Jharkhand High Court
The State Of Jharkhand Through The ... vs Taurian Infrastructure Pvt Ltd Through ... on 2 December, 2013
Author: R.Banumathi
Bench: Chief Justice, Aparesh Kumar Singh
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A NO. 103 OF 2013
With
L.P.A NO. 104 OF 2013
With
L.P.A NO. 105 OF 2013
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The State of Jharkhand & Ors. Appellant In All Cases
Versus
Taurian Infrastructure Pvt. Ltd. Respondent In All Cases
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CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE APARESH KUMAR SINGH
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For the Appellant/Petitioner : Mr. V.K.Prasad, SC (L & C)
For the Respondents : M/s. B.Poddar, Senior Advocate, D.Poddar,
R.K.Bhargava, P.Poddar, A.Sinha
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Reserved On 25.11.2013 Pronounced On 2/12/2013
R.Banumathi, CJ. These L.P.As are preferred against the order of the
learned Single Judge passed in writ petitions nos.,934/2011, 946/2011
and 940/2011, setting aside the order passed by the Deputy
Commissioner, Ranchi, in Mutation Revision Nos.63, 64 and
65R15/2009-10 dated 16.11.2010.
2. Since all L.P.As arise out a common judgment, they have been
heard together and are being disposed of by this common judgment.
3. The case of the respondent-writ petitioner:- One Lal Harak Nath
Shahdeo, ex-landlord, was holding different pieces of land comprising of
Mouza - Hazam, Thana No.281 and Mouza - Kharsidag,Thana No.326..
The ex-landlord, Lal Harak Nath Shahdeo, through his grandson and duly
constituted power of attorney holder, namely, Kisto Kali Nath Shahdeo,
granted permanent raiyati settlement in favour of one Dr. Shiv Shankar
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Sahay Srivastava by registered deed of permanent settlement dated
9.9.1947. On the basis of the aforesaid settlement, the said Dr. Shiv Shankar Sahay Srivastava came in possession of the land and paid rent to the ex-landlord against the grant of rent receipts and there was family partition in the family of Dr. Shiv Shankar Sahay Srivastava by a partition deed dated 6.8.1971 and land settled in favour of Dr. Shiv Shankar Sahay Srivastava was partitioned amongst his seven sons, namely, (1) Gauri Shankar Sahay, (2) Ravi Shankar Sahay, (3) Tara Shankar Sahay, (4) Hari Shankar Sahay, (5) Vinay Shankar Sahay, (6) Prem Shankar Sahay and (7) Bipin Bihari Sahay.
4. As per the share allotted to the aforesaid seven sons, a Mutation Case No.52R27/1976-77b was filed and by the order dated 11.10.1976, the then Circle Officer allowed mutation in separate names showing mutation granted in favour of seven sons of Dr. Shiv Shankar Sahay Srivastava. Out of the seven sons, Gauri Shankar Sahay, Tara Shankar Sahay and Vinay Shankar Sahay sold 13.72 acres of land to one Sharad Kumar Modi by terms of registered sale deed dated 28.6.1995. Thereafter Sharad Kumar Modi applied for mutation, which was allowed by the order dated 20.3.2003. The writ petitioner purchased the lands, which are the subject-matter in issue, by three sale deeds dated 3.1.2008. The writ petitioner-respondent filed three applications for mutation and by the order dated 31.3.2008, the Circle Officer allowed mutation application with respect to the land under Khata No.48 and rejected mutation application in respect of the land under Khata Nos. 45,75 and 85.
5. Aggrieved by the order passed by the Circle Officer, the writ petitioner-respondent filed Mutation Appeals before the Land Reforms 3 Deputy Collector, Ranchi, (hereinafter called as LRDC). By the order dated 1.7.2008, the LRDC set aside the order passed by the Circle Officer and mutation was allowed in favour of the respondent with respect to the Khata Nos.75, 85 and 45, i.e. with respect to 41 acres of land aforesaid.
6. During the course of enquiry conducted with respect to mutation of 41 acres of land in favour of the respondent, various illegalities and irregularities came to light and the Circle Officer filed Mutation Revision Nos.63, 64 and 65R15/2009-10 before the Deputy Commissioner, Ranchi. By the order dated 17.2.2010, the Deputy Commissioner admitted the revision applications, staying the order of LRDC dated 1.7.2008. Challenging the order passed by the Deputy Commissioner, the writ petitioner-respondent filed W.P (C) Nos.2693, 2715 and 2713/2010. The said writ petitions were disposed of directing the Deputy Commissioner to dispose of the revision applications of the respondent at an early date. Thereafter the Deputy Commissioner allowed the revision applications and set aside the order dated 1.7.2008. Being aggrieved by the order passed by the Deputy Commissioner, Ranchi, the writ petitioner-respondent filed three writ petitions being W.P (C) No.934, 940 and 946/2011.
