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Jharkhand High Court · body

2012 DIGILAW 1542 (JHR)

Mamta Devi v. State of Jharkhand

2012-10-10

P.P.BHATT

body2012
Order The petitioners, by way of filing this petition under Article 226 of the Constitution of India, have prayed for quashing and setting aside the order dated 7.2.2007 (Annexure-9) passed by the Additional Collector, Ranchi. 2. Brief facts of the case is that the land situated at village-Pirra Anchal Kanke pertaining to Khata No. -129 having different Plots was recorded as Gairmuzurwa Malik which was settled before 01.01.1946 by Hukumnama in favour of the petitioner and he regularly paid the rent to the ex-landlord and subsequently, to the state of Bihar as Zamabandies were opened in the year 1962. Upon the direction of respondent No.4, The S.D.O., Ranchi initiated a proceeding U/s 4(h) Bihar Land Reforms Act 1950 and the S.D.O., Ranchi Vide order dated 24.06.1985 hold the claim of the settlees genuine and further referred the matter to the A.C., Ranchi with observation that before passing any final order legal opinion of the Government pleader is necessary. On reference of the matter the government pleader opined that the order of the learned S.D.O. is according to law in which he has recommended for dropping the proceeding for cancellation of Zamabandi. The A.C., Ranchi referred the matter to the Department of Revenue, Government of Bihar through D.C., Ranchi for concurrence and the same was confirmed vide letter dated 24.10.1986. Subsequently, the D.C.L.R., Ranchi received a letter No. -74 dated 28.04.1987 issued by the A.C., Ranchi in light of the order dated 03.04.1987 passed by D.C., Ranchi whereby the D.C., Ranchi declared the order of the state Government without jurisdiction and disagreed with the findings recorded by the S.D.O., Ranchi and directed the D.C.L.R., Ranchi to proceed with the enquiry U/s 4(h) Bihar. The D.C. L.R., Ranchi conducted the proceeding duly by examining the materials on records examining the oral witnesses and ultimately vide order dated 01.07.1988 hold that the settlement by the ex-landlord is genuine and is not covered by mischief contemplated U/s 4(h) Bihar Land Reforms Act 1950 and thus found the proceeding worth dropping and recommended for the same to the A.C., Ranchi. But the A.C., Ranchi kept the matter pending for several years and ultimately a writ vide No. W.P.(C) No. -4991/2005 preferred and the same was disposed of with a direction to A.C., Ranchi to decide the case No. -01/1982-83 within a period of two months from the date of receipt/production of copy of this order and if the said case is not disposed of by the respondent with the said period, the same shall stand terminated on the lapse of the said period. The A.C Ranchi vide order dated 07-02-2007 ordered for cancellation of jamabandi of the petitioner and the record was sent to the D.C Ranchi for grant of permission. 3. The learned counsel for the petitioners submitted that the land in question was settled in favour of the present petitioners way back in the year 1946 i.e. prior to appointed day and this very fact also clearly reveals from the order of the learned S.D.O who after perusing the material produced before him observed in its order that the concerned Raiyat got the Raiyati settlement of lands by way of Sada Hukumnama even before 1946 and the State has also recognized the tenancies during the year 1962 to 1963 and granted rent receipts. 4. Learned counsel for the petitioner further submitted that vide Annexure-3, the Under-Secretary of the State Government has also given confirmation vide its communication/letter dated 24.10.1986. Learned counsel for the petitioner by referring Annexure-4 to the petition pointed out that the learned Land Reform Deputy Collector, Ranchi has also vide its order dated 21.4.1987 decided the matter in favour of the present petitioners and pointed out that the Government has opined in last paragraph of the order that the enquiry u/s 4(h) is not necessary. 5. Learned counsel for the petitioner by referring Annexure -5 i.e. order dated 01.07.1988 passed by the Land Reform Deputy Collector, Ranchi pointed out that the learned L.R.D.C has also considered the case of the petitioner in details and reached to the conclusion that the case cannot be reopened under Section 4(h) of the Bihar Land Reforms Act and the case was recommended to the Additional Collector, Ranchi to drop the proceedings. Since the Additional Collector kept the matter pending, thereafter, the present petitioners approached the Commissioner, South Chhotanagpur Division, Ranchi and the learned Commissioner vide its order dated 12.2.1992 directed the Additional Collector, Ranchi to dispose of the proceedings as early as possible preferably within a period of three months i.e. from the date of receipt of this order. 6. Learned counsel for the petitioners further submitted that despite the specific direction given by this Court in W.P(C) No.4991/2005, the learned Additional Collector, Ranchi passed an order dated 7.2.2007 i.e. beyond the period of two months thus he has violated the specific direction given by this Hon'ble Court. 