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2018 DIGILAW 61 (JHR)

Arati Dutta v. State Of Jharkhand

2018-01-08

ANIL KUMAR CHOUDHARY

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ORDER Anil Kumar Choudhary, J. - Heard Mr. Jitendra Shankar Singh, learned counsel for the petitioner and Mr. Atanu Banerjee, learned counsel for the respondents. 2. This writ petition has been filed with a prayer for quashing the order dated 20.05.2003 passed in Revenue Miscellaneous Case No. 2/2002-2003 by the Sub-Divisional Officer, Jamtara whereby and where under he has cancelled the settlement of Khata No. 27, Dag No. 245, Mauza Koladabur made in favour of the petitioner in the Settlement Case No. 68/67-68 and 58/ 69-70 and for issuance of writ of mandamus restraining the respondents from taking the land of the petitioner without adhering to due process of law and other reliefs. 3. The brief facts involved in this writ application is that the plot situated at Mouza Koladabur having area 7.25 acres has been recorded as (Pahar) in the Khatian. It is stated that 1.89 acres has been settled to the petitioner''s husband Late Shankar Kumar Dutta (Ex-Military Man) vide Settlement Case No. 68/67-68 and 58/69-70. 4. The petitioner after the settlement of the aforesaid land, started cultivating the land has been growing crops like Kurthi, Kodo, Madua, Kudrum and has also planted trees on the aforesaid land. 5. The petitioner remained in peaceful possession of the aforesaid land for over more than 35 years without any disturbance from any authority and is paying rent regularly. 6. After creation of the new District of Jamtara, the local administration along with the Ministers selected the plot appertaining to Khata No. 27 measuring about 7.25 acres including the land settled in favour of the petitioner, for Greater Jamtara. 7. It is averred by the petitioner that in the enquiry report submitted by the Circle Officer dated 21.02.2003 wherein he has recommended for cancellation of settlement made in favour of the petitioner and others under Section 33 of Santhal Pargana Tenancy Act. On the basis of the report submitted by the Circle Officer, Jamtara, Rev. Misc. Case No. 2/2002-2003 has been instituted for cancellation of settlement made in favour of the petitioner. The petitioner filed an objection before the S.D.O., Jamtara but the S.D.O., Jamtara cancelled the settlement made in favour of the petitioner with respect to the plot appertaining to Khata No. 27, Dag No. 245. 8. Misc. Case No. 2/2002-2003 has been instituted for cancellation of settlement made in favour of the petitioner. The petitioner filed an objection before the S.D.O., Jamtara but the S.D.O., Jamtara cancelled the settlement made in favour of the petitioner with respect to the plot appertaining to Khata No. 27, Dag No. 245. 8. It is also averred by the petitioner that the order dated 20.05.2003 passed by the Sub-Divisional Officer is in violation of the Section 60 of the Santhal Pargana Tenancy Act as it amounts to reviewing his own order whereby he has confirmed the settlement and has held valid. 9. Per Contra, in the counter-affidavit, it has been averred by the respondents that the Sub-Divisional Officer has not gone into the merits of objection raised regarding the settlement of land in favour of the petitioner and dismissed the same on the simple ground that the settlement was earlier confirmed by him. It is also averred in the counter-affidavit that under Section 33 of the Santhal Pargana Tenancy Act, the S.D.O. is vested with the power to set aside the settlement in the event of any land settlement is not brought under cultivation within a period of 5 years on the date of settlement and it is also averred in the counter-affidavit that the petitioner has not planted any tree or at any point of time cultivated any seasonal crop. As a matter of fact, the trees over the said land way back to the period when the petitioner were not in possession of land and their claim of cultivation and planting of tress is fictitious. It is also averred that the land is a rocky land and is not fit for cultivation and the trees which exist are old one being 25-30 years old. 10. It is also averred by the respondents in their counter affidavit that there is no violation of Section 60 of the Santhal Pargana Tenancy Act on the part of the Sub Divisional Officer concerned and that the said orders passed by the Sub-Divisional Officer, in Settlement Case No. 68/67-68 and 58/69-70 are without jurisdiction and noblest in eye of law as no law requires confirmation of settlement made by the headman of the village by S.D.O. of the concerned place. 11. 11. It is further averred that there is alternative remedy of appeal under Section 57 of the Santhal Pargana Tenancy Act against the order passed by the S.D.O. in exercise of the powers vested under Section 30 of Santhal Pargana Tenancy Act and there is disputed question of fact involved in this case. 12. Mr. Jitendra Shankar Singh, learned counsel for the petitioner submitted that the above named respondent authorities tried to grab the land of the petitioner in a malafide manner in order to please the minister without adhering to the due process of law and the impugned order of respondent authorities is malafide, arbitrary, illegal and is in violation of settled principle of law. Hence, the same be set aside as the same amounts to exercising the power of review in violation of the Section 60 of the Santhal Pargana Tenancy Act. 13. Mr. Atanu Banerjee, learned G.A. on the other hand defended the impugned order and submitted that the same has been passed in exercise of the power vested under Section 33 of the Santhal Pargana Tenancy Act on the ground that the settled land has not been cultivated within a period of 5 years from the date of settlement as also that the initial settlement was in ''violation of the provisions of the Santhal Pargana Tenancy Act. Hence, certainly the impugned order does not involve any exercise of power of review by the S.D.O as the same has been passed in exercise of his independent jurisdiction under Section 33 of the Santhal Pargana Tenancy Act and there being no illegality in the order, it is submitted that the writ application being without any merit, be dismissed. 14. Before adverting to the dispute involved it will be profitable to refer to the relevant provision of the Santhal Pargana Tenancy Act, which are quoted hereunder:- "Section 27. Settlement of waste land to be made by patta in prescribed form.