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2014 DIGILAW 430 (JHR)

Prem Lal Sahu v. State of Bihar

2014-03-27

N.N.TIWARI

body2014
Order In this writ petition, the petitioner has prayed for quashing the order dated 2.5.1992 passed by learned Sub-Divisional Officer-cum-Special Officer, Gumla in S.A.R. Case No.86/89-90 (Annexure-7) whereby the land of Plot No.3034 appertaining to Khata No.167, area 06 decimals of village Sisai, P.S. and District Gumla was sought to be restored in favour of respondent no.5 under the provisions of Section 71A of the Chotanagpur Tenancy Act. The petitioner has further prayed for quashing of order dated 15.6.1992 passed by learned Additional Collector, Gumla in S.A.R. Appeal No.14/92-93 and also the order dated 18.5.1999 passed by learned Commissioner, South Chotanagpur Division in Gumla Revenue Revision No.107/1992. By the said orders the appellate and revisional authorities have, respectively, upheld the order of the Sub-Divisional Officer, Gumla. 2. The short fact of the case is that the respondent no.5 Budhwa Oraon had filed an application before the Sub-Divisional Officer, Gumla under Section 71A of the Chotanagpur Tenancy Act praying for restoration of possession on the said land alleging that the land belonged to him and he was dispossessed illegally on the pretext of transfer of land of Khata No.167, Plot No.3034, area 06 decimals of village Sisai, P.S. and District Gumla in favour of the petitioner. The said case was registered as S.A.R. Case No.86/89-90. 3. The Sub-Divisional Officer issued notice to the opposite party and also called for a report from the Circle Officer, Sisai. The Circle Officer, Sisai submitted his report dated 20.12.1989. Learned Sub-Divisional Officer by his order dated 2.5.1992 allowed the application directing restoration of aforesaid land to the respondent no.5, though neither party had appeared and there was no hearing of the case. 4. On the basis of the enquiry report of the Circle Officer, learned Special Officer held that it is clear that the land belongs to the applicant who is a member of Scheduled Tribe and there was no provision for transferring the said land in favour of a non-tribal. The said transfer is in violation of the provisions of Section 46 of the Chotanagpur Tenancy Act. 5. Learned Sub-Divisional Officer, Gumla restored the said land in favour of the applicant-respondent no.5 and the Circle Officer was directed to effect delivery of possession. 6. Aggrieved by the said order, the petitioner preferred appeal before the Additional Collector, Gumla being S.A.R. Appeal No.14/92-93. 7. 5. Learned Sub-Divisional Officer, Gumla restored the said land in favour of the applicant-respondent no.5 and the Circle Officer was directed to effect delivery of possession. 6. Aggrieved by the said order, the petitioner preferred appeal before the Additional Collector, Gumla being S.A.R. Appeal No.14/92-93. 7. The petitioner had taken ground that the land in question was purchased by Jagarnath Prasad Sahu son of Guru Babu Harihar Prasad Sharma by virtue of sale deed dated 3.6.1959. The land was, thereafter, settled by Jagarnath Pd. Sahu in favour of Urmila Devi by registered deed dated 22.12.1979. Name of said Urmila Devi was mutated in the Anchal Office and has been running in Revenue Record Register-II maintained by Anchal Office, but she was not made party to the proceeding. The documents were also produced in support of the said claim. 8. Learned Additional Collector, ignoring the said ground, summarily rejected the appeal by order dated 15.6.1992 observing that the entire process of transfer of land of a member of Scheduled Tribe to a non-tribal is fraudulent. Learned Additional Collector also cancelled the Zamabandi running in the name of Urmila Devi. 9. The petitioner, thereafter, filed revision before the Commissioner, South Chotanagpur Division which was registered as Gumla Revenue Revision No.107/1992. The petitioner had mentioned all the facts in details in order to substantiate the claim and right of ownership and possession, but by order dated 18.5.1999 the revision was dismissed for non-prosecution. 