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2018 DIGILAW 2538 (JHR)

Mamta Dutta v. State of Jharkhand

2018-11-26

ANUBHA RAWAT CHOUDHARY, ANUBHA RAWAT CHOUDHARY

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JUDGMENT : Heard Mr. Shiv Kumar Singh, counsel appearing on behalf of the petitioners. 2. Heard Mr. Pratik Sen, counsel appearing on behalf of the respondent no.5. 3. Heard Mr. Ajit Kumar, counsel appearing on behalf of the respondent-State. 4. This writ petition has been filed for the following relief: “For quashing of order dated 24/2/2003 passed by the respondent no.4 in Mutation Revision No.45/1998-99 whereby and where under the Mutation Revision filed by the petitioner under Section 16 of The Bihar Tenant’s Holding (Maintenance of Records) Act, 1973 against order dated 5/10/98 passed in Mutation Appeal No.2/1997-98, has been dropped illegally as not maintainable. For quashing order dated 5/10/98 passed by the respondent no.2 Mutation Appeal No.2/1997-98 whereby and where under the aforesaid appeal filed by the respondent no.5 was allowed and the order dated 31/10/91 passed in T.K.M. case No.51 (M) 1988-89 whereby the respondent no.3 was pleased to mutate the name of the petitioner in respect to Town Khas Mahal Holding No.220 Plot Nos. 2280 and 2281 measuring a total area of 0.06 Dec has been illegally set aside.” 5. Counsel for the petitioners submits that the property involved in this case is Khas Mahal property. The application for mutation in connection with the property was filed before the Circle Officer, Chaibasa, which was numbered as T.K.M. Case No.51 (M) of 1988-89 and the same was allowed vide order dated 31.10.91. Against this, the private respondent herein filed an appeal before the Land Reforms Deputy Collector, Sadar at Chaibasa which was numbered as Mutation Appeal No.2 of 1997-98 and the appeal was allowed. He submits that against the appellate order, a revision being Revision Case No. 45 of 1998-99 was filed before the Deputy Commissioner, Singhbhum (West) and the same was dismissed on the ground that the said authority had no jurisdiction in the matter as the property involved in this case was Khas Mahal property. He also held that even the Circle officer had no jurisdiction to entertain the application for mutation. 6. Counsel for the petitioners submits that as per the specific case of the petitioners, the mutation proceedings are governed by the provisions of Bihar Tenant’s Holding (Maintenance of Records) Act, 1973 and as per the provisions of this Act, the application for mutation has to be filed before the Circle Officer under Section 14. 6. Counsel for the petitioners submits that as per the specific case of the petitioners, the mutation proceedings are governed by the provisions of Bihar Tenant’s Holding (Maintenance of Records) Act, 1973 and as per the provisions of this Act, the application for mutation has to be filed before the Circle Officer under Section 14. The appeal lies before the Land Reforms Deputy Collector under Section 15 and the revision lies before the Collector of the District under Section 16 of the aforesaid Act of 1973. He submits that in this view of the matter the impugned order is perverse and is fit to be set-aside. 7. Counsel appearing on behalf of the private respondent submits that the property being a Khas Mahal property, the mutation of such properties has to be governed by Khas Mahal Manual and the various Circulars issued by the government from time to time. He submits that the provisions of Bihar Tenant’s Holding (Maintenance of Records) Act, 1973 has no applicability to such proceedings as the same is meant for maintenance of up to date records of holding of raiyats in the State and has got no concern with the properties relating to Khas Mahal because Khas Mahal properties are the property which are leased by the government to various person and are properties belonging to government. He submits that the mutation proceeding in connection with Khas Mahal properties are governed by the Khas Mahal Manual and he refers to Rules 46 and 53 of Bihar Government Estates (Khas Mahal) Manual, 1953 to submit that Rule 46 deals with correction of records and it also refers to appeal to Collector and the correction is to be carried out under the initials of Deputy Collector. He further submits that the overall supervision in connection with the mutation is conferred upon the Commissioner of the District as per Rule 53 thereof. He also submits that a supplementary-counter affidavit has been filed by the State to indicate that at the relevant point of time, the Circle Officer of Chaibasa district was empowered to carry on the mutation of the Khas Mahal properties. 