Research › Search › Judgment

Jharkhand High Court · body

2018 DIGILAW 1040 (JHR)

Ushman Mian v. State Of Jharkhand

2018-05-09

ANUBHA RAWAT CHOUDHARY

body2018
ORDER Anubha Rawat Choudhary. J. - Heard Mr. Dilip Kumar Prasad, counsel appearing on behalf of the petitioner assisted by Mr. D.C. Mishra, Advocate. 2. Heard Mr. Anil Kumar, Senior counsel appearing on behalf of the private respondents assisted by Ms. Chandana Kumari, Advocate. 3. This writ petition has been filed for the following reliefs:- "For quashing of the order dated 16-1-2007 passed by the learned Commissioner, Santhal Pargana, Dumka in Rev. Misc. Appeal Case No.100/2005-06 whereby and whereunder the said appeal/statutory appeal filed on behalf of the petitioner against order dated 27.02.2006 passed by the learned Court below Dumka in R.M.A. case no.33/1997-98 has been rejected And also for quashing of the order dated 27-2-2006 passed in R.M.A. Case No.33-1997-98 by the learned Deputy Commissioner, Dumka whereby and whereunder the said case preferred by the respondents against the order dated 27-8-1997 passed by the Learned SubDivisional Officer, Dumka in R.E. Case No.53/1995-96 has been allowed. And further prays for issuance of an appropriate writ commanding upon the concerned respondents upholding and confirming the order dated 27.8.1997 passed by the learned Sub-Divisional Officer, Dumka in R.E. case No.23 of 1995-96." 4. Counsel for the petitioner on facts submits as under:- a) That the recorded tenant of the property abandoned the land in question. b) The Jamindar of the said abandoned property had settled a portion of the same being plot no.184 area 1 Bigha 5 Katha 17 dhurs, Plot No.60 area 16 Katha 10 dhurs and plot no.61 area 9 katha 10 dhurs by Settlement Patta no.46 dated 3112-1944 with Katki Mian who was the father of the petitioner. c) The father of the petitioner came in peaceful possession of the property. The fact that the property was settled in favour of the father of the petitioner is also apparent from the return of the Jamindari which was filed after the vesting of the Jamindari. d) The name of the father of the petitioner was mutated in Mutation Case No.9 of 1991-92 and it was also entered in Register-II. e) He submits that another portion of the property being plot no.184 area 1 bigha 12 katha was donated by the Bhoodan Danpatra dated 7-5-1962 under the provisions of Bihar Bhoodan Yagna Act, 1954 and thereafter the said Dan Patra was also confirmed vide order dated 19.08.1987 after due enquiry in Bhoodan Case No.8 of 1986-87. e) He submits that another portion of the property being plot no.184 area 1 bigha 12 katha was donated by the Bhoodan Danpatra dated 7-5-1962 under the provisions of Bihar Bhoodan Yagna Act, 1954 and thereafter the said Dan Patra was also confirmed vide order dated 19.08.1987 after due enquiry in Bhoodan Case No.8 of 1986-87. f) Mutation was also done in connection with the said property being Bhoodan Mutation Case No.3 of 1988-89 and the petitioner continued to be in peaceful possession of the property. g) He submits that as the recorded tenant had abandoned the land, the Jamindar was within his right to settle the property vide Settlement Patta No.46 dated 31.12.44 and accordingly the recorded tenant had no right title and interest over the property. h) He further submits that so far as the property which has been acquired by virtue of Bhoodan Danpatra is concerned, the same was duly confirmed vide order dated 19.08.1987 in Bhoodan Case No.8 of 1986-87 and the same was never challenged by any person therefore the order has attained finality and under such circumstances the right, title, interest and possession of the petitioner in connection with the said property covered by the Bhoodan Danpatra cannot be questioned. i) He submits that a petition under Section 42 of the Santhal Pragana Tenancy (Supplementary Provisions) Act, 1949 was filed by the private parties for restoration of the aforesaid lands and was numbered as R.E. Case No.53 of 199596. In the said proceedings notice was issued to the father of the petitioner and after considering the show-cause the Sub-Divisional Officer rejected the petition of the recorded tenant vide order dated 23.08.1997. j) The private respondents herein filed R.M.A. Case No.33 of 1997-98 against the order dated 23.08.1997 and the Deputy Commissioner, Dumka was pleased to set-aside the order of the Sub-Divisional Officer and cancelled the settlement of the father of the petitioner vide order dated 27.02.2006 and an order was passed for restoration of land. k) Thereafter, the petitioner being aggrieved by the order passed by Deputy Commissioner, Dumka filed revision before the Commissioner, Dumka and by the impugned order 16.01.2007 the said revision was dismissed. k) Thereafter, the petitioner being aggrieved by the order passed by Deputy Commissioner, Dumka filed revision before the Commissioner, Dumka and by the impugned order 16.01.2007 the said revision was dismissed. l) Counsel for the petitioner submits that the appellate authority as well as the revisional authority has wrongly declared the Patta of the year 1944 as a collusive which was duly issued by the ex-landlord and was also recorded in its return. m) He further submits that the authorities have wrongly declared the Bhoodan Patra as collusive document particularly in view of the fact that the said Danpatra was duly confirmed by the competent authority vide order dated 19.08.1987 in Bhoodan Case No.8 of 1986-87 and no appeal was filed against the said order. n) He has relied upon the judgment passed by Hon''ble Patna High Court reported in (1979) BLJR 130 to submit that the provisions of Bihar Bhoodan Yagna Act, 1954 has over riding effect and will prevail upon Santhal Pragana Tenancy (Supplementary Provisions) Act, 1949. 