Research › Search › Judgment

Jharkhand High Court · body

2019 DIGILAW 1882 (JHR)

Naryan Mahato v. State of Jharkhand

2019-11-19

SUJIT NARAYAN PRASAD

body2019
1. This writ petition is under Article 226 of the Constitution of India whereby and whereunder following prayers have been made :- (i) For issuance of an appropriate writ(s)/order(s)/direction(s) directing or commanding upon the respondents to conduct measurement of the land of the petitioner situated at village Nagrikalan (Mouza No.230, Khata No.127, Plot No. 1979, Area 0.78 Acres and Plot No. 1977, Area 171 decimals. (ii) For issuance of an appropriate writ(s) order(s)/ directions(s) commanding upon the respondents to abstain/prohibit the proposed construction of the Go-down of pacs over the land of the petitioner and also prohibit the digging of the Government Well which is digging over the land of the petitioner inspite of awarded land which is situated at Mouza No.230, Khata No.40, Plot No. 1976 Area 20 decimal. 2. It is the case of the petitioner as per the pleading made in the writ petition that he is descendant and legal heir of the recorded tenant situated at village Nagrikalan, Mouza No.230, Khata No.127, Plot No. 1979, Area 0.78 Acres and Plot No. 1977, Area 171 decimals which he has got through the registered Patta Dalil by settling it in favour of the grandfather of the petitioner Late Nathu Mahato and put him in peaceful possession. 3. After vesting of Jamindari, the grandfather of the petitioner has mutated the land in his favour in sarista of the Government and Zamabandi No. 988 has been created and started making payment of rent. 4. In the year 2006 i.e. at the time of preparation of revisional survey, the Khatiyan has been prepared by making entry of wrong person, therefore, the petitioner has filed a suit under Section 87 of the Chota Nagpur Tenancy Act, 1908 being Suit No. 428 of 2006 and 511 of 2006 before the Settlement Officer, Dhanbad, who, after hearing the parties, had passed order on 01.11.2008 and 22.06.2009 in favour of the petitioner by recording the name of the petitioner in column of raiyat in the record of rights. 5. 5. The case of the petitioner is that since in the record of rights necessary correction has been made in exercise of power conferred under Section 87 of the Chota Nagpur Tenancy Act, 1908 and the said order has not been assailed by the State, therefore, attained its finality but without considering the aforesaid aspect, the land is being treated as Gair-abad Bihar Sarkar and the steps have been taken for construction of godown of PACS over the land in question which has occasioned for filing writ petition on behalf of the petitioner. 6. A counter affidavit has been filed wherein the State respondent has taken stand about the nature of land which is Gair-abad Bihar Sarkar belonging to the State of Bihar (now Jharkhand) and as such the petitioner who is claiming his title on the basis of Sada (unregistered) document of transfer of property, is in the teeth of Bihar Land Reforms Act, 1950 and therefore, the competent authority of the State, considering the fact that the land belongs to the State of Jharkhand, has taken decision to utilize the said land for the purpose of godown and, therefore, according to the learned counsel appearing for the State of Jharkhand, the petitioner has got no case for passing any positive direction as has been prayed in this writ petition. 7. This Court, having heard learned counsel for the parties and on appreciating their rival submissions, has found the admitted fact being not controverted by the State of Jharkhand in the counter affidavit that in the year 2006 the revisional survey has been conducted and in pursuance thereto Khatiyan has been prepared but reflecting the nature of land as Gair-abad Bihar Sarkar. 8. The petitioner has filed a suit under Section 87 of the Chota Nagpur Tenancy Act, 1908 being Suit No. 428 of 2006 and 511 of 2006 before the Settlement Officer, Dhanbad. The Settlement Officer, Dhanbad has passed the orders on 01.11.2008 and 22.06.2009 in favour of the petitioner with a direction to make entry of the name of the predecessor of the petitioner and in view thereof, necessary rectification has been made. 9. The Settlement Officer, Dhanbad has passed the orders on 01.11.2008 and 22.06.2009 in favour of the petitioner with a direction to make entry of the name of the predecessor of the petitioner and in view thereof, necessary rectification has been made. 9. The respondent State of Jharkhand has come out with the proposal to utilize the said land for the purpose of construction of godown for PACS which has been objected by the petitioner on the ground that the land pertains to him before the vesting of Jamindari and even in the record of rights the entry is in favour of predecessor of the petitioner but the respondent authorities are not inclined to give up the said proposal, therefore, the present writ petition has been filed. 