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2019 DIGILAW 162 (JHR)

Khudiram Gorain v. State Of Jharkhand

2019-01-16

SUJIT NARAYAN PRASAD

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JUDGMENT Sujit Narayan Prasad, J. - This writ petition is for quashing the order dated 14.09.2017 in R.M. A. No.72/1989-90 passed by Commissioner, Santhal Pargana Division, Dumka, whereby and whereunder the Fouti Khata, Open in-charge officer has been declared to be wrong with direction to record the name of the respondent herein who has been declared to be status reversion. The petitioner has asserted the aforesaid order mainly on the ground that the revisional authority without assigning any reason has reversed the order passed by the charge officer, even without considering the name of the decree passed in Title Suit No.36/1976-8/82 passed by the 2nd Additional Subordinate Judge, Dumka and the judgment passed in Title Appeal No.33/1982 by the District Judge, S.P. Dumka and, therefore, the revisional authority without application of mind has reversed the order given by the charge officer, hence the same is not sustainable in the eye of law. 2. Mr. Mayank Mohit Sinha, learned counsel appearing for the respondent nos.4 to 7 has submitted that there is no illegality in the order passed by the revisional authority, since in view of the provision as contained in Section 4(xx) of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949 which contains definition of "vacant holding" which means an abandoned holding or holding of which the raiyat has died without heirs and the revisional authority by taking note of the aforesaid provision of law considering that the original recorded tenant was having no legal heir hence passed the said order, as such, there is no infirmity in the same rather said to be in consonance with the provision as contained in Santhal Paragana Tenancy Act. 3. Learned counsel appearing for the respondent-State has also defended the aforesaid order by adopting the argument advanced on behalf of the respondent nos.4 to 7. 4. Having heard learned counsel for the respective parties, on appreciation of the rival submissions, the brief facts of the case of the petitioner is that a land pertaining to Gantzer J.B. No.24 of Village Jaradih, J.B. no.57 of village Bartali and J.B. no. of village Gando, S.C. Gando is recorded in the name of Manoda Sundari Daqsi widow of Jadav Gorari in Mr. Gantzer''s settlement record. The recorded tenant Manoda Sundari died in or about in the year 1942-43. of village Gando, S.C. Gando is recorded in the name of Manoda Sundari Daqsi widow of Jadav Gorari in Mr. Gantzer''s settlement record. The recorded tenant Manoda Sundari died in or about in the year 1942-43. One Tinkori Gorai, who is brother of Manoda Sundari used to live at Village Bartali in the house of Manoda Sundari and thereafter, she was married by one Logoai Bala, the sister of Manindra Gorai and Jotindra Gorai. Tinkori Gorai predeceased Manoda Sundari died in the year, 1937 and on his death his sons Panchanan Gorai, Gopal Gorai and Satya Pada Gorai used to look after the aforesaid properties of Manoda Sundari Dasi. After the death of Manoda Sundari Dasi, there was a dispute over inheritance and possession of the aforesaid bighas of land and in one hand Manindra Gorai and Jogindra Gorai put forth their claim and on the other hand Logosi Bala, Panchanan Gorai and Gopal Gorai and Satya Pada Goorai asserted their claim over the property left by Manoda Sundari Dasi. 5. The matter ultimately culminated into a suit being Title Suit No.36/1976/8/82 which was decreed on 21.10.1982 by which the claimant''s possession and title have been found to be legal and suit has been dismissed, the same upheld in Title Appeal No.33/1982 vide judgment dated 17.07.1984. 6. The Second appeal was also filed against the aforesaid order which has also been dismissed being Second Appeal No.420 of 1984. 7. Thereafter, the claim of the petitioners have been opened in the Fouti which has been assailed by the respondents. It has been said to be illegal by reversing the order passed by the trial court, hence this writ petition. 8. Admittedly, suit for the same land has been filed which has been decreed in favour of the petitioner, the decree having been confirmed into two appeal i.e. first appeal and second appeal. The Commissioner, Santhal Pargana Division, Dumka although has referred about the suit and appeal but without assigning any reason he has passed an order reversing the order of the charge officer holding therein that the declaration given by him treating the land as Fouti is wrong. 9. The Commissioner, Santhal Pargana Division, Dumka although has referred about the suit and appeal but without assigning any reason he has passed an order reversing the order of the charge officer holding therein that the declaration given by him treating the land as Fouti is wrong. 9. This Court is of the view that the Commissioner in exercise of revisional power ought to have assigned the reason before coming to a finding by reversing the order passed by the charge officer having not done so the said order cannot be said to be with reason. 10. It is settled position of law that the revisional authority while acting as a revisional authority under the statute, having adjudicatory power is required to pass order assigning reasons. The order in absence of any reason will be said to be an order mechanical in nature and without consideration of material fact. 11. Consideration always means active application of mind, in this regard, reference may be made to the judgment of Hon''ble Supreme Court rendered in the case of Chairman, Life Insurance Corporation of India And Others Vs. A. Masilamani, (2013) 6 SCC 530 . "19. The word "consider" is of great significance. The dictionary meaning of the same is, "to think over", "to regard as", or "deem to be". Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term "consider" postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order." 12. Herein the order passed by the competent court of civil jurisdiction in title suit or first appeal or second appeal, having not been discussed before reversing the finding given by the charge officer, which was the basis of decision taken by him, hence the order passed by the revisional authority cannot be said to be proper, rather it is an order without consideration of material facts. 13. It is also settled that order without reason will be said to be in violation of the principle of natural justice. 14. 13. It is also settled that order without reason will be said to be in violation of the principle of natural justice. 14. Therefore, this Court after considering the aforesaid legal position is of the view that the order passed by the Commissioner suffers illegality, therefore, is not tenable in the eye of law, in consequence thereof, the same is quashed. 15. In the result, the matter is remitted before the Commissioner, Santhal Pargana Division, Dumka for passing a fresh order for taking into consideration each and every aspect of the matter and after providing opportunity to the parties in accordance with law within period of 12 weeks from the date of receipt of copy of this order. 16. Accordingly, the writ petition stands disposed of.