Jharkhand High Court
Prakash Das Son Of Late Tanik Das vs The State Of Jharkhand Through Its ... on 21 October, 2021
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.5272 of 2013
1. Prakash Das son of Late Tanik Das, resident of Village-Bara Raja
Bandh, P.O.-Saptar, P.S.-Madhupur, District-Deoghar.
2. Nityanand Das son of Late Tanik Das, Secretary, Upgraded Primary
School, Dulidih, Bara Raja Bandh, resident of Village-Bara Raja
Bandh, P.O.-Saptar, P.S.-Madhupur, District-Deoghar.
3. Gopal Pandey son of Late Ram Charan Pandey, President, Upgraded
Primary School, Dulidih, Bara Raja Bandh, resident of Village-Bara
Raja Bandh, P.O.-Saptar, P.S.-Madhupur, District-Deoghar.
. ... Petitioners
Versus
1. The State of Jharkhand through its Secretary, Land and Revenue
Department, having office at Project Building, P.O. & P.S.-Dhurwa,
town and district-Ranchi.
2. The Deputy Commissioner, Deoghar, having office at P.O. & P.S.-
Deoghar, District-Deoghar.
3. The Sub-Divisional Officer, Madhupur, having office at Madhupur,
P.O. & P.S.-Madhupur, District-Deoghar.
4. Sri Mahesh Das son of late Chhoti Das.
5. Kishan Das son of Late Ramu Das.
6. Madhur Das son of Late Pahlu Das.
7. Prabhu Das son of Asarfi Das,
Respondents 4 to 7 residents of Village-Bara Raja Bandh, P.O.-
Saptar, P.S.-Madhupur, District-Deoghar.
... Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner : Ms. Neha Bhardwaj, Advocate Ms. Sneha Kumari, Advocate For the Respondents : None
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06/Dated 21st October, 2021
1. This writ petition is under Article 226 of the Constitution of India whereby and whereunder the order dated 07.11.2012 passed by the Sub-Divisional Officer, Madhupur is under challenge by which the settlement of the land which has been made in favour of the 2 petitioner by virtue of settlement made sometime in the year 1988, has been cancelled.
2. The brief facts of the case as per the pleading which is required to be enumerated read as hereunder:
The case of the writ petitioners is that the land in question being Plot No.74 of Mauja Bara Raja Bandh No.294 in Madhupur Sub-division, District Deoghar is originally recorded as Parti Kadim in the records of right.
The competent authority has settled the aforesaid land in favour of the writ petitioner No.1 on 15.03.1988 by virtue of Patta as has been appended as Annexure-3 to the writ petition. The writ petitioners came to the possession of the aforesaid land and remained in possession. The Sub-Divisional Officer has initiated a proceeding for cancellation of the aforesaid settlement made in favour of the petitioner No.1. Notices were issued to the opposite parties. The Sub-Divisional Officer, Madhupur has considered the rival submissions advanced on behalf of the parties. The documents pertaining to settlement of land, i.e., by virtue of order passed in Settlement Case No.898 of 1955-56 and Settlement Case No. 99 of 1955-56 were produced.
The Sub-Divisional Officer, Madhupur after taking into consideration the aforesaid order of settlement by which the nature of the land has been changed from Parti Kadim to that of Gochar land, cancelled the settlement made in favour of the writ petitioner on 15.03.1988, which is under challenge in this writ petition.3
3. Ms. Neha Bhardwaj, learned counsel assisted by Ms. Sneha Kumari, learned counsel for the petitioners, submits that the land in question has been settled way back in the year 1988 and since then the land in question is in possession of the writ petitioners, therefore, the action for cancellation of the settlement made in favour of the writ petitioner ought to have been taken by the concerned respondents within a reasonable period, i.e., within a period of one year as provided under Section 32 of the Santhal Pargana Tenancy Act, therefore, the order impugned which has been passed after lapse of the period of one year cannot be said to be sustainable in the eye of law, as such, the impugned order is fit to be quashed and set aside.
