Jharkhand High Court

Tarun Kumar Dutta vs The State Of Jharkhand Through The ... on 19 February, 2021

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    IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 L.P.A. No.59 of 2019
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Tarun Kumar Dutta, aged about 52 years S/o Late Gopal Chandra Dutta, residents of Upper Bazar, Chirkunda, Post office and Police Station - Chirkunda, District - Dhanbad (Jharkhand). ... ... Petitioner/Appellant Versus

1. The State of Jharkhand through the Deputy Commissioner, Dhanbad Office of Deputy Commissioner, Post office and Police Station - Dhanbad and District - Dhanbad, Jharkhand.

2. The Additional Collector, Dhanbad, Office of Deputy Commissioner, Post office, Police Station and District - Dhanbad, Jharkhand.

3. Land Reforms Deputy Commissioner, Dhanbad Office of L.R.D.C., Dhanbad, Post Office, Police Station and District - Dhanbad, Jharkhand.

4. Circle Officer, Office of Circle Officer, Nirsa Block, Post Office and Police Station : Nirsa, District - Dhanbad, Jharkhand.

5. Police Incharge, Chirkunda, P.O. and Police Station, Chirkunda, District Dhanbad, Jharkhand.

                            ...     ... Respondents/Respondents
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CORAM :            HON'BLE THE CHIEF JUSTICE

HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Appellant : Ms. Chaitali C. Sinha, Advocate For the Respondents : Mr. Sachin Kumar, A.A.G.-II

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ORAL JUDGMENT

Order No. 11 : Dated 19th February, 2021

With consent of the parties, hearing of the matter was

done through video conferencing and there was no complaint

whatsoever regarding audio and visual quality.

2. The instant intra-court appeal is under Clause 10 of

Letters Patent directed against the order/judgment dated

30.11.2018 passed by the learned Single Judge of this Court in

W.P.(C) No. 5356 of 2014 whereby and whereunder the writ

petition has been dismissed by refusing to interfere with the

order dated 14.09.2015 passed by the Deputy Commissioner,

Dhanbad.

3. The brief facts of the case which need to be enumerated

herein, read as under:-

The writ petitioner claims to be the absolute owner and in

possession of land situated at Mouza-Laikdih (Mouza No.254),

Khata No. 272, Plot No. 412, total area 1.40 acre which was

recorded as "Gairabaad Malik" during the Cadastral Survey

Operation carried out in the year 1924-25.

According to the writ petitioner, the land in question has

been settled by the ex-landlord in favour of Sri Haripada Dutta,

Sri Narayan Chandra Dutta, Adwaitya Chandra Dutta and Sri

Gopal Chandra Dutta, all sons of Late Umesh Chandra Dutta,

by execution and registration of a permanent registered Raiyati

Patta bearing No. 1211 dated 23.02.1944 on acceptance of

proper "Salami" and by fixing revenue and cess thereon,

followed by delivery of possession.

The aforesaid settlee continued to possess the said settled

land by exercising diverse acts of ownership and possession on

payment of revenue to the ex-landlords and getting revenue

receipts therefrom.

While in peaceful possession, Sri Haripada Dutta, Sri

Narayan Chandra Dutta and Sri Adwaitya Chandra Dutta

relinquished their share and claim over the said land in favour

of Sri Gopal Chandra Dutta by execution of an unregistered

relinquishment deed dated 02.12.1949 in an amicable family

arrangement and as such, Gopal Chandra Dutta became the

absolute owner and came in exclusive possession over the said

land on payment of revenue to the ex-landlord and getting

revenue receipts therefrom.

The said Gopal Chandra Dutta had been in exclusive

possession thereof and after vesting of the intermediary

interest, he got his name mutated and entered in the Register-II

(revenue record) vide Jamabandi No. 124 and had been paying

revenue to State Government and getting receipts therefrom

since the day of vesting.

The said Gopal Chandra Dutta died leaving behind his

four sons including petitioner who have been continuing in

peaceful possession in the manner to that of their father by

exercising diverse acts of ownership and possession and on

payment of rent to State Government and obtaining receipts

therefrom.