7. The appellant-State of Jharkhand filed counter affidavit and supplementary counter-affidavit contending that the writ petitions filed by the respondent involved disputed questions of facts which could not be adjudicated under Article 226 of the Constitution. According to the appellant-State of Jharkhand, since the original settlement was granted on 9.9.1947, the said transfer had been made to defeat the provisions of the Bihar Land Reforms Act, 1950, causing loss to the Government or to obtain higher compensation since the settlement was made after the cut- 4 off date i.e. 1.1.1946 and therefore, it was a fit case for initiation of a proceeding under section 4(h) of the Bihar Land Reforms Act, 1950 for annulment of the settlement. It was also contended that purchase of land by the respondent by sale deeds dated 3.1.2008 was made to grab the lands of Khata No.45 and Khata No.85, which were Gair Mazuruwa Malik land and also the lands of Khata No.75 which was Kaimi in name. It was averred that the respondent did not bring on record any document as to how the respondent claimed the Kaimi land measuring 3.91 acres, which was recorded in the name of Budhan Lohar. According to the appellant
-State, the transfer of land belonging to the Scheduled Tribe is hit by section 46 of the Chota Nagpur Tenancy Act, 1908.
8. Upon consideration of rival contentions, learned Single Judge, by the common order dated 10.4.2012, held that the LRDC had taken into consideration all relevant facts and came to the conclusion that LRDC rightly ordered mutation proceedings in the name of the respondent. The learned Single Judge held that the mutation court has a very limited jurisdiction and has only to see that the semblance of title and possession of the property and ignoring the scope of mutation proceedings, the Deputy Commissioner has delved into the question of title and possession and on those findings, the learned Single Judge set aside the order passed by the Deputy Commissioner and restored the order passed by the LRDC in Mutation Appeal Nos.31,32 and 33R15/2008-09.
9. Challenging the order of the writ court, learned counsel for the appellant-State mainly raised the following four contentions:-
The settlement in the year 1947 being beyond 1.1.1946 is hit by section 4(h) of the Bihar Land 5 Reforms Act, 1950 and the same cannot be made.
Out of 41 acres, 1.34 acres of land are Bakast in nature, 36.01 acres of land are Gair Mazurwa in nature and 3.91 acres of land are Kaimi in nature and under section 46 of the Chota Nagpur Tenancy Act, 1908, there is complete bar for Schedule Tribe/backward classes to transfer the lands to non- tribal/non-backward class.
The mutation application filed by the respondent was not at all maintainable under the provisions of the Bihar Tenants Holding (Maintenance of Records) Act, 1973.
The purpose of mutation is only for alteration in the entries in the continuous Khatian and for collection of revenue and not for resolving the dispute, rival claims like adverse claim to the recorded person.
10. Learned Senior Counsel appearing for the respondent contended that the respondent purchased the property from the sons of Dr. Shiv Shankar Sahay Srivastava and mutation was effected earlier in the name of ex- landlord. Learned Senior Counsel submitted that section 4(h) of the Bihar Land Reforms Act,1950 was enacted in a different context and also submitted that the respondent applied for mutation in its name and the Circle Officer allowed mutation of certain plot numbers but arbitrarily rejected mutation in respect of Khata Nos. 75, 85 and 45. Learned Senior Counsel further submitted that when all the documents are anterior in point of time, after 60-70 years it does not lie in the mouth of the 6 appellant-State to contend that the lands under Khata Nos.75, 85 and 45 are Kaimi lands and that mutation cannot be effected.
11. We have considered the submissions of the learned counsel for the appellant and learned Senior Counsel for the respondent.
12. The respondent contends that they purchased the property from Suresh Kumar Sarawgi, Raj Kumar Tiberwal and Sharad Kumar Modi. The details of various sale deeds under which respondent purchased the property in dispute are as under:-
"L.P.A NO.103/2013 (arises out of W.P(C) No.934/2011 AND Judgment dated 10.4.2012.
Registered Sale Deed No.91 dated 3.1.2008.
Vendor -- Suresh Kumar Sarawgi
VILLAGE KHATA NO. P.S.NO. PLOT NO. AREA
Hazam 75 281 26 1.46 acres
Hazam 75 281 29 2.45 acres
Total 3.91 acres
"L.P.A NO.104/2013 (arises out of W.P(C) No.936/2011 AND Judgment dated 10.4.2012.