7. Learned counsel for the petitioners further submitted that the said order is without jurisdiction and the same is required to be quashed and set aside and in support of his submissions he has referred to and relied upon the judgments, reported in 1980 PLJR 564, 1986 PLJR 963 and 1989 BLT Patna, 87 and submitted that in view of these judgments the Collector is an adjudicatory body and not the recommending authority. He further submitted that before annulling any transfer/settlement made after 01.01.1946, he has to arrive at his own conclusion in accordance with the provisions of Section 4(h) of the Act. Annulling the settlement of 1936 is without jurisdiction and beyond the powers conferred by section 4(h) of the Act. It is further submitted that the proceeding can be initiated and inquiries can be made only if the Collector is satisfied that such transfer was made at any time after 1st January 1946 i.e the appointed day. 8. As against this, the learned counsel for the respondents State by referring counter affidavit filed by the respondents State as well as by referring Annexure -A i.e. the impugned order, tried to justify the action of the respondent-State and more particularly, the order passed by the learned Additional Collector, Ranchi, mainly on three counts. Firstly, that the petitioner’s case is based on Sada Hukumnama and therefore, the learned Additional Collector has rightly rejected the case of the petitioner. Secondly, with regard to non filing of return and it is submitted that the Deputy Commissioner clearly opined in its order (Annexure-9) that the present petitioners did not produced any Zamindary receipt which create doubt of transfer alleged to be made by Hukumnama. Secondly, with regard to non filing of return and it is submitted that the Deputy Commissioner clearly opined in its order (Annexure-9) that the present petitioners did not produced any Zamindary receipt which create doubt of transfer alleged to be made by Hukumnama. It is further submitted that the mere issuance of rent receipt by the authorities does not create any right in favour of the petitioners. Lastly, it is submitted that the copy of Hukumnama was not produced before the learned Addl. Collector and it is also pointed out by the learned counsel representing the State that the learned Additional Collector has also taken note about the confirmation given by the respondent-State, which creates a great suspicion in the mind of the authority and therefore, on these counts, the learned Additional Collector, Ranchi has rejected the claim of the petitioners. It is further submitted that since the present petitioners have not produced any supporting documents in their case, the learned Additional Collector has rejected the claim of the petitioner, which was placed on Sada Hukumnama. 9. Considering the aforesaid rival submissions of the parties and from perusal of the materials on record and more particularly in view of Annexure-1, the order passed by the SDO in Case no. 1/1982-83, it became amply clear that necessary documents with regard to settlement of land were produced before the S.D.O. way back on dated 24.6.1984. On perusal of the said order, it appears that the SDO has given justification while recording its reason and specifically held that on the basis of the documents referred, the concerned Raiyat has got Rayati settlement of lands by Sada Hukumnama even before 1946 and the State has recognized the tenancies during the year 1962 to 1963 and granted rent receipts. It further appears from Annexure-2 that the matter was referred for opinion to the learned Government Pleader and the learned Government Pleader has also expressed categorical opinion in favour of the present petitioners by stating that the order passed by the learned SDO is according to law and the recognition made by the learned SDO for dropping the proceeding for cancellation of Jamabandi is not required to be disturbed. Thereafter, it appears that the Under-Secretary of the State Government has also given its confirmation vide its communication dated 24.10.86 under Section 4(h) of the Bihar Land Reforms Act. Thereafter, it appears that the Under-Secretary of the State Government has also given its confirmation vide its communication dated 24.10.86 under Section 4(h) of the Bihar Land Reforms Act. It also reveals from the order produced vide Annexure-4 that the Deputy Collector, Ranchi vide it order dated 21.4.87 has taken a view that proceedings can not be reopened and require be dropped under Section 4(h) of the Act. Thereafter, vide Annexure-5, the Additional Collector vide order dated 01.07.1988 reached to the conclusion that this is not a fit case wherein proceeding under Section 4(h) of the Act is required to be re-opened and initiated the proceeding. On perusal of the said order it appears that the learned Additional Collector, Land Reforms, Ranchi has considered in detail all the documentary evidence and held that the settlement by the ex-landlord is genuine and is not covered by section 4(h) of the Act and a suggestion has been made to drop the proceedings and recommended for the same to the Additional Collector, Ranchi but the said recommendation was not carried out further and it was kept pending and thereafter, one Triveni Pd. Pandey approached this Court by filing WP(C) No. 4991 of 2005 and this Court specifically directed respondent No. 2 to decide the Case No. 1/1982-83 within two months from the date of receipt/production of a copy of this order but the learned Additional Collector could not decide the said case within a period of two months but passed an order dated 07.02.2007, which is