8. Counsel appearing on behalf of the respondent-State submits that pursuant to order passed by this Court a supplementary counter-affidavit has been filed on behalf of the respondent nos. 8. Counsel appearing on behalf of the respondent-State submits that pursuant to order passed by this Court a supplementary counter-affidavit has been filed on behalf of the respondent nos. 1 to 4 to bring on record that the properties under Khas Mahal are governed by Khas Mahal Manual and not by the provisions of Bihar Tenant’s Holding (Maintenance of Records) Act, 1973. By referring to para – 12 of the supplementary counter-affidavit, he submits that, earlier the Kolhan Superintendent used to be vested with power of Chaibasa Town Khas Mahal Officer, later in the middle of 1980’s the Circle Officer, Sadar at Chaibasa was vested with power of Khas Mahal Officer, and Jamabandi records were also sent to the Circle officer, Sadar at Chaibasa. He further submits that from the perusal of the order passed by the Circle officer which is annexed along with the writ petition, it appears that he has indicated his designation as Khas Mahal Officer. Accordingly, he submits, that the application for mutation was rightly filed before the Circle Officer, Chaibasa but so far as the appeal is concerned, the affidavit does not indicate as to who is the appellate authority and who is the revisional authority, if any, under the Khas Mahal Manual. He submits that, however from the provisions of Rule 46 of Bihar Government Estates (Khas-Mahal) Manual, 1953, it appears that the appeal could be considered by the Collector. 9. Rule 46 of Bihar Government Estates (Khas-Mahal) Manual, 1953 is quoted herein below for ready reference: “46. He submits that, however from the provisions of Rule 46 of Bihar Government Estates (Khas-Mahal) Manual, 1953, it appears that the appeal could be considered by the Collector. 9. Rule 46 of Bihar Government Estates (Khas-Mahal) Manual, 1953 is quoted herein below for ready reference: “46. Correction of records – After orders have been passed by the Deputy Collector, or by the Collector important cases where it is considered necessary to take the Collector’s orders or where there is an appeal to the Collector, the office copies of the Khasra, map and khatian, khewat or jamabandi register IA, as the case may be, should be corrected under the Deputy Collector’s initial, the head of his office being responsible for posting the corrections; a moharrir will then fill up maintenance registers VII, VIII and IXA in the forms given in appendix B and will send to the tehsildar a correction slip indicating the exact nature of the changes to be made in his working copies of the khasra and khatian, khewat or jamabandi register IA, as the case may be and the amin should correct the map under the signature of the tahsildar.” 10. After hearing the counsel for the parties and after considering the materials on record, this Court finds that the scope of applicability of Bihar Government Estates (Khas Mahal) Manual, 1953 and the various Circulars issued thereunder are for the purposes of the Khas Mahal properties which are properties leased by the government and the provisions of Bihar Tenant’s Holding (Maintenance of Records) Act, 1973 which deals with the maintenance of up to date records of holdings of raiyats in the State has no applicability to khas mahal properties in the matter of mutation. Admittedly, property involved in this case is khas mahal property. 11. This Court further finds that from the supplementary counter-affidavit filed by the State, the Circle Officer, Chaibasa was empowered to entertain an application for mutation of khas mahal properties and the application for mutation before the Circle Officer, Chaibasa was rightly filed by the petitioners which was numbered as T.K.M. Case No. 51 (M) of 1988-1989. The application was allowed vide order dated 31.10.1991. 12. Against this order, the private respondent filed an appeal before the Land Reforms Deputy Collector. The application was allowed vide order dated 31.10.1991. 12. Against this order, the private respondent filed an appeal before the Land Reforms Deputy Collector. However, from the provisions of Rules 46 of the aforesaid Khas Mahal Estates Manual, it appears that the Collector is empowered to hear the appeal and the correction, if any, has to be made under the signature of Deputy Collector. The counsels have not been able to show any provision of law under the Khas Mahal Manual to demonstrate that appeal lies before the Land Reform Deputy Collector. Accordingly, this court is of the considered view that the appeal against the order of the Khas Mahal Officer lies before the Collector and not before the Land Reform Deputy Collector. 13. The order of revision, which is also the impugned order in this case was passed by the Deputy Commissioner. The counsel for the petitioners is not in a position to point out the provision of law under this revision was filed. Moreover, from the perusal of Khas Mahal Manual also, there is no such provision for revision although the Commissioner is empowered for overall supervision of the properties relating to Khas Mahal. Accordingly, this Court finds that the impugned order passed by the Deputy Commissioner in so called revisional jurisdiction is wholly without jurisdiction, and accordingly the same is fit to be set-aside. 14. This Court finds that as indicated in Rule 46 of Bihar Government Estate (Khas Mahal) Manual, 1953 the appeal lies before the Collector although the necessary correction is to be carried out by the Deputy Collector under his initials. Considering the aforesaid facts and circumstances of this case, on the point of jurisdiction, the impugned appellate order passed by the Land Reforms Deputy Collector as well as the impugned revisional order passed by Deputy Commissioner are hereby set-aside. 15. However, it will be open to the private respondent herein to challenge the order passed by the Circle Officer, Chaibasa who was also the Khas Mahal Officer, in accordance with law within a period of two months from today.