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Jharkhand High Court · body

2017 DIGILAW 2032 (JHR)

Kripa Shankar Jaiswal v. State of Jharkhand

2017-11-24

RAJESH SHANKAR

body2017
ORDER : Rajesh Shankar, J. 1. The present writ petition has been filed for issuance of writ of certiorari for quashing the order passed by respondent no. 2 dated 4.2.2004 (Annexure-2 to the writ petition) in Case No. 8/Urban Land Ceiling (Ranchi)-18/2003. Learned counsel for the petitioner submits that one late Lakshmi Narain Jaiswal and late Ram Narain Jaiswal constituted a Joint Hindu Family which had several joint family businesses and had acquired several landed and building properties situated at different places including 4.150 acres of land comprised within Plot No. 1793, Holding No. 522 (Old 284) at Mouja-Siram (commonly known as Village-Hindpiri) which was popularly known as Sethia Land, acquired from the income derived from Joint Family business (M/s. Lakshmi Narain Ram Narain). The said properties were purchased on 20.11.1958 in the name of Sheo Narain Jaiswal who was the eldest son in the family, but, the acquisition was out of the income of the Joint Family business (M/s. Lakshmi Narain Ram Narain) and, therefore, each of the co-sharers had equal share in the said property. Subsequently, Lakshmi Narain Jaiswal died leaving behind six sons namely (i) Sheo Narain Jaiswal, (ii) Uma Shankar Jaiswal, (iii) Prabhu Shankar Jaiswal (since deceased) (iv) Kuldip Narain Jaiswal, (v) Jagat Narain Jaiswal, and (vi) Ranjit Singh Jaiswal (since deceased). Ram Narain Jaiswal died leaving behind four sons namely (i) Kripa Shankar Jaiswal, (ii) Girija Shankar Jaiswal, (iii) Deo Narain, and (iv) Sangram Singh Jaiswal (since deceased). Thus, there were 10 co-sharers of the properties each having 1/10th share in the Sethia Land described hereinabove. The Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the Act) was adopted and enforced in the State of Bihar with effect from 1.4.1976. Accordingly, as required by Section 6 of the Act, all the co-sharers filed their respective statements in which each of them claimed 1/10th share of the Sethia Land as belonging to them for the purposes of computation of vacant land, if any. On the statement filed under Section 6 of the Act by the aforesaid ten co-sharers, different cases were registered, the details whereof is as follows:- Suddenly, in the second week of August 2004, the petitioner was shocked to learn that the respondent no. 4-Sheo Narain Jaiswal was proclaiming himself to be the sole owner of the entire Sethia land. On the statement filed under Section 6 of the Act by the aforesaid ten co-sharers, different cases were registered, the details whereof is as follows:- Suddenly, in the second week of August 2004, the petitioner was shocked to learn that the respondent no. 4-Sheo Narain Jaiswal was proclaiming himself to be the sole owner of the entire Sethia land. Thereupon, the petitioner made enquiry from the office of the Hon'ble Minister (the respondent no. 2) and learnt that the respondent no. 2 had unilaterally called for the records of all the aforementioned 10 Land Ceiling Cases and passed the impugned order dated 4.2.2004. 2. It is further submitted that the respondent no. 2 representing the State Government is only the revisional authority conferred with power under Section 34 of the Act to consider the revision suo moto or otherwise against any final statement prepared by the competent authority under the Act. However, the respondent no. 2 does not have any power to assume the jurisdiction of the original authority and cannot pass any order in the form of final statement as provided under Section 9 of the Act. The manner in which the respondent no. 2 called for the statement relating to Urban Land Ceiling Case No. 266/76 from the Court of Deputy Commissioner, Ranchi-cum-competent authority under the Act and proceeded to decide the issue himself is completely without jurisdiction, as has been held by the Division Bench of this Court in the case of Birla Institute of Technology v. State of Jharkhand and Others reported in 2004 (2) JLJR 263 . 3. No counter-affidavit has been filed by the State. J.C. to learned S.C. (L&C) however, submits that the Hon'ble Minister (the respondent no. 2) has exercised the power conferred under Section 34 of the Act and acted on behalf of the State as revisional authority. The respondent no. 2 noticed all the concerned persons including the petitioner and called for the original draft statement and thereafter proceeded to pass impugned order dated 4.2.2004 after providing due opportunity of hearing to all the parties including the petitioner. Otherwise also, in view of the provisions of Section 34 of the Act, the State Government on its own motion has been conferred with the power to suo moto call for the records to examine any order passed or pending proceeding under the provisions of the Act. Otherwise also, in view of the provisions of Section 34 of the Act, the State Government on its own motion has been conferred with the power to suo moto call for the records to examine any order passed or pending proceeding under the provisions of the Act. Thus, no jurisdictional error has been committed by the respondent no. 2 while passing the impugned order dated 4.2.2004. 4. No one appears on behalf of the private respondents. Vide order dated 4.10.2017, it was made clear that if no one appears on behalf of the private respondents on the next date, the matter shall be disposed of on the basis of materials available on record after hearing learned counsel for the petitioner and the respondent-State. Moreover, vide order dated 16.9.2004, a Bench of this Court observed that only question that needs consideration in the present matter is whether the concerned Minister who is the revisional authority under the Act can exercise power of the original authority and after having called for the entire records, can dispose of the land ceiling case itself. 5. Counter-affidavits have been filed on behalf of respondent no. 5 (Manoranjan Jaiswal) and respondent no. 8 (Priyo Ranjan Jaiswal) wherein they have supported the impugned order passed by the respondent no. 2 explaining the details of the case. They have also stated that the respondent no. 2 has rightly exercised the power conferred to the State Government under Section 34 of the Act by calling for the records of the case from the competent authority-cum-Deputy Commissioner, Ranchi so as to dispose of the land ceiling case itself. 