the subject matter of Misc. Case No. 2/1990 - 91 was with respect to part of lands of Khata No. 69 bearing Plot Nos. 183 and 182 having an area of 0.31 and 0.11 Acres respectively and the whole dispute in that case was as to whether the existing entry in respect of the three Plot of Khata No. 69 and 94 were correctly made or not and at no point of time, Misc. Case No. 2/1990 - 91 was initiated in respect of the lands of Khata No. 52.
He further submitted that Misc. Case No. 2/1990 - 91 was not initiated on the basis of any application made by any person. The said proceeding was not for cancellation of existing Jamabandi nor it has for creation of Jamabandi rather it was a proceeding initiated at the instance of Karamchari itself and the order passed in the said proceeding was not appellable. It was next contended that Babulal Mahato, the original Respondent No. 5, filed an application before the Circle Officer, Ramgarh for assessment of rent vide Rent Assessment Case No. 3/2000 - 01 in which the writ petitioner appeared and filed its show-cause and in that proceeding, he did not raise the plea of res-judicata. Therefore, the plea of res-judicata cannot be raised by the appellant at the appellate stage as has been held in the case of "V. Rajeshwari" reported in (2004) 1 SCC 551.
It is also submitted that since there is concurrent findings on facts by three revenue authorities and therefore, those findings on facts were LETTERS PATENT APPEAL NO. 425 OF 2006 7 not disturbed by the learned Single Judge in exercise of the writ jurisdiction. According to him, the original Respondent No. 5 Babulal Mahato executed registered sale deed in favour of respondent no. 6 in whose name also Jamabandi has been opened.
11. According to the learned Senior Counsel, the authorities, while adjudicating Jamabandi, do not exercise judicial or quashi judicial function. The authorities while passing orders in Mutation proceedings can not be termed as Courts nor the proceedings before them are the judicial proceedings as has been held in the case of Depta Tiwari and Ors reported in 1987 PLJR 1037 and in the case of "Shanti Devi- versus- State of Bihar & Others, reported in 1993 (2) PLJR, 118".
In this view of the matter, Section 11 of C.P.C. applies to a proceeding with respect to a Court, cannot be applied in the present case and it will not operate as a bar. He submitted that the Hon'ble Supreme Court, in the case of Mahila Bajrangi Vs. Badri Bai reported in (2003) 2 SCC 464 has held that Mutation proceeding before Revenue Authorities are not judicial proceeding.
12. In view of the facts stated hereinabove and the points raised by the respective parties, which have been noticed in the forgoing paragraphs, let us examine the law on the point raised by the parties.
13. So far as the first question with regard to res-judicata as raised by the parties, let us examine the provisions of Section 11 of the Code of Civil Procedure, which speaks about res-judicata, which reads as under:-
"11. Res-judicata - No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, LETTERS PATENT APPEAL NO. 425 OF 2006 8 litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."
14. In order to apply Section 11 C.P.C. in a particular case the following conditions are required to be fulfilled;
(i) The identity of the matter in issue.
(ii) The identity of party.
(iii) The parties in the subsequent suit must have litigated under the same title in the former suit.
(iv) The Court, which decided the former suit, must have been competent to try the subsequent suit or the suit in which the issue has been subsequently raised.
(v) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided in the former suit;
15. Apart from the above conditions, the foremost condition is that the suit or the matter in issue should have been decided by a competent Court of law.
16. In the present case, admittedly, the order of Jamabandi has been passed in a mutation proceeding. A mutation proceeding is decided by the Revenue Authority.
17. The Supreme Court in the case of "Mahila Bajrangi Vs. Badri Bai reported in (2003) 2 SCC 464" has clearly held that the mutation proceedings before the Revenue Authorities are not judicial proceedings in a court of law and it does not decide question of title to immovable properties.
18. The Division Bench of Patna High Court in the case of "Shanti Devi- versus- State of Bihar & Others, reported in 1993 (2) PLJR, LETTERS PATENT APPEAL NO. 425 OF 2006 9 118" after relying on its earlier decision, held that the mutation proceedings are the administrative proceedings and not judicial proceedings and, therefore, the officers acting under the provisions of Mutation Manual are not Courts nor the proceeding before them are judicial proceedings.
19. Since the Revenue Authorities while deciding a mutation proceeding have been held to be not a court of law and the mutation proceedings before them are held not the judicial proceedings by the Supreme Court, therefore Section 11 of the Code of Civil Procedure cannot be applied to a proceeding which is not a judicial proceeding and it cannot be applied to an order passed by a revenue authority since the order passed by such authority is not an order passed by a Court of law. Therefore, the provision of Section 11 C.P.C., i.e. of res-judicata would not be applicable to such proceeding.
20. The second submission of Mr. Sinha, the learned counsel appearing for the appellant that the Jamabandi running and standing since long in the name of the appellant can not have been cancelled in view of the decision of the Single Bench of this Court in the case of "Dilip Kumar Mahto-versus- The State of Bihar & Others, reported in 2001 (1) JLJR 75, "Smt. Gulbasi Devi & Others- versus- State of Bihar & Others, reported in 2003 (3) JLJR 793", "Jitan Mahto & Another-versus- State of Bihar & 5 Others, reported in 2004 (1) JLJR 718" and of the Division Bench in the case of " State of Jharkhand-versus- Mithila Sahkari Grih Nirman Sahyog Samiti & Others, reported in 2005 (1) JCR 329 (Jhr.)".