Registered Sale Deed No.92 dated 3.1.2008.
Vendor -- Raj Kumar Tiberwal
VILLAGE KHATA NO. P.S.NO. PLOT NO. AREA Nature of Land
Hazam 85 281 1 2.63 acres Gairmazrua Malik
Hazam 85 281 30 3.11 acres Gairmazrua Malik
Hazam 45 281 3 1.34 acres Gairmazrua Malik
Hazam 45 281 551 6.64 acres Gairmazrua Malik
Total 13.72 acres
"L.P.A NO.105/2013 (arises out of W.P(C) No.940/2011 AND Judgment dated 10.4.2012.
Registered Sale Deed No.90 dated 3.1.2008.
Vendor -- Sharad Kumar Modi
VILLAGE KHATA NO. P.S.NO. PLOT NO. AREA
Hazam 45 281 49 1.00 acres
Hazam 45 281 551 2.45 acres
Total 3.45 acres
13. The respondent mainly traced their title and possession to the settlement deed dated 9.9.1947 in favour of one Dr. Shiv Shankar Sahay Srivastava. The contention of the appellant-State is that the said 7 settlement deed dated 9.9.1947 made in favour of Dr. Shiv Shankar Sahay Srivastava was hit by the provision of section 4(h) of the Bihar Land Reforms Act, 1950, since the settlement was made to defeat the object of the Bihar Land Reforms Act, 1950.
14. The object of the Bihar Land Reforms Act, 1950 is intended to provide for the transference to the State of the interests of proprietors and tenure-holders in land of the mortgagees and lessees of such interests as indicated in the preamble of the Act. As per Section 4(a), such tenure including the interest of the proprietor or tenure holder in any building or part of a building comprised in such estate or tenure shall vest absolutely in the State free from all encumbrances. Any transfer made after 1.1.1946 is not valid.
15. In terms of section 4(h) of the Act of 1950, the Collector shall have power to make enquiries in respect of any transfer including the settlement or lease of any land comprised in such estate or tenure as any transfer or settlement made after 1.1.1946 is not a valid transaction. The Collector shall have power to make enquiries in respect of any transfer including settlement or lease of any land comprised in such estate.
16. The settlement deed relied upon by the respondent is dated 9.9.1947. According to the appellant-State, the original settlement deed dated 9.9.1947 has been made to defeat the provision of the Bihar Land Reforms Act, 1950 and therefore, it was a fit case for initiation of a proceeding under section 4(h) of the Bihar Land Reforms Act, 1950 for annulment of the settlement and the respondent has not produced any document to show that under Khata Nos.75, 85 and 45, there was raiyati settlement.8
17. In the revisional order, the Deputy Commissioner, Ranchi, observed that the subject is related to Section 4(h) of the Bihar Land Reforms Act, 1950 and the settlement deed dated 9.9.1947 cannot be taken to be a valid document to effect mutation. The Deputy Commissioner had also made certain observations regarding the settlement under the Power of Attorney of the grand son of Lal Harak Nath Shahdeo.
18. The questions are whether the land settlement deed dated 9.9.1947, which is subsequent to cut-off date 1.1.1946, is a valid transaction and whether the said land has become raiyati settlement are the disputed questions of fact and these disputed questions of fact cannot be decided in mutation proceedings and without considering the nature of possession, mutation cannot be effected.
19. Learned Single Judge held that the mutation court has very limited scope of going into the details of title and has only to see the semblance of title and possession of the property. Learned Single Judge further held that without being aware of the true import and the provisions of the law relevant to the context, the Deputy Commissioner has made several observations with regard to the title and possession and therefore, learned Single Judge set aside the order passed by the Deputy Commissioner.
20. Learned Senior Counsel for the respondent submitted that the mutation proceeding is only for the purpose of collection of revenue and the Deputy Commissioner was not right in going into the question of title and therefore, the learned Single Judge rightly set aside the order passed by the Deputy Commissioner.9
21. It is not in dispute that the order with regard to mutation has to be passed on the basis of possession only inasmuch as the authroity concerned cannot decide any such dispute and complicated question of title. We are also of the view that in mutation proceeding, the Circle Officer/ LRDC/Deputy Commissioner are not supposed to determine the title and proprietary right in the immovable property for the reason that the mutation proceedings are merely in the nature of fiscal enquiries, instituted in the interest of the State for the purpose of ascertaining that each of the several claimants is in occupation and for the purpose of collection of revenue.
