Jharkhand High Court

Mahendra Singh vs Registrar Of Trade Marks. Mumbai & ... on 7 July, 2022

                                       1


                   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                             W.P.(C) No.6609 of 2013

            1. Mahendra Singh
            2. Kanika Singh                         ..........                  Petitioners


            1. The State of Jharkhand through Deputy Commissioner, Dhanbad,
                 having its office at Dhanbad, P.O. and P.S. Dhanbad, District-
                 Dhanbad
            2. Sub Divisional Officer, Dhanbad, having its office at Dhanbad P.O.
                 & P.S. Dhanbad, District-Dhanbad
            3. Additional Collector Land Reforms, Dhanbad, having office at
                 Dhanbad, P.O. and P.S. Dhanbad, District-Dhanbad
            4. Circle Officer, Baghmara, P.O. and P.S. Baghmnara, District-
                 Dhanbad                      .........                       Respondents


            CORAM        : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
                                   ---------

For the Petitioners : Mr. Vipul Poddar,Advocate For the State : Mr. Rishi Raj Verma, AC to SC-III

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05/07.07.2022 This writ petition has been filed under Article 226 of the Constitution of India, wherein, the order dated 24.05.2013 passed in Jamabandi Cancellation Case No.87/2011-12, whereby and whereunder, the Jamabandi created in the name of the grandfather of the petitioner (Mahendra Singh) has been cancelled.

2. The brief facts of the case, as per the pleading made in the petition, are required to be enumerated, which reads as under:-

It is the case of the petitioners that late Babulal Singh, the grandfather of the petitioner no.1, was recorded owner of the raiyati land situated at Mouza Bowakala, Mouza No.228, Khata No.41, Plot Nos.924 and 926 to 940 and the name was recorded in C.S. record of right duly maintained and kept in the records of the competent authority of the State. In course of enjoyment of the aforesaid land, Late Babulal Singh got settlement of a piece of land in the said village within Mouza no.228, Khata No.118, Plot No.950, measuring an area of 3 acres recorded as Gairabad Malik which is adjoining to the aforesaid raiyati land. It is the further case of the petitioners that the settlement

was made by virtue of unregistered patta no.39, dated 06.10.1936 executed and conveyed by landlord of Jharia Raj Estate and Raja Shiva Prasad Singh on the payment of one time salami of Rs.91/-. After the aforesaid settlement in favour of Mr. Babulal Singh, the said land was converted as paddy land and amalgamated with his raiyati land for cultivation. Late Babulal Singh got mutated his name in the Circle Office, Baghmara, Dhanbad, wherein, Jamabandi No.245 was opened by way of accepting rent and against such acceptance, rent receipt was issued in favour of Late Babulal Singh.

It is the case of the petitioners that Late Babulal Singh has died in the year, 1965 and since after his death, his legal heir, namely, Gangadhar Singh inherited the land in question and Sri Gangadhar Singh enjoyed his peaceful possession over the property without any hindrance till his lifetime. After the death of late Gangadhar Singh, the legal heirs, namely, Mahendra Singh and widow of Gangadhar Singh, namely, Kanika Devi, petitioners herein, had inherited the property and were enjoying the peaceful possession over the property.

It is the further case of the petitioners that in the month of July, 2013, the representative of the respondents had demolished the boundary wall erected on the aforesaid land. On enquiry, the petitioner came to know about the order dated 24.05.2013 passed by the Deputy Commissioner, Dhanbad, whereby, the Jamabandi No.245 was cancelled. Thereafter, the petitioner came to know that a Jamabandi Cancellation Case No.87/2011-12 was instituted against late Babulal Singh and accordingly, a notice was issued by the office of the Circle Officer on 27.10.2011 against late Babulal Singh, wherein, late Babulal Singh was directed to appear along with all records and relevant documents in the office of the Circle Officer, Baghmara, Dhanabd on 14.11.2011. It is the case of the petitioner that the Deputy Commissioner, Dhanbad, vide order dated 24.05.2013 was pleased to cancel the Jamabandi No.245 in favour of late Babulal Singh for the land situated at Mouza No.228, Mouza Bowakala, Khata No.118, Plot No.950 for the land measuring 9 acres.

According to the petitioners, the Deputy Commissioner, had acted mechanically and arbitrary manner and has passed the impugned order dated 24.05.2013 without applying its judicious mind.

It is also the case of the petitioners that no notice was ever issued to the legal heir of late Babulal Singh.

According to the petitioners, the Deputy Commissioner has failed to take into consideration that the authority concerned was accepted the rent from the petitioner's predecessors-in-interest since very long time and it is settled position of law that a long standing Jamabandi cannot be cancelled and the respondents cannot claim such at the belated stage, and as such, the Deputy Commissioner had exceeded its jurisdiction by passing the impugned order, hence, the order impugned suffers from jurisdictional error. The petitioners, being aggrieved with the said order, invoked the jurisdiction conferred to this Court under Article 226 of the Constitution of India by filing the instant petition.

3. Mr. Vipul Poddar, learned counsel appearing for the petitioners has taken the following ground in assailing the impugned order dated 24.05.2013:-

(i) There is no provision of cancellation of Jamabandi enacted in the State of Jharkhand.

(ii) The aforesaid issue has been decided by the Division of this Court in the case of State of Jharkhand & Ors. Vrs. Izhar Hussain passed in L.P.A. No.786 of 2018 on 05.11.2020.

