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2019 DIGILAW 2010 (JHR)

Shanti Devi v. State of Jharkhand

2019-12-13

SUJIT NARAYAN PRASAD

body2019
JUDGMENT : This writ petition is under Article 226 of the Constitution of India whereby and whereunder order dated 26.02.2007 passed by respondent no. 4 in R.P. Case No. 42/2002-03; order dated 10.05.2007 passed by respondent no. 3 in S.A.R. Appeal No. 167/2006-07; and order dated 21.06.2013 passed by respondent no. 2 in S.A.R Revision Case No. 45 of 2007, have been assailed. 2. The brief facts of the case of the petitioner, as per the pleadings made in the writ petition, is that the respondent nos. 6 to 10 had filed an application before the Deputy Collector Land Reforms, Jamshedpur in the year 2002 under Section 71-A of the Chotanagpur Tenancy Act, 1908 (in short the ‘Act, 1908’) against the petitioners alleging therein that the petitioners are in possession of the land bearing a portion of plot no. 1426, khata no. 288 of Mouza Ghagidih, Thana No. 1169 measuring an area of 0.29 acres since 1982. On the basis of aforesaid application, R.P. Case No. 42/2002-03 was instituted, in which, the petitioners have been noticed. In pursuance thereof, they have made their appearance and filed show cause stating inter alia that the area, as mentioned in the application as 0.29 acres of plot no. 1426, is incorrect rather the petitioners are in possession over an area of 0.05 acres of land only on the basis of Korfa Tenancy created by the father of the Opposite Parties, namely, Rudia Bhumij, who was the recorded tenant under Khata No. 288 of mouza Ghagidih, and granted Korfa Patta in favour of Shanti Devi and delivered possession of the same after taking Salami with a consideration for payment of Rs. 2/- per year as also permitted to construct residential building and other structures over the aforesaid land measuring an area of 5 decimals to Shanti Devi and accordingly substantial structure have been made over the aforesaid land by making expense of about Rs.4,00,000/-(Rupees Four Lakhs), in which, the family members of the petitioners are residing since 1976. 3. The ground of limitation was also agitated in the show cause stating, inter alia, that period of limitation to file an application under Section 71-A of the Act, 1908 is barred in proceeding for restoration of land after the period of 30 years. 3. The ground of limitation was also agitated in the show cause stating, inter alia, that period of limitation to file an application under Section 71-A of the Act, 1908 is barred in proceeding for restoration of land after the period of 30 years. Further ground has been raised that since the nature of the land having been changed and it became Chaparbandi land, therefore provision of Section 71-A of the Act, 1908 will not be attracted since the land has now in the nature of raiyati and it became a Chaparbandi land. 4. The Deputy Commissioner Land Reforms after hearing the parties has passed order on 26.02.2007 against the petitioners for restoration of the land in favour of the actual heirs of the recorded tenants. The petitioners preferred appeal before the Deputy Commissioner, Singhbhum East, being S.A.R. Appeal No. 167/2006-07, which was disposed of vide order dated 10.05.2007. The petitioners being aggrieved with the order passed by the appellate authority preferred revision, being S.A.R Revision Case No. 45 of 2007, which was dismissed vide order dated 21.06.2013. 5. The petitioners are assailing the order passed by the Original authority-Deputy Collector Land Reforms; the appellate order passed by the Deputy Commissioner, Singhbhum East as also order passed by the revisional authority-the Commissioner, Singhbhum (Kolhan) Division, Chaibasa, by way of present writ petition. 6. Mr. Bhaiya V. Kumar, learned counsel appearing for the petitioners, assailing the impugned orders, has agitated following grounds: (I). The issue of limitation has not been dealt with by any of the authorities. According to petitioners, the specific plea about limitation has been agitated by the petitioners, at first before the original authority but it was not answered. Again, it was agitated before the appellate authority but not answered and lastly it was agitated before the revisional authority but again it was not answered. According to petitioners, the specific plea about limitation has been agitated by the petitioners, at first before the original authority but it was not answered. Again, it was agitated before the appellate authority but not answered and lastly it was agitated before the revisional authority but again it was not answered. In view thereof, submission has been made that when the issue of limitation goes to the root of the issue and if it has been agitated by the petitioners, it was incumbent upon the quasi judicial authority to answer the same in either way, but having not done so, serious irregularities have been committed since according to the petitioners the lis ought not to have been initiated under Section 71-A of the Act, 1908 being barred under the period of limitation of 30 years and if it would have been answered there was every likelihood that the application filed by the private respondents for restoration of land would have been ordered