Sanju Turi And Others vs State Of Jharkhand & Others
2022 Latest Caselaw 3376 Jhar

                               -1-



   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 W.P.(C) No. 2120 of 2007
                            ----
Sanju Turi and Others            ...    ...   Petitioners
                          Versus
State of Jharkhand & Others          ...    ...    Respondents
                            -------
CORAM :           HON'BLE THE CHIEF JUSTICE
          HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
                             ------
For the Petitioners : Mr. Kundan Kumar Ambastha, Advocate
For the State       : Mr. Rakesh Kr. Shahi, A.C. to S.C.(L&C)-I
For the Resp. No.6 : Mr. Nipun Bakshi, Advocate
                            --------
C.A.V. on 24.02.2022           Pronounced on 25.08.2022

Per Sujit Narayan Prasad, J.

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 following issue has been referred by a learned Single

Judge of this Court to a Division Bench :-

Whether the judgment and order passed in Sheikh

Allauddin & Others v. State of Bihar & Others [2000 (2)

BLJR 1084] by the Patna High Court which has been

subsequently followed by this Court in Baldeo Mandal v. The

State of Bihar & Others [2006 (3) JLJR 663] or the order

passed in Mihir Kumar Jha Vs. The State of Bihar & Others

[1997 (1) PLJR 716] will govern the field in respect of

settlement of waste land and vacant holdings in favour of

Jamabandi Raiyats or Permanent Raiyat or Permanent Resident

of the village and recorded in the Records of Right.

3. The writ petition has been filed seeking for the following

relief :-

"(1) That in the instant writ petition, the petitioners

pray for issuance of an appropriate writ (s)/ rule (s)/

order (s) / direction (s) for quashing the order

No.20/2005 dated 13.04.2005 passed by the

Deputy Commissioner, Deoghar in Misc. Case

No.55/98-99 contained in Annexure-4 to the writ

petition by which the Respondent No.3 has illegally

allowed settlement of the lands measuring 2.12

acres out of Dag No.128 of Khata No.41 situated at

Mouza-Karnibad P.S. Kunda, Dist. Dumka (Now

Deoghar) in favour of the Respondent No.6 contrary

to the provision contained in Section 28 of the

Santhal Pargana Tenancy Act although the

Respondent No.6 is neither Jamabandi Raiyat nor

permanent resident of the said village and for

quashing the order dated 19.02.07 passed by the

Commissioner, Santhal Pargana Division, Dumka in

R.M.A. No.32/05-06 contained in Annexure-5 to the

writ petition by which the Respondent No.2 has

illegally dismissed the appeal filed by the petitioners

on absolutely irrelevant consideration of the

materials on the record and for such other relief or

reliefs to which the petitioners are legally entitled

to."

4. The petitioners claim themselves to be the Jamabandi

Raiyats of Mouza Karhanibad, P.S. Kunda, District Dumka

(now Deoghar) and belong to the members of Scheduled Caste

community.

A piece of land measuring an area of 2.95 acres, out of

Plot No.128 appertaining to Jamabandi No.41 of Mouza

Karnibad stood recorded as Parti Kadim in the last Gantzer's

settlement records. Out of 2.95 acres, 2.50 acres of land was

settled in favour of the grandfather of the petitioners along with

other Raiyats, vide order dated 28.10.1940 passed by the Sub-

Divisional Officer, Deoghar in Settlement Case No.86/39-40,

delivery of possession was also given to the settlee with respect

to the aforesaid lands.

The writ petitioners came into possession of the said land

and while in possession, the Respondent No.6, namely, Girish

Kumar Dubey, an ex-serviceman and resident of another

village, namely, Puwari Kothia, P.S. Jasidih, District Deoghar,

applied for settlement of the lands which was in the possession

of the petitioners, being registered as Settlement Case

No.41/1997-98.

The Sub-Divisional Officer, Deoghar, vide order dated

12.12.1998, recommended for settlement of 2.12 acres of land

out of Dag No.128 of Khata No.41 of the said village in favour of

Respondent No.6.

The Deputy Commissioner did not accept the report of

Sub-Divisional Officer and made enquiry on the point that since

the Respondent No.6 is resident of another village, why he did

not chose to get settlement of the land in his own village and

sent back the record to the Sub-Divisional Officer for fresh

enquiry into the matter vide order dated 07.06.2000.

The Sub-Divisional Officer conducted an enquiry relating

to Settlement Case No.41/97-98 and vide letter dated

21.03.2005 sent the report proposing therein that the land

should not be settled with the Respondent No.6 and

accordingly, recommendation was not made for settlement of

the said land in favour of Respondent No.6.

The issue was remanded back to the Sub-Divisional

Officer, Deoghar for further enquiry. The Sub-Divisional Officer,

Deoghar directed the Circle Officer, Deoghar to conduct an

enquiry afresh. The Circle Officer, in its report had

recommended for settlement of the land in favour of

Respondent No.6.