In the case reported in 2001 (1) JLJR 75, the Single Bench of this Court has held that Jamabandi running in the name of a particular person for several years cannot be cancelled at the instance of the claimant in a LETTERS PATENT APPEAL NO. 425 OF 2006 10 summary proceeding. Proper course for the claimant is to move the Civil Court of competent jurisdiction for proper relief.
In the case reported in 2003 (3) JLJR 793 it has been held that once Jamabandi is opened in favour of a person and that continued for a number of years it can be cancelled only by initiating a proceeding by the Collector under Section 4 (h) of the Bihar Land Reforms Act. The same view was taken in the case reported in 2004 (1) JLJR 718.
The judgment in the case of "State of Jharkhand-versus- Mithila Sahkari Grih Nirman Sahyog Samiti & Others, reported in 2005 (1) JCR 329 (Jhr.)" relied by the appellant is not exactly on the said point. From the said judgment it appears that the Division Bench was dealing with a case in which Jamabandi was cancelled not with respect to the entire land of particular plot but a portion thereof and that also without any notice to the affected persons.
21. In the present case we find from the orders passed by the revenue authorities, which was challenged by the writ petitioner in the writ petition, that in fact, Jamabandi was earlier opened by a Karamchari and that also without any order of a competent authority. The Commissioner in his order has given finding that the writ petitioner's claim was based on sada 'Hukumnama' in respect of raiyati land whose veracity could not be adjudged. It was further held by him that the petitioner could not submit a chit of paper with regard to his acquisition of land in auction sale.
Therefore, we find the revenue authorities passed their orders for cancellation of Jamabandi after they found the same was opened by a Karamchari without any valid order from the competent authority. In other words, the order for creating Jamabandi was passed by a person who was not authorised under the law and as such the same was without jurisdiction.
LETTERS PATENT APPEAL NO. 425 OF 2006 11
22. According to us if an order is found to have been passed by an authority having no jurisdiction or when such order is found to be absolutely illegal based on the apparent error on law or facts or when it is found to be perverse not based on record then certainly in such cases Jamabandi running or standing in the name of a particular person can be cancelled by a competent authority but of course after giving proper notice and opportunity of hearing to the party who would be adversely affected.
It is a settled law that any order passed without jurisdiction is a nullity. Reference in this regard may be made to the decision of the Supreme Court in the case of "Hasham Abbas Sayyad- versus- Usman Abbas Sayyad & Others, reported in (2007) 2 SCC 355" in which it has been held as under:-
"The core question is as to whether an order passed by a person lacking inherent jurisdiction would be a nullity. It will be so. The principles of estoppel, waiver and acquiescence or even res-judicata which are procedural in nature would have no application in a case where an order has been passed by the tribunal/court which has no authority in that behalf. Any order passed by a court without jurisdiction would be coram non judice, being a nullity, the same ordinarily should not be given effect to."
It has not been pointed out to us that there is any bar under the law in cancelling the Jamabandi running or standing in the name of any particular person.
w. In the aforesaid three judgments of the learned Single Judge in the cases of "Dilip Kumar Mahto-versus- The State of Bihar & Others, reported in 2001 (1) JLJR 75, "Smt. Gulbasi Devi & Others- versus- State of Bihar & Others, reported in 2003 (3) JLJR 793", "Jitan Mahto LETTERS PATENT APPEAL NO. 425 OF 2006 12 & Another-versus- State of Bihar & 5 Others, reported in 2004 (1) JLJR 718, we find that no reason has been assigned in those judgments as to why the Jamabandi running or standing in the name of particular person in an appropriate case, cannot be cancelled. Therefore, we do not approve the view expressed in the aforesaid three judgments of this court referred in this para.
24. In view of the discussions above, we hold that Jamabandi standing in the name of a particular person can be cancelled in appropriate cases such as when it is brought to the notice of the revenue authorities that the order for creating Jamabandi has been passed by an authority who has no authority or jurisdiction at all or where the same is found to be based on the apparent error of record/facts or on law but of course, after giving prior notice and an opportunity of hearing to the concerned person, whose interest would be adversely affected.
25. This Court in the case of "Sitaram Choubey & Ors. - versus-
State of Bihar & Ors., reported in 1993 (2) PLJR 255" as well as the Supreme Court in the case of of "Suraj Bhan & Ors.- versus- Financial Commissioner & Others, reported in (2007) 6 SCC 186" have held that entries in the revenue records does not confer title on a person whose name appears in record- of- rights. The creation of Jamabandi neither creates any right and title in favour of one or the other nor cancellation of Jamabandi extinguishes right and title of actual owner. The entries in the revenue records or jamabandi have only "fiscal purpose" and no ownership is conferred on the basis of such entries. The title of the property can only be decided by a competent civil court.
In our view, the learned Single Judge rightly refused to interfere with the impugned orders passed by the revenue authorities by observing that LETTERS PATENT APPEAL NO. 425 OF 2006 13 the aggrieved person may move before a court of competent jurisdiction for appropriate relief.
26. In view of the discussions and findings above, we do not find any merit in this letters patent appeal. Accordingly, the same is hereby dismissed. However, in the facts and circumstances of the case, there shall be no order as to cost.
(Amareshwar Sahay, J.) (R.R. Prasad, J.) Jharkhand High Court, Ranchi 10th .February, 2009 NAFR/ Mukund-RC