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2017 DIGILAW 1528 (JHR)

Abdul Majid v. State of Jharkhand

2017-08-28

RAJESH SHANKAR

body2017
JUDGMENT : 1. The present writ petition has been filed for quashing the order dated 01.02.2002 passed by the Sub-Divisional Officer, Ramgarh (respondent No.2) in Doubtful Zamabandi Case No. 16/2001-02 (Annexure-5 to the writ petition) whereby, the Zamabandi opened in the name of the petitioner has been cancelled and the Zamabandi opened in favour of Raghaw Prasad Gupta has been restored. 2. Heard the learned counsel for the parties and perused the materials placed on record. 3. The factual background of the case, as appears from the writ petition, is that the ancestors of the petitioner had acquired the land under Khata No.2, Plot Nos. 1305 & 1311, area 1.08 acres (hereinafter referred to as 'the said land') by virtue of “Hukumnama” executed by the erstwhile Zamindar. The ancestors of the petitioner, thereafter, paid rent for the said land to the Zamindar and after vesting, to the Government, till 1974-75. On the basis of the report of Halka Karamchari that the Zamabandi in favour of Seikh Pannu and Seikh Rajju (ancestors of the petitioner) has been illegally created, a proceeding being Case No. 27/95-96 was initiated and finally vide order dated 18.09.1995, the Circle Officer, Ramgarh held that the said land was outside the purview of Doubtful Zamabandi and further the Halka Karamchari was directed to issue rent receipt in favour of the petitioner and, accordingly, rent receipt was issued to the petitioner till 2002. Suddenly the respondent No.3 filed an application before the respondent No.2 challenging the Zamabandi running in the name of the petitioner and thereafter vide order of the respondent No.2, Doubtful Zamabandi Case No. 16/2001-02 was initiated and finally on 01.02.2002, the Zamabandi opened in the name of the petitioner was cancelled and a direction was issued to open a Zamabandi in favour of Raghaw Prasad Gupta (father of the respondent No.3), which gives rise to filing of the present writ petition. 4. The learned counsel appearing on behalf of the petitioner submits that the impugned order has been passed in violation of the principle of natural justice. It is further submitted that the petitioner came to know about the impugned order only in the month of June, 2008 when the respondent No.3 was trying to sell the said land. 4. The learned counsel appearing on behalf of the petitioner submits that the impugned order has been passed in violation of the principle of natural justice. It is further submitted that the petitioner came to know about the impugned order only in the month of June, 2008 when the respondent No.3 was trying to sell the said land. It is further submitted that the Sub-Divisional Officer has no jurisdiction to cancel the Zamabandi in absence of initiation of any proceeding under Section 4(h) of the Land Reforms Act, 1950 by the competent authority. It is further submitted that the order dated 18.09.1995 passed in Case No. 27/95-96 was an appealable order, but the respondents did not prefer any appeal before the Deputy Collector, Land Reforms and subsequently moved before the Sub-Divisional Officer, which is not tenable in law. 5. The learned counsel appearing on behalf of the State respondent submits that the petitioner had wrongly obtained the Government rent receipt in collusion with the Halka Karamchari. It is further submitted that the Circle Officer is not the competent authority to confirm the title of the petitioner, unless and until the same is confirmed by the competent Court of law. The petitioner was within the knowledge of the orders passed by the Court from time to time. The petitioner had the liberty to move before the appropriate Court of law and file appeal, but he has chosen to file the writ petition before this Court, which is not maintainable. The respondent No.2 has the authority to cancel the Zamabandi running in favour of the petitioner. 6. The learned Sr. counsel appearing on behalf of the respondent No.3 submits that the father of the respondent No.3 obtained the land under Khata No. 2 Plot Nos. 216, 1299, 1305 & 237, areas 1.74, 0.36, 1.20 & 0.28 respectively in Village-Ramgarh, Thana No. 82, P.S Ramgarh, District-Hazaribagh (now District-Ramgarh) through settlement in the year 1950 from the ex-landlord. Thereafter, the settlee paid rent for the said land to the ex-landlord and after vesting, to the States of Bihar as well as Jharkhand, the respondent No.3,. After the death of his father in the year 1971, the respondent No.3 came in peaceful possession of the said land. The Deputy Collector, Land Reforms, Hazaribagh has confirmed the rent receipt issued in favour of the respondent No.3 in C.R.R Case No.17/89-90. After the death of his father in the year 1971, the respondent No.3 came in peaceful possession of the said land. The Deputy Collector, Land Reforms, Hazaribagh has confirmed the rent receipt issued in favour of the respondent