Research › Search › Judgment

Jharkhand High Court · body

2021 DIGILAW 454 (JHR)

Arjun Sharma v. State of Jharkhand

2021-06-21

RAJESH SHANKAR

body2021
ORDER : 1. This case is taken up through video conferencing. 2. The present writ petition has been filed for quashing the order dated 21.05.2019 passed by the Commissioner, North Chotanagpur Division, Hazaribagh-respondent no. 2 in Mutation Revision No. 07 of 2019, whereby the revision petition filed by Sudama Devi-respondent no. 6 under rule 76 of Bihar Practice and Procedure Manual against the order dated 04.09.2018 passed by Land Reform Deputy Collector, Hazaribagh-respondent no. 4 in Mutation Appeal No. 39/2015-16 has been allowed during the pendency of regular Mutation Revision No. 05/2018 filed by the respondent no. 6 before the Deputy Commissioner, Hazaribagh-respondent no. 3, directing the Circle Officer Sadar, Hazaribag-respondent no. 5 to mutate the land in question in the name of the respondent no. 6 in place of her ancestor, namely, Bilsi Devi by opening of a fresh Jamabandi and to issue rent receipt regularly in her name and the Jamabandi running in the name of Dhupani Devi, wife of Jagan Barhi, as shown in Register-II, Volume 1, Page No. 124 of Mauja Sarley, be cancelled. Further prayer has been made for quashing the order dated 30.05.2019 passed by the respondent no. 2 in Miscellaneous Application No. 53 of 2019, whereby the review application filed by the petitioner has been rejected. 3. The factual background of the case as stated in the writ petition is that the land appertaining to Khata No. 60 of village Sarley is recorded in cadastral survey Khatiyan in the name of Rukmani @ Rukmania (great grandmother of petitioner Arjun Sharma), daughter of Kanak Barhi and wife of Bandhan Barhi, Gopi Barhi, Balgobind Barhi and Budhan Barhi, all sons of Bandhu Barhi. As per Kabjwari entries, the survey officials prepared Khata No. 60 containing various plots, measuring 3.45 acres of village Sarley in the name of Rukmani, having possession over 2.01 as well as lands under possession of Gopi Barhi, Balgobind Barhi and Budhan Barhi measuring 1.44 acres including the land of plot no. 241, measuring 0.50 acre, which is apparent from entries made under Khata No. 60 of Village Sarely, P.S and District Hazaribag. Rukmania Devi, wife of Bandhan Barhi died leaving behind one son-Jagan Barhi, who died leaving behind his only son-Ram Dhani Rana and his wife Dhupani Devi. The petitioner is the son of Late Ram Dhani Rana @ Mistry. 241, measuring 0.50 acre, which is apparent from entries made under Khata No. 60 of Village Sarely, P.S and District Hazaribag. Rukmania Devi, wife of Bandhan Barhi died leaving behind one son-Jagan Barhi, who died leaving behind his only son-Ram Dhani Rana and his wife Dhupani Devi. The petitioner is the son of Late Ram Dhani Rana @ Mistry. Gopi Barhi, Balgobind Barhi and Budhan Barhi sold the land in question, appertaining to Plot No. 241, area 0.50 acre, in favour of Dhuapni Devi (grandmother of the petitioner) for consideration of Rs.95 and 12 Annas by virtue of a unregistered sale deed dated 27.05.1929. Dhupani Devi got her name mutated vide order dated 26.03.1962 passed in Mutation Case No. 1017/1961-62 and, accordingly, her name was recorded in Register-II and she continued to pay rent. After the death of Dhupani Devi, her son-Ram Dhani Rana continued to be in possession over the land in question as well as other inherited land from his ancestor-Rukmania Devi and paid rent. Ram Dhani Rana died leaving behind his widow-Budhani Devi and one son Arjun Sharma (petitioner herein) who came in possession and paid rent payable in the name of Dhupani Devi. All of a sudden, on 08.04.2015, some land Mafia started constructing boundary wall over the land of the petitioner with an intention to build a house over the same and when the petitioner opposed them, Rajesh Kumar Mehta and Mithlesh Kumar Mehta disclosed him that a power of attorney for sale has been executed in their favour by Rupan Rana on 22.10.2014. They also disclosed that there has been mutation in favour of Rupan Rana and others in the Circle Office, Sadar, Hazaribag since 2014-15 and rent receipts are being issued. The petitioner then approached the Circle Office where he came to know about the order dated 27.11.2014 passed in Mutation Case No. 2254 of 2014-15, mutating the name of Rupan Rana, Dhaneshwar Rana and Vinod Rana. On enquiry, the petitioner found that after obtaining power of attorney, Mithlesh Kumar Mehta and Rajesh Kumar Mehta executed sale deeds with respect to 0.08 acre of land appertaining to Khata No. 60, Plot No. 241 in favour of their wives, namely, Meena Kumari and Shanti Devi, respectively, on 20.11.2014 and they have applied for mutation of their names which was registered as Mutation Case No. 547 of 2015-16. The petitioner