Ashwani Prasad Sah @ Nirgun Prasad ... vs The State Of Jharkhand
2022 Latest Caselaw 5017 Jhar

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

                 W.P. (C) No. 7144 of 2013
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Ashwani Prasad Sah @ Nirgun Prasad Sah son of Late Biru Sah resident of Dwarichak Pathargama, P.O. and P.S. Pathargama District Godda ... Petitioner Versus

1.The State of Jharkhand

2.The Deputy Commissioner, Godda.

3.The Additional Collector, Godda, P.O. & P.S. Godda, District-Godda.

4.The Deputy Collector Land Reform, Godda, P.O. & P.S. - Godda, District-Godda.

5.The Circle Officer, Pathargama, P.O. & P.S. - Pathargama, District-Godda.

6.(a).Shankuntla Devi W/o late Sargun Sah 6(b).Krishna Murari S/o late Sargun Sah Both residents of village Dwarichak P.O. + P.S.- Pathargama, District Godda

6.(c). Renu Devi, W/O Sri Vijay Prasad (Teacher), D/o late Sargun Sah resident of Mohalla Gorhatta Chowk, P.S. Mojahidpur, P.O. Mirjanhaat, District Bhagalpur (Bihar) 6(d).Rekha Devi , W/o Saligram Sah, D/O late Sargun Sah R/o Menhdipur , P.S. Parwatta, P.. Menhdipur, Distt- Khagaria (Bihar).

6.(e).Mala Devi W/o Sri Prince Kumar, D/O late Sargun Sah, R/o Deepnagar, P.O. + P.S. Joksar, District Bhagalpur (Bihar).

6(f).Ragini Devi, W/O Deepak Sah, D/o late Sargun Sah, R/o village + P.O. -Mirjanhaat, P.S. - Mojahidpur, Distt.

Bhagalpur (Bihar).            ....   Respondents

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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Petitioner : Mr. Manoj Kumar Sah, Adv Ms. Puja Kumari, Adv For the Res-State : Mr. Rishi Raj Verma, AC to SC III For the Private Res : Mr. Rajesh Kumar, Adv.

Mr. Manindra Kr. Sinha, Adv.

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Order No. 12/Dated: 12 December, 2022 th

The instant writ petition, filed under Article 226 of

the Constitution of India, for quashing of order dated

22.07.2011 passed by respondent no. 5- the Circle Officer,

Pathargama, by which, the order of mutation with respect

to land in question in favour of private respondent no. 6

has been passed; and for quashing order dated 04.07.2012

passed by respondent no. 4-the Deputy Collector Land

Reforms, Godda whereby and whereunder the appeal being

Mutation Appeal No. 01 of 2011 preferred against order

dated 22.07.2011 has been dismissed; as also for quashing

of order dated 17.08.2013 by which the revision being

R.M.R. No. 07 of 2012 preferred against the appellate order

has been dismissed.

2. The brief facts of the case, as per the pleadings

made in the writ petition, read as under:

The Basauri land of Dag No. 15 appertaining to

Khata No. 28 of village Dwarichak measuring an area of one

Khatta was owned and acquired by Biru Sah, the father of

petitioner and respondent no. 6 by virtue of sale deed dated

17.12.1968. The said Biru Sah died sometimes in the year

1995 leaving behind his two sons - the petitioner and

respondent no. 6 - who jointly inherited the property in

question in equal share.

On 02.05.2011, the respondent no. 6 filed an

application before the Circle Officer, Pathargama for

mutation of his name, being Mutation Case No. 09 of 2011

with respect to 11 Dhur 15 Dhurki of the land, which was

allotted in his share in Panchayti Batwara (family

arrangement) which took place between the two brothers on

19.10.1992 during the lifetime of their father, which was

allowed vide order dated 22.07.2011, against which the

petitioner preferred appeal being Mutation Appeal No. 01 of

2011, which was dismissed vide order 04.07.2012.

Thereafter, the petitioner preferred revision being R.M.R.

No. 07 of 2012 which was dismissed vide order dated

17.08.2013.