5. Counsel for the respondents on the other hand submits that admittedly the property in question is recorded in the record of rights in the name of the predecessors of the respondents and the record of right having been published under regulation 25 of the Santhal Parganas Settlement Regulation Act, 1872 is conclusive proof of the rights of the recorded tenant therefore there is no doubt that the private respondents herein are the recorded tenant of the property. He further submits that there is no evidence or documents on record that the property was ever surrendered or abandoned by the recorded tenant and accordingly the Jamindar had no jurisdiction to settle this property by way of Patta executed as back as in the year 1944. Considering the fact that this property was never abandoned, the Jamindar could not have settled it in favour of the father of the petitioner and accordingly all the rights flowing out of such settlement is null and void. Accordingly, the same has rightly been held to be collusive by the respondent appellate authority as well as by the revisional authorities. 6. Accordingly, the same has rightly been held to be collusive by the respondent appellate authority as well as by the revisional authorities. 6. So far as the property which has been claimed by the petitioner under the provisions of Bihar Bhoodan Yagna Act, 1954 is concerned, counsel for the respondents submits that the provisions of Bihar Bhoodan Yagna Act, 1954 provides for donation of land under Section 10 then the required publication and investigation upon the Bihar Yagna Danpatra under Section 11 and Section 14 of the said Act deals with grant of land to landless person or to village community, Gram Panchayat or cooperative society organized by the committee. He submits that the donation of land is one stage and the grant of land to landless person under Section 14 is another stage. In the instant case, the donation of land as well as the grant of land under Section 14 has been done by the same document which could not have been done. He further submits that as per the case of the petitioner himself he was entitled for grant of land but he has himself claimed to be owning another property by virtue of Patta of 1944 and accordingly if the case of the petitioner is taken into consideration then he was not entitled to grant of land under Section 14 of the Bihar Bhoodan Yagna Act, 1954. He further submits that so far as Annexure-3 i.e., order dated 19.08.1987 is concerned, the procedure under Section 11 of Bihar Bhoodan Yagna Act, 1954 was not followed and the petitioner was not entitled for the land under Section 14 and therefore this document has been rightly held to be a collusive document and accordingly the claim of the petitioner on the basis of Bhoodan Danpatra is null and void. He has relied upon judgment passed by Hon''ble Supreme Court reported in (2007) 4 SCC 221 to submits that any transaction which is obtained by collusion or fraud is nullity in the eyes of law and therefore such document cannot be relied upon. He submits that merely because the order dated 19.08.1987 was not challenged the same does not give any advantage to the petitioner as the said order dated 19.08.1987 has been held to be collusive by the authorities below. He submits that merely because the order dated 19.08.1987 was not challenged the same does not give any advantage to the petitioner as the said order dated 19.08.1987 has been held to be collusive by the authorities below. He further submits that in connection with the same property the petitioner had entered into Bhugat bandha mortgage for a period of 6 years by a registered deed no.794 dated 06.05.1982 and the conduct of the petitioner itself shows that he entered into this mortgage deed consciously and thereafter he is claiming this property by way of Bhoodan Danpatra. The conduct of the petitioner is itself sufficient to show that he had no right title and interest over the property and after having acquired this property by way of mortgage he is trying to retain this property by referring to alleged Bhoodan Danpatra under Bihar Bhoodan Yagna Act, 1954. 