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2018 DIGILAW 1530 (JHR)

Jageshwar Mahto alias Yadav v. State of Jharkhand

2018-07-12

ANUBHA RAWAT CHOUDHARY

body2018
JUDGMENT : Heard Mr. Rajiv Kumar, counsel appearing on behalf of the petitioners assisted by Mr. Ram Lakhan Yadav, Advocate. 2. Heard Mrs. Chandra Prabha, counsel appearing on behalf of the respondent-State assisted by Mr. Vishal Kumar Rai, Advocate. 3. Nobody appears on behalf of the respondent nos. 7 & 8. 4. This writ petition has been filed for the following reliefs :- “For cancellation of agreement of lease dated 14.03.2010 allotted to Respondents no.7and 8 in a illegal and arbitrary manner ignoring the provision of law of Jharkhand Minor Mineral Concession Rule 2004 (JMM Rule 2004) as contained in (Annexure-8) which the respondents have granted lease for ten years with effect from 14.03.2010 to 13.03.2020 on the Raiyati Plots of the petitioner’s land without getting their consent being the owners of the land having the perfect title and possession over the property of Khata No.9 Plot No.462/(partly) area 6.50 acres and the same is mutated in the record of right in the name of petitioners. Further be please to grant of consequential relief/s, damages for misutilization of the area of the petitioners without getting his permissions/ written consent required under Jharkhand Minor Mineral Concession) Rule 2004 (JMMC Rule 2004). And Further be pleased to take action against the C.O. Dhanwar and D.F.O Giridih for not informing or for surpressing the facts in his report regarding about the petitioners raiyati land which is acquired through Bihar Bhudan Yogya Committee. And Further be pleased to direct the respondents to stay the execution/operation of the agreement of the lease dated 14.03.2010 granted to the respondent no.7 & 8 without following the rule of J.M.M.C. rule 2004 which is illegal and against the spirit of law.” 5. It is submitted by the counsel for the petitioners is that the petitioners acquired following lands in Khata No. 9 Plot No.462 Mouza khairidih District-Giridih, under the provisions of Bihar Bhoodan Yagna Act, 1954 through Bhoodan Yagna Committee, the petitioners’ name has been mutated in the revenue records and the petitioners have been paying rent to the Government :- Petitioner no. 1 2 acres of land on 14.12.1987 Petitioner no. 2 2 acres of land on 14.12.1989 Petitioner no. 3 2 acres of land on 14.12.1989 Petitioner no. 4 2 acres of land on 14.12.1989 6. 1 2 acres of land on 14.12.1987 Petitioner no. 2 2 acres of land on 14.12.1989 Petitioner no. 3 2 acres of land on 14.12.1989 Petitioner no. 4 2 acres of land on 14.12.1989 6. The grievance of the petitioners is that, inter alia, 87 decimal of land of petitioner no.1, 85 decimal of land of petitioner no.2, 47 decimal of land of petitioner no.3 and 41 decimal of land of petitioner no.4 has been given to respondent no.7 & 8 illegally by way of mining lease by the Deputy Commissioner, Giridih and by the District Mining Officer, Giridih without taking any consent from these petitioners. 7. He submits that some enquiry was made by the Circle Officer who gave a report as contained in Annexure-10 dated 13.09.2008, clearly stating that till the enquiry by the Circle Officer is over, the mining lease may not be granted. 8. The counsel for the petitioners submits that the petitioners had filed representation dated 10.03.2010 (Annexure-11), before the Deputy Commissioner and another representation dated 08.03.2010 before the Additional Collector raising a grievance that the petitioners are in possession of their aforesaid property granted by Bihar Bhudan Yagya Committee and the same may not be given by way of lease to the respondent nos.7 and 8. 9. The grievance of the petitioners is that, in spite of this representations, the respondents have executed the lease deed as contained in Annexure-8 to this writ petition, which is dated 14.03.2010. According to the petitioners, the lease deed includes the aforesaid area of the petitioners which has been granted to the petitioners through the Bihar Bhoodan Yagya Committee. 10. The first point which has been raised by the writ petitioners is that the representation dated 10.03.2010 (Annexure-11) to the writ petition is to be treated as an application under Section 14-A of Jharkhand Bhoodan Yagna Act, 1954 which provides for protection to the grantee of Bhudan land from ejectment. He submits that an application was made before the Deputy Commissioner as well as the Additional Collector but they did not take any steps for the protection of the petitioners and the lease has been entered into, in violation of this provision of Jharkhand Bhoodan Yagna Act, 1954. He submits that an application was made before the Deputy Commissioner as well as the Additional Collector but they did not take any steps for the protection of the petitioners and the lease has been entered into, in violation of this provision of Jharkhand Bhoodan Yagna Act, 1954. He further submits that the Deputy Commissioner as well as the Additional Collector has failed to exercise their powers under Section 14-A of the aforesaid Act and therefore, the instant writ petition has been filed. 