the order impugned (Annexure-9) and from perusal of the said order, it appears that the learned Additional Collector has not passed an order in favour of the petitioner and the matter has been referred to the learned Collector, Ranchi for further recommendation. It appears that the learned Additional Collector has not properly considered the provision contained under Section 4(h) of the Bihar Land Reforms Act. The reasons assigned by the learned Additional Collector is without any basis because in the previous proceedings the documents with regard to settlement of land and the copy of return were also filed, however, on the ground of non-production of documents, the entire claim of the petitioners was rejected by the learned Additional Collector. The reasons assigned by the learned Additional Collector is without any basis because in the previous proceedings the documents with regard to settlement of land and the copy of return were also filed, however, on the ground of non-production of documents, the entire claim of the petitioners was rejected by the learned Additional Collector. It further appears that the learned Additional Collector has also failed to appreciate the confirmation given by the State Government in confirmation proceeding, which is produced before the learned Additional Collector and rejected the claim put forward by the present petitioner. 10. I have also perused the judgments referred to and relied upon by the learned counsel for the petitioners. Para 4, 5 and 6 of the judgment reported in 1986 PLJR 963 read as under; “4. On the fact of this case, it is undisputed that the LRDC annulled the settlement of a land made in the year 1936 and, therefore, he acted without jurisdiction and beyond the powers conferred under Section 4(h) of the Act. 5. Further from the order of the LRDC passed under Section 4(h) of the Act, it appears that condition precedent for exercise of the jurisdiction in annulling the proceeding under Section 4(h) of the Act was not fulfilled. Before exercising the jurisdiction under Section 4(h) of the Act, the LRDC had himself to be satisfied and arrived at his own conclusion that the transfer was made with the object of defeating any provision of this Act of causing logs to the State or obtaining higher compensation thereunder. No such finding appears to have been recorded. He is the adjudicatory body and, therefore, he could not recommend for such annulment which so appears from the order. He also failed to consider the fact that the State had accepted rent from the petitioner. Reference has also been made to a judgment of the Additional District Judge, Dhanbad dated 11.9.78 passed in Title Appeal No. 57/1976. The said appeal had been preferred by the petitioner for declaration of his title and confirmation of possession in respect of the land in question. The appeal was allowed and the suit was decreed in which the State was also a party. 6. The said appeal had been preferred by the petitioner for declaration of his title and confirmation of possession in respect of the land in question. The appeal was allowed and the suit was decreed in which the State was also a party. 6. From the order of the Deputy Commissioner, Dhanbad it appears that he has not at all considered the basic question whether the LRDC could annul the proceeding in respect of the settlement of the land made in the year 1936. It appears that the Deputy Commissioner, agreed with the recommendation of the LRDC that the settlement should be annulled under Section 4(h) of the Act. As already held the LRDC could not be the recommending authority. He was an adjudicatory body and he had to arrive at his own conclusion in accordance with the terms of Section 4(h) of the Act. 11. Para 6, 7 and 8 of the judgment reported in 1989 BLT Patna 87 read as under; “6. The additional Collector, however, started a fresh proceeding under Section 4(h) of the Act for annulment of the settlement made in favour of the petitioners and directed the petitioners to show cause. The petitioners appeared and contended that the proceeding under section 4(h) of the Act was misconceived since the settlement made in favour of the petitioners was of the year 1945. His name was duly mutated in the Revenue Records and he acquired subsisting title over the land in question. The subsequent settlement made by the first petitioner in favour of the petitioners No. 2 to 3 was also confirmed by the Land Reforms Deputy Collector and their names were also duly mutated. Thus, it was contended that the same can not be re-opened after 20 years, particularly when the State of Bihar did not prefer any appeal against the orders passed by the authorities in the mutation proceeding. 