10. The petitioner has challenged all the said orders passed against him in this writ petition mainly on the ground that no notice was served and no opportunity was given to the petitioner of representation and hearing and order was passed behind his back and the said order is violative of principle of natural justice and is null and void. The appellate and revisional orders upholding the said order are vitiated and unsustainable in law. 11. Mr. Amar Kumar Sinha, learned counsel appearing on behalf of the petitioner submitted that the impugned order of learned Sub-Divisional Officer is also cryptic and non-speaking and the same is vitiated on account of total non-application of mind. He submitted that there is nothing on record regarding service of notice to the petitioner, even the report of the Circle Officer called for by learned Sub-Divisional Officer was also not considered. He submitted that there is nothing on record regarding service of notice to the petitioner, even the report of the Circle Officer called for by learned Sub-Divisional Officer was also not considered. In the said report it was clearly mentioned that Zamabandi in respect of the said land was opened by order of the Circle Officer dated 21.7.1980 passed in Mutation Case No.7 & 8 of 1980-81 and has been running in the name of Smt. Urmila Devi wife of Prem Lal Sahu on the basis of the transfer made by virtue of registered sale deed. He also reported that there is a pucca structure and is a well constructed on the estimated cost of Rs.1,10,000/-. But learned Sub-Divisional Officer brushed aside the said report and passed the said order in blatant violation of the principle of natural justice and the provision of Section 71/A of the C.N.T. Act which also specifically provides for giving notice and hearing the parties before passing order of restoration. 12. He further submitted that the appellate order as well as the order of the Revisional Court passed without entering into the merit of the case are also perfunctory, arbitrary and illegal. The said orders upheld the order of the Sub-Divisional Officer which is a nullity and, as such, the said orders are wholly illegal, unsustainable and are liable to be quashed. He next submitted that as there is occasional sitting of the court of the Commissioner and dates are not fixed in presence of the parties it was incumbent upon the Commissioner to inform the date fixed in the cases before dismissing the revision for default and non-prosecution. There is nothing on record to show that the date of hearing was communicated to the petitioner. Learned Commissioner has dismissed the revision for non-appearance of the petitioner without following the prescribed process of law. 13. Mr. Sinha submitted that a procedure has been prescribed by Section 71A of the Chotanagpur Tenancy Act for proceeding with and deciding the application filed under the said provision. But the mandatory legal provisions have been given a go-bye and the impugned order of restoration was passed by the Sub-Divisional Officer. 13. Mr. Sinha submitted that a procedure has been prescribed by Section 71A of the Chotanagpur Tenancy Act for proceeding with and deciding the application filed under the said provision. But the mandatory legal provisions have been given a go-bye and the impugned order of restoration was passed by the Sub-Divisional Officer. He submitted that the petitioner has been holding and possessing the land on the basis of the transfer made by virtue of registered deed long back in the year 1979 in favour of Smt. Urmila Devi, wife of the petitioner. Her name was mutated in the year 1980 on the basis of the order passed in Mutation Case No.7/8 of 1980-81 by a competent authority and as reported by the Circle Officer, her name has been continuously running in the revenue record Register-II. In spite of the said report, the said purchaser Smt. Urmila Devi was not made party and no opportunity was given to defend and be heard. 14. He further submitted that the Additional Collector has crossed the limit of unreasonableness and arbitrariness by not only upholding the said illegal order but going further and cancelling the long running Zamabandi of Smt. Urmila Devi by one stroke of pen behind the back of the petitioner and without initiating any proceeding for the same. 15. Learned counsel urged that not only the impugned illegal and perverse order be quashed by this Court, the respondents be further directed to immediately restore the Zamabandi running in the name of Smt. Urmila Devi in respect of the said land. 16. Learned J.C. to S.C.I appearing on behalf of the respondents, though initially tried to support the impugned orders, found no legal ground to justify the impugned orders of restoration under Section 71A C.N.T. Act and of cancellation of Zamabandi running in the name of Smt. Urmila Devi, who was not even a party to the proceeding. 