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2012 DIGILAW 356 (JHR)

Ganesh Bhagat v. State of Jharkhand

2012-03-13

POONAM SRIVASTAV

body2012
JUDGMENT Heard counsel appearing on behalf of the petitioner and counsel on behalf of the State as well as counsel on behalf of Respondent No. 5. 2. The instant writ petition is preferred challenging the order dated 19.07.2006 passed by Respondent No. 2 in S.A.R. Appeal No. 105 1998 and order dated 30.06.1998 passed by Respondent No. 3 in S.A.R. Case No. 4 of 199192. 3. The dispute relates to the restoration of the land i.e. plot No. 232 measuring an area of 1 acre 18 decimals. The private respondent initially filed a case, vide Misc. Case No. 381 of 1976 for restoration of the land under Section 71A of the Chhotanagpur Tenancy Act against one Sheo Nandan Sahu, which was dismissed, vide order dated 25.07.1977 (Annexure1 to the writ petition). The application was rejected on the ground that the land in question does not fall within the category of Section 46 of the C.N.T. Act. A second restoration application was preferred, vide S.A.R. Case No. 70 of 1985 against one Jagarnath Koeri. The land of the said person was a bakast land and another case, vide S.A.R. Case No. 74 of 1985 was filed against the present petitioner. The third case registered as S.A.R. Case No. 78 of 1985 was filed against the petitioner. All these three cases were decided simultaneously, but the decision in the case No. 70 of 1985 against Jagarnath Koeri was the leading case. After a lapse of certain time, another case vide S.A.R. Case No. 4 of 1991 was preferred before the D.C.L.R., Ranchi in respect of the same land. 4. Submission of the learned counsel is that the land in question i.e. plot No. 232 is a khatiani land and in the name of the petitioner's father, as shown in the khatian. The name of the father of Sheo Nandan Sahu is also mentioned, who was earlier made a party when the first S.A.R. case was instituted. Thus, on this basis, the petitioner emphasised that this is sufficient to substantiate that the land in question was in the hands of the petitioner prior to the Survey Settlement of 1935. 5. The respondent preferred an application under Section 71A of the C.N.T. Act which was registered as S.A.R. Case No. 2/R8/199293 between Ranglal Singh Munda Vs. Ganesh Bhagat. Thus, on this basis, the petitioner emphasised that this is sufficient to substantiate that the land in question was in the hands of the petitioner prior to the Survey Settlement of 1935. 5. The respondent preferred an application under Section 71A of the C.N.T. Act which was registered as S.A.R. Case No. 2/R8/199293 between Ranglal Singh Munda Vs. Ganesh Bhagat. The Circle Officer rejected the claim of the respondent, vide order dated 30.11.1992 holding that the Misc. Case preferred in the year 1976 and decided by Special Officer that the land in question is bakast land and, therefore, the claim of the respondent is baseless. No appeal was preferred against the order of the Circle Officer dated 30.11.1992, but the D.C.L.R., vide order dated 30.06.1998 allowed the S.A.R. Case No. 4 of 1991 and directed the competent authority to restore the property in question. The said order is annexed as Annexure6 to the writ petition. The petitioner preferred S.A.R. Appeal No. 105/R15/199899 (Ganesh Bhagat Vs. Ranglal Singh Munda), which was dismissed by Respondent No. 2the Deputy Commissioner, Ranchi, vide order dated 19.07.2006. Both the orders are challenged in the writ petition. 6. A preliminary objection is raised by the counsel appearing on behalf of the respondent that since the petitioner has failed to prefer a writ petition against the order passed by the Deputy Commissioner, in appeal before the Member, Board of Revenue, the writ petition is liable to be dismissed. 7. Counsel appearing on behalf of the petitioner has challenged the impugned orders on the ground that the contesting respondent raised the question of restoration of the land in dispute on several occasions right from the year 1976 and all those cases were dismissed, orders of which are annexed with the writ petition, but no appeal was preferred against the said orders. The same question was raised for a fourth time before the D.C.L.R., Ranchi suppressing the previous orders and managed to obtain an order in his favour. The emphasis is that the principles of resjudicata is squarely applicable. The matter stood decided between the petitioner and the contesting private respondent twice in respect of the same land where the same issue of restoration was involved and, therefore, the matter could not be adjudicated by the D.C.L.R. as well as the Deputy Commissioner time and again. 