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2019 DIGILAW 889 (JHR)

Vijay Kumar Gupta, Son of R. P. Gupta v. Abdul Majid, Son of Sheikh Esmail

2019-04-22

DEEPAK ROSHAN, SHREE CHANDRASHEKHAR

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JUDGMENT : Shree Chandrashekhar, J. The appellant is aggrieved of the order dated 28.08.2017 passed in W.P.(C) No. 1320 of 2009 by which the order dated 01.02.2002 passed by the Sub-Divisional Officer, Ramgarh in Doubtful Jamabandi Case No. 16/2001-02 has been quashed by the writ Court. 2. In the Doubtful Jamabandi case, the Sub-Divisional Officer has held that the order passed by the Circle Officer, Ramgarh regularising Jamabandi in favour of Md. Ismail, Sheikh Pannu etc. was illegal. 3. Before the writ Court two fold contentions were raised by the writ petitioner; (i) the order dated 01.02.2002 was passed, on an application of the respondent no. 3 (who is the appellant before us) seeking review of the order dated 18.09.1995, by exercising a power which is not vested in the Sub-Divisional Officer, Ramgarh under the Bihar Tenant's Holding (Maintenance of Records) Act 1973, and (ii) the Sub-Divisional Officer has no jurisdiction to interfere with the order dated 18.09.1995 passed by the Circle Officer in Case No. 27 of 1995-96. 4. Both the aforesaid plea raised by the writ petitioner found favour with the learned writ Court and by an order dated 28.08.2017 the impugned order dated 01.02.2002 has been quashed by the learned writ Court. 5. The learned writ Court has dealt with the aforesaid plea raised on behalf of the writ petitioner, thus : “10. Hence, the question is as to whether the respondent No. 2 had any jurisdiction to entertain an application relating to cancellation of Zamabandi. The said issue has been decided by this court in W.P.(C) No. 1399 of 2007 [Nepal Ram Prajapati Vs. The State of Jharkhand & Ors.] on consideration of the relevant provisions of the Bihar Tenant’s Holding (Maintenance of Records) Act, 1973 [hereinafter referred to as 'the said Act']. Paragraphs 11, 12 & 17 of the said judgment read as follows:- “11. The Sub-divisional Officer has been defined under Section 2(t) of the Bihar Tenant's Holdings (Maintenance of Records) Act, 1973, which reads as under: “(t) “sub-divisional Officer” means the officer-in-charge of the civil administration of the sub-division of a district;” “12. In view of the said definition, the Sub-divisional Officer is the officer-in-charge of the civil administration of the sub-division of the district for the purpose of the said Act. In view of the said definition, the Sub-divisional Officer is the officer-in-charge of the civil administration of the sub-division of the district for the purpose of the said Act. However, the Sub-divisional officer is not an authority under the provisions of Sections 14, 15 & 16 of the said Act.” “17. Admittedly, the revisional authority under the said Act is the Collector of the district. No such power has been conferred to the Sub-divisional Officer under the said Act. In the present case, if the original order was passed by the Circle Officer, Chatra, the said order was appealable before the Land Reforms Deputy Collector. Though the Circle Officer committed procedural error in making recommendation to the Land Reforms Deputy Collector, Chatra for making correction in the revenue records, yet the said procedural errors cannot be said to be fatal in nature, as the Land Reforms Deputy Collector is the appellate authority under the said Act. However, so far as assuming of the revisional jurisdiction by the Sub-divisional Officer, Chatra is concerned, the same is completely illegal as the revisional power can only be exercised by the Collector of the district.” 11. In view of the aforesaid ratio laid down in the case of Nepal Ram Prajapati (Supra), it is held that the impugned order passed by the Sub-Divisional Officer, Ramgarh is without jurisdiction, as he has no authority under the said Act to cancel the Zamabandi running in favour of the petitioner at the instance of an application filed by the respondent No.3. 12. The judgments rendered by the Hon'ble Supreme Court in the case of Oswal Fats & Oils Limited Vs. Additional Commissioner (Administration), Bareilly Division, Bareilly & Ors. (Supra) and in the case of Prestige Lights Ltd. Vs. State Bank of India (Supra), which have been relied upon by the learned Sr. counsel for the respondent No.3, are not applicable in the facts and circumstances of the present case, as the impugned order passed by the Sub-Divisional Officer, Ramgarh (respondent No.2), is itself without jurisdiction.” 6. Before we advert to the challenge by the appellant to the order dated 28.08.2017 passed in W.P.(C) No. 1320 of 2009, few necessary facts of the case need to be recorded. Before we advert to the challenge by the appellant to the order dated 28.08.2017 passed in W.P.