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9. In my view the Officers passing the orders on mutation matter do not exercise any judicial or quasi judicial function. They arrive at a decision of possession on the basis of the evidence placed before them including the reports of the officers concerned. Respondent nos. 2 and 3, in my opinion, cannot be said to be a 'Court' within the meaning of section 3 of the Evidence Act, and as such it was not necessary for them to follow the procedure laid down under the Evidence Act, for the purpose of proving any document or otherwise."
"18. The enquiry report has been annexed as Annexuer-6 to the writ petition. The enquiry officer with regard to the Garmajurwa Malik land has stated that the jamabandi of the said land was registered in the year, 1965-66 and on that basis the petitioner has mutated the land only to that effect enquiry officer has given finding that there is financial loss to the government. The enquiry officer has recorded that so far as the Kaiser-e- hind land is concerned which was on the basis of Partition Suit No. 185 of 1966, the order of mutation was passed. On perusal of enquiry report it transpires that not even a single witness has been examined to prove the charges against the petitioner. The documents relied in the enquiry proceeding was required to be proved by way of adducing evidence. For the Garmajurwa Malik land, petitioner passed mutation order on the basis of running name of Chandan Sao and Bharat Sao. The name of Chandan Sao and Bharat Sao was recorded in Register-II on 23.01.1989. Pursuant to partition of land from Chandan Sao and Bharat Sao to one Jai Bhawani Co- operative Grih Nirman Samiti, mutation was done for the same partition was incumbent to the petitioner. The petitioner only followed prescribed procedure and looked into the Register-II record and passed the order. With regard to Kaiser-e-hind, mutation was done by the petitioner on the basis of final decree in Partition Suit No. 185 of 1966. In that view of the matter and considering the Circular of 1997 that can be challenged only in suit before competent civil court if possession of more than 12 years is there.
The petitioner was not the authority to decide and to file suit. The judgment passed in quasi-judicial can be corrected by preferring statutory appeal and review. In the light of these discussions the Court has to consider whether for deciding the mutation case, is there any misconduct on the part of the petitioner or not ? On perusal of record, it transpires that the petitioner has followed all the statutory procedures for passing mutation order before the petitioner was not entitle to empower transfer of land in question. The petitioner has acted on the basis of Register-II. The mutation order was passed on the basis of possession and mutation itself does not show right, title and interest that has been considered by a Co-ordinate Bench of this Court in "Pradip Prasad"

(case). The petitioner passed order on the basis of possession of Chandan Sao and Bharat Sao and after looking into the possession nor manner of possession, which has been considered in the case of "Lal Muni Devi" (supra) and Depta Tewari (supa). It is well- settled proposition of law that mutation does not create any right and title in the property. It is simply an evidence of possession for the land. This aspect of the matter has been considered in the case of "Smt. Urmila Prasad"

(supra). Thus, it transpires that the Department has proceeded against the petitioner for a misconduct which cannot be said misconduct in view of duties prescribed to the petitioner and the record suggest that the petitioner has acted in terms of prescribed procedure for passing mutation order. The proceeding was initiated under Rule 55 of Civil Services (Classification, Control and Appeal) Rules, 1930 and after retirement of the petitioner it was not converted under Rule 43(b) of the Jharkhand Pension Rules and merely it has been observed by the authorities that the proceeding is same. For taking shelter of Rule, 43(b) of the Jharkhand Pension Rules, financial loss has to be determined which has not been done in the case in hand and Rule 43(b) of the Jharkhand Pension Rules has been invoked against the petitioner which is not in accordance with law in view of the facts stated hereinabove. So far as the judgement relied by the learned counsel for the respondent-State in "N. Gangarai" (supra) that is not in dispute with regard to judicial review. However, the case in hand, in the facts and circumstances of the present case, this judgement is not applicable as in the present case misconduct itself has not been proved. So far as the judgment in the case of "Heem Singh" (supra) relied by the learned counsel for the respondent-State is on different footing. In that case, criminal case arises out of regular trial where in the present case, the criminal case has been quashed by the High Court under section 482 of the Cr.P.C. This judgment is not helping the respondent-State. The judgment relied by the learned counsel for the respondent-State in the case of "K.Rajappa Menon" (supra) was prior to 42nd amendment of the Constitution of India. The Hon'ble Supreme Court in the case of "Managing Director, ECIL, Hyderabad" Vs. Karunakar" reported in (1993) 4 SCC 27 in para 25 & 26 has held as under:-