8. The emphasis is that the principles of resjudicata is squarely applicable. The matter stood decided between the petitioner and the contesting private respondent twice in respect of the same land where the same issue of restoration was involved and, therefore, the matter could not be adjudicated by the D.C.L.R. as well as the Deputy Commissioner time and again. 8. Replying the preliminary objection of the learned counsel on behalf of the contesting respondent, submission is that since the order of the D.C.L.R. as well as in appeal are without jurisdiction since there was already a previous adjudication in respect of the same question between the same parties and, therefore, the writ petition is the only efficacious remedy where the orders could be challenged. 9. Reliance has been placed on a decision of this Court in the case of Dr. Krishna Deo Narain Agrawal Vs. The State of Bihar & Ors., 2002 (3) JLJR 224 . 10. I have gone through the decision and apparently, the facts of the present case are somewhat similar to the one decided by this Court as far back as in the year 2002. It was held that a writ of certiorari which seeks to challenge an order passed under Section 71A of the C.N.T. Act is maintainable notwithstanding existence of alternative fora of appeal, revision and petition before the Member, Board of Revenue since the orders were wholly without jurisdiction and, therefore, the bar of alternative remedy shall not apply. I am in complete agreement with the aforesaid decisions. Besides, Article 226 of the Constitution of India is an extraordinary remedy which could be availed if the alternative remedy is not an efficacious one, more so after the writ petition was entertained, affidavits have been exchanged and at the stage of final adjudication, the writ petition cannot be thrown out on the ground of alternative remedy. Existence of alternative remedy is no doubt a procedural law, but since this Court already allowed the petitioner to avail this remedy, the objection cannot be entertained at this stage. 11. The D.C.L.R., Ranchi as well as the Deputy Commissioner, Ranchi failed to consider this fact that the restoration at the behest of the contesting respondent was rejected previously on a number of occasions and the orders passed in all those cases have attained finality. 11. The D.C.L.R., Ranchi as well as the Deputy Commissioner, Ranchi failed to consider this fact that the restoration at the behest of the contesting respondent was rejected previously on a number of occasions and the orders passed in all those cases have attained finality. The authorities below should have looked into the consequences that entail when the disputed question already stands decided by a competent authority and the same is not challenged by the aggrieved party. 12. Therefore, the two orders impugned in the instant writ petition dated 19.07.2006 passed by Respondent No. 2 in S.A.R. Appeal No. 105/1998 and order dated 30.06.1998 passed by Respondent No. 3 in S.A.R. Case No. 4 of 199192, is hereby quashed. The matter is remanded to the appellate authority i.e. Respondent No. 2 to decide the questions afresh. The parties should be given an opportunity of hearing and the authority shall decide : (1) Whether the principles of resjudicata is applicable to the present case since the question of restoration was already decided in Misc. Case No. 381 of 1976, vide order dated 25.07.1977 and S.A.R. Case Nos. 70 of 1985, 74 of 1985 and 78 of 1985, vide order dated 24.03.1986 ? (2) The contesting respondent failed to challenge the orders passed in the aforesaid proceedings and, therefore, the said orders have attained finality and whether the authority could have passed an order without looking into this material aspect ? (3) Any other question raised by the parties regarding the restoration of the land in question ? 13. The appellate authority shall decide the appeal after affording adequate opportunity to both the parties within a period of six months from the date a certified copy of this order is produce before him. 14. With the aforesaid observations /directions, the writ petition stands disposed of.