in their favour. (II).The petitioners have made substantial structure over the land in question and, therefore in view of the Scheduled Area Regulation Act, 1969 (in short the ‘Regulation, 1969’), the structure prior to the enactment of the Act the proviso II of Section 71(A) of the Act, 1908 would be attracted but there is no adjudication to that part. (III).The petitioners are only in possession of 5 decimals of land while mechanically order of restoration has been passed pertaining to 29 decimals of land. 7. Per contra, Mr. K.K. Singh, learned counsel assisted by Mr. D.K. Karamkar, learned counsel for the private respondent nos. 6 to 10 has agitated following grounds: (I) The issue of limitation is not an important issue in the present factual background since it is the admitted case of the petitioners that on the basis of Korfa Tenancy, the petitioners have come in possession sometimes in the year 1976 and it is the admitted position of law that the period of limitation to file an application under Section 71-A of the Act, 1908, is 30 years and since according to petitioners the application has been filed for restoration in the year 2002 and hence the period of limitation shall be counted, if counted from the year 1976 it would be within the period of 30 years and hence it has rightly not been answered by the quasi judicial authorities. (II) So far as the argument advanced on behalf of petitioners pertaining to the substantial structure prior to enactment of the Regulation, 1969, the proviso II to Section 71-A is applicable, which provides for restoration in case the non-tribal would be able to establish about substantial structure constructed prior to 1969. The order of restoration can be converted by the order of compensation equal to the cost of land. But such point has never been agitated by the petitioners before any of the authorities and, therefore it is not the appropriate time to consider this factual aspect. (III) So far as the issue of direction for restoration of 29 decimals of land is concerned and the petitioners are in occupation of 5 decimals of land that is a factual error, as would be evident from the enquiry report brought on record by the petitioners. 8. The respondents have also filed counter affidavit wherein the stand inter alia has been taken by defending the impugned orders that there is no infirmity in the order passed by the quasi judicial authorities. Further stand has been taken, the original authority-Deputy Collector Land Reforms by referring to the decision rendered in the case of Lincia Gamango & Ors Vs. Dayanidhi Jena & Ors reported in 2004 (3C) PLJR (S) 212, wherein it has been held that a non-tribal would not acquire right and title over a tribal land on the basis of adverse possession, has passed the order of restoration of possession of land in question therefore, the order passed by the authority cannot be said to suffer from infirmity. So far as contention about Korfa Patta dated 19.01.1976 is concerned, the same has been said to be in contravention of Section 46 of the Act, 1908. In view thereof submission has been made that the order passed by the quasi judicial authorities suffers from no infirmity, hence the same cannot be interfered with. 9. This Court, having heard learned counsel for the parties and after appreciating the rival submissions, has found some admitted facts, which are as follows:- The petitioners are claiming title and possession over the land in question by virtue of Korfa Patta dated 19.01.1976. An application has been filed by the respondent nos. 9. This Court, having heard learned counsel for the parties and after appreciating the rival submissions, has found some admitted facts, which are as follows:- The petitioners are claiming title and possession over the land in question by virtue of Korfa Patta dated 19.01.1976. An application has been filed by the respondent nos. 6 to 10 sometimes in the year 2002 under Section 71-A of the Act, 1908, upon which, a proceeding has been initiated for restoration of a portion of land bearing plot no. 1426, khata no. 288, Thana No. 1169 of Mouza Ghagidih in the district of Singhbhum East. The aforesaid application was converted into a quasi judicial proceeding being Land Restoration Case No. 42/2002-03. The petitioners, on being called upon by the Deputy Collector Land Reforms, has put their appearance and contested the case by taking a plea about period of limitation. According to them, the application for restoration has been filed after a period of 30 years, as also the land being in the nature of Chaparbandi and further they are in possession of the land in pursuance to Korfa Patta dated 19.01.1976. It appears from the order passed by the Deputy Collector Land Reforms that a report was called from the concerned Circle Officer. In pursuant thereto, report dated 09.06.2005 was submitted wherein it has been reported that the building has been constructed since last 35-40 years. The petitioners are in occupation of 5 decimals of land and the estimated cost of the construction has been assessed as Rs. 3,00,000/-. The Deputy Collector Land Reforms, after hearing the parties and on perusing the report submitted by Circle Officer, has passed order dated 26.02.2007 for restoration of land under the provisions of Section 71-A of the Act, 1908. The said order was appealed in S.A.R. Appeal No. 167/2006-07 which was dismissed vide order dated 10.05.2007 confirming the order passed by the original authority. Aggrieved thereof, the petitioners preferred revision, which was also dismissed by the revisional authority vide order dated 21.06.2013 in S.A.R. Revision No. 45 of 2007. 