4. None appears for the respondent-State of Jharkhand as also for the private respondents, although in pursuance to the notice issued by this Court vide order dated 27.07.2015, the private respondents have appeared, more so, the name of the learned counsel for the respondent-State of Jharkhand is appearing in the daily cause list but even then none appeared.
5. This Court has heard the learned counsel for the petitioners and scrutinized the impugned order. The fact which is not in dispute in this case is that the land in question as per the Khatiyan is Parti Kadim but the said land has been settled for the purpose of grazing of cattle by making it Gochar by virtue of the order passed in Settlement Case No.898 of 1955-56 and Settlement Case No. 99 of 1955-56.
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6. The concerned competent authority even knowing the fact that the land has become Gochar, i.e., for the purpose of grazing of cattle by virtue of the order passed by the authority having quasi-judicial power in Settlement Case No.898 of 1955-56 and Settlement Case No. 99 of 1955-56 but even then the settlement has been made in favour of the writ petitioner No.1 by virtue of Patta on 15.03.1988. The issue which requires to be examined in this case are:
(i) As to whether when the land in question has already been settled for grazing of cattle by changing the nature of the land to that of Gochar by virtue of order passed in quasi-judicial proceeding, can the subsequent settlement of the aforesaid land by way of Patta dated 15.03.1988 be said to be justified?
(ii) As to whether, if the initiation is wrong, the period of limitation will come in the way of restoring the land for the purpose it has been settled, i.e., grazing of cattle, by changing the nature of the land from Parti Kadim to that of Gochar?
7. So far as the issue no.1 is concerned, it is not in dispute that the Parti Kadim land or waste land can well be settled under the Santhal Pargana Tenancy Act, 1949 but if the said settlement is examined in the given facts of the case, i.e., the aforesaid land which has been recorded as Parti Kadim in the khatiyan has already been made as Gochar by virtue of the order passed in Settlement Case No.898 of 1955-56 and Settlement Case No. 99 of 1955-56, therefore, the nature of land which has been recorded in khatiyan as Parti Kadim has been changed to that of Gochar.
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The aforesaid order has never been questioned by anybody and after substantial period of time, i.e., in the year 1988, the aforesaid particular land has been settled in favour of the writ petitioner No.1 by virtue of Patta dated 15.03.1988. The aforesaid settlement made by Patta dated 15.03.1988 is in course of subsistence of the order of settlement passed in Settlement Case No.898 of 1955-56 and Settlement Case No. 99 of 1955-56, as such, the settlement which has already been made by virtue of order passed in Settlement Case No.898 of 1955-56 and Settlement Case No. 99 of 1955-56 cannot be said to have lost its force and if ignoring the said document, any settlement made in favour of the writ petitioner cannot be said to be justified. The reason being that if inception is wrong, subsequent development cannot be said to be improved due to subsequent development of the fact. Reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in Ritesh Tewari and Another v. State of Uttar Pradesh and Others [(2010) 10 SCC 677] wherein at paragraph 32 the Hon'ble Apex Court has held as under :-
"32. It is settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironical to permit a person to rely upon a law, in violation of which he has obtained the benefits."
In another judgment rendered in State of Orissa and Another v. Mamata Mohanty [(2011) 3 SCC 436], similar view has 6 been taken by the Hon'ble Apex Court at paragraph 37 which is being quoted hereunder :-
"37. It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin."
8. Herein, the inception of the settlement made in favour of the writ petitioner No.1 itself is wrong since the land has already been settled for the use as Gochar by virtue of the order passed in Settlement Case No.898 of 1955-56 and Settlement Case No. 99 of 1955-56 and in course thereof, the aforesaid particular land has been settled treating the said land as Parti Kadim. The question is that when the aforesaid land which was originally recorded in khatiyan as Parti Kadim has already changed its nature by the order of the quasi-judicial authority and the same has never been questioned by anybody, the subsequent settlement cannot be said to have its substance.