The writ petitioners, being aggrieved with the said report,

made objection raising the issue about resident of another

village and not a Jamabandi Raiyat. But the Deputy

Commissioner passed the order of settlement in favour of

Respondent No.6.

5. The matter was heard by learned Single Judge of this

Court on 07.11.2019. In course of argument, learned counsel

for the petitioner relied upon a judgment rendered by Patna

High Court in the case of Sheikh Allauddin & Others v.

State of Bihar & Others (supra), relying upon paragraph 4

and 5 thereof which read as under :-

"4. Section 28 of the Act contemplates that regard shall be had to the following considerations in addition to the principals recorded in the record-of-rights:

(a) fair and equitable distribution of land according to the requirements of each raiyat and his capacity to reclaim and cultivate;

(b) any special claim for services rendered to the village community, society or State;

(c) contiguity or proximity of the wasteland to jamabandi land of the raiyat;

(d) provision for landless labourers who are bona fide permanent residents of the village and are recorded for a dwelling house in the village.

5. All the pre-requisites for settling Wasteland and vacant holdings connote that the settle must be a jamabandi raiyat or must be permanent raiyat or must be permanent resident of the village and they are recorded in the records of right. From the materials on record, it appears that the Sub-divisional Officer before making the settlement of the land in question in favour of the petitioners had not even called for a report from the village Pradhan nor had verified the records of right. There is nothing in the writ application to show that the petitioners are jamabandi raiyats of the village and they have been recorded under Clause 16 of the records of right."

The learned Single Judge has also referred that on the

basis of the judgment rendered by Patna High Court in Sheikh

Allauddin & Others v. State of Bihar & Others (Supra), this

Court has also passed an order in Baldeo Mandal Vs. The

State of Bihar & Others (Supra).

The learned counsel for the respondent has relied upon a

judgment rendered by the Patna High Court in Mihir Kumar

Jha Vs. The State of Bihar & Others (Supra) relying upon

paragraph 13 thereof which reads as under :-

"13. For the reasons aforesaid the order of the Deputy Commissioner cancelling the settlement of wasteland with petitioner as also the order passed by the Commissioner cannot be sustained in law. In my opinion, the settlement made by the Sub-divisional Officer is not against any of the mandatory provisions of the said Act. In other words, the said Act does not in express term debar the authorities to make settlement of wasteland with non-jamabandi raiyats. In the result this writ application is allowed and the impugned orders dated 22.03.1985 and 20.05.1985 passed by the Deputy Commissioner and the Commissioner of Santhal Parganas as contained in Annexures 1 and 2 respectively are quashed."

6. The learned Single Judge, after taking into consideration

the conflicting views in the judgments while making

interpretation of Section 28 of the Santhal Parganas Tenancy

Act, 1949, referred the matter before the Division Bench of this

Court for the purpose of authoritative pronouncement on the

said issue.

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

perused the record and also gone through the judicial

pronouncements, as referred hereinabove.

8. The conflicting views in both the judgments are with

respect to the provision of Section 28 of the Santhal Parganas

Tenancy Act, 1949. Therefore, Section 28 of the Santhal

Parganas Tenancy Act, 1949 is required to be referred herein

which reads as under :-

"28. Principles to be followed in settling waste land or vacant holdings - In making settlement of waste

land or vacant holdings regard shall be had to the following considerations in addition to the principles recorded in the record-of-rights,-

(a) fair and equitable distribution of land according to the requirements of each raiyat and his capacity to reclaim and cultivate;

(b) any special claim for services rendered to the village community, society or State;

(c) contiguity or proximity of the waste land to jamabandi land of the raiyat;

(d) provision for landless labourers who are bona fide permanent residents of the village and are recorded for a dwelling house in the village."

The provision of Section 28 speaks about settling of waste

land or vacant holdings and while exercising such power, the

consideration to the conditions stipulated therein, in addition

to the principles recorded in the record of rights, are required to

be followed i.e., (a) fair and equitable distribution of land

according to the requirements of each raiyat and his capacity to

reclaim and cultivate, (b) any special claim for services rendered

to the village community, society or State, (c) contiguity or

proximity of the waste land to jamabandi land of the raiyat and

(d) provision for landless labourers who are bona fide

permanent residents of the village and are recorded for a

dwelling house in the village.

9. The Patna High Court, while delving upon the issue about

interpretation of Section 28 of the Santhal Parganas Tenancy

Act, 1949 in the case of Sheikh Allauddin & Others v. State

of Bihar & Others (Supra) has come to the finding as under

paragraph 5 thereof to the effect that all the pre-requisites for

settling wasteland and vacant holdings connote that the settlee

must be a jamabandi raiyat or must be permanent raiyat or

must be permanent resident of the village and they are

recorded in the records of right. It has further been stipulated

that the Sub-divisional Officer before making the settlement of

the land in question in favour of the petitioners had not even

called for a report from the village Pradhan nor had verified the

records of right. There is nothing in the writ application to show

that the petitioners are jamabandi raiyats of the village and

they have been recorded under Clause 16 of the records of

right.