It is the case of the writ petitioner that at the instance of

some politically influential people of "Chirkunda Nagar

Panchayat", the Circle Officer, Nirsa Block, initiated a

proceeding to cancel the mutation/Jamabandi of the said land

claiming that the said land is "Gairabaad" land and be deemed

to be Government land and the petitioner has no right, interest

and title over the said land.

The Land Reforms Deputy Commissioner, Dhanbad, after

examining all the documents relating to said land submitted by

the writ petitioner, referred the matter to Additional Collector,

Dhanbad for cancellation of Jamabandi of the said land. The

Additional Collector, Dhanbad, after enquiry, passed an order

to the effect that although the land in question belongs to

Gairabaad category but mutation holder obtained the said land

through registered deed before 01.01.1946 and in view of this

fact, the Circle Officer was asked to make it clear that whether

it would be justifiable to cancel the running mutation of the

land which the petitioner has obtained through registered deed

on 23.02.1944. But the authority, without taking into

consideration the report of the Circle Officer, has passed an

order cancelling the Jamabandi in exercise of power conferred

under Section 4(h) of the Bihar Land Reforms Act, 1950

(hereinafter referred to as the Act, 1950) which was confirmed

by the appellate as well as by the revisional authority.

Against these orders, the writ petitioner invoked the

jurisdiction of this Court conferred under Article 226 of the

Constitution of India by filing writ petition but the said writ

petition has also been dismissed against which the present

appeal has been preferred.

4. Mrs. Chaitali C. Sinha, learned counsel appearing for the

writ petitioner/appellant, has submitted that the learned Single

Judge has failed to appreciate the fact that the power conferred

under Section 4 (h) of the Act, 1950 ought not to have been

exercised in view of the specific embargo to conduct enquiry of

a settlement made prior to 01.01.1946.

She has further submitted that the order for cancellation

of Jamabandi has been passed in purported exercise of power

conferred under Section 4(h) of the Act, 1950 but the said

provision does not confer any power upon the authority to

cancel the Jamabandi rather the provision stipulates about

cancellation of transfer of the land followed by the confirmation

by the State Government.

Her further submission is that in the State of Jharkhand

there is no provision to cancel the Jamabandi and in absence of

any power, the order of cancellation of Jambandi will be said to

be without any jurisdiction/authority of law, hence nullity in

the eyes of law.

5. In response, Mr. Sachin Kumar, learned Additional

Advocate General-II, appearing for the State of Jharkhand, has

submitted that the Deputy Commissioner has exercised the

power as conferred under Section 16 of the Bihar Tenant's

Holdings (Maintenance of Records) Act, 1973 which confers

power of revision by suo moto calling upon the revenue records

and, therefore, according to him, it is incorrect to say that the

Deputy Commissioner is having no power for cancellation of

Jamabandi.

6. We have heard the learned counsel for the parties,

perused the documents available on record as also the finding

recorded by the learned Single Judge in the impugned order.

7. This Court, after hearing the learned counsel for the

parties, has gathered the following issues for its

consideration :-

(i) Whether the power to conduct an enquiry under

Section 4(h) of the Act, 1950 can be exercised with respect

to a settlement made even prior to 01.01.1946?

(ii) Whether Section 16 of the Bihar Tenant's Holdings

(Maintenance of Records) Act, 1973 (hereinafter referred to

as the Act, 1973) confers power upon the Collector of a

District to exercise the power of cancellation of

Jamabandi?

(iii) Whether the circular as contained in Letter No. 914

dated 09.12.1998 can be said to be a substantive piece of

legislation conferring power upon the authority for

cancellation of Jamabandi?

(iv) Whether long running Jamabandi can be cancelled?

8. So far as the first issue with regard to power to conduct an

enquiry, as required to be conducted under Section 4(h) of the

Act, 1950, can be exercised with respect to a settlement made

prior to 01.01.1946 is concerned, in order to answer this issue

it would be relevant to refer the scope of the Act, 1950 before

discussing about the provision of Section 4(h) of the Act, 1950.