The petitioner being aggrieved with order dated

22.07.2011 passed by respondent no. 5- the Circle Officer,

Pathargama, by which, the order of mutation with respect

to land in question in favour of private respondent no. 6

has been passed and appellate order dated 04.07.2012

passed by respondent no. 4-the Deputy Collector Land

Reforms, Godda in Mutation Appeal No. 01 of 2011 as also

against order dated 17.08.2013 by which the revision

petition being R.M.R. No. 07 of 2012 preferred against the

appellate order have been dismissed, preferred the instant

writ petition invoking extraordinary jurisdiction of this

Court conferred under Article 226 of the Constitution of

India.

3. It is apparent from the material available on record,

so far as factual aspect is concerned that the land in

question has been apportioned by way of family

arrangement by the deceased father of the petitioner in

presence of local Panchayat in between the two sons i.e, the

petitioner and respondent no. 6 on 19.10.1992 wherein the

petitioner and respondent no. 6 were also the signatory and

they are in peaceful possession of their share.

The private respondent no. 6, who is one of co-

sharers has given application before the respondent no. 5-

Circle Officer, Pathargama for entering his name in revenue

records i.e., Register-II, which was allowed vide order dated

22.07.2011 by which the name of the respondent no. 6 was

directed to be entered in the revenue record. However, the

petitioner being aggrieved with the order passed by the

Circle Officer, Pathargama preferred appeal as also revision,

which were dismissed.

Aggrieved thereof, the petitioner is before this Court

for quashing and setting aside the order passed by the

revenue authorities mainly on the ground that the revenue

authorities has only relied upon the family arrangement,

which is nothing but a unregistered document and,

therefore, the orders passed by the revenue-authorities are

not sustainable in the eyes of law since there is no

consideration as to why the name of respondent no. 6 has

been entered in the revenue record on the basis of

unregistered document i.e. by way of family arrangement.

4. While on the other hand, Mr. Rishi Raj Verma,

learned AC to SC III, appearing for the respondents-State of

Jharkhand has submitted that there is no error in the

orders passed by the revenue-authorities since the revenue

authorities have taken into consideration the peaceful

possession of respondent no. 6 and the petitioner over the

land in question which has been shared by the deceased-

father in their favour by way of family arrangement.

It has been submitted that at the time of mutation

the revenue authorities are only required to see the

possession of the party concerned over the land in question

and the same having been confirmed, as per the report of

the concerned Circle Inspector and only thereafter the order

has been passed by the Circle Officer under the relevant

Act. Further, the appellate as also the revisional authority

having found no error in the decision of the original

authority has declined to interfere with the original order

passed by the concerned Circle Officer and as such prayer

has been made that the orders passed by the revenue

authorities may not be interfered with.

5. Mr. Rajesh Kumar, learned counsel being assisted

by Mr. Manindra Kr. Sinha, learned counsel for the

respondent no. 6 has adopted the argument advanced by

learned counsel for the respondents-State, however, in

addition thereto submission has been made in defence of

the order passed by the revenue authorities that the

petitioner and respondent no. 6 are in peaceful possession

of the land in question on the basis of record shown in the

family arrangements, which has been done by the

deceased-father and as such there is no reason to make

opposition if the application has been made for mutating

the name of respondent no. 6, one of the co-sharer.

It has further been submitted that the writ

petitioner is not disputing the aforesaid position rather is in

peaceful possession of his share as has been earmarked by

way of family arrangement.

It has been submitted that so far the contention

raised on behalf of petitioner that the unregistered deed

cannot be a basis of mutation, submission has been made

that for the purpose of mutation the requirement of law is

to see the peaceful possession of the land in question and

in the case in hand, as reported by the Circle Inspector to

the Circle Officer about the peaceful possession of both the

parties i.e., the petitioner and respondent no. 6 and

thereafter, order for mutation has been passed, which has

been affirmed by the appellate as well as by the revisional

authority, as such prayer has been made that orders

passed by the revenue authorities may not be interfered

with.

