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2018 DIGILAW 1566 (JHR)

Ainul Haque v. State of Bihar

2018-07-16

ANUBHA RAWAT CHOUDHARY

body2018
JUDGMENT : 1. Heard Mr. J.K. Pasari, counsel appearing for the petitioners. 2. Heard Mr. Rajiv Anand, counsel appearing for the respondent nos. 1 to 6. 3. Heard Mr. A.N. Deo, Advocate assisted by Mr. P. P. Chatterjee, Advocate appearing on behalf of the respondent no. 7. 4. The original writ petitioner was one Ajimuddin Mian who died during the pendency of this case and was substituted vide order dated 16.04.2009 by the present petitioners. 5. This writ petition has been filed for the following reliefs: “(a) For quashing the order dated 13.09.1999 (Annexure-7) passed by the respondent no. 2 whereby and whereunder he has been pleased to dismiss the revision filed by the petitioner being no. 24/98. (b) For quashing the order dated 4.11.1997 (Annexure-6) passed by the Additional Collector whereby and whereunder he has been pleased to dismiss the appeal filed by the petitioner and confirmed the order dated 15.12.1993 passed by the Land Reforms Deputy Collector. (c) For quashing the order dated 15.12.1993 (Annexure-2) whereby and whereunder the application filed by the respondent no. 7 under the provisions of the Chhotanagpur Tenancy Act was allowed for restoration of the land for 1.10 Acres of Plot No. 1213, 1214, 1280, 1281, 1285 and 1357. (d) Also for quashing the order dated 8.8.1988 (Annexure-4) whereby and whereunder the application filed by the respondent no. 7 under Chhotanagpur Tenancy Act was allowed for a total area of 51 decimals. (e) For quashing of the order dated 3.6.1992 (Annexure-5) whereby and whereunder the appeal preferred by the petitioner against the order dated 8.8.1988 (Annexure-4) was dismissed. (f) A writ of or in the nature of Mandamus commanding upon the concerned respondents to forbear from giving effect to or acting pursuant to or in furtherance of the said impugned order dated 13.9.1999 as contained in Annexure-7.” 6. Counsel for the petitioners submits that two proceedings are involved in this case. One is arising out of application for restoration of land filed by the private respondent which was numbered as Case No. 19 of 1991-92 and was re-numbered as Case No. 87 of 1992. The other proceeding is arising out of Case No. 472 of 1986. The application for restoration of land in connection with both these cases have been filed as Annexure-3 and 1 respectively. 7. Counsel for the petitioners submits that vide registered sale-deed no. The other proceeding is arising out of Case No. 472 of 1986. The application for restoration of land in connection with both these cases have been filed as Annexure-3 and 1 respectively. 7. Counsel for the petitioners submits that vide registered sale-deed no. 377 dated 15.03.1939 the grand father of the present petitioners had purchased 2.99 acres of land from the father of the respondent no. 7 and the sale-deed is on record and is annexed as Annexure-8 to the writ petition. The property involved in this case is included in the said 2.99 acres of land. He submits that the grand father of the petitioners came in possession of the property by virtue of the sale-deed and out the said sale-deed, total 99 decimals of land was sold to third parties vide registered sale-deeds dated 22.07.1952 and 29.06.1982, as contained in Annexure-9 and 10 of this writ petition. 8. Counsel for the petitioners, by referring to Annexure- 3 to the writ petition submits that an application was filed before the Executive Magistrate wherein the respondent no. 7 had claimed that they have been dispossessed from the property just five years prior to filing of the application and this application was related to Plot No. 1280 area 33 decimals and Plot No. 1281 area 21 decimals. This application was numbered as Case No. 472 of 1986. This application was entertained by the authority and by an ex-parte order dated 08.08.1988, the Executive Magistrate passed an order for eviction in connection with 51 decimals of land, against which an appeal being Appeal No. 20 of 1988 was filed and the same was dismissed vide order dated 03.06.1992. He submits that during the pendency of this appeal, another case was filed by the private respondent herein, which included the property which was involved in the earlier case and further included other properties total being 1.10 decimals. This application was filed before the Circle Officer. As per this application, the private respondent claimed that they have been dispossessed from the property just 10 to 11 years back and the mode of dispossession was mentioned as there has been entry as Dar-raiyat. This application was filed before the Circle Officer. As per this application, the private respondent claimed that they have been dispossessed from the property just 10 to 11 years back and the mode of dispossession was mentioned as there has been entry as Dar-raiyat. Pursuant to the aforesaid application, notices were issued and after hearing the parties the order dated 15.12.1993 was passed, but this order was confined to 59 decimals of land only on the ground that the application for restoration was already allowed vide earlier application to the extent of 51 decimal of land. He submits that pursuant to this application, an inspection was also conducted by the Circle Officer and the inspection report has been filed alongwith the rejoinder wherein it has been mentioned that the petitioners are in possession of the property for about 30 to 32 years. 