Research › Search › Judgment

Jharkhand High Court · body

2013 DIGILAW 576 (JHR)

Sohrab Ansari v. State of Jharkhand

2013-05-02

JAYA ROY, PRAKASH TATIA

body2013
JUDGMENT: By Court.-Heard learned counsel for the parties. 2. The petitioners are aggrieved against the dismissal of their writ petition vide order dated 23rd February, 2011 passed in W.P.(C) No. 6529 of 2003. 3. It will be appropriate to give facts in brief. The respondents are holding the Patta which is alleged to have been issued in the year 1984 but admittedly copies of those Pattas were not sent to the concerned authority as was required under Section 27 of the Santhal pargana Tenancy (Supplementary Provisions) Act, 1949 and after the death of the Pradhan, his daughter-in-law who was holding the post of Pradhan sent the copy of the Patta to the Sub-Divisional Officer who has taken note of this fact in his order-sheet dated 4.11.1995. The petitioners being aggrieved against the order dated 4.11.1995 approached the court of Deputy Commissioner, Deoghar by filing the Rev. Misc. Appeal No. 98/95-96. The Deputy Commissioner vide order dated 21.12.1996 held, that the sending of the copy of the Patta to the concerned authority after 11 years cannot be justified and, therefore, those Pattas could not have been given recognition. The Deputy Commissioner also took note of the stand of the village raiyats who wanted that the land may be kept for the village persons' utility purpose. Be that as it may, because of the non-compliance of Section 27 of the Act or 1949 as well as because of the delay in sending the copy of the• Patta to the authority concerned, the Deputy Commissioner vide order dated 21.12.1996 set aside the order dated 4.11.1995. 4. Aggrieved against said order of the Deputy Commissioner dated 21.12.1996, appeal was preferred by the respondents before the Commissioner, Santhal pargana Division, Dumka. The concerned Commissioner vide order dated 9.8.2003, after observing that there is already sufficient Gochar land available in the village and also observed that it would have been appropriate to send the Patta in time to the concerned authority and though it has not been sent but on that count Patta cannot be set aside. The petitioners, aggrieved against tj1e order of the Commissioner dated 9.8.2003 preferred this writ petition which has been dismissed by the learned Single Judge vide order dated 23.2.2011, hence this L.P.A. 5. Learned counsel for the appellant Mr. Kailash Prasad Deo, vehemently submitted that the learned Single Judge proceeded on absolutely wrong premises. The petitioners, aggrieved against tj1e order of the Commissioner dated 9.8.2003 preferred this writ petition which has been dismissed by the learned Single Judge vide order dated 23.2.2011, hence this L.P.A. 5. Learned counsel for the appellant Mr. Kailash Prasad Deo, vehemently submitted that the learned Single Judge proceeded on absolutely wrong premises. The petitioners never claimed the ownership of the land in .question and that fact may have impressed the learned Single Judge and, therefore, the learned Single Judge observed that the petitioners are not the owner- of the land in question. It is submitted that, for claiming any right over the village land, it is not necessary that one should claim ownership of the property or even exclusive right to possess the land. It is also submitted that, then the learned Single Judge committed serious error by observing that the Patta was given in the year 1984 whereas the objection was raised in the year 1996. The contention of the writ petitioners before the writ court was that the Patta was never issued in the year 1984 but it was created and was sent in the year 1996, therefore, the alleged Patta was never in existence. Then the learned Single Judge has observed that the petitioners are unable to point out how Section 28 of the Santhal Pargana Tenancy Act is applicable whereas this is an admitted fact that the land was a waste land for which Patta was given to the respondents. 6. Learned counsel for the appellant vehemently submitted that the land in question is a village utility land and in this case in face no Patta was issued in the year 1984 and the daughter-in-law of the deceased Pradhan who was Pradhan in the year 1996, had no authority to send the letter to the concerned authority or the copy of the Patta after a de1ay of 11 years. It is submitted that the copies of Patta shall be prepared in four copies and one copy shall be given the Raiyat concerned, one copy shall be given to the Deputy Commissioner, one copy shall be given to the landlord and 4th shall be retained by the village Headman. In this case, copies of Pattas were not sent, therefore, the entire process of issuance of the Patta vitiated. In this case, copies of Pattas were not sent, therefore, the entire process of issuance of the Patta vitiated. It is submitted that even no due care was taken for grant of Patta, if Patta was granted; Section 28 should have been followed which provides" principles to be followed in settling waste land or vacant holdings. It is further submitted that Section 29 of the Act of 1949 was also violated which provides that a Pradhan or village headman shall not settle any waste land or vacant holdings without the previous sanction in writing of the Deputy Commissioner. 7. Learned counsel for the appellant submitted that no sanction was obtained under Section 29 and, therefore, also the land could not have been settled. 