7. After hearing the counsel for the parties and after considering the materials available on record, this Court is not inclined to grant any relief to the writ petitioner on account of following facts and reasons:- a) Admittedly, the property in question is recorded in the name of the predecessor of the private respondents herein. b) There is nothing on record and rather no evidence was produced before the authorities below to show that this property was abandoned by the recorded tenant and moreover even if the property is abandoned then the Jamindar in order to take possession of the property has to initiate a proceeding. There is nothing on record showing initiation of any such proceedings. c) The fact remains that the property in question continues to be recorded in the name of the recorded tenant and merely because the petitioner has claimed that this property in question continues to be recorded in the name of the recorded tenant and merely because the petitioner has claimed that this property was settled in favour of the petitioner by way of settlement of the year 1944 and was shown in the return of the Jamindar is not sufficient to establish right, title and interest over this property. Even payment of current rent receipt itself is not sufficient to justify the right, title, interest and possession of the petitioner over the property. Even payment of current rent receipt itself is not sufficient to justify the right, title, interest and possession of the petitioner over the property. d) So far as the property acquired under the Act of Bhoodan Yagna Act, 1954 is concerned, this Court finds that the proceeding under Section 11 of the said Act has not been followed and vide order dated 19.08.1987 the Danpatra was confirmed in favour of the petitioner. e) This Court further finds that the authorities below have taken note of the fact that by the same document the property was donated as well as the property was granted to the petitioner although these two are two distinct proceedings and could not have been amalgamated in one document. f) This Court further agrees to the arguments advanced on behalf of the respondents that the property under the Bhoodan Yagna Act, 1954 could have been allocated only to landless persons or to a Village Community, Gram Panchayat or Cooperative Societies by the committee but the petitioner as per his own claim was not a landless person and accordingly the petitioner was not entitled to this property under the said Act or the order dated 19.8.1987 which has been passed in favour of the petitioner in Case No.8 of 1986-1987 has been obtained by material suppression of fact and accordingly the authorities below have rightly held this particular document to be collusive document. g) Section 10, 11 ,13 and 14 of Bihar Bhoodan Yagna Act, 1954 reads as under:-"10. Section 10 - Donation of land:- (1) Any person being the owner of any land may donate such land to the Bhoodan Yagna Committee or to Shri Acharya Vinoba Bhave by a declaration in writing in that behalf (hereinafter called the Bhoodan Yagna Danpatra): Provided that no person shall, for the purposes of this Act, be entitled to donate any land of the following classes, namely:" (a) any cremation or burial ground, tank or pathway; (b) lands recorded in the record of rights as gair mazrua-am; (c) lands held under service tenures; (d) any forest land notified under any of the provisions of the Indian Forest Act, 1927 or the Bihar Private Forest Act, 1947. (e) lands containing mines and minerals, whether discovered or undiscovered or whether being worked or not; and (f) any other land which the State Government may, by notification in the Official Gazette, specify. (e) lands containing mines and minerals, whether discovered or undiscovered or whether being worked or not; and (f) any other land which the State Government may, by notification in the Official Gazette, specify. (2) The Bhoodan Yagna Danpatra shall be filed before the Revenue Officer appointed under this Act as soon as it is made. Section 11 - Publication of, and investigation upon, the Yagna Danpatra:- [(1) On receipt of the Bhoodan Yagna Danpatra, the Revenue Officer shall cause the same to be published in the prescribed manner inviting written objections thereto within a period of thirty days from the date of publication. (2) If no written objection is filed within the period mentioned in sub-section (1), the Revenue Officer shall make a summary inquiry in the prescribed manner as to the right, title and interest of the donor in such land and his competency to make a gift. (3) If any written objection is filed within the period mentioned in sub-section (1), the Revenue Officer shall register such objection and fix a date for hearing of which a public notice shall be given in the prescribed manner and a copy of such notice shall be served on the donor and the objector by registered post with acknowledgment due and on the date so fixed the Revenue Officer shall hear the donor and the objector. (4) After holding the summary enquiry under sub-section (1) or after hearing the donor and the objector under sub-section (3), as the case may be, the Revenue Officer may supersede the Bhoodan Yagna Danpatra in whole or in part on any of the following grounds, namely:" (i) that the donor is incompetent to make a gift; (ii) that the title of the donor is defective; (iii) that the donor is not a person entitled to donate the land under the provisions of Section 12. (5) If