7. It appears that the Addl. Collector without considering these various aspects of the matter in its right prospective, recommended for annulment of the settlement of the land. On appeal, the Deputy Commissioner confirmed the order of the Addl. Collector and the revision preferred before the Commissioner also remained unsuccessful. On perusal of the orders it appears that without consideration of any material it was held on mere assumption that since the registered deed of transfer in favour of petitioner Nos. On appeal, the Deputy Commissioner confirmed the order of the Addl. Collector and the revision preferred before the Commissioner also remained unsuccessful. On perusal of the orders it appears that without consideration of any material it was held on mere assumption that since the registered deed of transfer in favour of petitioner Nos. 2 to 4 was executed in the year 1952, therefore, the alleged settlement of the year 1945 in favour of the petitioner No. 1 is an after thought. Neither the Addl. Collector nor the Deputy Commissioner nor the Commissioner had before them any substantial evidence to dislodge the settlement made in favour of the petitioner made in the year 1945. The learned commissioner again proceeded on mere assumption to hold that the Raja of Jharia made settlement to his brother by registered deed which implies that the settlement was within family to deprive the government of the valuable land. The finding is mere presumptive. In accordance with the rule of primogeniture prevalent in the family of the erstwhile estate of Raja of Jharia, the eldest brother was given the land for his maintenance and, therefore, the settlement had to be made, which off course, undisputedly made in the year 1945 and therefore, the proceeding under Section 4(h) of the Act must be held to be incomplete and misconceived. The proceeding under Section 4(h) of the Act could be initiated only in respect of the land settled after 1946. The present settlement was of the year 1945. It was confirmed in the mutation case and the name of the first petitioner was mutated as raiyat in the revenue records of the State of Bihar and vide letter dated 27.3.1976 of the Land Reforms Deputy Collector, this was confirmed and approved by the then Deputy Commission. When the State of Bihar was aggrieved, it ought to have preferred statutory appeal which was not so done. In respect of a part of the settlement made also in the year 1950 by the first petitioner in favour of income Tax authority out of the same plot of land in question, no proceeding what so ever was ever started for the annulment of the said settlement. In respect of a part of the settlement made also in the year 1950 by the first petitioner in favour of income Tax authority out of the same plot of land in question, no proceeding what so ever was ever started for the annulment of the said settlement. Once the said settlement is accepted as also the settlement in favour of Sri A.B. Guha, the said plot of land lost its character of Gairabad Malik and the plot of land acquired a raiyati Character before the came into operation. Therefore, the proceeding under section 4(h) of the Act was untenable. 8. In CWJC No. 134/80(R) it was held that before exercise the jurisdiction under Section 4(h) of the Act, the LRDC had himself to be satisfied and arrive at his own conclusion that the transfer was made with the object of defeating any provision of the Act or causing loss to the State or obtaining higher compensation thereunder. On a plain reading of the provisions contained under Section 4(h) of the Act, it is obvious that the collector while exercising his power to make inquiries in respect of any transfer must be satisfied that such transfer was made at any time after 1st January 1946. No such finding appears to have been recorded in the present case. The LRDC is an adjudicatory body and, therefore, he could not recommend for such annulment which is so obvious from his order. The courts also failed to consider the fact that the State had accepted rent from the petitioners and did not prefer any appeal against the order of mutation made in his favour. As already held the LRDC cannot be the recommending authority. He was an adjudicatory body and had to arrive at his own conclusion in terms of Section 4(h) of the Act. In the present case, there is no evidence worth the name to hold that the settlements were made after 1.1.1946. 12. I have also perused the judgment reported in 1980 PLJR 564. In the said judgment it is held that:- “HELD; Bihar Land Reforms Act 1950, Section 4(h) & 8. It is absolutely clear that all the proceedings under Section 4(h) of the act has terminated in favour of the petitioner. 12. I have also perused the judgment reported in 1980 PLJR 564. In the said judgment it is held that:- “HELD; Bihar Land Reforms Act 1950, Section 4(h) & 8. It is absolutely clear that all the proceedings under Section 4(h) of the act has terminated in favour of the petitioner. Those orders passed under Section 4(h) are appealable under Section 8 of the Act, but no appeal was preferred by the State and therefore, the order became final, which applies equally to a private individual and the State. Now, the State is not competent to reopen the matter when various authorities have decided the question more than once after fully applying their mind to the facts of the case and without any fresh material whatsoever”. 13. It appears that the above referred judgments are applicable to the facts and circumstances of the present case and therefore, this Court is of the view that the order dated 07.02.2007 passed by the Additional Collector, Ranchi deserves to be set aside. Accordingly, order dated 7.2.2007 (Annexure-9) as well as the subsequent orders passed by the respondent authorities is quashed and set aside. The respondent authorities are directed to issue rent receipts in favour of the petitioners in accordance with law within a period of two months from the date of receipt/production of a copy of this order. 14. With the aforesaid observations and directions, this writ petition stands allowed.