9. So far as the issue no.2 which pertains to the period of limitation as provided under Section 32 of the Santhal Pargana Tenancy Act, 1949 is concerned, it stipulates that a person, if aggrieved by any act of the village headman or muraiyat or landlord, as the case may be, in settling or refusing to settle waste land or a vacant holding, or 7 if aggrieved by any act of any other person in respect of such land or holding, may make an application before the Deputy Commissioner within one year from the year on which reclamation in pursuance of settlement was commenced or settlement was refused. On receipt of such an application the Deputy Commissioner shall serve in the prescribed manner on the parties interested other than the applicant, notice of the date on which he intends to hear and decide the application.
The aforesaid provision clearly suggests and clarifies that the objection is required to be filed in case of non-settlement of the waste land or vacant holding. Admittedly herein, the land in question although was recorded as Parti Kadim in the khatiyan but by virtue of the order passed in Settlement Case No.898 of 1955-56 and Settlement Case No. 99 of 1955-56 the nature of the said land has been changed to that of Gochar, therefore, the land cannot be said to be Parti Kadim or waste land and hence, the provision as stipulated under Section 32 of the Santhal Pargana Act, 1949 will not be attracted, therefore, there is no question of any limitation.
It is relevant to refer a judgment passed by the Hon'ble Apex Court in the context of a Gochar land in Rameshbhai Virabhai Chaudhari v. State of Gujarat and Others in Civil Appeal 5135 of 2021 dated 6th September, 2021, while dealing with encroachment in the Gochar land, it has been held that Gochar land can be used only for purposes for which it is permitted to be used. If there is a user contrary to the permissible user, whether by the State or by any third party, the same cannot go on.
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10. Further, if any illegality has been committed by any authority that too by settling the land in favour of the writ petitioner No.1 which has already been settled to be used as Gochar land, i.e., for the purpose of grazing of cattle, it is nothing but an illegal settlement of land made by Patta dated 15.03.1988 and it is settled position of law that illegality cannot be allowed to be perpetuated as has been held by the Hon'ble Apex Court in Chaman Lal Vs. State of Punjab and Ors., (2014) 15 SCC 715, wherein the Hon'ble Apex Court taking reference of the case rendered in Basawaraj & Anr. Vs. Special Land Acquisitioin Officer [(2013) 14 SCC 81 ] at paragraph 16, held as under:
"16. More so, it is also settled legal proposition that Article 14 does not envisage for negative equality. In case a wrong benefit has been conferred upon someone inadvertently or otherwise, it may not be a ground to grant similar relief to others. This Court in Basawaraj v. Land Acquisition Officer [Basawaraj v. Land Acquisition Officer, (2013) 14 SCC 81 : AIR 2014 SC 746] considered this issue and held as under: (SCC p. 85, para 8) "8.It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order.
A wrong order/decision in favour of any particular party does 9 not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible. (Vide Chandigarh Admn. v. Jagjit Singh [Chandigarh Admn. v. Jagjit Singh, (1995) 1 SCC 745] , Anand Buttons Ltd. v. State of Haryana [Anand Buttons Ltd. v. State of Haryana, (2005) 9 SCC 164] , K.K. Bhalla v. State of M.P. [K.K. Bhalla v. State of M.P., (2006) 3 SCC 581] and Fuljit Kaur v. State of Punjab [Fuljit Kaur v. State of Punjab, (2010) 11 SCC 455] .)"
In Union of India v. Narendra Singh, (2008) 2 SCC 750, at paragraph 32 it has been laid down, which reads as hereunder:
"32. It is true that the mistake was of the Department and the respondent was promoted though he was not eligible and qualified. But, we cannot countenance the submission of the respondent that the mistake cannot be corrected. Mistakes are mistakes and they can always be corrected by following due process of law. In ICAR v. T.K. Suryanarayan it was held that if erroneous promotion is given by wrongly interpreting the rules, the employer cannot be prevented from applying the rules rightly and in correcting the mistake. It may cause hardship to the employees but a court of law cannot ignore statutory rules."