11. The other point which has been argued by the counsel for the petitioners is that as per Annexure-10, the Circle Officer has clearly indicated that the enquiry in connection with the property was still going on, but, without completing this enquiry they have entered into lease with the private respondents. Therefore, they have acted in a great haste by entering into the lease and thereby the property of the petitioners has also been included in the lease hold area of the lease deed. 12. Counsel for the petitioner has also referred to the rejoinder filed by the petitioners dated 23.04.2018, wherein, he has referred to the proceedings of the Assistant Mining Officer, Giridih. By referring to this proceedings the counsel for the petitioners submits that during the course of enquiry by the Circle Officer, one objection was raised by Suresh Kumar Jhanjhari dated 24.06.2008 and in the said order it has been mentioned that an enquiry was being done by the circle officer regarding the claim of some persons, who have been claiming that the proposed mining lease area includes properties given by way of settlement through Bhoodan Yagya Committee and on account of pendency of the enquiry by the circle officer, the mining lease could not be granted. Against this order the private respondent approached the higher forum and the matter was remanded. However, in the meantime, the circle officer submitted his report vide letter dated 18.08.2009 reporting that the mining lease area does not include the property of Makbul Miya who had acquired a portion of land through Bhoodan Settlement. Thereafter the final order was passed for grant of lease including the lease involved in this case and this order was passed on 19.02.2010. Thereafter the final order was passed for grant of lease including the lease involved in this case and this order was passed on 19.02.2010. He submits that as the objection was already filed before the Deputy Commissioner as well as the Additional Collector on 08.03.2010 and on 10.03.2010 respectively raising objection and claiming that the lease hold area includes the said property of the petitioners acquired through Bhoodan Settlement, but in spite of that the lease deed was executed vide lease deed dated 14.03.2010. 13. Counsel for the respondents on the other hand submits after due enquiry, an affidavit dated 12.04.2018, has been filed by the respondents, wherein, they have taken a specific stand that the mining lease settled with respondent nos.7 and 8 are altogether different land, other than what has been claimed and identified by the petitioners and accordingly the petitioners are in possession of the property which they claim through Bhudan Yagna Committee. She submits that neither there is any dispossession nor there is any threat of dispossession of the petitioners from their land and that the demarcation of the land was done in presence of the petitioners during the course of inspection. Further, she has referred to the counter-affidavit dated 11.3.2013, filed by respondent nos.1, 2, 3 & 6 and submit that the land of the petitioners as claimed by them is totally distinct and different from what has been given to the respondent nos.7 and 8 by way of lease. Counsel for the respondent further submits that, this consistent stand has been taken by the respondents in all the counter-affidavits filed by respondents. 14. After hearing the counsels for the parties and after considering the materials on record, this Court finds that the competent authority i.e. the Assistant mining officer mining officer, Giridih had recommended for grant of mining lease inter alia, in favour of the private respondent and as per order sheet, the recommendation was accepted vide order signed on 20.02.2010. This court further finds that the pursuant to the enquiry being conducted by the circle officer as mentioned letter dated 30.09.2008 (annexure-10), order dated 3.10.2008 was passed indicating that no order of mining lease could be granted on account of lapse of time and on account of pending enquiry by the Circle Officer and upon challenge to this order the matter was remanded back for consideration vide order dated 12.01.2010. In the meantime, the enquiry by the circle officer was completed and he submitted a report dated 18.09.2009 giving a clearance that the mining area involved in the mining lease does not include the bhoodan property of one Maqbool Mian. Admittedly, the petitioners’ case was not the subject matter of enquiry by the circle officer which has been mentioned at annexure 10 to the writ petition. Thus the petitioner cannot have any grievance in connection in connection with non-completion of enquiry by the circle officer. However non completion of enquiry by the circle officer has been taken care of by the order dated 3.10.2008 passed by the assistant mining officer who declined to grant the mining lease on account of lapse of time. Thereafter the matter was remanded by the higher authority and fresh order of recommendation was passed by the assistant mining officer vide order dated 19.2.2010 after considered the fact that the enquiry by the circle officer was completed by mentioning that the mining area involved in the mining lease does not include the bhoodan property of one Maqbool Mian. This recommendation was duly approved vide order dated 20.02.2010. 15. From the perusal of the case records it appears that the petitioners had raised a grievance by letter dated 10.03.2010 and 08.03.2010 filed before the Deputy Commissioner and Additional Collector, Giridih respectively, wherein, they had categorically stated that they are in possession of the property and they are cultivating the property which has been granted to them by Bhudan Yagya Committee. However, they had expressed their apprehension that, this may be included in the mining lease to be granted by the State to the private respondent. In the meantime the lease deed dated 14.03.2010 was executed. From the perusal of the records of the case as well as by the letter dated 10.03.2010 and 08.03.2010 filed before the Deputy Commissioner and Additional Collector, Giridih respectively, it is apparent that the petitioners were not dispossessed from the property and they were still holding their property as per the grant by Bhoodan Yagna Committee. 