10. The contention agitated by the State of Jharkhand that the transfer since has been made by way of unregistered document, as such, no conclusive right said to be a valid and perfect title has been created in favour of the petitioner and as such, the land since is Gair-abad Bihar Sarkar, therefore, there is no infirmity in such decision for utilizing the land for the purpose of construction of godown for PACS. 11. It is required to be referred herein the relevant provisions of Chota Nagpur Tenancy Act, 1908 as contained under Section 82 which contains the provision of power to order survey and preparation of record of rights as to water. 12. Section 83 provides for preliminary publication, amendment and final publication of record of rights. 13. Section 84 provides provision about presumptions as to final publication and correctness of record of rights. 14. Section 87 is about adjudication of the dispute in case of any error committed in making entry in the record of rights. 15. Sub-section 2 of Section 87 contains the provision of first appeal and second appeal to be filed which will lie before the High Court. 16. 14. Section 87 is about adjudication of the dispute in case of any error committed in making entry in the record of rights. 15. Sub-section 2 of Section 87 contains the provision of first appeal and second appeal to be filed which will lie before the High Court. 16. The admitted position herein is that although the nature of the land as has been said by the State respondent in the counter affidavit is of Gair-abad Bihar Sarkar which, according to the petitioner, has been said to be wrong entry made in the record of rights and for that a suit has been filed in exercise of power conferred under Section 87 of the Chota Nagpur Tenancy Act, 1908 which has been decided in favour of the petitioner against which no appeal has been filed or has not been assailed before any forum, as such, the order passed under Section 87 of the Chota Nagpur Tenancy Act, 1908 has reached to the conclusive finding. 17. Therefore, the entry made in the record of rights is now in the name of the petitioner. 18. The respondent State of Jharkhand has taken the plea about the nature of land to be Gair-abad Bihar Sarkar but the question herein is that when the nature of land which being taken as Gair-abad Bihar Sarkar as per the entry made in the record of rights but the same having been rectified under power conferred under Section 87 of the Chota Nagpur Tenancy Act, 1908, the nature of land as has been recorded to be a Gair-abad Bihar Sarkar cannot be said to be recorded in the name of Bihar Sarkar as would appear from the stand taken by the respondent in the counter affidavit. 19. But with respect to order passed under Section 87 of the Chota Nagpur Tenancy Act, 1908 the same has not been disputed, rather, only averment has been made about the nature of the land to be Gair-abad Bihar Sarkar. 20. Since the nature of land has now been rectified from Gair-abad Bihar Sarkar to that of in the name of the predecessor of the petitioner, therefore, the stand taken by the respondent State of Jharkhand in the counter affidavit cannot be acceptable and accordingly, the said stand is rejected in view of the conclusive finding of the competent authority under Section 87 of the Chota Nagpur Tenancy Act, 1908. 21. 21. In view of the reason aforesaid and entirety of the facts and circumstances, the proposal which has been undertaken by the State of Jharkhand for construction of godown of PACS over the land in question i.e. Mouza No.230, Khata No.127, Plot No. 1979, Area 0.78 Acres and Plot No. 1977, Area 171 decimals is held to be illegal and while allowing this writ petition the respondent State is restrained from making any such construction over the land in question. 22. This writ petition is, accordingly, allowed. However, it is open for the State to approach before the competent civil court for declaration of right and title.