11. This Court after taking into consideration the facts in entirety as discussed hereinabove, is of the view that the instant writ petition has been filed for issuance of writ of certiorari for quashing of the order dated 07.11.2012 but the principle to issue writ of certiorari has already been settled by the Hon'ble Apex Court in Syed Yakoob vs. Radhakrishnan, A.I.R. 1964 Supreme Court 477. Paragraph no.7 of the said judgment is being reproduced hereinbelow:
"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 10 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 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 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 (vide Hari Vishnu Kamath v. Ahmad Ishaque, 1955-1 SCR 1104 : ((S) AIR 1955 SC 233); Nagendra Nath v. Commr. Of Hills Division, 1958 SCR 1240 : (AIR 1958 SC 398) and Kaushalya Devi v. Bachittar Singh, AIR 1960 SC 1168.11
In Hari Vishnu Kamath vs. Ahmad Ishaque and Ors., AIR 1955 Supreme Court 233, the Hon'ble Supreme Court has held as hereunder in paragraph no.21:
"With regard to the character and scope of the writ of certiorari and the conditions under which it can be issued, the following propositions may be taken as established: (1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Writ of certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to rehear the case on the evidence and substitute its own findings in certiorari."
In Sawarn Singh and Anr. vs. State of Punjab and Ors., (1976) 2 SCC 868 their Lordships, while discussing the power of writ under Article 226 of the Constitution of India for issuance of writ of certiorari, has been pleased to hold at paragraph nos.12 and 13 as hereunder:
"12. Before dealing with the contentions canvassed, it will be useful to notice the general principles indicating the limits of the jurisdiction of the 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's case (supra) 12
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 Heinz India (P) Ltd. and Anr. vs. State of U.P. and Ors., (2012) 5 SCC 443 their Lordships have been pleased to hold at paragraph nos.66 and 67 as hereunder:
"66. That the court dealing with the exercise of power of judicial review does not substitute its judgment for that of the legislature or executive or their agents as to matters within the province of either, and that the court does not supplant "the feel of the expert" by its own review, is also fairly well settled by the decisions of this Court. In all such cases judicial examination is confined to finding out whether the findings of fact have a reasonable basis on evidence and whether such findings are consistent with the laws of the land.
67. In Dharangadhara Chemical Works Ltd. v. State of Saurashtra this Court held that decision of a tribunal on a question of fact which it has jurisdiction to determine is not liable to be questioned in proceedings under Article 226 of the Constitution unless it is shown to be totally unsupported by any evidence. To the same effect is the view taken by this Court in Thansingh Nathmal case where this Court held that the High Court does not generally determine questions which require an elaborate examination of evidence to establish the right to enforce for which the writ is claimed."
In Thansingh Nathmal vs. Supdt. of Taxes, A.I.R. 1964 1419 Supreme Court, Hon'ble Supreme Court has been pleased to hold that the High Court does not jointly determine question which 13 requires elaborate examination of evidence to establish the right to enforce for which the writ is claimed.
In Pepsico India Holding (P) Ltd. vs. Krishna Kant Pandey, (2015) 4 SCC 270 their Lordships, while discussing the scope of Articles 226 and 227 of the Constitution of India in the matter of interference into the finding of the Tribunal, has been pleased to hold by placing reliance upon the judgment rendered in Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram, (1986) 4 SCC 447 at para-17 as hereinbelow:
"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 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 page 1301 of the report as follows:
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 that the ......... power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways v. Sukumar Mukherjee 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.14
This statement of law was quoted with approval in the subsequent decision of this Court in Nagendra Nath Bose V. Commr. Of Hills Division and it was pointed out by Sinha, J., as he then was, speaking on behalf of the court in that case:
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 mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeking that the tribunal functions within the limits of its authority."
Recently, the Hon'ble Apex Court in General Manager, Electrical Rengali Hydro Electric Project, Orissa and Others vs. Giridhari Sahu and Ors., (2019) 10 SCC 695 has delved upon the issue about scope of issuance of writ of certiorari by the High Court and has laid down that, if the finding recorded by the court is erroneous and based upon perversity, the order is fit to be quashed/set aside.
12. This Court, on the basis of the settled position of law and considering the reason assigned in the impugned order, is of the view that no interference is required since the writ petitioners have failed to make out a case for quashing of the impugned order by issuing writ of certiorari.
13. Accordingly, the instant writ petition fails and is dismissed.
(Sujit Narayan Prasad, J.) Birendra/Saurabh