17. Learned counsel submitted that the matter be remitted to learned Sub-Divisional Officer for fresh proceeding and disposal of the case in accordance with law. 18. After hearing learned counsel for the parties and perusing the entire record, I find much substance in the submissions of learned counsel for the petitioner. 19. It is clearly mentioned in the impugned order of Sub-Divisional Officer, Gumla that neither parties were present when the matter was taken up and the impugned order of restoration was passed. 18. After hearing learned counsel for the parties and perusing the entire record, I find much substance in the submissions of learned counsel for the petitioner. 19. It is clearly mentioned in the impugned order of Sub-Divisional Officer, Gumla that neither parties were present when the matter was taken up and the impugned order of restoration was passed. It is also not mentioned that notice was validly served on the petitioner. Further, I find that there is a report of the Circle Officer, Sisai mentioning therein that the land of the proceeding was purchased by Smt. Urmila Devi by virtue of the registered sale deed dated 22.12.1979. On the basis of the said registered sale deed name of said Urmila Devi was mutated by order dated 21.07.1980 passed in Mutation Case No.7 & 8/80-81 and a pucca house and well constructed on the estimated cost of Rs.1,10,000/-till 1982. But in the order of learned Sub-Divisional Officer dated 7.5.1992 passed in S.A.R. Case No.86/89-90 those facts have not been considered except for holding that there was no justification of the transfer. 20. In spite of the said report that the purchaser of the land is Smt. Urmila Devi and her name has been running in Zamabandi revenue record, she was not made party and no notice was served on her. Learned Sub-Divisional Officer has not also recorded anything about the substantial structure standing over the land in question of estimated value of Rs.1,10,000/-and passed the order of restoration without following the provision for dealing with such case in proviso to Section 71A of the Chotanagpur Tenancy Act. There is no material on record to show that the petitioner was given notice and opportunity for properly defending and hearing. There is, thus, apparent violation of provisions of Section 71A C.N.T. Act and principle of natural justice. 21. Though right to property is no longer a fundamental right, it is a valuable legal right and a person cannot be deprived of his valuable right except by due procedure established by law. 22. The impugned order of restoration passed by learned Sub-Divisional Officer is not only arbitrary and passed without any application of mind, the same is also violative of Articles 14, 21 and 300A of the Constitution of India and is null and void. 23. 22. The impugned order of restoration passed by learned Sub-Divisional Officer is not only arbitrary and passed without any application of mind, the same is also violative of Articles 14, 21 and 300A of the Constitution of India and is null and void. 23. The appellate order passed in S.A.R. Appeal No.14/1992-93 by learned Additional Collector, Gumla (Annexure-8) as well as the order passed by learned Commissioner in Gumla Revenue Revision No.107/1992 are also nonest on the same ground. 24. Learned appellate court, in spite of taking notice of the fact that the purchaser of the land is Smt. Urmila Devi and that her name was running in the Zamabandi and rent receipts were issued by the State, upheld the order of learned Sub-Divisional Officer and in absence of the said Urmila Devi or without giving her any notice or opportunity of hearing, also cancelled the entry in the Register-II, though there was no such application or proceeding for cancellation of Zamabandi. 25. Learned Commissioner also dismissed the petitioner's Revision for default and absence of the petitioner, though there is nothing on record to show that the petitioner was informed about the date fixed in the revision for hearing. 26. For the reasons aforesaid, the order dated 02.05.1992 passed in S.A.R. Case No.86/89-90 by the Special Officer, Gumla (Annexure-7); the order dated 15.06.1992 passed by learned Additional Collector, Gumla in S.A.R. Appeal No.14/92-93 (Annexure-8) and the order dated 18.05.1999 passed by learned Commissioner, South Chotanagpur Division, Ranchi in Gumla Revenue Revision No.107/1992 cannot sustain in law and are, accordingly, quashed. This writ petition is allowed. 27. The respondents are directed to restore the Zamabandi which was running in the name of Smt. Urmila Devi in Register-II, forthwith.