16. Section 14-A of Jharkhand Bhoodan Yagna Act, 1954 reads as under :- “14-A. Protection to the grantee of Bhoodan land from ejectment. 16. Section 14-A of Jharkhand Bhoodan Yagna Act, 1954 reads as under :- “14-A. Protection to the grantee of Bhoodan land from ejectment. – (1) if a grantee has been ejected by any person from the land granted to him under Section 14 of the Act or any part thereof otherwise than in accordance with law, then the grantee may apply to the Revenue Officer for restoration of his possession over the land or part thereof from which he has been so ejected. (2) The Revenue Officer may on receipt of an application under sub-section (1) or on his own motion, after making such enquiry as he deems fit, order that the grantee shall be put in possession of the land or part thereof from which he has been so ejected. (3) If a grantee is threatened with unlawful ejectment from the land granted to him under Section 14 of the Act or any part thereof by any person, the Revenue Officer may, on his own motion or on application made in this behalf by the grantee initiate a proceeding for preventing such person from ejecting the grantee, any may, after hearing the parties for which the due notice shall have been given to them, or even after ex parte hearing, in cases of emergency, by an order, giving reason thereof in writing restrain such person from ejecting the grantee : Provided that where an ex parte order has been made, the Revenue Officer shall soon thereafter as may be possible hear the parties after giving due notice to them, and may, for reasons to be recorded in writing, confirm the order but, if after such hearing he finds that there are no reasonable grounds for such order he will set aside the same and reject the prayer. (4) if the person against whom an order has been made under sub-section (2) fails to carry out the order of the Revenue Officer within such time, if any, as may be specified in the order, the Revenue Officer may eject him from such land and may for that purpose use such force as may be necessary, and put the grantee in possession of such land.” 17. From the perusal of Section 14-A of Jharkhand Bhoodan Yagna Act, 1954, it is apparent that sub-Section 1 of the said section provides that if a grantee has been ejected by any person from land granted to him under Section 14 of the said Act or any part, thereof, then the guarantee may apply to the Revenue Officer for restoration of his possession over his land. This Court finds that in the representation as contained in Annexures-11 and 12 of the writ petition, the petitioners having not yet been dispossessed, the provisions of section 14-A (1) is not attracted. So far as the apprehension of the petitioners of being disposed is concerned, this court finds that as per the case of the petitioners themselves and from the materials available on record it appears that the petitioners have not been dispossessed from the property and accordingly the apprehension of the petitioners that they will be disposed is unfounded and accordingly Section 14A (3) of the aforesaid Act is also not attracted under the facts and circumstances of this case. Further this Court finds that, it is specific case of the respondents that lease deed does not include the property given to the petitioners by the Bhoodan Yagya Committee although this is being disputed by the petitioners. 18. This Court finds that the property which has been granted to the petitioners by Bhoodan Yagna Committee are out of plot no. 462 and from the perusal of the lease deed, it appears that the boundary of the mining lease hold area has been given to show that substantial boundary of the lease hold property involved in this case is portion of plot no. 462. It further appears that there is no statement made in the writ petition or in any other affidavit filed before this court that the petitioners have been physically dispossessed from their property, rather the grievance of the petitioners is that that their property has been included in the mining lease area of the private respondent. The dispute of the petitioners regarding the boundary of the property cannot be adjudicated in writ jurisdiction. Further, it is specific case of the respondents that the property of the petitioners are not included in the mining lease area. The dispute of the petitioners regarding the boundary of the property cannot be adjudicated in writ jurisdiction. Further, it is specific case of the respondents that the property of the petitioners are not included in the mining lease area. In such circumstances, this case is disposed of with an observation that the petitioners may take recourse to law for declaration of their right, title, interest and possession over the property through a competent court of civil jurisdiction but as long as the petitioners are in peaceful possession of the property the petitioners cannot raise any such grievances. The petitions filed by the petitioners as contained in annexure-11 of the writ petition cannot be treated as a petition under Section 14-A of the Jharkhand Bhoodan Yagna Act, 1954 as the petitioner has neither been dispossessed from the property nor they have any apprehension of dispossession in view of the specific stand of the respondents that the mining leasehold area does not include the property of the petitioners. 19. This writ petition is accordingly disposed of with the aforesaid liberty to the writ petitioner to get their right, title, interest and possession over the property declared in accordance with law and when such occasion arises.