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2002 DIGILAW 1258 (JHR)

Lal Pratap Nath Shahdeo v. State Of Jharkhand

2002-12-13

VIKRAMADITYA PRASAD

body2002
JUDGMENT Vikramaditya Prasad, J. 1. This writ application has been filed for quashing Annexure-1 whereby and whereunder Parcha has been directed to be issued in favour of the respondent No. 5 by the Circle Officer in Palamau Case No. 3/90-91 and for quashing Annexure-3 whereby and whereunder the Deputy Commissioner, Palamau, dismissed the appeal of the petitioner against the order aforesaid in Misc. Case No. 50/91-92. 2. The points for determination in this writ application are (i) whether an order granting a document creating permanent homestead tenancy without any finding whether the person concerned is a privileged person or privileged tenant is illegal and without jurisdiction and (ii) whether a Circle Officer, without making inspection, can pass an order under Rule 5 of the Privileged Persons Homestead Tenancy Rules, 1948. 3. The aforesaid questions arose out of the short facts that the disputed land over which tenancy was sought by the respondent No. 5 and subsequently granted comprises of 10 Decimal of land in plot No. 355, Khata No. 45 in village Kamta, P.S. Chandwa, District-Palamau. This land is a part of plot No. 355 and had vested in the State of Bihar in the year 1951-52 along with other lands of ex-proprietor of Tori Estate, namely, late Jagdhartri Nath Shahdeo and demand in Register II was entered in the name of said Jagdhatri Nath Shahdeo and the land was recorded as Gairmajrua Malik land. The father of the respondent No. 5, Bhagirathi Panda, the grandfather of the respondent No. 4, was allowed to use the disputed land for construction of a house for residential purpose in lieu of the service rendered as Pujari of the Thakurbari of the ex-proprietor. It was thus Naukrana land. The said Bhagirathi Panda died in or around the year 1968-69. Thereafter none of his descendants had any concern with that house, so the respondent No. 4 got the name of the respondent No. 5 recorded in Register II. Thereafter, the respondent No. 4 and 5 filed an application before the Circle Officer, Chandawa, who is the Collector under this Act, for grant of a Parcha for 15 Decimal of land in plot No. 355 on the ground that the respondent No. 5 was a privileged tenant and held that land as naukrana land. Thereafter, the respondent No. 4 and 5 filed an application before the Circle Officer, Chandawa, who is the Collector under this Act, for grant of a Parcha for 15 Decimal of land in plot No. 355 on the ground that the respondent No. 5 was a privileged tenant and held that land as naukrana land. That was resisted by the petitioner and without making a local inspection and without holding the respondent No. 5 as privileged tenant and though the respondent No. 5 owned more than one acre of land in the same village, parcha was granted creating homestead tenancy to the respondent No. 5, Annexure-1. The petitioner thereafter moved the Deputy Commissioner in appeal against that order and the Deputy Commissioner, coming to the findings that, "the families are Pujari Families. If any temple is constructed, a Panda is indispensable for a temple according to Sanatan Dharma", dismissed the appeal, vide Annexure-3. Though Annexure-4, which is the continuous khatian in the name of the respondent No. 4, clearly indicates that she held 1 acre and 15 Decimal of land bearing plot No. 647/1606 and this gave a cause of action to the petitioner to file this writ application, challenging the impugned orders at Annexure-1 and 2 on the grounds that (i) the respondent No. 5 having more than one acre of land was not a privileged person and consequently, no parcha could have been issued to her and (ii) the local inspection was made in absence of the petitioner and that was in violation of the Rule 5 of the Bihar Privileged Persons Homestead Tenancy Rules, 1948 (hereinafter referred to as Rules). 4. The respondents appeared and filed counter-affidavit denying the contentions of the petitioner, asserting that the respondent No. 5 was, in fact, after the death of her father, Bhagirathi Panda, had continued to hold that land in the capacity of the cook of the petitioner and the inspection was made by the Circle Officer and Annexure-4, the khatian, has been produced before the writ Court for the first time, which was not produced in evidence by the petitioner before the Circle Officer and the Annexure-4 was prepared in the year 1978 and has not been finalized and has been challenged by one Daya Nidhi Panda in Case No. 177/1994. 5. 5. No rejoinder has been filed by the petitioner to counter the claim made in the counter-affidavit that Arinexure-4 was produced by him before the authorities below, i.e. before the Circle Officer or the Collector. Annexure-2, which is the memorandum of appeal filed before the Deputy Commissioner, does not show that any contention was made by the petitioner before the Deputy Commissioner that the Circle Officer had ignored Annexure-4 and passed the order. Thus, in absence of this, it is quite evident that this document has been produced before this Writ Court for the first time. No doubt, this document, Annexure-4, shows that 1 acre and 15 Decimal of land is recorded in the name of the respondent No. 5. It appears that the respondent No. 5 possesses more than one acre of land and therefore, an argument could be made that she is not a privileged person within the meaning of the Act. Privileged person as defined in Section 2(1) of the Act reads as follows :-- "2[(i) "privileged persons" means a person (a) who is not a proprietor, tenure-holder, under tenure-holder or Mahajan; and (b) who, besides his homestead, holds no other land or holds any such land not exceeding one acre; but does not include any person who has come into possession of the homestead land in contravention of the provisions of Section 20 of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949, (Bihar Act XIV of 1949 of Section 46 of the Chotanagpur Tenancy Act, 1908 (Bengal Act VI of 1908) or Section 49-C of the Bihar Tenancy Act, 1885 (Act VIII of 1885)."] 