6. This Court has heard learned counsel for the parties

and perused the documents available on record particularly

the impugned orders passed by the original authority

(Circle Officer), appellate authority and the revisional

authority, which are under challenge in this writ petition.

However, before proceeding further, it would be apt

and proper for this Court to go through the power and

scope of writ Court to exercise the power conferred under

Article 226 for issuance of writ of certiorari.

Reference in this regard be made to the judgment

rendered by the Hon'ble Apex Court in Syed Yakoob Vrs.

K.S. Radhakrishnan & Ors, [A.I.R. 1964 477 Supreme

Court], wherein at paragraph no. 7 their Lordships have

been pleased to held as under:-

"7.The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals : these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal Acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising

it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point 11 and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised."

In another judgment of Hon'ble Apex Court in the

Case of Sawarn Singh & Anr. Vrs. State of Punjab &

Ors reported in (1976) 2 SCC 868 their Lordships while

discussing the power of writ under Article 226 for issuance

of writ of certiorari has been please to hold at paragraph

nos.12 and 13 as under:

"12. Before dealing with the contentions canvassed, it will be useful to notice the general principles indicating the limits of the jurisdiction of the High Court in writ proceedings under Article 226. It is well settled that certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by inferior courts or tribunals. A writ of certiorari can be issued only in the exercise of supervisory jurisdiction which is different from appellate jurisdiction. The Court exercising special jurisdiction under Article 226 is not entitled to act as an appellate court. As was pointed out by this Court in Syed Yakoob case, "this limitation necessarily means that findings of fact reached by the inferior court or tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be."

"13.In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice."

In another judgment rendered by Hon'ble Apex

Court in the case of Pepsico India Holding Private

Limited Vrs. Krishna Kant Pandey reported in (2015)

4 SCC 270 their Lordships while discussing the scope of

Article 226 and 227 of the Constitution of India in the

matter of interference with the finding of the tribunal has

been pleased to hold by placing reliance upon the

judgment rendered in the case of Chandavarkar Sita

Ratna Rao Vrs. Ashalata S. Guram reported in (1986)

4 SCC 447 at paragraph 14 has held as under:-

"14.While discussing the power of the High Court under Articles 226 and 227 of the Constitution interfering with the facts recorded by the courts or the tribunal, this Court in Chandavarkar Sita Ratna Rao v. Ashalata S. Guram [(1986) 4 SCC 447] , held as under:

"17. In case of finding of facts, the Court should not interfere in exercise of its jurisdiction under Article 227 of the Constitution. Reference may be made to the observations of this Court in Bathutmal Raichand Oswal v. Laxmibai R. Tarta [(1975) 1 SCC 858 : AIR 1975 SC 1297] where this Court observed that the High Court could not in the guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal. The High Court was not competent to correct errors of facts by examining the evidence and reappreciating. Speaking for the Court, Bhagwati, J. as the learned Chief Justice then was, observed at AIR p. 1301 of the Report as follows:

'7. The special civil application preferred by the appellant was admittedly an application under Article 227 and it is, therefore, material only to consider the scope and ambit of the jurisdiction of the High Court under that article. Did the High Court have jurisdiction in an application under Article 227 to disturb the findings of fact reached by the District Court? It is well settled by the decision of this Court in Waryam Singh v. Amarnath [AIR 1954 SC 215] (AIR p. 217, para 14) that the

"power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee [AIR 1951 Cal 193] , to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors".

This statement of law was quoted with approval in the subsequent decision of this Court in Nagendra Nath Bora v. Commr. of Hills Division [AIR 1958 SC 398] and it was

pointed out by Sinha, J., as he then was, speaking on behalf of the Court in that case: (AIR p. 413, para 30)

"30. ... It is, thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi- judicial nature, are not greater than the power under Article 226 of the Constitution. Under Article 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority."

It is evident from the ratio laid down by the Hon'ble

Apex court in the judgments as referred hereinabove that

the scope of High Court sitting under Article 226 of the

Constitution of India in exercise of power of judicial review

on the finding of the Tribunal is very limited.

