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2011 DIGILAW 745 (JHR)

Ram Lai Panjiyara v. State of Jharkhand

2011-07-29

PRASHANT KUMAR

body2011
JUDGMENT : Prashant Kumar, J. In this writ application petitioner prayed for quashing the order dated 14.8.2006 passed in R.M.R. No. 3/2002-2003 and order dated 3.4.2002 passed in RMA No. 27/1997-98 and order dated 7.8.1997 passed in Pradhani Appointment Case No. 59 of 1996-97 by Respondent Nos. 2, 3 and 4 respectively. 2. It appears that respondent no. 6 filed an application under Section 6 of Santhal pargana Tenancy (Supplementary Provision) Act, 1949 (hereinafter referred to as the aforesaid Act') for appointment on the post of Pradhan of Mauza- Bansjora on the hereditary basis vide Annexure-1 series It then appear that petitioner also applied for appointment on the post of Pradhan under Section 5 of the aforesaid Act. In the said petition, it is stated that father of respondent no. 6 was dismissed from the post of Pradhan by Deputy Commissioner, Dumka on the ground of misconduct hence his son (respondent no. 6) is not eligible for being appointed as Pradhan It then appears that Respondent No. 4 vide order dated 3.3.1997 (Annexure-5) had considered the objection of petitioner and decided that appointment of Pradhan of Mauza-Bansjora will be made as per the provision contained under Section 5 of the aforesaid Act. Accordingly, he issued notices to the original raiyats inviting objection. "It further appears that vide order dated 7.8.1997, respondent no. 6 was appointed on the post of Pradhan of Mauza-Bansjora on the basis of majority of votes of raiyats. Thereafter, petitioner filed an appeal before the Deputy Commissioner vide RMA No. 27 of 97-98, which was dismissed by order dated 3.4.2002 (Annexure-6). Against that order, petitioner filed a revision vide RMR No. 3 of 2002-2003 before the Commissioner, Santhal Pargana Division, Dumka but the said revision also dismissed vide order dated 14.8.2006 (Annexure-8). Against the aforesaid orders, present writ application filed. 3. It appears that respondent nos. 1 to 5 had filed a counter affidavit in which they stated that the order passed by Respondent Nos. 2. 3 and 4 are valid and in accordance with law. Aforesaid respondent further stated that the main dispute is in between petitioner and respondent no. 6. It is worth mentioning that notice issued to respondent nos. 6 and 7 and the said notice validly served upon them. Respondent No. 6 had appeared• through Ranjan Kumar Singh. Advocate. However, no counter affidavit filed on his behalf. Respondent No. 7 did not appear. 6. It is worth mentioning that notice issued to respondent nos. 6 and 7 and the said notice validly served upon them. Respondent No. 6 had appeared• through Ranjan Kumar Singh. Advocate. However, no counter affidavit filed on his behalf. Respondent No. 7 did not appear. 4. It is submitted by Sri Durga Charan Mishra, learned counsel for the petitioner that it is admitted position that respondent no. 6 was appointed as Pradhan according to provisions contained under Section 5 of the aforesaid Act. It is submitted that as per Section 5 of the aforesaid Act, it is imperative upon a raiyat and/or rand lord to file an application for appointment on the post of a Pradhan and then only on his application, consent of two-third Jamabandi raiyat of village can be ascertained. It is submitted that respondent no.6 not applied for appointment as Pradhan of the village under Section 5 of the afore- said Act. It is submitted that respondent No. 6 applied under Section 6 of the aforesaid Act for his appointment on the post of village Pradhan on hereditary basis. It is submitted that since respondent no. 4, after considering the objection raised by petitioner, decided that the post of Pradhan of Village-Bansjora will be filled up according to Section 5 of the aforesaid Act, therefore, impliedly he rejected the application of respondent no. 6 filed under Section 6 of the aforesaid Act. It is submitted that respondent no. 6 had not applied for appointment on the post of Pradhan of Village-Bansjora under section 5 of the aforesaid Act, thus, the action of respondent no. 4 in appointing Respondent No. 6 as village Pradhan is wholly illegal and against the provisions of aforesaid Act. It is further submitted that as per the prescribed Rules if a village Pradhan is dismissed on the ground of misconduct, his heirs are deprived from appointment on the same post. It is submitted that father of respondent no. 6, namely, Basant Panjiyara was dismissed by Deputy Commissioner, Dumka and said order of dismissal later on confirmed by Divisional Commissioner, Santhal pargana, Dumka by Annexure-? Under the said circumstance, respondent no. 6 is not eligible for being appointed as village Pradhan. Accordingly, it is submitted that on this ground also, the appointment of respondent no. 6 cannot be sustained. 5. On the other hand, Government Advocate for respondent nos. Under the said circumstance, respondent no. 6 is not eligible for being appointed as village Pradhan. Accordingly, it is submitted that on this ground also, the appointment of respondent no. 6 cannot be sustained. 