9. Counsel for the petitioners further submits that the original authority did not consider the report of the Circle Officer and passed the order merely on the ground of passing of the earlier order and totally ignored the sale-deed dated 15.03.1939 and the rent receipts issued in favour of the original petitioner. Against this order, an appeal was filed before the appellate authority who remanded the matter back and against the order of remand, the revision was filed before the revisional authority who had set-aside the order of remand and directed the appellate authority to pass the order. Thereafter, the appellate authority passed the order as contained in Annexure-6 dated 04.11.1997. The appellate authority also relied upon the order passed in the earlier proceedings which was confirmed in Appeal Case No. 20 of 1988 and the said authority also did not consider the inspection conducted by the Circle Officer. Thereafter, the revision was filed before the revisional authority which was numbered as Hazaribagh Revision Case No. 24 of 1998 and the same was again dismissed by order dated 13.09.1999. 10. By referring to the impugned order and the entire order-sheet, the counsel for the petitioners submits that the humble notes of argument is also a part of the proceeding wherein it was pointed out about the report of the Circle Officer dated 04.07.1994. But, from perusal of the impugned order dated 13.09.1999, it appears that the local inspection conducted has not been considered by the authority. 11. But, from perusal of the impugned order dated 13.09.1999, it appears that the local inspection conducted has not been considered by the authority. 11. He further submits that even the revisional authority has not recorded any finding as to when the petitioners were dispossessed from the property rather, the revisional authority also relied upon the order passed in Appeal Case No. 20 of 1988 and committed serious error of record recording that it was held in Appeal Case No. 20 of 1988 that the registered sale-deed dated 15.03.1939 was not a genuine document and also held that if the registered sale-deed is not implemented, then after a lapse of time it becomes void. 12. Counsel for the petitioners submits that from the perusal of the impugned order, it appears that there is no finding on record as to when the private respondent was dispossessed from the property and the revisional authority has held the registered sale- deed as void although they have no jurisdiction to declare a registered sale-deed as null and void. 13. Counsel for the petitioners also submits that in view of such finding regarding the registered sale-deed and in view of absence of any finding as to when the private respondent was dispossessed from the property, the impugned orders are perverse and fit to be set-aside. 14. Counsel for the petitioners further submits that in the year, 1939 the tribe Bedia was not declared as Scheduled Tribe and it was declared to be Scheduled Tribe only in the year, 1976. The list of aboriginals and Scheduled Castes was declared and published in Bihar Gazette dated 12.10.1938 and under the provisions of Chotanagpur Tenancy Act, the list of aboriginals and Scheduled Castes was declared which does not include Bedia tribe. He submits that on the date of execution of the sale-deed in the year, 1939 which is a registered document, Bedia tribe was not a Scheduled Tribe and accordingly, there was no illegality so far as the execution of registered sale-deed of the year 1939 is concerned. He has referred to a judgment passed by this Court in C.W.J.C. No. 1171 of 1990(R) wherein this Hon’ble Court has noticed that the tribe Bedia was declared to be a Scheduled Tribe vide Notification dated 18.09.1976. 15. He has referred to a judgment passed by this Court in C.W.J.C. No. 1171 of 1990(R) wherein this Hon’ble Court has noticed that the tribe Bedia was declared to be a Scheduled Tribe vide Notification dated 18.09.1976. 15. Counsel for the petitioners has also submitted that so far as proceeding in the year 1988 is concerned, which was initiated and continued before the Executive Magistrate, he had no jurisdiction to entertain an application under Section 46 of the Chotanagpur Tenancy Act, 1908 and that is the reason that the private respondent had filed another application including the entire land. 16. Counsel for the private respondents, on the other hand, submits that the law is well- settled that in writ jurisdiction the evidence cannot be re-appreciated and in absence of any perversity no interference is called for. 17. During the course of argument, the counsel for the respondents has relied upon the judgment of Full Bench of this Court reported in AIR 1985 Patna 352 (Full Bench) in particular paragraph no. 5, wherein it has been held that the Writ Court cannot convert itself into an appellate jurisdiction for appraising and appreciating evidence afresh on findings of fact. 18. Counsel for the private respondents also submits that as the application which was decided by the Executive Magistrate in the year, 1988 was without jurisdiction therefore, another application was filed including the entire property. It cannot be said to be an act of afterthought so far as the subsequent application is concerned, the same was rightly filed before the authority and the authority has rightly decided the matter. 19. However, during the course of argument, while going through the original order, the appellate order and the revisional order, the counsel for the private respondents could not show any finding in the orders as to when the private respondents were dispossessed from the property. Upon this being pointed out, he submits that no finding can be recorded for the first time by the Writ Court and at best, the matter can be remanded for giving a finding on that point. So far as the finding by the authority that the registered sale-deed of the year 1939 is null and void, counsel for the private respondent fairly submitted that the authorities had no jurisdiction to declare a registered sale-deed as null and void. 20. So far as the finding by the authority that the registered sale-deed of the year 1939 is null and void, counsel for the private respondent fairly submitted that the authorities had no jurisdiction to declare a registered sale-deed as null and void. 20. Counsel for the private respondents has disputed the date of declaration of the tribe Bedia as Scheduled Tribe and according to them Bedia was declared as Scheduled Tribe only in the year 1956 and not in the year 1976. 