filed objection in the said mutation case, however, the same was turned down and vide order dated 10.03.2016 the respondent no. 5 allowed mutation with respect to the land in question in their favour. The petitioner filed mutation appeal in the court of respondent no. 4, which was numbered as Mutation Appeal No. 39/2015-16. In the said appeal, the respondent no. 6 filed an intervention application, claiming her right over the said land. Finally, the appeal was heard and vide order dated 04.09.2018, the same was allowed by the respondent no. 4 setting aside the order passed by the respondent no. 5 in Mutation Case No. 2254 of 2014-15 and Mutation Case No. 547 of 2015-16. Thereafter, the respondent no. 6 preferred Mutation Revision Case No. 5 of 2018 in the court of Deputy Commissioner, Hazaribagh-respondent no. 3 and during the pendency of the said revision, another revision petition being Mutation Revision Case No. 7 of 2019 was filed by the respondent no. 6 under rule 76 of the Bihar Practice and Procedure Manual in the Court of the Commissioner, North Chotanagpur Division, Hazaribagh-respondent no. 2 without impleading the petitioner or other affected persons as parties. The petitioner, thereafter, preferred an application on 04.04.2019 under Order I rule 10 CPC for impleading him as opposite party, however, the same was rejected on 23.04.2019 without assigning any reason. The revision application filed by the respondent no. 6 was finally allowed vide order dated 21.05.2019, directing the respondent no. 5 to mutate the name of Sudama Devi by opening a fresh Jamabandi observing inter-alia that she was a bona-fide and legitimate descendant of Gopi Barhi and further cancelled the Jamabandi running in the name of Dhupani Devi, wife of Jagan Barhi. As soon as the petitioner came to know about the said order, he filed review application which was numbered as Miscellaneous Application No. 53 of 2019, however, the same was also dismissed on the same day i.e. on 30.05.2019. 4. The learned counsel for the petitioner submits that the respondent no. 2 has interfered with the order passed in Mutation Appeal No. 39/15-16 dated 04.09.2018 without issuing any notice to the petitioner, who was a necessary party in the said proceeding and has usurped the jurisdiction vested in respondent no. 3 before whom mutation revision filed by the respondent no. 6-Sudama Devi is pending for adjudication. The respondent no. 2 has interfered with the order passed in Mutation Appeal No. 39/15-16 dated 04.09.2018 without issuing any notice to the petitioner, who was a necessary party in the said proceeding and has usurped the jurisdiction vested in respondent no. 3 before whom mutation revision filed by the respondent no. 6-Sudama Devi is pending for adjudication. The respondent no. 2 also dismissed the Miscellaneous Application No. 53 of 2019 filed by the petitioner in a cryptic manner. The order dated 21.05.2019 passed by the respondent no. 2 is highly arbitrary, illegal and whimsical which also suffers from non-application of judicial mind. No appeal or revision can be maintained without impleading necessary parties. It is further submitted that the respondent no. 6, while preferring Mutation Revision No. 5/2018 in the Court of the Deputy Commissioner, Hazaribag, had arrayed the petitioner as well as other persons as opposite parties, however, she knowingly did not implead the necessary parties in the revision application filed before the respondent no. 2 so as to get favourable order behind the back of the petitioner and other interested persons. 5. The learned counsel appearing on behalf of the respondent no. 6 submits that during pendency of Mutation Revision No. 05 of 2018 before the respondent no. 3, the petitioner started negotiation to alienate the land under a proceeding by way of sale or otherwise with different purchasers and as such the respondent no. 6 filed an application before the respondent no. 2 under the provisions of rule 76 of the Bihar Practice and Procedure Manual. The respondent no. 2 called for the records of the case and after hearing the parties as well as on going through the documents, allowed the mutation revision filed by the respondent no. 6. Thus, there is no illegality or jurisdictional error in the order passed by the respondent no. 2. It is further submitted that the petitioner has been claiming the land in question on the basis of being descendant of Mosomat Rukmania, however, falsity of his claim would be evident from the written statement filed by Mosomat Bilsi in Title Suit No. 112 of 1939, in which it had been specifically mentioned that Most. Rukmania had died issueless. On bare perusal of the sale deed dated 04.02.1937, it is evident that Most. Bilsi-own sister of Most. Rukmania had stated that Rukmania died issueless. Rukmania had died issueless. On bare perusal of