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2019 DIGILAW 1548 (JHR)

Kamal Kumar Das v. State of Jharkhand

2019-09-04

SUJIT NARAYAN PRASAD

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1. This writ petition is under Article 226 of the Constitution of India by which the entire proceeding pertaining to Jamabandi Cancellation Revision No.41 of 2014, as contained under Annexure-11, on the ground that the Mutation Appeal No.16 of 2012 has been withdrawn without any particular measure to file revision before the revisional authority. Further the revisional authority has admitted the revision without passing any order of limitation petition even though the revision has been filed after lapse of period of six years. 2. The brief facts as per the pleading made in the writ petition that father of the petitioner has purchased the land in question. His father has made an application for mutation of the said land and in pursuance to an order passed in Mutation Case No.103(2)/83-84 the name of father of the petitioner was mutated vide order dated 30.03.1984 and thereafter has started payment to the State Exchequer in lieu thereof rent receipts were issued from the year 1994 to 2008-09 but after lapse of about 24 years a litigation has been initiated against the father of the petitioner for cancellation of Jamabandi being Case No.05/2003-04 and vide order dated 06.02.2008 the said Jamabandi Case No.05 of 2003-04 has been rejected by the Additional Collector, Dhanbad after coming to the conclusion that Jamabandi was created rightly in favour of the father of the petitioner, against the said order the respondents had preferred miscellaneous revision appeal being Misc. Revision Appeal No.02 of 2010 upon which vide order dated 27.04.2010/06.05.2010 the Deputy Commissioner, Dhanbad has set aside the order dated 06.02.2008 against which the father of the petitioner has filed writ petition before this Court being W.P.(C) No.3575 of 2010 which was allowed vide order dated 09.12.2010 against which the State respondents had preferred intra Court appeal being L.P.A No.168 of 2011 but the same was dismissed vide order dated 17.11.2011. The respondents has preferred an appeal being Dhanbad Mutation Appeal No.16 of 2012 challenging the order dated 06.02.2008 passed in Jamabandi Cancellation Case No.05 of 2003-04 but subsequently withdrawal petition was filed by the respondents vide order dated 07.11.2014, the mutation appeal was withdrawn. Thereafter the revision has been filed being Jamabandi Cancellation Revision No.41 of 2014 challenging the order dated 06.02.2008. 3. Thereafter the revision has been filed being Jamabandi Cancellation Revision No.41 of 2014 challenging the order dated 06.02.2008. 3. The contention of the petitioner is two folds: (i) After withdrawal of the Dhanbad Mutation Appeal No.16 of 2012, revision application ought not to have been entertained since it was simpliciter withdrawal and; (ii) Secondly, revision has been entertained without passing an order on limitation petition for condonation of delay of about six years in filing the aforesaid petition vide order dated 14.11.2014. 4. The State respondent has appeared and filed their affidavits, inter alia, therein the stand has been taken that as per the record altogether three Jamabandi Cancellation Nos.41of 2014, 42 of 2014 and 43 of 2014 have been filed before the respondent no.2 and one Jamabandi Cancellation No.43 of 2014 (State vs. Sikandar Jahan and Ors) in which respondent no.2 has admitted all these three Jamabandi Cancellation Revisions and passed order on 04.09.2017 by observing to the effect that Jamabandi of a person created on the basis of unregistered Hukumnama and rent receipts issued by the State cannot be cancelled, however, the Commissioner in the Mutation Appeal Case No.40 of 1994 as has been decided vide order dated 04.10.1999 relating to the matter about several plots of C.S. Khata Plot No.42 within Mouza Belgaria, Mouza No.151 which is total area of 39.05 acres with further observation that the matter which relates to Plot No.2, 405 and 524 is covered by the decision arrived at an order passed in Mutation Appeal No.40 of 1994. The lands in question has been held to be Gair Abad (GM) lands and has been found not cultivable land rather covered with forests and concluded that no reliance could be placed on the said Sada Hukumnama said to be granted to Govind Prasad in comparison with original return filed in compensation case raised doubts about manipulation. It has further been stated that the order passed by the Commissioner on 04.10.1999 has not been challenged before the higher forum and therefore, it attained its finality and as such the issues have been settled and hence the said fact ought to have been brought to the notice of the authorities by the respondents by bringing into notice in Case No.03 of 2003-04 and as such the matter has been agitated before the revisional authority for adjudication of the issues. So far as contention of the petitioner that the revision is not maintainable after withdrawal of the appeal, it has been submitted by referring to the withdrawal petition dated 07.11.2014 brought on record by way of supplementary counter affidavit wherein specific averments has been made at paragraph 3 for withdrawal of the appeal reserving right to prefer a fresh Jamabandi cancellation revision before the Divisional Commissioner, North Chotanagpur Division and in view thereof prayer has been made for withdrawal of the writ petition which the Commissioner has allowed, therefore, it will be treated to be withdrawal with the liberty to file revision as per the averment made in the withdrawal petition as under paragraph 3 to the withdrawal petition dated 07.11.2014 and hence it cannot be said that the revision application is not maintainable. So far as the issue about admitting the appeal without passing any order on limitation petition by condoning the delay no such legal submission has been advanced by the learned State Counsel in defending the aforesaid order passed by the revisional authority and no averment to that effect has also been made in two affidavits filed on their behalf. 