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2022 DIGILAW 17 (JHR)

Yugal Kishore Prasad v. State of Jharkhand

2022-01-04

RAJESH SHANKAR

body2022
JUDGMENT : 1. This case is taken up through video conferencing. 2. The present writ petition has been filed for quashing and setting aside the order dated 21.01.2017 passed by the Additional Collector, Palamau-respondent no.3, whereby Mutation Revision Case No.XV/52/2016-17 and Mutation Revision Case No. XV/55/2016-17 filed by the private respondent nos.5 and 6 have been allowed in their favour and the orders dated 30.08.2016 and 21.04.2008 passed by the Land Reform Deputy Collector, Palamau-respondent no.2 in Mutation Appeal No. XV/07/2015-16 and Mutation Appeal No.10 of 2006-07, respectively, have been set aside. 3. The factual background of the case as stated in the writ petition is that the wife of the petitioner no. 1, namely, Savitri Devi purchased the land under Khata No. 131, Plot No. 358, area 13 decimals (hereinafter referred as the said land) by way of registered sale deed no.9053 dated 07.08.1991 (rectified vide sale deed no.11657 dated 06.11.1992). After purchase of the said land she got her name mutated in the office of the Circle Officer, Daltonganj Anchal (respondent no.4) vide Mutation Case No. 1225 of 2001-02 and started paying rent for the same. The private respondents started claiming right over the said land by virtue of sale deed no.10816 dated 02.11.2005 executed by one Subhash Chandra Jain in their favour in which area of the said land was shown as 11 decimals. They filed an application for mutation of the said land which was registered as Mutation case No. 1057 of 2005-06 however the same was rejected by the respondent no. 4 vide order dated 28.02.2006. Aggrieved thereby, the private respondents preferred Mutation Appeal No. 10 of 2006-07 before the respondent no.2 which was also rejected vide order dated 21.04.2008. The private respondents, filed an application before the respondent no.4 for cancellation of the jamabandi opened in the name of the wife of the petitioner no.1, which was numbered as Misc. Case No. 90 of 2014- 15, in which the respondent no.4 made recommendation to the respondent no.2 for cancelling the jamabandi on the ground that the private respondents had got the said land mutated vide order dated 23.02.2011 passed by the respondent no.4 in Mutation Case No.1404/2010-11 in the Special Revenue Camp Court organized at village Jore. Case No. 90 of 2014- 15, in which the respondent no.4 made recommendation to the respondent no.2 for cancelling the jamabandi on the ground that the private respondents had got the said land mutated vide order dated 23.02.2011 passed by the respondent no.4 in Mutation Case No.1404/2010-11 in the Special Revenue Camp Court organized at village Jore. The said miscellaneous case was disposed of vide order dated 30.08.2016, observing that the recommendation made by the respondent no.4 for cancelling the Jamabandi opened in the name of wife of the petitioner no.1 was unjustifiable and not in accordance with law. The wife of the petitioner no.1, namely, Savitri Devi died on 15.05.2016. Thereafter, the petitioners filed Mutation Appeal No. XV/07/2015-16, challenging the aforesaid order dated 23.02.2011 passed by the respondent no.4 and the said appeal was allowed vide order dated 30.08.2016 holding that the said order passed in Mutation Case No. 1404 of 2010-11 was beyond jurisdiction and was not in accordance with law. Aggrieved thereby, the private respondents preferred two revision applications before the Additional Collector Palamau- respondent no.3 i.e. Mutation Revision No. XV/52 of 2016- 17 against the order dated 30.08.2016 passed in Mutation Appeal No. XV/07 of 2015-16 and Mutation Revision No.XV/55 of 2016-17 against the order dated 21.04.2008 by the respondent no.2 in Mutation Appeal No. 10 of 2006-07. Both the revision applications filed by the private respondents have been allowed by the respondent no.3 vide common order dated 21.01.2017 (impugned herein), observing that the concerned Halka Karamchari and the C.I had submitted report in Mutation Case No.1404 of 2010-11 that the jamabandi was running in the name of the vendor of the respondent no.4 and 5 as also the private respondents were in possession of the said land. The respondent no.3 also observed that those facts were required to be primarily considered while passing the order of mutation of the said land in favour of the private respondents. It was further held by the respondent no.3 that the order passed in Mutation Case No. 1404 of 2010-11 was in accordance with law. 4. Mr. The respondent no.3 also observed that those facts were