The Act, 1950 has been enacted to provide for the

transference to the State of the interests of proprietors and

tenure-holders in land and of the mortgagees and lessees of

such interests including interests in trees, forests, fisheries,

jalkars, ferries, hats, bazars, mines and minerals and to provide

for the constitution of a Land Commission for the State of Bihar

with powers to advise the State Government on the agrarian

policy to be pursued by the State Government consequent upon

such transference and for other matters connected therewith.

The intention behind the transference to the State of the

interests of proprietors and tenure-holders in the land and of

certain interests of the mortgagees and lessees is the

furtherance of the objectives enshrined in Directive Principles of

Article 39(b) and 39(c) of the Constitution of India. Therefore,

the Act is meant to promote and effectuate the objectives

contained under Article 39(b) of the Constitution of India and to

achieve the said intent and object of the Act, statutory provision

has been made so that the purpose and object of the said Act

be not frustrated. One of the provisions is Section 4(h) which

reads as under :-

"4. Consequences of the vesting of an estate or tenure in the State. -

... ... ...

(h) The Collector shall have power to make inquiries in respect of any transfer including the settlement or lease of any land comprised in such estate or tenure or the transfer of any kind of interest in any building used primarily as office or cutchery for the collection of rent of such estate or tenure or part thereof, and if he is satisfied that such transfer was made [at any time after the first day of January, 1946, with the object of defeating any provisions of this Act or causing loss to the State or obtaining higher compensation thereunder the Collector may, after giving reasonable notice to the parties concerned to appear and be heard annul such transfer, dispossess the person claiming under it and take possession of such property on such terms as may appear to the Collector to be fair and equitable:]

Provided that an appeal against an order of the Collector under this clause if preferred within sixty days of such order, shall lie to the prescribed authority not below the rank of the Collector of a district who shall dispose of the same according to the prescribed procedure:] Provided further that no order annulling a transfer shall take effect nor shall possession be taken in pursuance of it unless such an order has been confirmed by the State Government."

It is evident from the aforesaid provision that Section 4(h)

of the Act, 1950 confers power upon the Collector to make

inquiries in respect of any transfer including the settlement or

lease of any land comprised in such estate or tenure or the

transfer of any kind of interest in any building if he is satisfied

that such transfer was made at any time after the first day of

January, 1946, with the object of defeating any provisions of

this Act or causing loss to the State or obtaining higher

compensation thereunder the Collector may, after giving

reasonable notice to the parties concerned to appear and be

heard annul such transfer, dispossess the person claiming

under it and take possession of such property on such terms as

may appear to the Collector to be fair and equitable provided

that no order annulling a transfer shall take effect nor shall

possession be taken in pursuance of which unless such an

order has been confirmed by the State Government.

The scope of Section 4(h) of the Act, 1950 has been

considered in State of Bihar and Others v. Sharda Prasad

Rai and Others [(2002) 9 SCC 677] wherein the Hon'ble Apex

Court, at paragraph 5, has held as under :-

"5. A perusal of clause (h) would show that it empowers the Collector to make an enquiry in respect of any transfer including the settlement or lease of any land comprised in such estate or tenure or the transfer of any kind of interest in any building used primarily as office or cutchery for the collection of rent of such estate or tenure or part thereof. If on making enquiries the Collector is satisfied that such transfer was made at any time after the 1st day of January, 1946 with the object of defeating any provisions of the Act or causing loss to the State or obtaining higher compensation thereunder, he is required to give reasonable notice and opportunity of being heard to the parties concerned and is enabled to annul such transfer, dispossess the person claiming under such transfer and take possession of such property on such terms as may appear to him equitable."

It is evident from the provision of Section 4(h) of the Act,

1950 that the Collector has been conferred with the power to

conduct an enquiry but only with respect to the transfer made

on or after 01.01.1946, meaning thereby, any transfer made

prior to 01.01.1946 will be outside the purview of Section 4(h)

of the Act, 1950.