7. Now coming to the fact of the case, issue has been

raised by learned counsel for the petitioner that on the

basis of unregistered document there cannot be mutation

which is the sole ground taken by the petitioner in

assailing the order passed by the original authority and

aforesaid ground is also not taken into consideration by the

appellate as well as revisional authority.

The position of law is well settled that the mutation

does not create or extinguish right in favour of any party. It

is simply an evidence of possession over the land. It is also

settled position of law that besides title, mutation is an

evidence of possession and therefore, even if a person has

got a title that shall not be deemed to be the evidence of

possession unless mutation is done and rent receipts are

issued in favour of the one or the other, as has been held

by this Court in the judgment rendered in Chotanagpur

Engineering Works Ltd. Vs. State of Jharkhand [(2006)

1 JCR 80 (Jhr)] in particular paragraph 6, which reads as

under:

"6.It is well settled that besides title, mutation is an evidence of possession and therefore even if a person has got a title that shall not be deemed to be the evidence of possession unless mutation is clone and rent receipts are issued in favour of the owner of the building."

Reference in this regard further be made to the

recent judgment rendered by Hon'ble Apex Court in

Jitendra Singh Vs. State of Madhya Pradesh & Ors

[(2021) SCC OnLine SC 802], wherein the Hon'ble Court

has been pleased to hold that mutation of property in

revenue records neither creates nor extinguishes title to the

property nor has it any presumptive value on title.

For ready reference, the relevant paragraph 7 of the

judgment is quoted as under:

"7. Right from 1997, the law is very clear. In the case of Balwant Singh v. Daulat Singh (D) By Lrs., reported in (1997) 7 SCC 137, this Court had an occasion to consider the effect of mutation and it is observed and held that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive

value on title. Such entries are relevant only for the purpose of collecting land revenue. Similar view has been expressed in the series of decisions thereafter."

As has been gathered from the pleadings made in

the writ petition and the documents and the arguments

advanced on behalf of parties within the four corners of the

pleadings that the so-called unregistered deed, the deed of

family arrangement executed by the deceased-father has

not yet been disputed by the parties. It has also been

submitted and is available on record, as would appear from

the orders passed by the revenue-authorities that both the

parties, i.e., the petitioner and private respondents, are

enjoying the peaceful possession over the land in question.

The private respondents whose possession has not been

disturbed as ever since according to the writ petitioner

himself as yet no title suit has been preferred while the

said family arrangement was executed on 19.10.1992

meaning thereby right from the year 1992 both the parties

are in peaceful possession of the land in question. Since

the mutation does not create or extinguish a right or title

over the land in question, in that view of the matter if any

application has been filed by respondent no. 6 before the

Circle Officer for mutating his name by inserting his name

in the revenue record which has been allowed by the

concerned Circle Officer on being satisfied that the

possession over the land in question is of private

respondent, the same according to considered view of this

Court cannot be said to suffer from error reason being that

the possession over the land in question of the private

respondent is not in dispute herein and mutation since is

to be created on the basis of possession, therefore, if in

that pretext an order has been passed by the revenue

authority by inserting the name of the private respondent

in the revenue record, it will be said to be an act performed

by the concerned Circle Officer within his domain.

The aforesaid order has been affirmed by the

appellate as also by the revisional authority in exercise of

appellate and revisional jurisdiction as conferred under the

Act and both the authority has find no error and even the

revisional authority has taken into consideration the fact

that the unregistered deed of family partition has never

been challenged before the competent Court of civil

jurisdiction by the petitioner.

8. This Court considering the fact in entirety and

taking into consideration the position of law regarding

power to be exercised by High Court for issuing writ of

certiorari, as has been held by Hon'ble Apex Curt in the

judgment referred hereinabove, is of the considered view

that the writ petitioner has failed to make out a case by

showing any apparent error on the face of orders passed by

the revenue authorities.

9. Accordingly, the writ petition stand fails and is

dismissed.

(Sujit Narayan Prasad, J.) Alankar/-