the sale deed dated 04.02.1937, it is evident that Most. Bilsi-own sister of Most. Rukmania had stated that Rukmania died issueless. The petitioner claims to have acquired the land on the basis of an unregistered sale deed executed by Gopi Barhi, Balgovind Barhi and Budhan Barhi in favour of his grandmother, namely, Dhupani Devi on 27.5.1929 which has no evidentiary value in the eye of law. Moreover, it would be evident from the fact that Dhupni Devi did not get the land mutated in her name for more than 30 years and only in the year 1962, her name was mutated. The respondent no. 6 sought information under the Right to Information Act whereafter it was found that the said mutation was never given effect to and no land of plot no. 241 of Khata No. 60 of the said village was ever sold or transferred to any person. It is also submitted that the respondent no. 6 is the only surviving descendent of the recorded tenant namely Gopi Barhi who died leaving his only son namely Bandhan Barhi, who also died leaving behind the respondent no. 6. However, taking advantage of the old age and illiteracy of the respondent no. 6, Rupan Rana, Dhaneshwar Rana and Binod Rana got their name mutated for the said land and sold 8 decimals of land of plot no. 241 to Meena Kumari and Shanti Devi for which mutation was applied by the purchasers. The petitioner filed objection to the said mutation claiming himself to be the descendant of Most. Rukmania, which was rejected by the Circle Officer. Aggrieved thereby, the petitioner filed Mutation Appeal No. 39 of 2015-16 without impleading the respondent no. 6 as party wherein the respondent no. 6 also intervened and filed show cause. The respondent no. 4 sent a genealogical table supplied by the parties for verification, whereupon the respondent no. 5 found the genealogical table supplied by the respondent no. 6 as genuine and bona-fide and she was also found in possession of the said land. It is further submitted that at the relevant point of time, the respondent no. 3 was not holding the court and as such the respondent no. 6 moved the respondent no. 5 found the genealogical table supplied by the respondent no. 6 as genuine and bona-fide and she was also found in possession of the said land. It is further submitted that at the relevant point of time, the respondent no. 3 was not holding the court and as such the respondent no. 6 moved the respondent no. 2 invoking the provisions of rule 76 of the Bihar Practice and Procedure Manual, as the matter was extremely urgent and immediate relief was required. The respondent no. 2 passed the impugned order after calling for the records and perusing the documents as well as relevant provisions of law. As such no interference against the same is required under the writ jurisdiction of this Court. 6. The learned counsel appearing on behalf of the respondent no. 2 submits that while the mutation revision was pending before the respondent no. 3, the respondent no. 6 apprehending further transfer of land appertaining to Khata No. 60 filed Mutation Revision No. 7 of 2019 before the respondent no. 2 invoking the provisions of rule 76 of Bihar Practice and Procedure Manual, which was entertained by him. The petitioner tried to be an intervener in the said mutation revision, however, the same was rejected by the respondent no. 2 and finally the impugned order has been passed. 7. Heard learned counsel for the parties and perused the materials available on record. The primary argument of the learned counsel for the petitioner is that the respondent no. 2 had no jurisdiction to entertain the revision petition filed by the respondent no. 6 by exercising the power under rule 76 of Bihar Practice and Procedure Manual, since the power of revision can only be exercised by the Collector of the district under section 16 of the Bihar Tenants Holdings (Maintenance of Records) Act, 1973 and the revision filed by the respondent no. 6 before the respondent no. 3, who happens to be the Collector of the district, is still pending. 8. To appreciate the contention made by the learned counsel for the petitioner, it would be relevant to refer Section 16 of the Act, 1973 which provides for preferring revision before the Collector of the District. Section 16 of the said Act reads as under:- “16. 3, who happens to be the Collector of the district, is still pending. 