5. Having heard learned counsel for the parties and after appreciating their rival submissions, this Court deem it fit and proper to go through the two grounds agitated by the learned counsel for the petitioners as referred hereinabove: The first issue pertains to maintainability of the revision application. This Court in order to appreciate the argument advanced on behalf of the learned counsel for the parties, has directed the learned counsel appearing for the State to bring on record the withdrawal petition dated 07.11.2014 and also gone across the order dated 07.11.2014 passed in Dhanbad Mutation Appeal No.16 of 2012 which reads as under: “learned G.P has filed a withdrawal petition on 07.11.2014 O.P. absent, learned G.P also heard and withdrawal petition is allowed and the appeal is dismissed as withdrawn.” It is evident from the aforesaid order that a withdrawal petition has been filed on 07.11.2014 by the learned Government Pleader and on that date the opposite party was absent and in his absence the withdrawal petition was heard and was allowed and accordingly, the appeal is dismissed as withdrawn. The question which is being raised by the petitioner that there is no leave to file any revision and as such revision itself is not maintainable and to appreciate the aforesaid fact, this Court after going across the withdrawal petition, is of the considered view that since there is specific stand taken in the withdrawal petition reserving the right to prefer revision and filing of the revision will not prejudicial to the parties once withdrawal petition has been allowed meaning thereby that the withdrawal petition will be subject to the condition stipulated in the aforesaid petition and if in the order dated 07.11.2014 if liberty to file representation has not been given it does not mean that the specific statement made in the withdrawal petition reserving right to prefer revision after allowing the said withdrawal petition State respondent will be deprived from filing a revision and therefore, the contention as has been raised by the learned counsel for the petitioner is not acceptable to the Court. The said contention is not acceptable also for the reason taking into consideration the stand taken by the State in the counter affidavit about the nature of the land which requires adjudication and the revisional authority being the last fact finding authority under the statute and if on technicality the revision petition would be held to be not maintainable the proper adjudication of the issues will not come out. In view, thereof, the revision petition which is pending before the revisional authority is held to be maintainable. So far as the contention agitated by the petitioner pertaining to admitting revision vide order dated 14.11.2014 without passing any order under Section 5 to the Limitation Act for condoning the delay, as would appear from the revision petition, under Annexure-9 supported by a petition for condonation of delay filed under Section 5 to the Limitation Act, as has been annexed as Annexure-10 to the writ petition and by going across the order dated 14.11.2014 whereby the revision has been admitted and notice has been issued to the opposite party by calling upon the lower court record. 6. 6. This Court is of the view that when the State revisionist has itself filed a limitation petition for condoning the delay by showing the sufficient cause for the same, the revisional authority ought to have passed an order first on the limitation petition by issuing notice upon the petitioner who is the respondent before the revisional authority but by not doing so an important right of the petitioner has been taken away by the revisional authority since the issue of limitation, if applicable under the statute, goes to the root of the issues and it needs an adjudication after deliberation of the facts and after providing an opportunity to hear the parties and as such by not doing so and admitting the appeal without passing an order on limitation petition for condoning the delay, according to the considered view of this Court the revisional authority has committed gross illegality and as such the order dated 14.11.2014 does not stand in the eye of law, accordingly quashed. 7. In the result, the matter is remitted before the revisional authority for passing a fresh order first on limitation petition after hearing the revisionist, State respondent herein and the petitioner who is respondent before the revisional authority before proceeding further. 8. In view thereof, the writ petition stands disposed of.