6. Having heard learned counsel for the parties and going through the documents available on record, it appears that the respondent no. 2 has passed the order on the revision application filed by Sheo Narain Jaiswal (respondent no. 4) and proceeded to dispose of the Urban Land Ceiling Case No. 266/76 itself by calling for the records from the Court of Deputy Commissioner, Ranchi-cum-competent authority under the Act. On consideration of the facts of the present case, the application filed by Sheo Narain Jaiswal (respondent no. 4) could not have been considered as revision application by the respondent no. 2, as there was no order or final statement passed/prepared by the competent authority under the Act. On consideration of the facts of the present case, the application filed by Sheo Narain Jaiswal (respondent no. 4) could not have been considered as revision application by the respondent no. 2, as there was no order or final statement passed/prepared by the competent authority under the Act. The power of revision is to be exercised by the revisional authority to examine the legality/propriety of the orders passed by the lower authorities including the original authority under the Act. In the present case, there is no order passed by Deputy Commissioner, Ranchi-cum-competent authority. Thus there was no occasion for the respondent no. 2 to assume jurisdiction as the revisional authority so as to examine the propriety of any order passed under the Act. Otherwise also, if the revisional authority exercises the jurisdiction in the form of original authority, the scheme of the Act itself gets frustrated. The said issue is no more res Integra. The Hon'ble Division Bench of this Court in the case of Birla Institute of Technology v. State of Jharkhand and Others (supra) at paragraph nos. 4 and 5 of the judgment had held thus:- 4. The writ petitioners approached this Court with the writ petitions when notices were issued to them by the State Government purporting to withdraw the statements filed by them before the competent authority for consideration by the Government itself. Ostensibly the reason given for such withdrawal was the long pendency of a large number of statements filed under Section 6, before the various competent authorities. The petitioners challenged these notices on the ground that the State Government was only a revisional authority conferred with the power under Section 34 of the Act having jurisdiction to consider the revision suo moto or otherwise against any final statement prepared by the competent authority and that power did not extend to exercise the original jurisdiction to prepare a draft statement or a final statement after hearing objections of the statement giver. Even otherwise, it was submitted that the power of revision was confined to see to the legality and propriety of any order passed by the competent authority or to rectify a defect or to ensure the regularity of procedure to be adopted by the competent authority. Even otherwise, it was submitted that the power of revision was confined to see to the legality and propriety of any order passed by the competent authority or to rectify a defect or to ensure the regularity of procedure to be adopted by the competent authority. On behalf of the State, it was contended by the learned Government counsel that when there exists a power of suo moto revision in the State Government to consider the legality and propriety of any order passed by the competent authority or to scrutinize the regularity of the procedure adopted and to pass any order that it may deem fit, it had also the implied power to withdraw the original proceeding from the competent authority and try it. We are not in a position to agree with this submission. The power of revision, either on motion by a party or suo moto, has always been understood to be confined to considering the legality or regularity of an order made by the original authority or the appellate authority depending on the scheme of the Act and it cannot be understood as conferring an original power on the revisional authority itself to determine the ceiling area of a statements giver under the Act and to prepare a final statement. We are not shown any authority for this position that the power of revision would include the power to pass an original proceeding itself. 5. We think that acceptance of the existence of such a power would defeat the safeguards provided to the statement giver under the Act which contemplates an inquiry into the statement filed by him, the preparation of a draft statement, the opportunity to object, and the preparation of a final statement by the competent authority. Then follow the right to file an appeal under Section 12 of the Urban Tribunal and a further second appeal to the High Court under Section 13 of the Act or an appeal under Section 33 of the Act to the appellate authority under the Act. Accepting the argument put forward on behalf of the State, would mean that the entire scheme of determination of the ceiling area would get defeated. 7. In the present case, admittedly there is no order/final settlement passed/prepared by the competent authority under the Act. Thus, on an application preferred by the respondent no. 4, the respondent no. Accepting the argument put forward on behalf of the State, would mean that the entire scheme of determination of the ceiling area would get defeated. 7. In the present case, admittedly there is no order/final settlement passed/prepared by the competent authority under the Act. Thus, on an application preferred by the respondent no. 4, the respondent no. 2 has erroneously called for the records of Urban Land Ceiling Case No. 266/76 from the Court of Deputy Commissioner, Ranchi-cum-competent authority under the Act and, thereafter proceeded to dispose of the Land Ceiling Case itself. The respondent no. 2 thus committed serious error of jurisdiction, as has been held in the case of Birla Institute of Technology v. State of Jharkhand and Others (supra). On this score itself, the impugned order dated 4.2.2004 passed by the respondent no. 2 cannot be sustained in law and the same is accordingly quashed and set aside. 8. The writ petition is accordingly disposed of. Pending I.A. No. 2412 of 2012 and I.A. No. 1815 of 2013 also stand disposed of accordingly.