(C) No. 1320 of 2009, few necessary facts of the case need to be recorded. The case pleaded by the respondent no.1-writ petitioner (hereinafter referred as the respondent) is that his ancestors have acquired about 1.08 acres land comprised in Khata No.2, Plot Nos.1305 and 1311 through a “Hukumnama” executed by the erstwhile Zamindar and after the vesting Zamabandi was created in favour of Sheikh Pannu, Sheikh Rajju etc. However, suspecting validity of the Zamabandi a proceeding vide Case No. 27 of 1995-96 was initiated in which by an order dated 18.09.1995 the Circle Officer, Ramgarh has held that the aforesaid land is outside the purview of doubtful Zamabandi and, accordingly, Halka Karamchari was directed to issue rent receipt in favour of the ancestors of the respondent who was the opposite-party in the proceeding before the Circle Officer. The case pleaded by the appellant is that his father has acquired several chunks of land comprised under Khata No. 2 within Plot nos. 216, 1299, 1305 and 237 by virtue of a settlement from ex-Zamindar and he has paid rent for the lands to the ex-Landlord before vesting of the Zamindari and thereafter to the State of Bihar and the State of Jharkhand. The appellant has asserted that after death of his father in the year, 1971 he came into the peaceful possession over the land in dispute and the Land Reforms Deputy Collector, Hazaribagh in the proceeding of C.R.R. Case No.17 of 1989-90 has confirmed his possession. He has asserted that his possession has been confirmed in Title Suit No. 61 of 1986, atleast with respect to plot nos. 216 and 217. Title Suit No. 61 of 1986 was filed by the mother of the appellant in respect of 0.22 acres land comprised in Plot No. 217 within Khata No. 47. The parties have referred to a proceeding under section 144 Cr.P.C. vide Case No. 86 of 1996, W.P.(C) No. 1320 of 2009 and C.W.J.C. No. 4098 of 1996 (R) filed by one or the other party. 7. Evidently, there is serious dispute on title and possession of the parties over the land in dispute. 8. The parties have referred to a proceeding under section 144 Cr.P.C. vide Case No. 86 of 1996, W.P.(C) No. 1320 of 2009 and C.W.J.C. No. 4098 of 1996 (R) filed by one or the other party. 7. Evidently, there is serious dispute on title and possession of the parties over the land in dispute. 8. Under the scheme of Bihar Tenant's Holding (Maintenance of Records) Act, 1973, mutation of the land in favour of a person is a recognition of his possession over the land. It is treated as an evidence of the possessory right of a person. A report on possession over the land is called for, before an order is passed under section 14 of the 1973 Act. What procedure has to be followed by the Circle Officer has also been laid down. Normally, istehar is issued and after hearing the person in whose favour the land is recorded in the Revenue records, an order on the application for mutation can be passed, but the Revenue authorities have no jurisdiction to decide the question of title over the land. Under section 12 an application can be filed for mutation on the ground of settlement, lease, mortgage, gift etc. but before a final order is passed under section 14, a report under section 13 is mandated under the Act. Whether the land in question, on which the appellant has laid a claim by virtue of a settlement and the respondent has pleaded that the said land was settled in favour of his ancestor by virtue of “Hukumnama” by the ex-landlord, belongs to the appellant or the respondent, answer to which can be found only on examination of the original records and the various orders passed in the different proceedings on which the parties have relied upon. However, the proceeding in W.P.(C) No. 1320 of 2009, particularly the impugned order dated 28.08.2017, does not disclose that the original records and the report on possession of the parties were brought before the writ Court. 9. On the question of power of review, suffice it would be to say that no such question arises in this case. The order dated 18.09.1995 has been passed by the Circle Officer whereas the order dated 01.02.2002 which was impugned before the writ Court has been passed by the Sub-Divisional Officer, Ramgarh. 9. On the question of power of review, suffice it would be to say that no such question arises in this case. The order dated 18.09.1995 has been passed by the Circle Officer whereas the order dated 01.02.2002 which was impugned before the writ Court has been passed by the Sub-Divisional Officer, Ramgarh. An order is said to be reviewed by an authority if the same authority has recalled or modified the original the order. 10. On the question of jurisdiction of the Sub-Divisional Officer, Ramgarh, it needs to be recorded that before the writ Court the State took a stand that the Sub-Divisional Officer has no jurisdiction to interfere with the order dated 18.09.1995 passed by the Circle Officer. It is not in dispute that under section 15 of the Bihar Tenant's Holding (Maintenance of Records) Act, 1973, an appeal against the order of the Circle officer shall lie before the Land Reforms Deputy Collector. In the aforesaid facts, we are not inclined to interfere in this matter, particularly for the reason that the learned writ Court in paragraph no. 13 of the order dated 28.08.2017 has made it clear that the order dated 01.02.2002 is quashed for want of jurisdiction. 11. Accordingly, this Letters Patent Appeal is dismissed but with liberty to the appellant to prefer an appeal under section 15 of the Bihar Tenant's Holding (Maintenance of Records) Act, 1973, within six weeks from a certified copy of this order is made available to him. In view of history of the litigation, it is hereby ordered that till an appeal is preferred by the appellant within such period of six weeks, the parties shall maintain status-quo with respect to possession over the land in question.