8. To appreciate the contention made by the learned counsel for the petitioner, it would be relevant to refer Section 16 of the Act, 1973 which provides for preferring revision before the Collector of the District. Section 16 of the said Act reads as under:- “16. Revision - The Collector of the district may, on an application made to him in this behalf or for the purpose of satisfying itself as to the legality or propriety of any order made under this Act or the rules made thereunder by any authority or officer call for and examine the record of any case pending before or disposed of by such authority or officer and pass such order as he thinks fit: Provided that the Collector shall not entertain any application from any person, aggrieved by any order, unless it is made within thirty days from the date of the order: Provided further that no order modifying, altering, or setting aside, any order made by such authority or officer shall be passed by the Collector unless the parties concerned have been given a reasonable opportunity of being heard.” 9. In view of the aforesaid provision, it would be evident that the power of revision has been conferred to the Collector of the district who may call for and examine the record of any case pending before or disposed of by any authority or officer in exercise of the power conferred under the Act, 1973 and rules made thereunder so as to satisfy itself about the legality or propriety of any order made by such authority/officer. 10. Prior to 1983, there was a provision of second revision before the Divisional Commissioner if Commissioner was satisfied that there was good ground for entertaining the same. However, the said provision has been omitted by the Act No. 3 of 1983. 11. In the case of Ram Chandra Ram and Others vs. Commissioner, North Chotanagpur and Others, (1986) PLJR 1057, a question fell for consideration before the Full Bench of the Patna High Court as to whether a second revision is still maintainable in mutation proceedings despite repeal of section 17 of the Bihar Tenants Holdings (Maintenance of Records) Act, 1973 by virtue of Bihar Ordinance 62 of 1982 and subsequently vide Bihar Act 3 of 1983. The Patna High Court in the said judgment has held as under:- “6. It would appear that the passage of about a decade necessitated substantial changes in the Act. Consequently on the 18th of October, 1982 the Bihar Tenant’s Holdings (Maintenance of Records) (Amendment) Ordinance, 1982 (Bihar Ordinance No. 62 of 1982) was promulgated making structural changes in the Act, by way of substantial amendments. Section 10 of the said Ordinance in express terms provided that section 17 of the Act, shall be omitted. It would appear that even the somewhat limited exercise of power by way of a second revision by the Commissioner was found incongruous and its deletion became necessary in order to cut down the inordinately long hierarchy of appeals and revisions in the forums of somewhat simplistic field of revenue mutations. The Ordinance was followed by the Bihar Tenant’s Holdings (Maintenance of Records) (Amendment) Act, 1982 (Bihar Act, No. 3 of 1983) (hereinafter called the ‘amending Act’) and by section 9 thereof the earlier repeal of section 9 of the Act, was maintained. It came into force on March 11, 1983. 7. Mr. Bajaj, the learned counsel for the respondents, had first pointed out that no objection to the maintainability of the second revision was taken before the commissioner and this is perhaps so because no reference thereto is found in the judgment of the Commissioner. Although we are of the opinion that a preliminary objection about the maintainability should be raised at the very earliest, yet it is equally well settled that a contention which goes to the root of the matter and the very existence of the jurisdiction may be permitted to be raised for the first time in higher forum. Apparently, in the year 1983 the amending Ordinance and the subsequent Act, were of recent origin and the learned counsel for the parties may not have been well aware thereof. In the present case we have no hesitation in permitting the learned counsel for the petitioners, Mr. Prasad, to raise this contention in the writ jurisdiction. 8. Mr. Bajaj had then attempted to contend that Para 10 of the instructions would still continue to be operative despite the repeal of section 17 even in jurisdiction where the Act, had not extended. This argument is only to be noticed and rejected. Prasad, to raise this contention in the writ jurisdiction. 8. Mr. Bajaj had then attempted to contend that Para 10 of the instructions would still continue to be operative despite the repeal of section 17 even in jurisdiction where the Act, had not extended. This argument is only to be noticed and rejected. As has already been pointed out, the provisions of Chapters III and IV of the Act, are specific provisions with regard to the mutation proceedings and the appeal and revision arising therefrom. They would thus cover the field to the exclusion of any other instruction to the contrary obviously enough, a mere instruction cannot be allowed to override an Act, duly enforced by the legislature within the same jurisdiction. It would be thus plain that Para 10 would cease to have any force in all those areas to which the Act, of 1973 had been duly extended in matters pertaining to mutations. The contention of Mr. Bajaj in this context, therefore, must be rejected. 