10. The said order was appealed in S.A.R. Appeal No. 167/2006-07 which was dismissed vide order dated 10.05.2007 confirming the order passed by the original authority. Aggrieved thereof, the petitioners preferred revision, which was also dismissed by the revisional authority vide order dated 21.06.2013 in S.A.R. Revision No. 45 of 2007. 10. It is an admitted fact herein that application for restoration has been filed with respect to 0.29 acres of land but on the basis of report submitted by the Circle Officer in pursuant to the order passed by the Deputy Collector Land Reforms, direction has been passed for restoration of 5 decimals of land which would be evident from the appellate order. In view thereof, submission which has been made by learned counsel for the petitioners about non-application of mind by the authorities while passing the order pertaining to restoration of 0.29 acres of land in place of 0.05 decimals of land is found to be misconceived, accordingly, is rejected. 11. Further question would arise about non-consideration of the argument advanced on behalf of the petitioners about question of limitation. The admitted position is that the question of limitation has been agitated by the petitioners, which has also been referred by the original authority in the impugned order as also by the appellate and revisional authority in their order. 12. Mr. K.K. Singh, learned counsel for respondent nos. 6 to 10 has submitted that even if the question of limitation has not been dealt with by answering in either way, i.e., either in favour of petitioners or in favour of private respondents, illegality has been committed in view of the admitted case of the petitioner that the possession of the land is being claimed on the basis of Korfa Patta dated 19.01.1976 and since the application for restoration under Section 71-A of the Act, 1908 has been made sometimes in the year 2002, it is within the period of 30 years. 13. In response to such submission, learned counsel for the petitioners has submitted that the present land is coming under the scheduled area and as such will be governed by the Scheduled Area, (Part A States) Order, 1950 wherein areas specified declared to be Scheduled Areas within the State of Bihar is: (1). Ranchi District (2). Singhbhum district excluding Godda and Deoghar Sub-Division and (4). Ranchi District (2). Singhbhum district excluding Godda and Deoghar Sub-Division and (4). Latehar Sub-Division of Palamau District, and according to the petitioners, the present land is situated in the "Dalbhum Sub-Division" and hence it will come under the Scheduled Area, for which, the provision of Section 46 of the Act, 1908 would be applicable, which contains a provisions of limitation of 12 years. 14. Admittedly, as would be evident from the order passed by the Deputy Commissioner Land Reforms, the issue of limitation has been agitated by the petitioners, making reference of period of 30 years, but as per the pleadings made in the present writ petition, the applicability of the provision of Section 71-A of the Act, 1908 has been raised. Since the applicability of Section 46 of the Act, 1908 containing a provision of limitation is provided under Subsection (4-A) (a) providing therein for entertaining such application by the Deputy Commissioner, unless it is filed within a period of 12 years while as per Section 71-A of the Act, 1908 the period of limitation to entertain the application by the Deputy Commissioner is 30 years. Even though the issue about applicability of period of limitation of 12 years has not been referred rather reference of 30 years has been made but the fact remains that question of limitation has been agitated by the petitioners, since question of limitation goes to the root of the issue about the applicability for entertaining an application under Section 46(4-A) (a) or 71-A of the Act, 1908 the same has to be answered, but not answered. 15. Further it is evident that State-respondents has filed affidavit wherein the possession of the petitioner has been held to be frivolous by virtue of Korfa Patta dated 19.01.1976 but it would be evident from the report of Circle Officer dated 09.06.2005 at page 29 of the writ petition wherefrom it is evident that it has been reported about possession since last 35-40 years. 16. 16. This Court, after going across the affidavits as also the relevant documents vis-a-vis legal provision mentioned herein above, is of the view that the quasi judicial authorities while dealing with the issue ought to have answered the same but having not done so, the orders passed by the authorities said to be suffered from infirmity more particularly when the issue of limitation has been agitated, which has been taken note by the original authority as also by the revisional authority. This aspect of the matter ought to have been considered by considering the application of the provision of Section 46(4-A) (a) or Section 71-A of the Act, 1908. 