required to be primarily considered while passing the order of mutation of the said land in favour of the private respondents. It was further held by the respondent no.3 that the order passed in Mutation Case No. 1404 of 2010-11 was in accordance with law. 4. Mr. Indrajit Sinha, learned counsel for the petitioners, apart from other arguments, put much emphasis on the argument that section 16 of the Bihar Tenant’s Holdings (Maintenance of Records) Act, 1973 (hereinafter to be referred as ‘the Act, 1973’) empowers the Collector of the district to exercise revisional jurisdiction on an application made to him in this behalf or for the purpose of satisfying himself as to the legality or propriety of any order made under the said Act or the rules made thereunder by any authority or officer by calling and examining the record of any case pending before or disposed of by such authority or officer and to pass such order as he thinks fit. He further submits that the word ‘Collector’ has been defined in Section 2(c) of the Act, 1973 which includes an Additional Deputy Commissioner and other officer not below the rank of a Deputy Collector specially empowered by the State Government to discharge all or any of the functions of a Collector under the said Act. However, the State respondents have not brought on record any such notification issued by the State Government, empowering the said authority i.e. Additional Collector to discharge the function of Collector under the Act, 1973. 5. Since the petitioners challenged the jurisdiction of the respondent no.3 in exercising revisional power, this court vide order dated 02.02.2021 directed the State respondents to apprise this court as to whether any such notification has been issued by the State Government empowering the respondent no.3 to function as Collector and to exercise the power/jurisdiction of revisional authority under Section 16 of the Act, 1973. If so, the said notification was directed to be brought on record. 6. In compliance of the order dated 02.02.2021, the respondent no.2 to 4 have filed Supplementary Counter Affidavit dated 03.01.2022, paragraphs no.8 of which is quoted hereunder:- “8. If so, the said notification was directed to be brought on record. 6. In compliance of the order dated 02.02.2021, the respondent no.2 to 4 have filed Supplementary Counter Affidavit dated 03.01.2022, paragraphs no.8 of which is quoted hereunder:- “8. That with regard to specific query of this Hon’ble Court it is stated and submitted that under section 2(c) of the Bihar Tenant Holding (Maintenance of Records Act), 1973, “Collector” includes an Additional Deputy commissioner and other officer not below the rank of a Deputy Collector specifically empowered by the State Government to discharge all or any of the functions of the Collector under this Act but specifically under section 16 of the said Act the Additional Collector doesn’t mean Collector unless empowered by the State Government and on this subject matter the Secretary to State, Revenue, Registration and Land Reforms Department, Government of Jharkhand circulated comprehensive letter vide letter no. 332/R/Ranchi dated 24.01.2020 addressing to all the Deputy Commissioners, all Additional Collectors, all Land Reforms Deputy Collectors and all the Circle Officers of the State where through and its perusal Additional Collector specially has not been empowered to exercise and to entertain Mutation Revision after enactment of the Act, 1973.” 7. The State-respondents have, thus, fairly admitted in Para 8 of the Supplementary Counter Affidavit dated 03.01.2022 that the Additional Collector has not been empowered to entertain Mutation Revision after coming into force of the Act, 1973. The State-respondents alongwith said supplementary counter affidavit have also brought on record letter dated 24.01.2020 issued by the Revenue, Registration and Land Reforms Department, Government of Jharkhand, wherein it has been clarified in the specific term that the power of revision under section 16 of the Act, 1973 can only be exercised by the Collector and not the Additional Collector or Deputy Collector. 