No.3 in C.R.R Case No.17/89-90. It is further submitted that the possession over the said land was also confirmed in favour of the respondent No.3 by the learned Munsif, Hazaribagh in Title Suit No. 61/86 with regard to Plot Nos. 216 & 217. In an enquiry conducted in Case No. 86/96 under Section 144 Cr.P.C, the Sub-Divisional Magistrate, Ramgarh found illegality in Doubtful Zamabandi Case Nos. 40/95-96 & 27/95-96 and suspended both the Zamabandi created by the Circle Officer, Ramgarh. The petitioner challenged the order of suspension of Zamabandi before the Additional Collector, Hazaribagh by filing two appeals being MAN 24/96 and MAN 25/96 and the Additional Collector remanded the matter to the Sub-Divisional Magistrate, Ramgarh. The petitioner had also filed C.W.J.C No. 4098/1996(R) before Ranchi Bench of Patna High Court against the suspension of Zamabandi related to Zamabandi Case No. 40/95-96, which was disposed of on 17.12.1996 by observing that the party may ventilate his grievances in an appropriate Civil Court. It is further submitted that in spite of the order dated 17.12.1996, the petitioner never approached the Civil Court and again approached this Court and as such he has been misusing the legal provisions and wasting the precious time of the Courts. The impugned order has been passed in the light of previous orders passed by the different Courts including this Court and as such the same may not be interfered with. 7. Learned Sr. counsel for the respondent No.3, while relying on the judgments rendered by the Hon'ble Apex Court in the case of Oswal Fats & Oils Limited Vs. Additional Commissioner (Administration), Bareilly Division, Bareilly & Ors. reported in (2010) 4 SCC 728 and in the case of Prestige Lights Ltd. Vs. State Bank of India reported in (2007) 8 SCC 449 , submits that since the petitioner has suppressed the material facts in the writ petition, he is not entitled to get any relief, as prayed herein. 8. Learned Sr. reported in (2010) 4 SCC 728 and in the case of Prestige Lights Ltd. Vs. State Bank of India reported in (2007) 8 SCC 449 , submits that since the petitioner has suppressed the material facts in the writ petition, he is not entitled to get any relief, as prayed herein. 8. Learned Sr. counsel for the respondent No.3 further submits that this Court while considering I.A. No. 8940/2013 filed by the petitioner for restraining the respondent No.3 from constructing any building/house over the land in question, has observed that since the dispute is between the two private persons regarding the right, title and possession over the land in question, such claim cannot be adjudicated upon in the writ jurisdiction of this Court and in that circumstance, the interim order of injunction, as prayed by the petitioner, cannot be passed by this Court. 9. Learned counsel for the petitioner while replying to the submission made on behalf of the respondent No.3 that the petitioner has suppressed the material facts before this Court, submits that the petitioner has never challenged the impugned order earlier. So far as the order dated 17.12.1996 passed in C.W.J.C No. 4098/1996(R) by the then Ranchi Bench of the Patna High Court is concerned, the same was against the impugned order dated 24.10.1996 passed by the Circle Officer, Ramgarh. Moreover, Title Suit No. 61/1986, which was filed by the mother of the respondent No.3, was concerning the land measuring 0.22 acre of Plot No. 217 of Khata No. 47 of Village- Ramgarh. However, the present matter is concerned with Plot Nos. 1305 & 1311 measuring 1.08 acres of Khata No.2 of Mouza-Ramgarh. Moreover, the order dated 19.07.2000 passed by the then Ranchi Bench of the Patna High Court was concerning the proceedings under Section 145 Cr.P.C and the same would not have material relevance so far as the issue of cancellation of Zamabandi is concerned. Be that as it may, the main contention raised by the learned counsel for the petitioner is with regard to the jurisdiction of the Sub-Divisional Officer, Ramgrh in passing the impugned order. Both the parties are claiming that the land in question was settled in favour of their predecessors-in-interest by the ex-landlord and thereafter they paid rent of the said land and came in possession of the same. Both the parties are claiming that the land in question was settled in favour of their predecessors-in-interest by the ex-landlord and thereafter they paid rent of the said land and came in possession of the same. In support of their respective claims, they have also filed rent receipts issued in their favour. From the record, it appears that by way of the impugned order, the respondent No.2 cancelled the Zamabandi running in the name of the petitioner in view of Doubtful Zamabandi Case Nos. 40 of 1995-96 and 27 of 1995-96. Although the petitioner has challenged the entire impugned order, yet he has not filed any document in support of his claim with respect to Zamabandi No. 40 of 1995-96. The petitioner has only pleaded with respect