6. The onus of proving that the respondent No. 5 was not a privileged person was on the petitioner and he could proved it by placing Annexure-4, which he has placed here, before the Courts below. By not doing so, the petitioner has not discharged his onus. When the Circle Officer or the Deputy Commissioner passed the order on the documents available before them, then on the basis of a document, which was not produced before them and is produced before the writ Court for the first time, the orders of two authorities cannot be disturbed. By not doing so, the petitioner has not discharged his onus. When the Circle Officer or the Deputy Commissioner passed the order on the documents available before them, then on the basis of a document, which was not produced before them and is produced before the writ Court for the first time, the orders of two authorities cannot be disturbed. Therefore, it is held that a document placed for, the first time in a writ Court to prove a particular fact if not produced before the authorities against whose order the writ has been preferred can not be used by the writ Court to disturb the order of the authorities who passed the orders in absence of such document. 7. On perusal of the impugned order, Annexure-1, dated 28.9.1991, I find that the Circle Officer came to the following findings :-- "Uparyukt Tathyon se Spast Hota Hai Ki Aavedika Prashray petitioner (rapt Raiyat Ki Shreni Mein Aati Hai Tatha Kareeb Chalish Varshon Se Makan Banakar Rahti Aa Rahi Hai, Aisi Sthiti Mein Uska Vasgit Parcha Ka Dava Sahi Jaan Padta Hai." The aforesaid order can be split in two parts--(i) one which declares the respondent No. 5 to be a privileged tenant and (ii) the other which finds her possession over the house for the last 40 years. 8. The petitioner says that without coming to a finding that the respondent No. 5 was a privileged person, no tenancy could have been created but I find that it is a submission against the fact and against the record because in the first portion of the aforesaid finding, the Circle Officer has, after considering all the facts placed before him, come to a finding that the respondent No. 5 was a privileged tenant. If the Annexure-4 was not there finding that the respondent No. 5 was a privileged tenant. If the Annexure-4 was not there before the Circle Officer, then on the evidence that was available before him, he passed this order, then I do not find any illegality in this order. 9. Now coming to the question of local inspection, it appears that the petitioner had prayed for local inspection. The Circle Officer has recorded that the local inspection was made by him on 19.9.1990 in present of the Halka Karamchari, Circle Inspector and Circle Amin, when the land was measured by the Anchal Adhikari. 9. Now coming to the question of local inspection, it appears that the petitioner had prayed for local inspection. The Circle Officer has recorded that the local inspection was made by him on 19.9.1990 in present of the Halka Karamchari, Circle Inspector and Circle Amin, when the land was measured by the Anchal Adhikari. The order dated 16.8.1990 and 17.8.1990 indicate that the disputed land was to be measured and for that notices were to be issued to both the parties but the order dated 18.9.1990 reads that, the local inspection was made along with Halka Karamchari, Circle Inspector and Circle Amin. Thus, the local inspection obviously was not made in presence of the petitioner or the respondent which was contemplated in the earlier orders. The question now is whether the local inspection was a requirement of law and non-compliance of it has violated any provisions of law. Rule 5 of the Rules reads as follows :-- "5. (1) The Collector shall either himself make local enquiry or have such inquiry made by any responsible officer not below the rank of a Circle Inspector or Welfare Inspector and satisfy himself as to the correctness or otherwise of the contents of such applications. (2) The enquiring officer shall issue a notice in Form F to all the interested parties intimating the date on which the enquiry shall be made and directing parties to produce all the evidence in their possession in support of or against the application. (3) The enquiring officer shall make a record of the evidence produced before him and, if he is not the Collector, submit his report to the Collector. (4) The Collector shall after hearing the parties on all points arising out of the application pass such order as to him seems to be just and proper. (5) The Collector shall prepare a record of homestead held by privileged tenant in Form G. The main record shall be maintained in the office of he Collector and a copy of the record bearing the signature and seal of the Collector shall be made over to the landlord and the privileged tenant." 