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2016 DIGILAW 1285 (JHR)

Alamuni Hansda v. State of Jharkhand

2016-08-19

APARESH KUMAR SINGH

body2016
ORDER : By the impugned order dated 5th April, 2005 passed in Revenue Misc. Revision No.137/1998-99 preferred by the 16 Annas Raiyats of the Mouza and Revenue Misc. Revision No.370/2000-01 preferred by private respondent no.5 herein, the Divisional Commissioner, Santhal Pargana Division, Dumka has set aside the orders passed by the Sub-Divisional Officer, Jamtara and upheld by the Deputy Commissioner, Dumka appointing the petitioner herein as Pradhan of village Saharberia, P.S. Bindapathar, Sub-Division Jamtara, District Dumka. 2. Petitioner admittedly is the married daughter of the erstwhile Pradhan namely Maral Hansda and also his second wife Hopni Kisku, mother of the petitioner who was also declared as a Pradhan after the death of Maral Hansda. Divisional Commissioner, Santhal Pargana Division has held that in view of serious dispute about the appointment of Pradhan by the raiyats of Mauza, as per provisions contained in Schedule-V, Clause-1 the appointment of Head man should be made in accordance with village custom and before confirming any appointment Deputy Commissioner shall satisfy himself that the candidate is generally acceptable to the raiyats. Therefore, petitioner's appointment as Pradhan is not in accordance with the provisions of law. He has accordingly directed initiation of a separate proceeding under Section 5 of the Santhal Pargana Tenancy Act, 1949 as per the procedure of appointment of village Head man of Khas village, so that democratic institutions can be well maintained and the raiyats may decide their next village Pradhan. 3. In the challenge to the impugned order the issue raised herein are in two folds :- (i) Whether the petitioner being a female heir of the original deceased Meral Hansda does have the hereditary right to be appointed as a Pradhan of the said village? (ii) In view of the judgment rendered by learned Division Bench of this Court in the case of Sogen Murmu vs. State of Jharkhand & Ors. reported in 2012(2) JCR 1 (Jhr) in such circumstances whether the post of Gram Pradhan can at all be held to be hereditary ? 4. On both the propositions learned counsel for the petitioner has placed two judgments of learned Division Bench of Patna High Court in the case of Thakur Hembrom vs. State of Bihar & Ors. reported in 2012(2) JCR 1 (Jhr) in such circumstances whether the post of Gram Pradhan can at all be held to be hereditary ? 4. On both the propositions learned counsel for the petitioner has placed two judgments of learned Division Bench of Patna High Court in the case of Thakur Hembrom vs. State of Bihar & Ors. reported in 1980 BLJR 448 and in the case of Baisakhi Harijan and Ghanshyam Mandal reported in 1995 BBCJ 131 which lays down that the scheme under the Santhal Pargana Tenancy Act is that a village Headman should be appointed as a Pradhan either on the basis of election or on the basis of hereditary right. Even in a case where there are two applications namely one on the basis of the hereditary right and the other on the basis of an election, the Sub-Divisional Officer or the Deputy Commissioner, as the case may by, has to first consider the case of a person who claims on the basis of hereditary right. If his application is rejected on the ground that such person is not fit as laid down in paragraphs 3 and 4 of Schedule-V, then only the procedure of election can be followed. As per Schedule-V on the basis of hereditary right a male heir and a female heir both can be considered. 5. Reliance has also been placed on the part of the petitioner on a judgment rendered by learned Division Bench of this Court in the case of Smt. Swarnlata Devi vs. State of Jharkhand & Ors. reported in 2003(3) JLJR 724 . It has been held there as well that under Clause-3 of Schedule-V of the Santhal Pargana Tenancy (Supplementary) Rules office of Headman being hereditary, the next heir who is fit, should be the Headman. A person may be refused succession for reasons to be recorded if he is considered unfit for the post. In that case the question of appointment of the appellant as the eldest daughter of the deceased Pradhan in a non-Khas village i.e. a Pradhani village was in question. A person may be refused succession for reasons to be recorded if he is considered unfit for the post. In that case the question of appointment of the appellant as the eldest daughter of the deceased Pradhan in a non-Khas village i.e. a Pradhani village was in question. It was clarified therein also that consideration in terms of Clause-3 and 4 of Schedule-V of the Rules on the part of the competent authority is for the ascertainment of the wishes of the Jamabandi raiyats only for the purposes of ascertaining the fitness of the appellant to hold that post and only if the appellant is found unfit to hold the post, the question of appointment of a successor, a new Headman, with the consent of at least two-thirds of Jamabandi raiyats would arise. 6. Therefore, it appears that there is a divergence in the views rendered by the learned Division Bench judgment in the case of Sogen Murmu (supra) vis-a-vis judgment rendered in the case of Thakur Hembrom (supra), Baisakhi Harijan (supra) and that of Smt. Swarnlata Devi (supra). 7. In such circumstances, it is only proper to refer the matter to the learned Division Bench whether the issue requires consideration by a larger Bench. Accordingly, the writ petition is referred to the Division Bench. 8. Counsel for the petitioner would inspect the file and if two sets of pleadings are not there on record, the same be supplied within two weeks.