21. Counsel for the respondent-State submits that certainly the authorities have no jurisdiction to declare a registered sale-deed as null and void but the original petitioner, having lost in all the three Courts, is not entitled to any relief under Article 226 of the Constitution of India. 22. However, during the course of argument, counsel for the respondent-State also could not show any finding recorded by any of the authorities as to when the private respondents were dispossessed from the property. He submits that the date of dispossession of the private respondents cannot be recorded for the first time by the Writ Court and accordingly, this matter can be remanded. 23. The counsel for the State also could not dispute the fact that the Executive Magistrate has no jurisdiction under the provisions of Chotanagpur Tenancy Act, 1908 for the purposes of exercising their power under Section 46 and he submits that the appropriate authority is the Land Reform Deputy Collector. 24. After hearing the counsel for the parties and after considering the materials on record, this Court finds as under: (a) So far as the earlier proceeding in Case No. 472 of 1986 is concerned, wherein only a portion of the property involved in this case was the subject matter, the case was entertained and the order was passed by the Executive Magistrate on 08.08.1988, against which the original writ petitioner filed an appeal and had lost. (b) From the arguments advanced by all the parties it appears that the entire proceeding before the Executive Magistrate was wholly without jurisdiction and accordingly, this Court finds that the impugned order dated 08.08.1988 was itself without jurisdiction and accordingly the same shall have no bearing on the subsequent application for restoration filed by the private respondents herein before competent authority. Accordingly, this order dated 08.08.1988 passed in Case No. 472 of 1986 as well as the appellate order dated 03.06.1992 passed in Appeal Case No. 20 of 1988 arising out of order passed in Case No. 472 of 1986 as contained in Annexure-4 and 5 respectively, are hereby set-aside. (c) This Court further finds that so far as the subsequent proceeding is concerned, wherein the entire property was involved, all the three authorities have based their finding on the ground that the appellate order dated 03.06.1992 passed in the earlier proceeding was not challenged by the original writ petitioner and they have not arrived at any independent findings so far as the dispossession of the private respondent is concerned. (d) This Court further finds that original order in the subsequent case was passed on 15.12.1993 which was challenged before the appellate court who set-aside the original order and remanded the matter for fresh consideration on 26.03.1994. Thereafter, against this appellate order the revision was filed and the revision was decided on 17.07.1997 and the appellate order of remand was set-aside. In the meantime, the Circle Officer had conducted the inspection and submitted the inspection report dated 04.07.1994. Thereafter, appellate authority passed fresh order. The appellate authority also did not record any finding as to when the private respondents were dispossessed from the property and had also based its finding on the basis of earlier proceedings. Subsequently, revisional authority also based its finding on the basis of earlier proceedings and also held that the registered-deed of sale of the year, 1939 is void. (e) This Court is of the considered view that the revisional authority has no jurisdiction to declare a registered deed of sale as void. This Court finds that the impugned orders do not record any finding as to when the private respondents were dispossessed from the property which is a material fact and requires evidence and it appears that this exercise has not been conducted by the authorities below. The date of dispossession is important for the purposes of appreciating as to whether the application for restoration was filed within the period of limitation. This Court further finds that the authorities were totally directed by the earlier proceedings which has been held to be without jurisdiction as aforesaid. Therefore, the subsequent proceedings based on earlier proceedings are hereby set-aside. The date of dispossession is important for the purposes of appreciating as to whether the application for restoration was filed within the period of limitation. This Court further finds that the authorities were totally directed by the earlier proceedings which has been held to be without jurisdiction as aforesaid. Therefore, the subsequent proceedings based on earlier proceedings are hereby set-aside. (f) Accordingly, the impugned orders being order dated 15.12.1993 passed in Case No. 19 of 1991-92; appellate order dated 04.11.1997 passed in Hazaribag R.A.N. Case No. 2 of 1994 and revisional order dated 13.09.1999 passed in Hazaribag Revision No. 24/98 are hereby set-aside and the matter is remanded back to the Land Reform Deputy Collector i.e. respondent no. 5 to pass fresh order after issuing notices to the parties and decide the case on its own merit without being influenced by the earlier orders passed in the earlier proceedings as they have been held to be wholly without jurisdiction. The respondent no. 5 shall pass fresh order within a period of six months from the date of appearance of parties before him. 25. This writ petition is disposed of with the aforesaid observations and directions.