5. On the other hand, Government Advocate for respondent nos. 1 to 5 and Sri Ranjan Kumar Singh, learned counsel for respondent no. 6 contended that respondent no. 4 had treated the application of respondent no. 6, a petition under Section 5 of the aforesaid Act, therefore, issuance of notice to the Jamabandi raiyats inviting their objections against the appointment of petitioner as well as respondent no. 6 on the post of Pradhan of Village-Bansjora is legal. It is submitted that out of 42 Jamabandi raiyats (who were present on 7.8.1997 before Respondent No.4), 41 had given their vote in favour of respondent no. 6 whereas only 2 had voted in favour of petitioner. It is submitted that since two-third of total Jamabandi raiyats (63) of Village-Bansjora had voted in favour of respondent no. 6 therefore respondent no. 4 appointed respondent no. 6 as village Pradhan. It is further submitted that, it is true that heir of dismissed Pradhan is deprived from being appointed as village Pradhan on hereditary basis, but in the instant case because respondent no. 6 has not been appointed under Section 6 of the Act, aforesaid contention raised by learned counsel for the petitioner liable to be rejected. It is submitted that in this case, respondent no. 6 appointed under Section 5 of the aforesaid Act on the basis of consent of 2/3rd Jamabandi raiyats of the Village-Bansjora, hence there is no illegality in his appointment Accordingly, it is submitted that the writ application is liable to be dismissed being devoid of any merit. 6. Having heard the submission, I have gone through the record of the case. It is not in dispute that respondent no. 6 filed application for appointment on the post of Pradhan of Village-Bansjora under the provision of Section 6 of aforesaid Act. It also appears that petitioner filed an objection against the said application of respondent no. 6 wherein he categorically stated that father of respondent no. 6 was dismissed by Deputy Commissioner on the ground of misconduct, thus, respondent no. 6 is not eligible for appointment on the post of Pradhan. It also appears that petitioner filed an objection against the said application of respondent no. 6 wherein he categorically stated that father of respondent no. 6 was dismissed by Deputy Commissioner on the ground of misconduct, thus, respondent no. 6 is not eligible for appointment on the post of Pradhan. From perusal of Annexure-5, order dated 3.3.1997 it appears that after considering the objection of petitioner respondent no. 4 decided to make appointment on the post of Pradhan according to Section 5 of the aforesaid Act. Thus, I find that by implication, applicatiol"1 of respondent no. 6 was rejected by respondent no. 4. From perusal of record, I find that thereafter, respondent no. 6 had not made any application for appointment of village Pradhan under Section 5 of the aforesaid Act. Section 5 of the aforesaid Act reads as follows:- 5. Appointment of a village Headman of a khas village.-On the application of a raiyat or of landlord of any khas village and with the consent of at least two thirds of the Jamabandi raiyats of the village ascertained in the manner prescribed, the Deputy Commissioner may declare that a headman" shall "be appointed for the village and shall then proceed to make the appointment in the prescribed manner. From perusal of the same, it appears that the Deputy Commissioner is required to ascertain the consent of 2/3rd of the Jamabandi raiyats of village on the" appointment of a raiyat or landlord as village Pradhan who made application for said purpose. Thus, if a raiyats or landlord of any khas village made application for appointment of village Pradhan then only Deputy Commissioner can ascertain the view of Jamabandi raiyats on his appointment. In another words if no application filed by a raiyat or landlord for appointment as village Pradhan, then the question of ascertaining the view of Jamabandi raiyat of the said village does not arise. As noticed above, in the instant case, respondent no. 6 had not applied under Section 5 of the aforesaid Act and his application filed under Section 6 of the Act had impliedly rejected vide order dated 3.3.1997. Under the said circumstance, action of respondent no. 4 inviting objection on the appointment of respondent no. 6 is illegal and against the provision contained under Section 5 of the aforesaid Act. 7. Under the said circumstance, action of respondent no. 4 inviting objection on the appointment of respondent no. 6 is illegal and against the provision contained under Section 5 of the aforesaid Act. 7. Rule 5 of Santhal Pargana Tenancy (Supplementary) Rules, 1950 provides that while making appointment of Headman, under Section 5 or 6 of the aforesaid Act, the Deputy Commissioner shall, as far as possible, follow the Rules prescribed in Schedule 5, except where these rules, expressly or by necessary implication provide otherwise. Thus, as per the aforesaid Rule 5, the provision of Schedule 5 applicable in the appointment of Headman both under Section 1) as well as under Section 6 of the aforesaid Act. From perusal of Schedule 5 which deals with the appointment of Headman, it manifest that if a Headman dismissed for gross misconduct then his heirs have no claim on the post of Headman (Pradhan). In the instant case before passing of impugned orders, father of respondent no. 6, namely, Basant Panjiyara was dismissed from the post of village Pradhan of Village-Bansjora by Deputy Commissioner, Dumka vide order dated 15.7.1989 in Pradhani Dismissal Case No. 52/1985-86 on the ground of misconduct. It appears that though at the time of passing of impugned orders dated 7.8.1997, an appeal was pending before the respondent no. 2 but the same was dismissed by Annexure-7. Under the said circumstance, as per the provision' contained in Schedule-5 of the Santhal pargana Tenancy (Supplementary) Rule, 1950, respondent no. 6 is not eligible for being appointed as village Pradhan. Thus on this score also, appointment of respondent no. 6 cannot be sustained. 8. In view of the discussion made above, the impugned orders cannot be sustained. Accordingly, this application is allowed. Impugned orders dated 7.8.1997 (Annexure-5), dated 3.4.2002 (Annexure-6) and dated 14.8.2006 (Annexure 8) passed by respondent nos. 4, 3 and 2 respectively, are hereby quashed. However parties shall bear their own costs.