8. The learned counsel for the petitioner further puts reliance on the judgment rendered by this Court in the case of Mahabir Prasad Jain & Another Vs. The State of Jharkhand and Others, reported in 2018 (2) JLJR 57 . The relevant paragraphs of the said judgment are quoted hereunder:- “10. The petitioners have raised the preliminary objection with regard to the revisional order on the ground that the Additional Collector had no jurisdiction to entertain the revision application under Section 16 of the Act, 1973. The State of Jharkhand and Others, reported in 2018 (2) JLJR 57 . The relevant paragraphs of the said judgment are quoted hereunder:- “10. The petitioners have raised the preliminary objection with regard to the revisional order on the ground that the Additional Collector had no jurisdiction to entertain the revision application under Section 16 of the Act, 1973. It is submitted that it is only the Collector who can entertain the revision. In support of the aforesaid contention, the learned counsel for the petitioners relies on the judgment passed in Shankar Shukla vs. State and Others, 2000 (3) PLJR 839. In paragraph no. 3 of the said judgment, the learned Single Judge has held as under: "3. Mr. Mahesh Narain Parbat, learned counsel appearing for the petitioner, submitted that no jurisdiction could be conferred upon an authority by consent of the parties and the Additional Collector could not assume the legal authority to hear and dispose of a revision simply because the revision petition was filed before him. The submission is well founded and it must, therefore be accepted. It is plain and clear that Section 16 of the Act confers the revisional power only on the Collector of the District and the Additional Collector has no power to hear and decide a revision petition. The order dated 24.7.1999 passed by the Additional Collector, Siwan is, therefore, quite invalid and it is accordingly, set aside." 11. In the case of Lalman Mahto and Others vs. State of Jharkhand and Others, 2010 (1) JLJR 475 , a Bench of this court held as under: "11. Patna High Court in the aforesaid case of Kapildeo Singh and Others (supra) after discussing the provisions of Section 2(c) of the Bihar Tenants Holdings (Maintenance of Records) Act, 1973 and Section 16 of the said Act have held that according to the definition of Collector as envisaged in Section 2(c) of the Bihar Tenants Holdings (Maintenance of Records) Act, 1973, the Collector includes Additional Collector, Additional Deputy Commissioner and any other officer not below the rank of Deputy Collector specially empowered by the State Government to discharge all or any of the functions of the Collector under the Act. So, unless there is a notification by the State Government specially empowering the Additional Collector or any other authority mentioned in the definition clause to discharge the function of the Collector, they cannot be treated as Collector in terms of the aforesaid provisions. It has further been held by the Patna High Court in the aforesaid judgment that a bare reading of the provision of section of the Act shows that the word used in Section 16 is not the Collector as defined in Section 2(c) of the Act, but it provides that the revision will lie before the Collector of the district. The legislature with the clear intention has provided this power to be exercised by the Collector of the district itself and by no other authority and thereby held that the revision would lie only before the Collector of the district and not before the Additional Collector. Consequently, the order passed by the Additional Collector in the said case was quashed holding that the Additional Collector has no jurisdiction to decide the revision." 12. The question as to whether the Collector includes Additional Collector under Section 16 of the Act was referred to a Division Bench of Patna High Court in the case of Kapildeo Singh and Others vs. State of Bihar and Others, 2003 (2) PLJR 431 , wherein the Division Bench in paragraph nos. 9, 10 and 11 held as under: "9. Mutation proceedings are filed under Section 14 of the Act before the Anchal Adhikari. The provision of appeal is provided under Section 15 of the Act before the Deputy Collector Land Reforms and the said order is final subject to revision under Section 16 of the Act which runs as follows: 16. 9, 10 and 11 held as under: "9. Mutation proceedings are filed under Section 14 of the Act before the Anchal Adhikari. The provision of appeal is provided under Section 15 of the Act before the Deputy Collector Land Reforms and the said order is final subject to revision under Section 16 of the Act which runs as follows: 16. Revision - The Collector of the district may, on an application made to him in his behalf or for the purpose of satisfying himself 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. 