- Settlement of waste land shall be made by a patta or amalnama in the prescribed form. The patta or amalnama shall be prepared in quadruplicate, one copy shall be given to the raiyat concerned, one copy shall be sent to the Deputy commissioner, one copy shali be sent to the landlord and the fourth shall be retained by the village headman or mulraiyat, as the case may be." "Section 28. The patta or amalnama shall be prepared in quadruplicate, one copy shall be given to the raiyat concerned, one copy shall be sent to the Deputy commissioner, one copy shali be sent to the landlord and the fourth shall be retained by the village headman or mulraiyat, as the case may be." "Section 28. Principles to be followed in settling waste land or vacant holdings.- In making settlement of waste land or vacant holdings regard shall be had to the following considerations in addition to the principles recorded in the record-of-rights,- (a) fair and equitable distribution of land according to the requirements of each raiyat and his capacity to reclaim and cultivate;- (b) any special claim for services rendered to the village community, society or State; (c) contiguity or proximity of the waste land to jamabandi land of the raiyat; (d) provision for landless labourers who are bona fide permanent residents of the village and are recorded for a dwelling hour in the village. "Section 33. Settlement of waste land liable to be set aside if not cultivated within five years.-In the event of any land settled as aforesaid not being brought under cultivation within a period of five years from the date of settlement, it shall be open to the Deputy Commissioner on an application made by a jamabandi raiyat, the village headman, mulraiyat or the landlord, as the case may be, to set aside the settlement and to make such resettlement as is permissible under this Act or any law or anything having the force of law in the Santhal Parganas". "Section 57. "Section 57. Appeals.-Except as otherwise provided in this Act, from every order passed under this Act, an appeal shall lie, when the order was made- (a) by a Deputy Collector exercising powers of the Deputy Commissioner, to the Sub-divisional Officer vested with the powers of the Deputy Commissioner in this behalf: Provided that the Deputy Commissioner shall have power to order any such appeal to be transferred to his own file or to the file of the Additional Deputy Commissioner empowered in this behalf; (b) by a Sub-divisional Officer exercising powers of the Deputy Commissioner, to the Deputy Commissioner: Provided that the Deputy Commissioner shall have power to order any such appeal to be transferred to the file of the Additional Deputy Commissioner empowered in this behalf; (c) by the Deputy Commissioner or the Additional Deputy Commissioner, to the Commissioner; (d) by the commissioner confirming the order of the Deputy Commissioner dismissing a mulraiyat or co-mulraiyat under Section 11 of the Record-of-rights of Mulraiyati village, to a tribunal appointed by the [State] Government in this behalf. "Section 60. Review.-(1) The Commissioner may, for sufficient reasons to be recorded in writing, review any order which has been passed by himself or a predecessor in exercise of any power conferred by this Act. (2) An officer subordinate to the Commissioner shall not review any order made by him or by a predecessor, except for the purpose of correcting a clerical error or other error or, manifestly the result of an oversight, without previously obtaining:- (a) in the case of a Deputy Collector or a Sub-divisional Officer, the permission of the Deputy Commissioner; and (b) in the case of the Deputy Commissioner or the Additional Deputy Commissioner, the permission of the Commissioner. 15. After giving anxious consideration to the matter and on perusal of the record this court finds that it has been categorically mentioned in the impugned order that in the report submitted in the matter, it has been mentioned that the petitioner is not cultivating the land and it is difficult to arrive at a conclusion that the petitioner has planted trees. There is no quarrel over the fact that the Sub Divisional Officer is vested with the power to cancel the settlement under section 33 of the Santhal Pargana Tenancy Act if the settled land has not been cultivated within a period of 5 years from the date of settlement. There is no quarrel over the fact that the Sub Divisional Officer is vested with the power to cancel the settlement under section 33 of the Santhal Pargana Tenancy Act if the settled land has not been cultivated within a period of 5 years from the date of settlement. In the impugned order it has also been categorically mentioned that the land in question is a rocky land and is not fit for cultivation. It is also not disputed that there is no requirement of law for confirmation of settlement of the land in favour of the petitioner made by the headman of the village by the Sub Divisional Officer. The contention of the petitioner about exercise of power of review by the S.D.O. was also raised before the S.D.O. but he has categorically mentioned in the impugned order itself that he is not exercising the power of review rather he is exercising the power under Section 33 of the Santhal Pargana Tenancy Act, 1949. It is not the case of the petitioner that the Sub Divisional Officer has ever exercised his power under section 33 of the Santhal Pargana Tenancy Act at any time prior to passing the impugned order. ''Review'' in the present context means interfering with an earlier order passed by the same authority wherein he decided an issue after application of mind. There is no material in the record that the issue involved in the impugned order of the S.D.O. was ever decided by him after application of mind. There is no dispute that Section 28 of Santhal Pargana Tenancy Act envisages that in at the time of settlement of waste land or vacant holdings under section 27 of the Santhal Pargana Tenancy regard shall be had to the raiyats having land contiguous to the settled land and that the petitioner not only has any contiguous land but her deceased husband in whose favour the settlement was made do not even belong to the village concerned. It is also not disputed that alternative remedy of appeal is available to the petitioner as provided for in section 57 of the Santhal Pargana Tenancy Act. 16. It is also not disputed that alternative remedy of appeal is available to the petitioner as provided for in section 57 of the Santhal Pargana Tenancy Act. 16. Keeping in view the discussions made above as well as the fact that the finding in the impugned order involves disputed questions of facts and also alternative remedy of appeal is available for the petitioner, hence this court is of the considered opinion that this is not a fit case warranting interference of this Court in exercise of the power under Article 226 of the Constitution of India. 17. Accordingly, this writ petition being without any merit is dismissed. There shall be no order as to costs.