10. (5) The Collector shall prepare a record of homestead held by privileged tenant in Form G. The main record shall be maintained in the office of he Collector and a copy of the record bearing the signature and seal of the Collector shall be made over to the landlord and the privileged tenant." 10. The learned counsel appearing for the petitioner, relying on a decision rendered in the case of Bishwanath Singh v. State of Bihar and Ors., reported in AIR 1981 Pat 145 , has argued that the claim of the petitioner would not be sustainable because the privileged tenant should not hold any other land exceeding one acre. There could be no dispute about this argument. But it appears that the petitioner has been arguing on Annexure-4 regarding which discussion has been made earlier. Therefore, this decision is not applicable in the present facts and circumstances of the case. The order decisions on which the learned counsel for the petitioner relied are Sk. Wajuddin v. --State of Bihar and Ors., reported in AIR 1985 Pat 248 and Rajeshwar Prasad and Ors. v. The State of Bihar and Ors., reported 1990 (1) PLJR 35 and he argued that the local enquiry must have been made, which has not been done and therefore, this is a violation of the provisions of law. From the provisions of Rule 5, it is clear that this rule envisages a local enquiry, but not of a local inspection. In my view, the local enquiry and local inspection are two different things. Local enquiry means the enquiry to be conducted by a local officer where the land is situated but not the local inspection by the enquiry officer of the site of the dispute. Therefore, the import of the meaning local enquiry as used in Rule 5(1) that the officer should make enquiries and the word, "enquiry" has the same, meaning as is assigned generally under this law, meaning thereby the officer has to collect evidence by giving opportunities to the parties, then prepare records of proceedings but it does not require a local inspection as a mandatory requirement. In this connection para 8 of the judgment 1990 (1) PLJR 35 relied upon by the petitioner is being quoted below :-- "8. In this connection para 8 of the judgment 1990 (1) PLJR 35 relied upon by the petitioner is being quoted below :-- "8. From a bare perused of the aforementioned Rule 5(2) it is clear that notice in Form, F has to be mandatorily issued to all the parties intimating them the date on which the proposed enquiry is going to be made and further directing them to produce all their evidence in support of or against the application. Under Rule 5(3) the Enquiring Officer has burdened with a duty to make a record of the evidence produced before him and then he has to submit his report." This discussion also does not say that the authority concerned should make a local inspection. The only requirement is that the notice for enquiry should be there to the contesting parties with a direction to produce all the evidence for or against which they can produce. A perusal of the impugned order Annexure-1 no doubt indicates that the local inspection has been done, but in absence of the petitioner. But nevertheless the petitioner had been present during the enquiry, his documents had been considered, his witnesses had been examined and the order-sheets dated 13.7.1990 says that both the parties were present, the order dated 7.11.1990 says that both the parties were noticed that on 5.12.1990 they should appear with their evidences. The order dated 15.12.1990 shows that both the parties were present. Similar is the order dated 16.12.1990 when both the parties were present. Thus, it is quite clear that all these orders form the part of Annexure-1. All these orders shows that notice of enquiry was served on both the parties, which obviously include the petitioner and the petitioner had appeared on all the dates and the notice for producing evidence was also served upon the petitioner and the petitioner had also filed the written statement before the Circle Officer. The requirement of Rule 5 is complete. Thus, it is held that as there is no provision for local inspection and as local inspection and local enquiry and quite different things, if the local inspection was made in absence of the petitioner, then it is not at all a violation of any mandatory requirement of Rules. Consequently, this argument of the petitioner has to fail and consequently, on this ground impugned order cannot be disturbed. 11. Consequently, this argument of the petitioner has to fail and consequently, on this ground impugned order cannot be disturbed. 11. The decision reported in 1994 (2) PLJR 831 relied upon by the petitioner is of no help to him because in this case neither there is any claim for eviction of the tenant, nor there is any dispute with regard to the rent. 12. Thus, in the result, the posed question is answered in the way that as the local inspection is not a mandatory requirement of Rules and if on the basis of evidence adduced before the Circle Officer, the Circle Officer comes to a finding that a person is a privileged person, then on the basis of a document not produced at that stage and produced before the Writ Court for the first time, that judgment cannot be disturbed and as there is a finding in Annexure-3 that the respondent No. 5 was a privileged person, the tenancy has been granted, then in that circumstances there is no illegality in the order impugned. Consequently, the writ application is dismissed.