22. Of course, the Deputy Commissioner, Ranchi, made certain observations regarding the documents produced by the respondent. There is no dispute with regard to the legal proposition that mutation proceeding is not a judicial proceeding and the right, title and interest cannot be determined in such a proceeding. It is a fiscal enquiry only for the purpose of collection of revenue.
23. At the same time, the Circle Officer and Deputy Commissioner are not precluded from considering the evidence on the basis of which the appellant is claiming possession, vide 2005(1) JLJR 1 (State of Jharkhand & Ors. Vs. Arjun Das). Lest the benevolent object of the Acts of the Chota Nagpur Tenancy Act, 1908 and the Bihar Land Reforms Act , 1950 would be defeated.
24. As pointed out earlier, the respondent traced the title through the settlement deed dated 9.9.1947, the partition in the family of Dr. Shiv Shankar Sahay Srivastava, and other documents. Orders of mutation of the heirs of Dr.Sahay and one Mr.Sarawgi, respectively, show that they do not show the valid orders of the devolution of title on Dr.Shiv Shankar 10 Sahay said to have devolved on the basis of the settlement made on 9.9.1947, made through the alleged Power of Attorney Holder of Harak Narayan Sahadeo.
25. Perusal of written submission made by the writ petitioner in the Mutation Revision Case at page 68 (iii) to (v) also fails to disclose any documents in support of the contention that the title passed in favour of Dr.Sahay from the landlord Mr.Harak Nayan Sahadeo and as to when Dr.Sahay became a statutory tenant. In the absence of any documents, it cannot be contended that the Deputy Commissioner exceeded the jurisdiction in making certain observations regarding lack of title.
26. The order of the Deputy Commissioner impugned in the writ petition also takes into account that the LRDC did not issue any notice upon the State before annulling the order of the Circle Officer whereunder the mutation in respect of the three plots bearing Plot Nos.45,75 and 85 respectively were refused. It also takes notice of the fact that no proof of return of erstwhile Jamindar of such permanent settlement made in favour of Dr.Sahay has been made. In the writ petition also, no such document has been adduced. While so, the learned Single Judge was not right in setting aside the orders of the Deputy Commissioner.
27. According to the respondent, the lands were originally in the name of ex-landlord, Lal Harak Nath Shahdeo. As pointed out earlier, the respondent failed to disclose any documents in support of its contention that the title passed in favour of Dr.Shiv Shankar Sahay. According to the appellant-State, the total land involved in three mutation applications is 41 acres, out of which 1.34 acres of land are Bakast in nature, 36.01 acres of 11 land are Gair Mazurwa in nature and 3.91 acres of land are Kaimi in nature, which are standing in the name of Budhan Lohar (cq/ku yksgkj).
28. Learned counsel for the appellant contended that section 46 of the Chota Nagpur Tenancy Act, 1908 prohibits a transfer of land by the Scheduled Tribe to a non-tribal and therefore, the respondent cannot seek for mutation proceedings. Section 46(3) of the Tenancy Act, 1908 reads as under:-
"No transfer of contravention of sub-section (1), shall be registered or shall be, in any way recognized as valid by any Court, whatever in exercise of civil, criminal or revenue jurisdiction."
29. Sub-section (3) of section 46 of the Chota Nagpur Tenancy Act, 1908 clearly provides that no transfer of land by a member of Scheduled Tribe in favour of non-tribal shall be registered and even if such a transfer is made in contravention of section 46(1) of the Chato Nagpur Tenancy Act, 1908, the same shall not be recognized as valid by any court of law. In terms of section 46(1)(b),proviso (a) and (b), for transfer of land by a occupancy-raiyati to another person, who is a scheduled tribe and resident of the area of the same police station within which the holding is situated, prior permission of the Deputy Commissioner is necessary and when transfer of land of a tribal in favour of a non-tribal is prohibited in law, then possession of land by non-tribal on the basis of illegal transfer cannot be recognized. Considering the question of mutation proceeding in respect of the transaction by a member of scheduled tribe in favour of non- tribal in violation of provisions of section 46 of the Tenancy Act, 1908, the Division Bench of this Court in the case of State of Jharkhand & Ors. Vs. Arjun Das reported in 2005(1) JLJR 1 held as under:- 12
"21. Coming back to the instant case, as noticed above, mutation was refused by the Circle Officer, on the ground that the petitioner purchased the land from a member of Scheduled Tribe in violation of the provisions of Section 46 of the C.N.T Act. If that is so, transfer of land by a member of Scheduled Tribe in favour of the petitioner in violation of the provisions of the Act is itself illegal, null and void and the purchaser has not acquired right, title and interest over the said land. In such circumstances even if the purchaser came in possession of the tribal land by virtue of transfer by a member of Scheduled Tribes in contravention of the provisions of C.N.T. Act, possession of such transferee cannot be recognized by any Court of law. The Circle Officer can, therefore, refuse to enter the name of the purchaser by deleting the name of the tribal from the revenue records or from register-II maintained by the office of the Circle Officer."
