Jharkhand High Court
Lakhi Pandit vs The State Of Jharkhand & Ors on 23 November, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
[Civil Writ Jurisdiction]
W. P. (C) No. 6413 of 2009
Lakhi Pandit .... .. ... Petitioner(s)
Versus
The State of Jharkhand & Ors. .. ... ... Respondent(s)
...........
CORAM :HON'BLE MR. JUSTICE KAILASH PRASAD DEO
.........
For the Petitioner(s) : Mr. A. K. Choudhary, Advocate.
For the Res. /State : Mr. P. C. Roy, S.C. (L&C)-I
For the Resp. Nos.7 to 11 : Mr. Sandeep Verma, Advocate
..........
07 / 23.11.2021. Mr. A. K. Choudhary, learned counsel appearing for the petitioner has
submitted that from perusal of Annexure-2, it appears that the land of Village-
Baghapathar No.98, P.S. Jasidih being a pradhani village. The land has been recorded
as jungle in the records of right, was not fit for donation to the Bhudan Yagna
Committee by the ex-landlord, Pathrol Estate and on the basis of that Rent Fixation
Case No.41/92-93 has been initiated, whereby the rent has been fixed in favour of the
private respondents i.e. respondent Nos.7 to 11.
Mr. A. K. Choudhary, learned counsel appearing for the petitioner has further
submitted that though the counter-affidavit has been filed by the State on 22.02.2012,
but no averment with regard to Paras 9 and 10 of the Writ Petition has been given in
the counter-affidavit as evasive reply has been given that the land, in question is
outside from the demarcation area of the forest, but has not considered that whether
such land was available for donation to the Bhudan Yagna Committee in
contravention of Section 10 to the Bihar Bhoodan Ygna Act, 1954. Relevant part of
Section-10 may profitably be quoted herein :-
10.Donation of land :-(1) Any person being the owner of any land may donate
such land to the Bhoodan Yagna Committee or to Shri Acharya Vinoba Bhave
by a declaration in writing in that behalf (hereinafter called the Bhoodan
Yagna Danpatra):
Provided that no person shall, for the purpose of this Act, be entitled to
donate any land of the following classes, namely :-
(a).............
(b)lands recorded in the record of-rights as gairmazrua am;
(c).........
(d) any forest land notified under any of the provisions of the Indian Forest
Act, 1927 (XVI of 1927), or the Bihar Private Forest Act, 1947 (Bihar Act IX
of 1948);
(e).............
(f) any other land which the State Government may by notification in the
Official Gazette, specify.
(2).................
Mr. A. K. Choudhary, learned counsel appearing for the petitioner has further
submitted that the land, which has been allotted to the respondent nos.7 to 11 is not
the land which can be donated by the ex-landlord of Pathrol Estate, as such, initiation
of proceeding of rent fixation on the basis of donation made by the ex-landlord of
Pathrol Estate is itself bad in law and subsequent fixation of rent is also bad in law
which is creating right, title and interest in favour of respondent no.7 to 11 in
contravention of Bihar Bhoodan Yagna Act, 1954.
Mr. Sandeep Verma, learned counsel appearing on the instruction of Mr.
Sameer Saurabh, learned counsel appearing for the Resp. Nos.7 to 11 has submitted
that in the instant Writ Petition, the settlement made in favour of respondent no.7 to
11 has not been challenged, rather the subsequent proceeding of fixation of rent has
been challenged which is not permissible under the law, in view of the judgment
passed by the Apex Court in the case of Edukanti Kistamma (Dead) through LRS.
And Ors. vs. S. Venkatareddy (Dead) through LRS. And Ors., reported in (2010)
1 SCC 756. Para-22 of which may profitably be quoted hereunder :-
22.It is a settled legal proposition that challenge to consequential order
without challenging the basic order/ statutory provision on the basis of which
the order has been passed cannot be entertained. Therefore, it is a legal
obligation on the part of the party to challenge the basic order and only if the
same is found to be wrong, consequential order may be examined in view of
the judgment passed by the Apex Court in the case vide P. Chitharanja Menon
v. A. Balakrishnan, (1977) 3 SCC 255, H.V. Pardasani v. Union of India,
(1985) 2 SCC 468 and Gov. of Maharashtra v. Deokar's Distillery (2003) 5
SCC 669. [references have been supplied with]
Mr. Sandeep Verma, learned counsel appearing on the instruction of Mr.
Sameer Saurabh, learned counsel appearing for the Resp. Nos.7 to 11 has further
submitted that since the petitioner has not assailed, nor challenged the initial
settlement made in favour of the Resp. Nos.7 to 11 nor the donation made by the ex-
zamindar of Pathrol Estate, as such, the instant Writ Petition is not maintainable
before this Hon'ble Court.
Mr. Sandeep Verma, learned counsel appearing on the instruction of Mr.
Sameer Saurabh, learned counsel appearing for the Resp. Nos.7 to 11 in support of
his submission has relied upon Section 17-A of the Bihar Bhoodan Yagna Act, 1954,
which may profitably be quoted hereunder :-
"[17-A. Power of the Board of Revenue and the Commissioner to call for
records.- The Board of Revenue or the Commissioner may, at any time for the
purposes of satisfying itself or himself as the correctness, legality or propriety
of any order made by any authority or office under this Act or the rule made
thereunder, call for and examine the record of any case pending before or
disposed of by such authority or office and may pass such order as it or he
thinks fit:
Provided that no order modifying, altering, or setting aside any order
made by such authority or officer shall be passed by the Board of Revenue or
the Commissioner unless the parties concerned have been given a reasonable
opportunity of being heard."
Mr. Sandeep Verma, learned counsel appearing for the Resp. Nos.7 to 11 has
thus, submitted that the petitioner may invoke appropriate remedy before the
competent court of law by challenging the order, whereby the donation and
settlement made in favour of respondent Nos.7 to 11, instead of challenging the
subsequent order where the fixation of rent has been assailed.
Mr. P.C. Roy, learned S.C. (L&C)-I appearing for the State has submitted that
counter-affidavit has been filed on 22.02.2012, but since such issue has been raised
before this Court, as such, some time may be granted so as to file a fresh
supplementary counter-affidavit to assist this Court properly.
Considering the same, respondent No.2 (The Commissioner, Santhal Paragana
Division, Dumka) is directed to file supplementary counter-affidavit in this case with
regard to legality, propriety and procedure followed in settlement of the land/
donation of the land with respondent Nos.7 to 11 and fixation of rent in favour of
respondent Nos.7 to 11.
Supplementary counter-affidavit must be filed by the State within a period of
four weeks from today.
Let the case be posted after four weeks.
(Kailash Prasad Deo, J.)
Sandeep/