the Bhoodan Yagna Danpatra is not superseded in whole or in part under sub-section (4) the Revenue Officer shall confirm it in whole and if it is superseded in part, he shall confirm it in respect of the part which is not superseded]. (6) The donation of the land in respect of which the Bhoodan Yagna Danpatra is superseded shall be cancelled and the right, title and interest of any person in such land before the date of the Yagna Danpatra shall not be affected in any manner. (6) The donation of the land in respect of which the Bhoodan Yagna Danpatra is superseded shall be cancelled and the right, title and interest of any person in such land before the date of the Yagna Danpatra shall not be affected in any manner. (7) The Revenue Officer shall, in the hearing and disposal of objections under this section, have the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908 (V of 1908), in respect of the following matters, namely:" (a) summoning and enforcing attendance of witnesses and examining them on oath; (b) requiring the discovery and production of any document; (c) reception of evidence on affidavits; (d) requisitioning any public record from any Court or Office; (e) issuing commission for examination of witnesses: and such proceeding before the Revenue Officer shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 and for the purposes of Section 195 of the Indian Penal Code, 1860. (8) The Collector may at any time transfer a petition filed under sub-section (2) any other Revenue Officer, within his jurisdiction, for disposal. Section 13 - Vesting of lands in the Bhoodan Yagna Committee:- (1) The right, title and interest of the donor in any land donated to Shri Acharya Vinoba Bhave or to the Bhoodan Yagna Committee shall, on confirmation of the Bhoodan Yagna Danpatra in respect of that land, stand transferred to, and vest in, the Committee for the purposes of the Bhoodan Yagna, [with effect from the date of the donation]. (2) The land vesting in the Committee shall not be liable to attachment or sale in execution of any decree or order passed by the Civil Court against the Bhoodan Yagna Committee. (3) [*****] 14. (2) The land vesting in the Committee shall not be liable to attachment or sale in execution of any decree or order passed by the Civil Court against the Bhoodan Yagna Committee. (3) [*****] 14. Section 14 - Grant of land to landless persons:- (1) The Committee or such other authority or person, as the Committee may specify, either generally or in respect of any local area; in the prescribed manner may [subject to sub-section (2) grant lands which have vested in the Committee to landless persons [or to a village community, Gram Panchayat, or a Co-operative Society organised by the Committee] and the grantee of the land shall acquire the same right, title and interest as the donor had in such land: Provided that" (i) in case the donor''s interest in such land was that of proprietor or tenure-holder as defined in the Bihar Land Reforms, 1950, the grantee''s right, title and interest shall be that of an occupancy raiyat liable to pay rent to the State Government; (ii) in case the estate or tenure, as the case may be, in which such land is situated has vested in the State under the said Act, the right, title and interest of the grantee shall also be subject to the provisions of that Act; and (iii) in case such land has vested in the Committee under Section 12, the right, title and interest of the grantee shall be that of an occupancy raiyat liable to pay rent to the State Government: Provided further that" (1) [grantee, his heirs assigns or successor-in-interest shall not be competent to sublet or transfer the land or any portion thereof by sale, gift or otherwise, but shall be competent to transfer the same by exchange with the previous permission of the Committee in writing; and (ii) the rights of the grantee over such land shall be subject to such other restrictions and conditions as may be prescribed 1[by the Committee]. (2) All grants shall be made as far as may be in accordance with the scheme of Bhoodan Yagna as may be prescribed. [Provided that in making grants of waste lands in the district of Santhal Parganas which have vested in the Committee, the principle prescribed for settlement of waste lands under section 28 of the Santhal Parganas Tenancy (Supplementary Provision) Act, 1949 (Bihar Act XIV of 1949), shall be followed]. [Provided that in making grants of waste lands in the district of Santhal Parganas which have vested in the Committee, the principle prescribed for settlement of waste lands under section 28 of the Santhal Parganas Tenancy (Supplementary Provision) Act, 1949 (Bihar Act XIV of 1949), shall be followed]. (2) For the purpose of grant of lands under this section, the Committee may, by regulations, fix after taking into consideration the quality of lands, the maximum and minimum areas to be granted to a landless person [or to a village community, Gram Panchayat or a Co-operative Society organised by the Committee] and different areas may be fixed for different districts, subdivisions or thanes. Explanation.