30. According to the appellant, land under Khata nos.75 and 85 are Gair Mazurwa land and 45 as indicated in Survey Khatiyan are Kaimi land, which was recorded in the name of Langra Lohar, a member of Scheduled Tribe and any transfer by occupancy-raiyati, who is a Scheduled Tribe, to a non-Scheduled Tribe is hit by section 46(3) of the Chota Nagpur Tenancy Act, 1908. According to the appellant, Khata No.75 of disputed land is Kaimi land. The contention of the appellant is that there are no documents to show that duly constituted power of attorney holder, namely, Kisto Kali Nath Shahdeo, was granted permanent rayati settlement.
31. In his order, the Deputy Commissioner has made certain observations that the Bakast land held by the ex-zamindar is only 1.34 acres out of 41 acres, whereas the total Government Gair Mazurwa land in the whole of the case was 36.01 acres and 3.91 acres of land is tribal land and that the settlement deed is only an attempt to grab the Gair Mazurwa land and also the tribal land. Those observations of the Deputy 13 Commissioner is only in the context of considering the documents for the purpose of examining the correctness of the order of the LRDC. In our considered view, those observations would not amount to deciding the title and the Deputy Commissioner cannot be said to have exceeded the jurisdiction of a mutation proceeding.
32. When transfer of land of a tribal in favour of a non-tribal is prohibited in law, then possession by a non-tribal on the basis of illegal transfer cannot be recognized and the ratio laid down in the decision reported in 2005(1) JLJR 1 (supra) squarely applies.
33. Placing reliance upon AIR 1996 SC 2306 (Nityanand Sharma & Ano. Vs. State of Bihar & Ors.), learned Senior Counsel submitted that Lohars are 'other backward class' and are not scheduled tribe and therefore, the original transaction in favour of the ex-landlord, Lal Harak Nath Shahdeo, is not hit by section 46 (3) of the Chota Nagpur Tenancy Act, 1908.
34. By a careful reading of section 46(1)(b) proviso (b) of the Chota Nagpur Tenancy Act, 1908, it is seen that occupancy-raiyati, who is a member of scheduled tribe/backward class, can transfer land to another person who is a scheduled tribe/backward class and a resident of the same police station within which the holding is situated, only with the prior permission of the Deputy Commissioner. The restriction that is applicable to a member of the scheduled tribe is equally applicable to a member of backward class. Therefore, the contention of the learned Senior Counsel for the respondent does not advance the case of the respondent.
35. The questions whether the alleged settlement deed dated 9.9.1947 in favour of Dr. Shiv Shankar Sahay Srivastava is hit by Section 14 4(h) of the Bihar Land Reforms Act, 1950 and also hit by Section 46(3) of the Chota Nagpur Tenancy Act, 1908 and whether the alleged possession on the basis of such illegal transfer can be recognized, are serious questions to be decided by the appropriate forum where parties can adduce oral and documentary evidence. When any transaction is challenged as invalid and hit under the provisions of Section 4(h) of the Bihar Land Reforms Act, 1950 and Section 46(3) of the Chato Nagpur Tenancy Act, mutation cannot be effected.
36. Having regard to the nature of contentious issues raised by the appellant-State, the Deputy Commissioner, Ranchi, rightly set aside the order of LRDC and restored the order of the Circle Officer. The contentious issues raised by the appellant-State both in the counter- affidavit and supplementary counter-affidavit were not considered by the learned Single Judge and the learned Single Judge was not right in interferring with the order of the Deputy Commissioner, Ranchi and the impugned order dated 10.4.2012 passed by the learned Single Judge is liable to be set aside.
37. The order dated 10.4.2012 passed in W.P (C) Nos.
Nos.,934/2011, 946/2011 and 940/2011 is set aside and these L.P.As are allowed. The order of the Deputy Commissioner, Ranchi, confirming the order of the Circle Officer dated 31.3.2008 is restored.
(R.Banumathi, C.J.) (Aparesh Kumar Singh, J.) dey