9. However, it seems that though Mr. Prasad substantially succeeds on the legal question raised by him, he has secured only a pyrrhic victory. Relying on sub-section (3) of section 1 of the Act, Mr. Bajaj pointed out that the provisions of the said Act, would come into force only on such dated and in such areas as the State Government may by notification in the official gazette appoint and different dates may be appointed for different areas of the State. Counsel took the stand that the said Act, had, as yet, not been extended to the Hazaribagh district. Our attention was drawn to Government S.O. 683 dated 11th of May, 1978 by virtue of which the provisions of the Act, have been extended to the specified Anchals of Purnia district with effect from the 1st day of June, 1978. Similarly, by G.C.S.O. 1049 dated 1st day of August, 1978 the Act, has been enforced with effect from the 1st day of August, 1978 in specified Anchals of the Munger district, East Champaran, Nalanda and Patna districts only. On these premises, Mr. Bajaj was firm that as yet the provisions of the Act, have no application in the district of Hazaribhagh. Despite extended opportunity given to the learned counsel for the petitioners, they have been unable to bring to our notice any notification extending the Act, to the relevant jurisdiction in Hazaribagh. On these premises, Mr. Bajaj was firm that as yet the provisions of the Act, have no application in the district of Hazaribhagh. Despite extended opportunity given to the learned counsel for the petitioners, they have been unable to bring to our notice any notification extending the Act, to the relevant jurisdiction in Hazaribagh. Once that is so, it is plain that the earlier position under Para 10 of the instructions would continue to inhere whereunder the second revision to the Commissioner would be maintainable. No challenge on the merits of the order of the learned Commissioner was at all laid. 10. Before parting with this judgment, we would notice that in view of the line of argument in the case no occasion arose for the case for the construction of the ratio in 1980 BBCJ 373 (supra) and indeed learned counsel for the parties did not even refer to the same. 11. Finally to conclude, the answer to the question posed at the outset is rendered in the negative, and it is held that a second revision would not now be maintainable in the mutation proceedings after the repeal of section 17 of the Bihar Tenants’ Holdings (Maintenance of Records) Act, 1973 in all areas where the Act, has been duly extended and enforced. 12. However, in the present writ petition since it has not been shown that the Act, of 1973 has been extended to Hazaribagh district, the contentions raised on behalf of the petitioners must fail and this writ petition is consequently dismissed without any order as to cost.” 12. The present case is also of Hazaribagh district. The Governor of Bihar in exercise of the power conferred under sub-section (3) of section 1 of the Act, 1973 vide Notification No. S.O. 81 dated 18.01.1979 has appointed the 2nd day of October, 1990 as the date on which the said Act, besides the Districts/Anchals previously notified under the said Act, would also come in force in all other Districts/Anchals. Thus, now the Act, 1973 is applicable in the district of Hazaribagh as well. In view of deletion of the power of second revision by the Commissioner conferred under Section 17 of the Act, 1973 as also the Full Bench judgment of Patna High Court, a revision application is not maintainable before the respondent no. 2. 13. In the present case, the revision application before the respondent no. In view of deletion of the power of second revision by the Commissioner conferred under Section 17 of the Act, 1973 as also the Full Bench judgment of Patna High Court, a revision application is not maintainable before the respondent no. 2. 13. In the present case, the revision application before the respondent no. 2 was filed by the respondent no. 6 invoking rule 76 of the Bihar Practice and Procedure Manual claiming that the matter was extremely urgent and immediate relief was required. The respondent no. 2 also entertained the said revision despite the fact that a revision application filed by the respondent no. 6 was pending before the respondent no. 3. 