Here the admitted position is that land in question has

been settled by the ex-landlord by virtue of registered

settlement deed dated 23.02.1944, which is prior to

01.01.1946.

When a proceeding was proposed to be initiated, the Circle

Officer, Nirsa submitted a report to find out the factual aspect

as would be evident from Annexure-4 appended to the writ

petition whereby and whereunder the concerned Circle Officer

has found that the land is "Gairabaad Malik" which was settled

in favour of the predecessor-in-interest of the writ petitioner by

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the ex-landlord by virtue of deed of settlement dated

23.02.1944 by way of permanent settlement. The rent of the

land was being paid to the ex-landlord and it has been paid till

1982-83 by Sri Gopal Chandra Dutta. The Jamabandi being

Jamabandi No. 124 has also been opened in the name of Sri

Gopal Chandra Dutta.

This Court deems it fit and proper to refer the report of the

Circle Officer which is extracted hereunder for ready reference :-

B. C. C. L. }kjk fn;s x;s tehu dk ftldk Ref. No. B. M. /S.M. P.80/806 fnukad 30 fnlEcj 1980 ds tehu dk LokfeRo ds ckjs esa tk¡p izfrosnu

Ø ekStk dk Fkkuk [kkfr;ku [kkfr;kuh [kkrk IykSV jdck tekcUnh tekc vH;qfDr la0 uke u0 ds jS;r dk uke u0 u0 nkj dk Unh vuqlkj uke u0 jS;rh [kkrk gS ;k xSjvkokn 1 Ykk;dMhg 254 xSjvkokn xSjvkokn 272 412 1-40 Jh 124 uksV%& ekfyd ekfyd¼fcgkj Mh0 xksiky iz"uxr ljdkj½ pUnz nŸk tehu losZ [kfr;ku es xSj vkckn ekfyd [kkrs dh gSA HkwriqoZ tehankj ls vkosnd u iV~Vk cUnkScLr fnukad 23-02-44 nyhy ua-

                                                                                               1811      ds
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                                                                                               nŸk       oks
                                                                                               ukjk;.k pUnz
                                                                                               nŸk oks vnSr
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Ukke ls gSA bl tehu dk yxku HkwriqoZ tehUnkj dks nsrs FksA ljdkj esa tehUnkjh fughr gksus dh frfFk ls Jh xksiky pUnz nŸk us 1982&83 rd ljdkj dks yxku fn;s gSA ftldk tekcUnh ua0 124 Jh xksiky pUnz nŸk ds uke ls gSA iz"uxr~ tehu dks vkosnd dks LVkEih isij ij 2-12-49 dks Hkh gfj in nŸk oks Jh ukjk;.k nŸk oks vnSR; pUnz fi e`0 mes'k pUnz nŸk us eqfDr i= }kjk Jh xksiky pUnz nŸk fi e`0 mes'k pUnz nŸk dks fy[k fn;s

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gSA orZeku esa iz"u tehu ij Jh xksiky pUnz nŸk fi e`0 mes"k pUnz nŸk dk n[ky dCtk gSA jkeineaMy dehZ g0u011 [email protected]@84

va0 v0 tk¡p fd;k A gYdk deZpkjh dk izfrosnu lgh ik;k orZeku le; esa Jh xksiky pUnz nŸk gh bl Hkwfe ij n[kydkj gS rFkk ljdkjh jlhn Hkh buds uke ls fuxZr gks jgk gSA buds rhu va 'knkjks us LVkEi isij ij vius vius va'k dks xksiky pUnz nŸk ds i{k esa eqDr dj fn;s gSA vkSj Øe"k% iq:fy;k] >kynk rFkk onZoku pys x;s gSa vkSj ogha jgrs gSA vr% izfrosnu mfpr dk;Zokgh gsrq vxzlkfjr g0 vLiLV 23-11-84 va0 fu0

Thus, it is admitted fact that even the Circle Officer, Nirsa

has not disputed the fact about the permanent settlement

through the registered deed of settlement dated 23.02.1944

which is prior to 01.01.1946, therefore, the said settlement will

not come under the fold of enquiry as required to be conducted

by invoking power conferred under Section 4(h) of the Act,

1950.

