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2013 DIGILAW 1352 (JHR)

Rameshwar Dubey v. State of Bihar

2013-12-12

N.N.TIWARI

body2013
JUDGMENT BY COURT: In this writ petition, the petitioner has prayed for quashing the order dated 15th February, 1999 passed in SAR Revision No.5 of 1998 by learned Commissioner, South Chhotanagpur Division, Ranchi, whereby revision filed against the order dated 26th December, 1997 passed in SAR (Appeal) No.11 of 199798 has been allowed. 2. The case originated on an application filed by Respondent No.5 under Section 71A of the Chhotanagpur Tenancy Act (for short ‘CNT Act’) before the Sub Divisional Officer, Gumla, which was registered as SAR Case No.27 of 199596. In the said application, the Respondent No.5 had claimed restoration of 0.35 acres of land out of total area of 0.71 acres of village Gamharia, P.S. Ghaghra, District Gumla by evicting the petitioner. The claim of the Respondent No.5 was that the said land was recorded as Bakast Malik in the revisional survey record of right and he had got settlement from Sohan Kuer, wife of Keshwar Ram Mishra, one of the descendants of the ex. landlord, and the said land had been fraudulently acquired by the petitioner. The petitioner had contested the application, claiming his right, title and possession over the land, in question. Though Respondent No.5 had not filed any document or adduced any evidence, the application of the Respondent no.5 was allowed, holding that there was violation of Section 46 of the CNT Act and the land is required to be restored under the provision of Section 71A of the CNT Act. 3. Against the said order, the petitioner preferred appeal in the court of Additional Collector, Gumla, being SAR (Appeal) No.11 of 199798. Learned Lower Appellate Court heard both the parties and considered the facts and materials on record and by order dated 26th December, 1997, the Appellate Court has set aside the said order. It is pertinent to mention here that even before the learned Lower Appellate Court no document in support of the claim was produced by the Respondent no.5. However, learned Lower Appellate Court had held that there was violation of the provision of Section 46 of the CNT Act, but since the substantial structure was constructed by the petitioner in the year 196566, value of which was more than Rs.70,000/, he determined the compensation under the provision of Section 71A of the CNT Act and directed to pay the amount of compensation in lieu of restoration. It has been submitted that the petitioner, in order to avoid further litigation, deposited the amount of compensation. 4. Even, thereafter, the Respondent no.5 filed revision against the aforesaid order before the Commissioner, South Chhotanagpur Division, Ranchi, which was registered as SAR Revision No.5 of 1998. Learned Commissioner by order dated 15th February, 1999 allowed the revision and set aside the order passed by the learned Lower Appellate Court. 5. The order of the learned Commissioner has been challenged in this writ petition on the ground, inter alia, that the same is wholly perverse, arbitrary and illegal. The order does not contain any reference of document or evidence in support of claim of Respondent No.5, but the learned Commissioner has held that the land was settled in favour of Respondent no.5 and his name was also mutated. 6. Learned counsel for the petitioner submitted that the finding of the Divisional Commissioner is wholly unfounded. Learned Appellate Court had set aside the order of the learned SAR Officer on the ground that no document was produced by the Respondent No.5 in support of his claim. It is an admitted case that the land was recorded as Bakast Malik in the name of ex. Landlord-Damodar Ram Mishra. Even after vesting, the land was held in Khas possession of the ex. landlord and 'M' roll in respect of the land was prepared in the name of Most. Dewan Kuer, widow of Damodar Ram Mishra. 7. Learned counsel submitted that in view of the said admitted position the said land was not recorded as raiyati land of a raiyat belonging to member of Scheduled Tribe and as such the proceeding under Section 71A of the CNT Act is not maintainable. He further submitted that since no document or oral evidence was produced before the SAR Court or in appellate court or revisional court to show that even subsequently the land belongs to Respondent No.5 or any other member of Scheduled Tribes. He further submitted that the Commissioner without giving notice and opportunity of hearing to the petitioner disposed of the revision, behind his back, recording his finding in favour of Respondent No.5 only on presumption and surmises. There is no iota of evidence or discussion of any such document in the order of the learned Commissioner in support of his finding that the land belongs to a member of Scheduled Tribe. There is no iota of evidence or discussion of any such document in the order of the learned Commissioner in support of his finding that the land belongs to a member of Scheduled Tribe. The finding and the order of the learned Commissioner is, thus, based on no evidence and are wholly unsustainable. 8. The writ petition has been opposed by the State respondents. In the counter affidavit filed by the said respondents, it has been, inter alia, stated that the finding of the learned Commissioner is based on discussion and consideration of claims and counter claims of the parties and there is no infirmity or illegality in the order of the learned Commissioner and the same does not warrant interference by this Court. 9. I have heard learned counsel for the parties and perused the impugned order passed by the learned Commissioner. 10. The order contains, in brief, the claim of the Respondent No.5 as well as the statements made in defence by the petitioner. It also mentions about the report regarding structure. Circle Officer has reported about the substantial structure standing on the plot since 197273. Learned Commissioner on that basis has held that the land belongs to the private respondents, who are members of the Scheduled Tribe. It is evident from the documents brought on record, particularly Annexures1 and 2, that the land appertaining to Khata No.222, area 0.71 acres was recorded in the name of the ex. landlord and the rent was assessed in the name of Most. Dewan Kunwar, wife of Damodar Ram Mishra. The said position has not been disputed by the respondents. The claim of the private respondents is that the land was subsequently settled in the name of Puna Bhagat (since dead) in the year 1951 and his name was mutated in respect of the land. However, no document of settlement or mutation was ever brought before the courts at any stage earlier. Learned Lower Appellate Court has held that no document was produced by Respondent no.5. There is no whisper of production of any document or evidence before the revisional court in support of the claim. For the first time, Photostat copies of the alleged settlement paper as well as some rent receipts have been annexed with the counter affidavit filed by Respondent No.5. There is no whisper of production of any document or evidence before the revisional court in support of the claim. For the first time, Photostat copies of the alleged settlement paper as well as some rent receipts have been annexed with the counter affidavit filed by Respondent No.5. On perusal of the alleged settlement, it appears that the name of executant is Sohan Kuer, wife of Keshwar Ram Mishra. In recital, it has been mentioned that the land was obtained by Sohan Kuer in some civil suit decreed in the court of learned Sub Judge, Ranchi. No such document has been brought to substantiate the said claim. There is no document, showing transfer of the land by the raiyat, in whose name 'M' roll was prepared. 11. There is, thus, no ground on record in support of the claim that the land, which was recorded in the name of ex. landlord as Bakast Malik, has been subsequently acquired by the Respondent No.5. 12. Provisions of Section 71A of the Chhotanagpur Tenancy Act can be invoked, if it is established that the land belongs to a raiyat, who is a member of Scheduled Tribe and that the same has been transferred in violation of the provision of Section 46 or any other provision of the said Act or by a fraudulent means. 13. As discussed above, there is no material or evidence on record to support the claim of the Respondent no.5 and/or to establish that the land was transferred in violation of the provision of Section 46 or any other provision of the CNT Act or by fraudulent means. 14. The essential requirement of law for invoking Section 71A of the CNT Act is, thus, conspicuously absent in this case. The findings of learned Divisional Commissioner being based on no evidence are, thus, wholly perverse and unsustainable. 15. The impugned order dated 15th February, 1999 passed by the Commissioner, South Chhotanagpur Division, Ranchi in Gumla SAR Revision No.5 of 1998 is quashed. This writ petition is allowed.