to the plots, which are the subject matter of Doubtful Zamabandi No. 27 of 1995-96. The subject matter of Doubtful Zamabandi No. 40 of 1995-96 was raised before this court in C.W.J.C No. 4098 of 1996(R) wherein the petitioner was advised to move before the appropriate Civil Court for redressal of his grievance, but the petitioner did not take the said recourse. The respondent No.3 has also submitted some documents related to Zamabandi No. 40 of 1995-96 i.e. order of Title Suit No. 61/86 and order of Cr. Misc. No. 6708 of 1997 (R). The petitioner has strongly raised objection to the jurisdiction of the respondent No.2 in passing the impugned order. In the impugned order, it has been mentioned that the respondent No.2, on an application filed by the respondent No.3, started the proceeding of Doubtful Zamabandi No. 16/01-02 and finally passed the impugned order. 10. Hence, the question is as to whether the respondent No.2 had any jurisdiction to entertain an application relating to cancellation of Zamabandi. The said issue has been decided by this court in W.P.(C) No. 1399 of 2007 [Nepal Ram Prajapati Vs. The State of Jharkhand & Ors.] on consideration of the relevant provisions of the Bihar Tenant’s Holding (Maintenance of Records) Act, 1973 [hereinafter referred to as 'the said Act']. Paragraphs 11, 12 & 17 of the said judgment read as follows:- “11. The Sub-divisional Officer has been defined under Section 2(t) of the Bihar Tenant's Holdings (Maintenance of Records) Act, 1973, which reads as under: “(t) “sub-divisional Officer” means the officer-in-charge of the civil administration of the sub-division of a district;” “12. Paragraphs 11, 12 & 17 of the said judgment read as follows:- “11. The Sub-divisional Officer has been defined under Section 2(t) of the Bihar Tenant's Holdings (Maintenance of Records) Act, 1973, which reads as under: “(t) “sub-divisional Officer” means the officer-in-charge of the civil administration of the sub-division of a district;” “12. In view of the said definition, the Sub-divisional Officer is the officer-in-charge of the civil administration of the sub-division of the district for the purpose of the said Act. However, the Sub-divisional officer is not an authority under the provisions of Sections 14, 15 & 16 of the said Act.” “17. Admittedly, the revisional authority under the said Act is the Collector of the district. No such power has been conferred to the Sub-divisional Officer under the said Act. In the present case, if the original order was passed by the Circle Officer, Chatra, the said order was appeal able before the Land Reforms Deputy Collector. Though the Circle Officer committed procedural error in making recommendation to the Land Reforms Deputy Collector, Chatra for making correction in the revenue records, yet the said procedural errors cannot be said to be fatal in nature, as the Land Reforms Deputy Collector is the appellate authority under the said Act. However, so far as assuming of the revisional jurisdiction by the Sub-divisional Officer, Chatra is concerned, the same is completely illegal as the revisional power can only be exercised by the Collector of the district.” 11. In view of the aforesaid ratio laid down in the case of Nepal Ram Prajapati (Supra), it is held that the impugned order passed by the Sub-Divisional Officer, Ramgarh is without jurisdiction, as he has no authority under the said Act to cancel the Zamabandi running in favour of the petitioner at the instance of an application filed by the respondent No.3. 12. The judgments rendered by the Hon'ble Supreme Court in the case of Oswal Fats & Oils Limited Vs. Additional Commissioner (Administration), Bareilly Division, Bareilly & Ors. (Supra) and in the case of Prestige Lights Ltd. Vs. State Bank of India (Supra), which have been relied upon by the learned Sr. counsel for the respondent No.3, are not applicable in the facts and circumstances of the present case, as the impugned order passed by the Sub-Divisional Officer, Ramgarh (respondent No.2), is itself without jurisdiction. 13. (Supra) and in the case of Prestige Lights Ltd. Vs. State Bank of India (Supra), which have been relied upon by the learned Sr. counsel for the respondent No.3, are not applicable in the facts and circumstances of the present case, as the impugned order passed by the Sub-Divisional Officer, Ramgarh (respondent No.2), is itself without jurisdiction. 13. In view of the above discussions and under the facts and circumstances of the case, the impugned order passed by the Sub- Divisional Officer, Ramgarh dated 01.02.2002 (Annexure-5 to the writ petition) is, hereby, quashed and set aside for want of jurisdiction. 14. However, it is made clear that the present order is confined to the issue of jurisdiction and no observation has been made with regard to the respective claims of the parties with respect to the land in question. It is open to the parties to take appropriate recourse, as provided under law. The writ petition is, accordingly, disposed of.