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2019 DIGILAW 1835 (JHR)

Bhagwan Mishra v. State of Jharkhand

2019-11-07

SUJIT NARAYAN PRASAD

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JUDGMENT : Order dated 22.11.2018 passed in C.N.T. Appeal No. 48 of 2018 by Commissioner, North Chotanagpur Division, Hazaribag is under challenge, by which appeal filed by the petitioner has been dismissed being barred by limitation. 2. It has been contended by learned counsel for the petitioner that the ancestors of the petitioner was absolute title holder of the land situated under plot nos. 648, 649, 671 and 682 under khata no. 282, out of which, land situated under plot no. 648 has been donated in favour of Kabristan and rest of the land situated under plot nos. 649, 671 and 682 remained with the absolute title of the petitioner. It has further been submitted that part of land situated under plot no. 649 has been sold and the remaining part of land is still in possession of the petitioner. 3. But, in the recent survey settlement, plot nos. have been changed and while creating the record of rights plot no. 1216 has been recorded as Kabristan amalgamating the other plot nos. 649, 671 and 682, against which, the petitioner filed revision before the Settlement Officer, which has been numbered as Revision Case No. 1145 of 2011 for making revision in the entry made in the draft publication of record of rights, in which, a report has been directed to be submitted by the Circle Officer, Patratu, but it appears from the face of record no such report has been furnished by the Circle Officer, Patratu about the nature of the land as to whether land pertaining to plot nos. 649, 671 and 682 is also the land in the nature of Kabristan apart from the land under plot no. 648, which was donated by the petitioner in favour of the Kabristan, but in absence of said report application for making necessary correction in the draft publication of record of right has been rejected, against which, appeal has been filed before the Commissioner, North Chotanagpur Division, Hazaribag, being C.N.T. Appeal No. 48 of 2018 but the same has been rejected on the ground that the same has been filed after lapse of ten months from passing of order dated 23.09.2017 in Revision Case No. 1145 of 2011. 4. 4. Learned counsel for the petitioner has further submitted that as yet the final record of right has not been prepared and only draft publication of record of right has been prepared, hence the issue of limitation, as has been taken ground for rejection of the appeal, is not sustainable in the eye of law. 5. By referring to order dated 23.09.2017 passed in Revision Case No. 1145 of 2011 by the Settlement Officer, Hazaribag, learned counsel for the petitioner has submitted that even in absence of report, which has been directed to be submitted by the Circle Officer, Patratu, the order has been passed rejecting the application filed by the petitioner and as such the Settlement Officer has committed gross illegality in rejecting the application filed by the petitioner even without waiting or going across the report in this regard. 6. Further, the Commissioner, North Chotanagpur Division, Hazaribag has not appreciated this fact rather taking a ground that appeal has been filed after lapse of ten month from the date of passing of order dated 23.09.2017 in Revision Case No. 1145 of 2011, has rejected the appeal, which is absolutely improper and virtually has made the petitioner remediless. 7. Mr. Prashant Pallav, learned G.A. IV appearing for the respondents-State of Jharkhand has submitted by referring to order dated 23.09.2011 passed by Settlement Officer that when a report has been called for from the Circle Officer, Patratu, it was incumbent upon the Settlement Officer to either wait for the said order or call upon the said report from the Circle Officer, having not done so illegality has been committed. 8. This Court, having heard learned counsel for the parties and on appreciating the rival submissions, the fact which has been argued by learned counsel for the petitioner with respect to non-consideration of the factual aspect as because for considering the report to that effect has been called upon by the Circle Officer, Patratu, as would appear from the impugned order dated 23.09.2017 in Revision Case No. 1145 of 2011, no such report has been placed before the Settlement Officer and in absence thereof order has been passed holding therein that it is not justified to open mutation in the name of petitioner when the nature of land is Kabristan but the question herein is that the petitioner has raised an issue about donating the land situated under plot no. 648 and remaining plot nos. 649, 671 and 682 is still in possession of the petitioner and petitioner is absolute title holder, then this fact ought to have been verified before passing such order, having not done so the Settlement Officer has committed gross illegality. 9. Appeal has been filed against the said order but the Commissioner, North Chotanagpur Division, Hazaribag has rejected the appeal on the ground that the appeal has been filed after ten months from the date of passing of order in Revision Case No. 1145 of 2011, which according to conscious view of this Court suffers form infirmity as because the Commissioner ought to have appreciated that the petitioner has made objection with respect to draft publication of entry made in the record of rights. 10. In view thereof, this Court is of the view that the matter requires fresh consideration. 11. Accordingly, order dated 23.09.2017 passed in Revision Case No. 1145 by Settlement Officer, Hazaribag and order dated 22.11.2018 passed in C.N.T. Appeal No. 48 of 2018 passed by the Commissioner, North Chotanagpur Division, Hazaribag are not sustainable in the eye of law and as such are quashed. 12. The matter is remitted before the Settlement Officer, Hazaribag, by restoring Revision Case No. 1145 of 2011, for passing fresh order. 13. The Settlement Officer is directed to call upon the report from the Circle Officer, Patratu by passing appropriate order in this regard and after going through the said report, order is required to be passed. 14. The Settlement Officer, Hazaribag shall pass final order in Revision Case No. 1145 of 2011 within a period of three months from the date of receipt of copy of this order. 15. With the aforesaid observations and directions, the writ petition is disposed of.