17. It is a settled position of law that while issuing writ of certiorari the High Court sitting under Article 226 of the Constitution of India is supposed to see the illegality committed apparent from the face of order and the said power is to be exercised in exceptional cases. But simultaneously it is equally settled that if there is any infirmity either on fact or law, the same is to be interfered with, as has been held in the case of Syed Yakoob Vrs. K. S. Radhakrishnan & Ors reported in A.I.R. 1964 477 Supreme Court wherein at paragraph no. 7 their Lordships have been pleased to held as follows:- “The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals : these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal Acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised. 18. Further in the case of General Manager, Electrical Rengali Hydro Electric Project, Orissa and Others vs. Giridhari Sahu and Others reported in 2019 SCC OnLine SC 1177, the Hon'ble Apex Court while discussing the scope of writ of certiorari, has been pleased to hold at paragraph 29, which reads under as: 29. On the conspectus of the decisions and material, we would hold as follows: The jurisdiction to issue writ of certiorari is supervisory and not appellate. The Court considering a writ application of Certiorari will not don the cap of an Appellate Court. It will not reappreciate evidence. On the conspectus of the decisions and material, we would hold as follows: The jurisdiction to issue writ of certiorari is supervisory and not appellate. The Court considering a writ application of Certiorari will not don the cap of an Appellate Court. It will not reappreciate evidence. The Writ of Certiorari is intended to correct jurisdictional excesses. A writ of prohibition would issue when a Tribunal or authority has not yet concluded its proceedings. Once a decision is rendered by a body amenable to Certiorari jurisdiction, certiorari could be issued when a jurisdictional error is clearly established. The jurisdictional error may be from failure to observe the limits of its jurisdiction. It may arise from the procedure adopted by the body after validly assuming jurisdiction. It may act in violation of principles of natural justice. The body whose decision which comes under attack may decide a collateral fact which is also a jurisdictional fact and assume jurisdiction. Such a finding of fact is not immune from being interfered with by a Writ of Certiorari. As far as the finding of fact which is one within the jurisdiction of the court, it is ordinarily a matter ‘off bounds’ for the writ court. This is for the reason that a body which has jurisdiction to decide the matter has the jurisdiction to decide it correctly or wrongly. It would become a mere error and that too an error of fact. However, gross it may amount to, it does not amount to an error of law. An error of law which becomes vulnerable to judicial scrutiny by way of Certiorari must also one which is apparent on the face of the record. As held by this Court in Hari Vishnu Kamath (supra), as to what constitutes an error apparent on the face of the record, is a matter to be decided by the court on the facts of each case. A finding of fact which is not supported by any evidence would be perverse and in fact would constitute an error of law enabling the writ court to interfere. It is also to be noticed that if the overwhelming weight of the evidence does not support the finding, it would render the decision amendable to certiorari jurisdiction. This would be the same as a finding which is wholly unwarranted by the evidence which is what this Court has laid down. 19. It is also to be noticed that if the overwhelming weight of the evidence does not support the finding, it would render the decision amendable to certiorari jurisdiction. This would be the same as a finding which is wholly unwarranted by the evidence which is what this Court has laid down. 19. This Court, by following the position of law, so far as writ of certiorari is concerned while exercising the power under Article 226 of the Constitution of India, is of the view that the order passed by the quasi judicial authority as has been impugned in this writ petition suffers from infirmity, accordingly are quashed. 20. In consequence thereof, the matter is remitted before the original authority i.e. Deputy Collector Land Reforms to pass order afresh by dealing with the factual aspects, as discussed herein above, within a period of four months from the date of appearance of the parties. 21. Needless to say that before proceeding with the matter, the notices are to be issued upon the petitioners vis-a-vis private respondent nos. 6 to 10 within a period of three weeks from the date of receipt of copy of this order. It is further needless to mention here that the aggrieved parties will have liberty to approach before the appropriate forum against the order passed by the Deputy Collector Land Reforms. 22. With the aforesaid observations and directions, the writ petition stands disposed of. 23. Consequently, I.A. No. 11368 of 2019 stands disposed of. 24. Let the original record be sent back to the concerned office forthwith.