--for the purposes of this section "occupancy raiyat", means a raiyat having a right of occupancy in the land held by him 2[within the meaning of the tenancy law of the area in which it is situated]." h) From perusal of the aforesaid provisions of Bihar Bhoodan Yagna Act, 1954 it is apparent that there is a procedure prescribed for donation of land, its investigation and its grant to various persons. The land under Bihar Bhoodan Yagna Act, 1954 can be granted only to the persons entitled under section 14 of Bihar Bhoodan Yagna Act, 1954. As per the finding recorded above the father of the petitioner was not entitled for grant of land under Bihar Bhoodan Yagna Act, 1954 and has obtained the same by material suppression of fact and accordingly the authorities below have rightly held this particular document to be collusive document. i) It has been held by Hon''ble Supreme Court in judgment reported in (2007) 4 SCC 221 at para 22,26,38 and 39 as follows:- "22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and non est in the eye of the law. Such a judgment, decree or order-by the first court or by the final court-has to be treated as nullity by every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings. 26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings. 26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of "finality of litigation" cannot be stretched to the extent of an absurdity that it can be utilised as an engine of oppression by dishonest and fraudulent litigants. 38. The matter can be looked at from a different angle as well. Suppose, a case is decided by a competent court of law after hearing the parties and an order is passed in favour of the plaintiff applicant which is upheld by all the courts including the final court. Let us also think of a case where this Court does not dismiss special leave petition but after granting leave decides the appeal finally by recording reasons. Such order can truly be said to be a judgment to which Article 141 of the Constitution applies. Likewise, the doctrine of merger also gets attracted. All orders passed by the courts/authorities below, therefore, merge in the judgment of this Court and after such judgment, it is not open to any party to the judgment to approach any court or authority to review, recall or reconsider the order. 39. The above principle, however, is subject to exception of fraud. Once it is established that the order was obtained by a successful party by practising or playing fraud, it is vitiated. Such order cannot be held legal, valid or in consonance with law. It is non-existent and non est and cannot be allowed to stand. This is the fundamental principle of law and needs no further elaboration. Therefore, it has been said that a judgment, decree or order obtained by fraud has to be treated as a nullity, whether by the court of first instance or by the final court. It is non-existent and non est and cannot be allowed to stand. This is the fundamental principle of law and needs no further elaboration. Therefore, it has been said that a judgment, decree or order obtained by fraud has to be treated as a nullity, whether by the court of first instance or by the final court. And it has to be treated as non est by every court, superior or inferior." j) Applying the ratio of aforesaid judgment reported in (2007) 4 SCC 221 , this Court is of the considered view that in view of the findings recorded above the order dated 19.8.1987 which has been passed in favour of the petitioner in Case No.8 of 1986-1987 under Bihar Bhoodan Yagna Act, 1954 is a nullity in the eyes of law. k) Further the conduct of the petitioner in connection with entering into Bhugat bandha Mortgage by way of registered deed itself shows that the petitioner entered into this property by virtue of that document and after expiry of the lease period in order to continue with the possession of this property the petitioner tried to justify its right, title and possession over the property under the provisions of Bihar Bhoodan Yagna Act, 1954. l) So far as the judgment which has been relied upon by the petitioner reported in (1979) BLJR 130 is concerned, this Court finds that the issue as to whether provisions of Bihar Bhoodan Yagna Act, 1954 or Santhal Pragana Tenancy (Supplementary Provisions) Act, 1949 would prevail does not arise in this particular case as the appellate authority as well as the revisional authority having held that the claim of the petitioner on the basis of Bihar Bhoodan Yagna Act, 1954 being a collusive has been disbelieved by the authorities and under such circumstances the judgment which has been relied upon by the petitioner does not help the petitioner in any manner. m) There is consistent finding of the appellate authority as well as the revisional authority that patta of the year 1944 as well as the claim of obtaining property by way of Bhoodan under the Act of Bhoodan Yagna Act, 1954 are collusive document. n) This Court does not find any perversity or illegality in the impugned orders and finds no reason to differ with such findings under Article 226 of the Constitution of India. 8. The writ petition is accordingly dismissed.