Accordingly, the issue is answered.

9. So far as Section 16 of the Act, 1973 which confers power

for cancellation of Jamabandi is concerned, this Court, in order

to answer this issue, deems it fit and proper to refer the

provision of Section 16 of the Act, 1973 which has been made

applicable in the entire State in the year 1990 by conferring

power upon the revenue authorities like Anchal Adhikari Land

Reforms Deputy Collector, and the Collector to prepare a draft

of the continuous khatian and a tenants' ledger register and

shall cause further to be published in the prescribed manner

for a period of not less than 30 days.

Any person aggrieved by the order of Anchal Adhikari, may

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prefer an appeal to the Land Reforms Deputy Collector under

Section 15 of the Act, 1973 and against the order passed by the

appellate authority, he may prefer revision before the Collector

under Section 16 of the Act, 1973.

It is evident from the preamble of the Act, 1973 which has

been enacted to provide for maintenance of up-to-date records

of holding of raiyats in the State of Bihar and the matters

connected therewith and accordingly, the powers have been

conferred upon the Land Reforms Deputy Collector to hear the

appeal and upon the Collector to hear the revision.

Learned counsel appearing for the respondent State of

Jharkhand has given much emphasis to the source of power by

referring to the provision of Section 16 of the Act, 1973 and as

such, the provision under Section 16 of the Act, 1973 is

referred and quoted hereunder:-

"16. Revision - The Collector of the district may, 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 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 day 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."

It is evident from the provision of Section 16 of the Act,

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1973 that the Collector of the District may 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

this Act or the rule 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, meaning thereby, if any party is aggrieved with

the action of the revenue authority pertaining to maintenance

of up-to-date records of holdings of raiyats in the State, may

approach before the Collector under its revisional jurisdiction.

It is not in dispute that maintenance of up-to-date records

of holdings of raiyats and creation of Jamabandi are two

different things. According to us, Section 16 of the Act, 1973

provides revisional jurisdiction to be exercised by the Collector

which has got nothing to do with the question of opening or

cancellation of Jamabandi and hence the argument advanced

on behalf of the respondent State of Jharkhand with respect to

the conferment of power under Section 16 of the Act, 1973 for

cancellation of Jamabandi is misconceived one and, therefore,

rejected.

Accordingly this issue is answered.

10. The question of applicability of circular dated 09.12.1998

has been raised whereby and whereunder, according to State

respondents, power has been vested upon the authority to

cancel the Jamabandi but we are not in agreement with such

submission since the circular dated 09.12.1998 has been

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issued by the erstwhile State of Bihar through Revenue and

Land Reforms Department under the signature of

Commissioner and Secretary. The same cannot be even held to

be an executive instruction under Article 162 or 166 (1) of the

Constitution of India since the said circular even has not been

issued in the name of Governor of the State.

It is settled position of law that the circular can be issued

in exercise of power conferred either under Article 162 or 166

(1) of the Constitution of India in order to fill up the

lacunae/gap in the statute but the question is that where there

is no statutory provision for cancellation of Jamabandi, can an

office order or executive instruction occupy the field. The

answer of this Court is in negative as because we have already

held hereinabove that there is no statutory provision to cancel

the Jamabandi in the State of Jharkhand since nothing has

been brought on record by the respondent State of Jharkhand

in the shape of statutory provision conferring power to cancel

Jamabandi and in absence thereof the State authority cannot

take shelter of the letter dated 09.12.1998.

Further, the said letter cannot be given effect to for

cancellation of Jamabndi because once the Jamabandi has

been created by which the right has been created, the same can

only be taken away by an enactment and not through a letter

issued by the Commissioner and Secretary of a Department.

This issue is also answered accordingly.

11. So far as the issue whether a long running Jamabandi can

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be cancelled is concerned, it is the settled position of law that

the right once accrued cannot be taken away in absence of any

statutory provision.