8. Learned senior counsel for the respondents-allottees Mr. V. Shivnath submitted that all these pleas have been raised by these objectors after 11 years of issuance of the Patta. It is also submitted that sending of the copy of the Patta to the concerned authority under Section 27 of the Act of 1949 is not a mandatory condition and violation of that may not render the Patta invalid or illegal because of the reason that no consequence is provided of non-compliance of Section 27. It is also submitted that so far as eligibility of the petitioners under Section 28 or not obtaining sanction of the Deputy Commissioner is concerned, these issues have been raised for the first time by the petitioners during the course of argument before this Court in L.P.A. jurisdiction and that too, after a delay of more than 17 years from the 'date of order dated 4.11.1995 which was the only order under challenge before all authorities and the Patta of the year 1984 was never challenged. Learned counsel for the respondents also submitted that they are enjoying the land in question since decades so the objection raised by the petitioners at such a belated stage cannot be entertained. 9. We considered the submissions of the learned counsel for the parties and perused the facts of the case. It will be worthwhile to mention here that the petitioners chose to challenge the order dated 4.11.1995 by which the Deputy Commissioner took on record the Patta of the year 1984 and has not passed any effective order. 9. We considered the submissions of the learned counsel for the parties and perused the facts of the case. It will be worthwhile to mention here that the petitioners chose to challenge the order dated 4.11.1995 by which the Deputy Commissioner took on record the Patta of the year 1984 and has not passed any effective order. It is clear from Section 27 of the Act of 1949 that the Deputy Commissioner is not the approving authority of the Patta after its issuance and it is only an authority to whom Patta is sent who shall keep the Patta on its record. 10. Be that as it may, in spite of having such nature of the order that the Deputy Commissioner only took on record the Patta sent by the Gram Pradhan, yet. the appeal was entertained by the appellate court i.e. Deputy Commissioner's Court. Before Deputy Commissioner's Court the only point raised was that the Patta was sent to Deputy Commissioner after a delay of 11 years. Neither the Deputy Commissioner nor the Commissioner have even observed that no Patta was issued in the year 1984 and they decided only one issue that whether the land in question be kept for Gochar purpose and decided the issue only after taking note of fact that Patta was sent to the Deputy Commissioner after delay of 11 years. In the opinion of the Deputy Commissioner, sending of Patta after 11 years will result into non-registration of the Patta whereas the Commissioner after considering even the contention of the objectors of non-availability of the Gochar land found that there is sufficient Gochar land already available. The Deputy Commissioner, influenced by the contention of the objectors that they are not seeking the land for themselves but they are seeking the land for benefit of the villagers, he without holding any enquiry with respect to the genuineness of the Patta, as that was not the issue raised by the objectors, merely decided the issue only on the ground that the Patta was sent after a• delay of 11 years. For the alleged allotment of the year 1984 for which Patta was sent to the Deputy Commissioner though in the year 1995 •then we are of the considered opinion that at this belated stage we cannot permit raising of the issue of facts which the petitioners/appellant want to raise for the first time in L.P.A. jurisdiction in the argument that previous sanction under Section 29 of the Act of 1 949 was not obtained prior to issuance of the Patta or the petitioners are not eligible persons. So far as observations made by the learned Single Judge in impugned order referred above are concerned, this is a fact that petitioners are not owner of the property nor they are claiming the property and recording this fact in the order cannot be condemned. The land in question for which Patna was issued in the year 1984 and there is no finding by any of the authority that no such Patta was issued in the year 1984 then learned Single Judge was right in observing that the land in question was given by the Government to private parties in the year 1984 and this is also a fact that objection was raised for the first time in the year 1996. At this juncture we may observe here that the appellate authorities missed to notice that the petitioners did not challenge the Patta of the year 1984 and they have challenged only the order dated 4.11.1995 by which the Patta was taken on record. That order-sheet has not given any cause of action without challenge to the Patta of the year 1984 for any reason like it was not issued in the year 1984 or for any other reason. Further, it will be appropriate to note that objection before the Deputy Commissioner against the settlement of waste land and vacant holdings could have been taken only within a period of one year as per Section 32 of the Act of 1949 whereas in this case the objection has been raised after lapse of 11 years and that too, against only the order of taking on record the Patta in question and the Patla is not challenged. 11. 11. In view of the above reasons, we are of the considered opinion that no case is made out for interference in the L.P.A. jurisdiction and we do not find any illegality in the order passed by the learned Single Judge. The L.P.A. is dismissed.