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2010 DIGILAW 714 (JHR)

Kamla Gangoli v. State of Jharkhand

2010-07-07

D.N.PATEL

body2010
ORDER : D.N. PATEL, J. 1. We have heard Mr. Mahesh Tiwari, learned Counsel for the appellants, assisted by Mr. Ganesh Pathak and Mr. Fayyaz Ahmad and the Standing Counsel and Mr. A.K. Mehta, learned Counsel for the respondents. 2. This appeal has been filed against the judgment and order dated 9.9.2009 passed by a learned Single Judge of this Court. The relevant part of the impugned judgment is quoted below: “8. In the light of the above submissions, while setting aside the impugned order dated 18.03.2008 passed by the respondent No. 2, the matter is remitted back to the respondent No. 2 to take a fresh decision on the issue relating to the petitioners' claim for acceptance of the holding tax in respect of the lands, excluding the controversial 8 kathas and 12-1/2 chhataks of land, taking into consideration the claim of the petitioners that they being the owner of the lands, are in constructive possession of the same. With these observations, this writ application is disposed of. 3. At the very outset, the learned Counsel for the appellants stated that the objection of the appellants is with regard to the exclusion of 8 kathas and 12-1/2 chhataks of land. Under the law, the tax is to be realized from the owner of the property. 4. We find from the records that said 8 kathas and 12-1/2 chhataks of land was gifted by the petitioners-appellants to Ram Lakkhan Singh Yadav College (respondent No. 3 in this appeal) by a registered gift deed dated 22.11.1982, a copy of which has been annexed with I.A. No. 704/2010 in this appeal. Under the said gift deed, the petitioners-appellants, who are referred to as 'doners' in the gift deed, have stated in respect of the land in question that it has been voluntarily transferred and conveyed absolutely to the donee. The gift deed says that the land is being transferred and conveyed absolutely to the said donee ‘to have and hold the same as owner thereof for ever’. Thus from the recital in the registered gift deed, it is absolutely clear that the land has been transferred absolutely and without any reservation or condition. However, there is a recital in the gift deed is that the land is being transferred for the purpose of a library for the use and benefits of the students. 5. Thus from the recital in the registered gift deed, it is absolutely clear that the land has been transferred absolutely and without any reservation or condition. However, there is a recital in the gift deed is that the land is being transferred for the purpose of a library for the use and benefits of the students. 5. Learned counsel for the appellants has argued that the land has not been used for the purpose for which it was donated and accordingly the appellants have been legally advised that they are entitled to resume possession and ownership of the land for non-compliance of the said purpose mentioned in the gift deed. In this context, reliance has been placed upon a decision of the Supreme Court in the case of Thakur Raghunath Ji Maharaj and Another Vs. Ramesh Chandra, AIR 2001 SC 2340 . Although the head note (B) of that Law Report, which was read out before us by the learned Counsel for the appellants, did seem to support that contention of the appellants but on going through the facts of the case, we find that the decision is based upon the fact that simultaneously with the gift deed another agreement was entered into between doner and the donee of that case that the purpose for which the gift was made had to be completed within six months from the date of execution of the gift deed, failing which the doner would have the right over the gifted land. 6. In the present case, there is no such separate agreement and there is no such clause in the gift deed that the title would revert back to the donee upon failure of fulfilment of purpose within any strict time schedule. Accordingly, we are of the opinion that the gift being absolute, conveys and transfers the title of the land to the donee I.e. Ram Lakhan Singh Yadav College and even if the purpose, for which gift was made, is not fulfilled by the donee, the title does not revert back to the doner. 7. It has been recorded as a finding of fact based upon the admission of the petitioner-appellants that they were not in actual possession of the land in question since after parting with the possession consequent upon execution of the gift deed. 7. It has been recorded as a finding of fact based upon the admission of the petitioner-appellants that they were not in actual possession of the land in question since after parting with the possession consequent upon execution of the gift deed. In view of the above, the petitioners-appellants are neither owners nor in possession of the disputed area of land measuring 8 kathas and 12 1/2 chhataks. 8. Reliance was placed by the learned Counsel for the appellants upon a decision of a Division Bench of this Court in LPA No. 430/99 by which the High Court remanded the matter to the Competent Authority under the Urban Land (Ceiling and Regulation) Act, 1976 for reconsideration. It may be mentioned here that the said Act has not been repealed so far in the State of Jharkhand. 9. There is an observation in paragraph 21 of the decision of the Division Bench dated 1.8.2007 in said LPA No. 430/99, made in the context to ceiling proceeding, that the possession of the land which had been taken from the petitioners-appellants on 18.11/1992 in the ceiling proceedings should be delivered back by the ceiling authorities to the petitioners-appellants, who were "admittedly the land owners". We have gone through the entire judgment of the Division Bench. The observation is in the context of the proceeding under the aforesaid Land Ceiling Act. The said judgment does not take into account the gift deed executed by the petitioners-appellants on 22.11.1982 to Ram Lakhan Singh Yadav College and it effect upon the title of the petitioners-appellants. Accordingly the said decision of the Division Bench is of no help to the petitioners-appellants in the present case. 10. In substance, the case of the petitioners-appellants in the present LPA is that although they have gifted away the land, yet they should be treated as owners thereof by the Local Municipal Body for the purpose of collection of taxes. We are afraid that this kind of contention is difficult to accept in the discretionary and equitable Jurisdiction of this Court under Article 226 of the Constitution of India. The learned single Judge was absolutely correct in excluding the land in question in the impugned order. 11. The LPA, therefore, fails and is, accordingly, dismissed.