So far as opening of Jamabandi is concerned, if the same

has been opened and running in the name of a particular

person, the same cannot be cancelled save and except by

following the statutory provision but as has been admitted by

the respondent State of Jharkhand that there is no statutory

provision conferring power upon any authority to cancel the

Jamabandi. Accordingly, the action of the authority in

cancelling the Jamabandi in purported exercise of power

conferred under Section 4(h) of the Act, 1950 will be said to be

without any jurisdiction.

It is further relevant to refer that even Section 4(h) of the

Act, 1950 does not confer power to cancel Jamabandi rather it

speaks about annulment of transfer of land. It is not in dispute

that annulment of transfer is one thing and cancellation of

Jamabandi is another thing but the State respondents are

equating both the things to be one which is not acceptable to

this Court.

Accordingly, this issue is also answered.

12. So far as the facts of this case are concerned, admittedly

the land has been settled vide registered deed of settlement

dated 23.02.1944 and as per the report submitted by the Circle

Officer, Nirsa, Jamabandi has been created vide Jamabandi No.

124 and rent was being paid and has been paid up to 1982-83

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by the predecessor in interest and hence there is no dispute

about the fact that Jamabandi was created and is running in

the name of predecessor in interest of the writ petitioner.

It is settled position of law that long running Jamabandi

cannot be cancelled as has been decided by Division Bench of

Patna High Court rendered in Harihar Singh and Another v.

The Additional Collector I/c Land Reforms Monghyr [ 1978

BBCJ 323]. Paragraph 16 of the aforesaid judgment is referred

as under :-

"16. The question that remains to be considered is whether the learned Additional Collector's order dated 5.6.1975 cancelling the Jamabandi is in accordance with law. The notice issued to the petitioner no. 1 merely directed him to produce rent receipts and other papers issued by the ex-intermediary with regard to plot no.95. The learned Standing Counsel submitted that this notice was under the provisions of section 40(1) of the Bihar Land Reforms Act, without going into the question whether the notice can be deemed to be one under section 40 of the Bihar Land Reforms Act, I will assume that the notice was issued under this provision. However, merely by issuing such a notice the learned Additional Collector was not entitled, after hearing petitioner no.1 to cancel the Jamabandi created in favour of the petitioners. Under this provision, the authority has the right to call for the records and if the person concerned does not submit requisite papers, he can be fined. There is no provision in the Land Reforms Act, which would indicate that after issuance of such a notice, learned Additional Collector could cancel the Jamabandi. Settlement can only be cancelled under section 4(h) of the Bihar Land Reforms Act, and the impugned order of the learned Collector does not show that he had proceeded in the matter as contemplated by that provision. In fact, apart from referring to section 40(1) of the Bihar Land Reforms Act, Mr. Standing Counsel No.2 was unable to refer to any provision of law or any instruction issued by the Revenue Department authorizing the Additional Collector to cancel a

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Jamabandi opened in accordance with law under the direction of the Anchal Adhikari. The reason given by the Additional Collector for cancelling the Jamabandi is that the petitioner No.1 has not claimed that he was in possession of the land, therefore, the Anchal Adhikari should have himself enquired into the matter. The second reason given if; that as the land was Gairmazarua Malik; and was a big plot the Anchal Adhikari should have personally enquired into the matter particularly because in the return filed by the ex- intermediary, no entry had been made in favour of the petitioners. In the absence of any authority given to the Additional Collector either by law or by executive instruction, I am constrained to hold that he had no jurisdiction to annul the Jamabandi made in favour of the petitioners by the Anchal Adhikari."

The impugned order, cancelling the Jamabandi in exercise

of power conferred under Section 4(h) of the Act, 1950 cannot

be said to be a proper order held to be sustainable in the eyes

of law.

Further, admitted position herein is that the Jamabandi is

long running which has been opened since the date of

settlement in the year 1944 after the land having been

permanently settled in favour of the predecessor in interest of

the writ petitioner i.e., prior to 01.01.1946, therefore, long

running Jamabandi cannot be cancelled. Furthermore, in

absence of any statutory provision the Jamabandi in any event

cannot be cancelled by the State of Jharkhand.