10. Before proceeding to consider the question which has been referred to the Division Bench, it is to be stated that the powers of appeal and revision are statutory in nature and unless they are conferred by the statute, no authority has inherent power of revision or appeal. Under the statutory provision, if power is vested with a particular authority, then that power has to be exercised by that authority and not by any other authority unless by a statutory provision power has been conferred on the other authority by including that authority in the definition clause. A bare reading of the provision of Section 16 of the Act shows that the word used in Section 16 is not the Collector as defined in Section 2(c) of the Act but it provides that the revision will lie before the Collector of the district. The legislature with the clear intention has provided this power to be exercised by the Collector of the district itself and by no other authority. Thus, the view taken in the aforesaid two cases as well as in the case of Most. The legislature with the clear intention has provided this power to be exercised by the Collector of the district itself and by no other authority. Thus, the view taken in the aforesaid two cases as well as in the case of Most. Babuni Devi vs. State of Bihar, 1997 (2) PLJR 404 taking the same view, lays down the correct law. 11. Even according to Section 2(c) of the Act the Collector includes Additional Collector etc. as provided therein provided there is notification under the provisions of the Act specially authorising them to discharge all or any of the functions of the Collector of the district. In absence of empowerment by notification they cannot discharge the functions of the Collector of the district with regard to any matter. Nothing has been brought on record to show that any notification has been issued specially empowering the Additional Collector to exercise all or any of the functions of the Collector under the Act." 13. After going through Section 16 of the Act, 1973 as well as the aforesaid judgments, I am of the considered view that the Additional Collector has no power of revision under the provision of the Act, 1973, unless by a notification, Additional Collector is specifically empowered by the State Government to act as a Collector. So far as the order dated 12.5.2000 passed by a Bench of this Court in C.W.J.C. No. 2733 of 1999, Badri Prasad Modi vs. State of Bihar, is concerned, in that case, it was observed that the Government of Bihar, Revenue Department time to time issued instructions regarding mutation which inter-alia provided that the parties may file revision before the Collector or the Additional Collector of the district. However, in the present case, no notification under Section 2(c) of the Act, 1973 empowering the Additional Collector or any other officer to exercise power of revision under Section 16 of the Act was either available before the respondent no. 3 while passing the impugned order dated 14.10.2006 or any such notification has been produced by the learned counsel of the State in course of hearing of this case. Thus, in absence of any notification issued under Section 2(c) of the Act, the power exercised by the respondent no. 3 Additional Collector, Koderma as a revisional authority is without jurisdiction and the same cannot be legally sustained.” 9. Thus, in absence of any notification issued under Section 2(c) of the Act, the power exercised by the respondent no. 3 Additional Collector, Koderma as a revisional authority is without jurisdiction and the same cannot be legally sustained.” 9. In the aforesaid judgment, this Court having taken into consideration of the provision of section 16 of the Act, 1973 as well as earlier judgments rendered by different Benches of this Court, has held that the Additional Collector has no power of revision under the provision of the Act, 1973 unless he is specifically empowered by the State Government by issuing a notification to act as Collector. 10. In view of the aforesaid legal position, without entering into the merit of the cases of the respective parties, the impugned order dated 21.01.2017 passed by the respondent no.3, in purported exercise of revisional jurisdiction under section 16 of the Act, 1973, is set aside being without jurisdiction. 11. Mr. Indrajit Sinha, learned counsel for the petitioners submits that Mutation Appeal Case No.XV/10/2006-07 was decided way back on 21.04.2008 itself and as such the private respondents are required to file an application for condonation of delay in preferring revision petition against the said order. 12. The writ petition is thus disposed of directing the respondent nos.5 and 6 to file a fresh revision petition(s) before the Deputy Commissioner-cum-District Collector, Palamau by 1st February, 2022 along with application for condonation of delay. The revisional authority shall deal with the same in accordance with law and shall pass appropriate reasoned order(s) after providing due opportunity of hearing to the petitioners of this case also.