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2016 DIGILAW 1578 (JHR)

Abhinaw Kumar v. State of Jharkhand

2016-11-22

APARESH KUMAR SINGH

body2016
ORDER : I.A. No.7169 of 2016 Learned counsel for the petitioner submits that the private respondent, undisputedly belonging to the caste 'Lohar' as per Survey Khatiyan and also reflected in the order dated 26th February 1997 (Annexure-3) passed by respondent no.4 in Restoration Case No.01/1995, got an order in his favour as a scheduled tribe person. Though the challenge to the same on behalf of the petitioner in Appeal Case No.08/1997 was negatived by order dated 14th December, 2004 (Annexure-4) passed by the Additional Collector, Hazaribag but the delivery of possession could not be affected as the private respondent had himself instituted a case on a complete error of fact in respect of a different plot. However, on his application (Annexure-5) the Sub-Divisional Officer has chosen to review the order passed in Case No.01/1995 vide Annexure-6 dated 21st January, 2012 inter-alia correcting the very description of Plot No./Khata No. as 77 in place of Khata No.94 which was the subject matter of the original restoration case. The appellate order passed thereafter has also erroneously rejected the appeal (Annexure-9) dated 15th October, 2015 being guided by the previous decision passed in Case No.08/1997 and the appellate order dated 14th December, 2004. There is no power of review conferred on the original authority to correct such errors. It is further submitted, relying upon the judgment rendered by this Court in the case of Jaipal Karmali Vrs. Bishun Sundi reported in 2004 (2) JCR (Jhr.) in relation to the property situate in the District of Hazaribag itself, that the provisions of Section-71 of the CNT Act, 1908 are not applicable in the district of Hazaribag as the same is not declared as scheduled area in the notification issued by the President of India in exercise of powers under Scheduled Area (Part-A States) Order, 1950 in terms of the Vth Schedule of the Constitution of India. Thereafter, the private respondent has taken steps for execution and delivery of possession which has resulted in imminent threat to the petitioner to seek interim relief in the matter through I.A. No.7169/2016. Petitioner has, therefore, assailed the order passed in Appeal No.15/2011-12 as also the order passed in Land Restoration Case No.01/1995 and RAN Case No.08/1997. 2. Counsel for the petitioner has also relied upon the judgment rendered by the Apex Court in the case of Nityanand Sharma Vrs. Petitioner has, therefore, assailed the order passed in Appeal No.15/2011-12 as also the order passed in Land Restoration Case No.01/1995 and RAN Case No.08/1997. 2. Counsel for the petitioner has also relied upon the judgment rendered by the Apex Court in the case of Nityanand Sharma Vrs. State of Bihar reported in (1996) 3 SCC 576 in support of the submission that the caste 'Lohar' does not fall within the list of Scheduled Tribe as notified under the Presidential order. 3. Counsel for the State, however, points out from the enclosed order sheet to the I.A. that the delivery of possession has been stayed for the time being by the Circle Officer, Ramgarh vide order dated 7th May 2016. 4. Issue notice on the private respondent no.6 under registered cover with A/D as well through ordinary process for which requisites be filed within one week, failing which this petition as against the concerned respondent shall stand rejected without further reference to a Bench. 5. Counsel for the State seeks and is allowed four weeks' time to obtain instructions and file counter affidavit in the matter. 6. In the meantime, status-quo as on today shall remain in respect of the property in question. I.A. No. 7169 of 2016 stands disposed of.