On the other hand, in the judgment rendered in the case

of Mihir Kumar Jha Vs. The State of Bihar & Others

(Supra), it has been laid down while quashing the order passed

by the Deputy Commissioner cancelling the settlement of waste

land with the petitioner of the aforesaid case as also the order

passed by the Commissioner, on the ground that the settlement

made by the Sub-divisional Officer is not against any of the

mandatory provisions of the said Act. The interpretation of

Section 28 has been made to the effect that the aforesaid

provision does not in express term debar the authorities to

make settlement of waste land with non-jamabandi raiyats.

Thus, in the case of Sheikh Allauddin & Others v. State

of Bihar & Others (Supra), the law has been laid down for not

settling the land in favour of non-Jamabandi Raiyat. While in

the case of Mihir Kumar Jha Vs. The State of Bihar &

Others (Supra), it has been laid down that the provision of

Section 28(b) does not in express term debar the authorities to

make settlement of waste land with non-jamabandi raiyats.

10. We have considered the provision of Section 28,

wherefrom it transpires that in making settlement of waste land

or vacant holdings, the consideration of conditions as referred

under (a), (b), (c) and (d) in addition to the principles recorded

in the record of rights, are required to be followed.

The stipulation made therein with respect to the word "in

addition to the principles recorded in the record of rights"

clarifies that apart from the principles recorded in the record of

rights, the conditions stipulated as under (a), (b) (c) and (d) are

also to be considered while making settlement of waste land.

It further appears, by going through the condition

stipulated under Section 28 (a), (c) and (d), that reference of

"Raiyat/ residents of the village" has been made, meaning

thereby, the waste land can be settled in favour of a "Raiyat/

residents of the village" by taking into consideration the

conditions stipulated as under Section 28 (a), (c) and (d).

But, when this Court considered the condition stipulated

under Section 28 (b), found that "Raiyat/ residents of the

village" has not been referred therein, rather, the settlement

can also be provided to be made in case of any special claim for

services rendered to the village community, society or State.

11. This Court has also considered the principles recorded in

- 10 -

the Record of Rights since under Section 28, it has been

referred that in addition to the principles recorded in Record of

Rights, the conditions as under (a), (b), (c) and (d) of Section 28

of the Act to be followed, as referred under Part-II under

caption heading "Rights and Duties of the Raiyats" wherein it

has been provided that the village community has joint rights

over the waste land of the village. Jamabandi Raiyats have a

preferential rights to the settlement of it for reclaimation. No

waste land may be settled with a non-Jamabandi Raiyat

without the consent of the Sub-Divisional Officer and the

proprietor. The relevant portion of the same is being referred

hereunder:-

"(a) The village community has joint rights over the waste land of the village. Jamabandi raiyats have a preferential rights to the settlement of it for reclaimation. No waste land may be settled with a non- Jamabandi raiyat without the consent of the subdivisional officer and the proprietor. ... ..."

Thus, it is evident that the principles recorded in the

Record of Rights does stipulate that the waste land can be

settled with non-Jamabandi Raiyats but with the consent of the

Sub-Divisional Officer and the Proprietor.

The word "Proprietor" in the present scenario, i.e., after

vesting of Jamabandi after enactment of Bihar Land Reforms

Act, 1950, will not be applicable, since the State will be treated

to be Proprietor after vesting of the land in it. Therefore, the

Sub-Divisional Officer, being the functionary of the State, will

have jurisdiction to grant such consent for settlement with a

- 11 -

non-Jamabandi Raiyat.

12. Thus, after considering the stipulation made in the Record

of Rights, as quoted and referred hereinabove, according to our

considered view, the waste land can be settled even in favour of

the non-Jamabandi Raiyat but with the consent of the Sub-

Divisional Officer.

13. Therefore, the view expressed by the Patna High Court in

Sheikh Allauddin & Others v. State of Bihar & Others

(Supra) and this Court in Baldeo Mandal Vs. The State of

Bihar & Others (Supra), according to our considered view,

since has been based without taking into consideration the

implication of the Record of Rights, therefore, cannot be

considered to be a good law.

14. This Court, after taking into consideration the stipulation

made in Record of Rights, is of the view that the condition as

under Section 28(b) of the Act, has been inserted to take care of

settlement of waste land even in favour of non-Jamabandi

Raiyats.

15. Considering the same, the view expressed by the Patna

High Court in Mihir Kumar Jha Vs. The State of Bihar &

Others (Supra), since has opined by making reference of

Section 28(b) of the Santhal Parganas Tenancy Act, 1949 that

mandatory provision of the said Act does not in express term

debar the authorities to make settlement of the waste land with

non-Jamabandi Raiyats, is to be considered to be a good law.

- 12 -

16. Accordingly, the issue is answered.

17. Having held as above, now we direct that the matter be

placed before the appropriate Bench having jurisdiction to hear

and decide it.

(Dr. Ravi Ranjan, C.J.) I agree

(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.)

Birendra/ A.F.R.