14. Part-III of the Bihar Practice and Procedure Manual provides for the practice and procedure to be followed while dealing with the revenue cases. Rule 76 of the said Manual reads as follows:- “76. The fact that a superior authority is vested by any Act of the legislature with general powers of supervision and control over the proceedings and orders of subordinate officers does not itself confer upon a party to a case or proceeding any right of appeal to such superior authority; but Government have held that those powers do confer on such authority, when satisfied that injustice has been done, a right to revise orders passed by subordinate officers. Power of control and supervision are discretionary and superior authorities exercising such powers are not ordinarily disposed of interfere except in the following classes of cases:- (1) where a subordinate officer has improperly refused to exercise a jurisdiction vested in him. (2) where such officer has acted without jurisdiction. (3) where such officer in the exercise of the jurisdiction has signally failed in his duty. (4) generally where it is necessary for the purpose of preventing gross abuse or gross injustice.” 15. The aforesaid rule specifically provides that when any Act confers power upon the superior authority vested with general powers of supervision and control over the proceedings and orders of subordinate officers, then such power may be exercised on being satisfied that some injustice has been done to the aggrieved party and there exist any of the grounds mentioned in the said rule. Thus, for exercising power of superintendence by any superior court, there must be some general power conferred upon such superior authority by any Act of legislature. Thus, for exercising power of superintendence by any superior court, there must be some general power conferred upon such superior authority by any Act of legislature. As discussed hereinabove, the Act, 1973 does not confer general power of superintendence upon the Divisional Commissioner in mutation matter, rather it provides specific power of revision to the Collector of district to satisfy itself the legality or propriety of any proceeding pending or disposed of by an authority subordinate to him and as such exercise of such power by the Commissioner was beyond jurisdiction. I am of the view that the Commissioner while exercising the power under the provisions of the Bihar Practice and Procedure Manual has not correctly appreciated the rule 76 and has wrongly entertained the revision application filed by the respondent no. 6 as after the amendment made in the Act, 1973 by virtue of the Amendment Act, 1983, the respondent no. 2 had no jurisdiction to entertain revision application. The learned Full Bench of the Patna High Court while deciding the case of Ram Chandra Ram and Others (Supra) has dealt with the reason for deleting the provision of second revision from the Act, 1973 and has held that the same has been deleted for expeditious disposal of mutation cases. If even after deletion of the provision of second revision, the aggrieved party is allowed to file revision before the Commissioner under rule 76 of the Bihar practice and Procedure Manual, the purpose for which section 17 has been deleted from the Act, 1973 will get frustrated. The power of revision can now be exercised only by the Collector of the District and the Divisional Commissioner cannot assume such power for any reason. The Act, 1973 has been enacted for the purpose of maintenance of up-to-date records of holding of raiyats and matters connected therewith and as such any proceeding of mutation shall strictly be guided by the said Act. 16. Under the aforesaid facts and circumstances, I am of the considered view that the Commissioner, North Chotanagpur Division, Hazaribagh-respondent no. 2 has acted beyond jurisdiction while entertaining the revision application filed by the respondent no. 6 and in passing the impugned orders dated 21.05.2019 and 30.05.2019. 17. The writ petition is accordingly allowed. The entire proceeding of revision initiated by the respondent no. 2 in Mutation Revision Case No. 7 of 2019 is hereby quashed. 2 has acted beyond jurisdiction while entertaining the revision application filed by the respondent no. 6 and in passing the impugned orders dated 21.05.2019 and 30.05.2019. 17. The writ petition is accordingly allowed. The entire proceeding of revision initiated by the respondent no. 2 in Mutation Revision Case No. 7 of 2019 is hereby quashed. Consequently, the impugned order dated 21.05.2019 passed in Mutation Revision Case No. 7 of 2019 and impugned order dated 30.05.2019 passed in review application being Miscellaneous Application No. 53 of 2019 are also quashed. A consequent order, if any, passed by the Circle Officer in compliance of the order of the respondent no. 2 is also quashed. The respondent no. 3 is directed to proceed with the hearing of the Mutation Revision Case No. 5 of 2018 filed by the respondent no. 6 and to pass appropriate order in accordance with law by providing sufficient opportunity of hearing to the concerned parties. It goes without saying that the respondent no. 3 shall not be prejudiced with any of the observations made by the respondent no. 2 while passing the impugned orders.