4. Mr. Rishi Raj Verma, learned AC to SC-III appearing for the State of Jharkhand has submitted that the instant petition is not maintainable on the ground of availability of alternative remedy of appeal, as provided under the Bihar Tenants Holdings (Maintenance of Records) Act, 1973 and as such, the writ petition may be dismissed.

5. Mr. Poddar, learned counsel for the petitioners, in response, has submitted that the ground which has been raised on behalf of the learned State Counsel about holding the writ petition to be not maintainable on the ground of availability of alternative remedy, is not worth to be considered, reason being that, the Deputy Commissioner while passing the impugned order dated 24.05.2013 in Jamabandi Cancellation Case No.87/2011-12, has acted without any

authority, since, in the State of Jharkhand, there is no provision to cancel the Jamabandi.

It has further been submitted that since the order impugned is without jurisdiction, therefore, the writ petition is well maintainable, as per the judgment rendered by the Hon'ble Apex Court in the case of Whirlpool Corporation Vs. Registrar of Trade Marks. Mumbai & Ors., reported in (1998) 8 SCC 1.

6. This Court after having heard the learned counsel for the parties and after considering the factual aspect, as per the pleading made on behalf of the parties in their respective affidavits, has found therefrom that the Circle Officer has passed the order dated 24.05.2013 in Jamabandi Cancellation Case No.87/2011-12, whereby and whereunder, the Jamabandi created in the name of the grandfather of the petitioner, namely, late Babulal Singh has been cancelled.

7. This Court, before entering into the merit of the issue, deems it fit and proper to deal with the issue of maintainability of the writ petition on the ground of availability of alternative remedy, as has been raised on behalf of the respondent-State of Jharkhand.

8. There is no dispute about the settled position of law that the writ Court on the ground of availability of statutory alternative remedy, is not supposed to exercise the extra-ordinary jurisdiction under Article 226 of the Constitution of India but that is subject to some exception, i.e., if the decision taken by the authority is without jurisdiction, or, the order is without observance of principle of natural justice or there is miscarriage of justice due to the decision taken by the Administrative Authority, as has been held by the Hon'ble Apex Court in the case of Whirlpool Corporation Vs. Registrar of Trade Marks. Mumbai & Ors., (supra), wherein, as under paragraph-15, the following issue has been laid down, which reads as under:-

"15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not

normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field."

9. This Court has proceeded to consider the facts of the given case, as to whether, the issue which has been raised on behalf of the petitioners about absence of the statutory provision for cancellation of Jamabandi, has posed a question upon the learned State Counsel to refer any statutory provision which confers power upon the revenue authority to cancel the Jamabandi. Upon which, the State Counsel has fairly submitted that there is no such provision to that effect prevalent in the State of Jharkhand.

10. The issue of jurisdiction has also been considered by the Division Bench of this Court in the case of State of Jharkhand & Ors. Vrs. Izhar Hussain passed in L.P.A. No.786 of 2018 on 05.11.2020, wherein, it has been held that long running Jamabandi cannot be cancelled in absence of any power conferred by statute upon any of the revenue officer, save and except, by filing a suit before the competent court of civil jurisdiction.

Further, it has been held therein that in the State of Jharkhand, there is no provision to cancel the Jamabandi. Further, such power cannot be allowed to be exercised by resorting to the provision of Bihar Tenants Holdings (Maintenance of Records) Act, 1973, as would appear from paragraph-19 of the aforesaid judgment, the relevant paragraph of the judgment reads as under:-

".... ..... It is further settled position of law that Jamabandi once created cannot be annulled. Herein it is admitted fact that Jamabandi can be created

under the provisions of Bihar Tenants Holdings (Maintenance of Records) Act, 1973. We have gone across the provisions thereof, as contained in the Act, 1973 and have found that no provision confer upon any authority of the State to cancel the Jamabandi.

The question would be that in absence of any power conferred by Statute upon any of the revenue authority can Jamabandi be cancelled. The answer of this question would be in negative as statute confers power upon the authority and the authority can purportedly exercise the power conferred upon it under the statutory power and if any decision is taken in absence of any provision the same would be said to be nullity in the eye of law when found to be without jurisdiction..... ....."

11. It has been informed to this Court that the order passed by the Division Bench of this Court in L.P.A. No.786 of 2018 has been affirmed by the Hon'ble Apex Court in an order passed in S.L.P. No.8108 of 2021 on 06.07.2021, therefore, the order passed by the Division Bench of this Court in L.P.A. No.786 of 2018 has attained its finality.

12. Therefore, in view of the ratio laid down by this Court in L.P.A. No.786 of 2018, wherein, it has been observed that there is no provision prevalent in the State of Jharkhand for cancellation of Jamabandi. Further, the power cannot be exercised to cancel the Jamabandi by resorting to the provision of Bihar Tenants Holdings (Maintenance of Records) Act, 1973, therefore, it is not in dispute that there is no provision in the State of Jharkhand to cancel the Jamabandi and as such, the learned State Counsel has rightly accepted the aforesaid position.

Since, there is no provision to cancel the Jamabandi prevalent in the State of Jharkhand, the question arises, herein, as to under what authority of law, the Deputy Commissioner concerned has passed the impugned order dated 24.05.2013 by cancelling the Jamabandi.

13. There is no dispute about the settled position of law that if the order is being passed without any authority of law, the same will be said to suffer from jurisdictional error and once the order suffers from jurisdictional error, it goes to the root of the issue and the entire decision will be said to be void ab-initio, as has been held by the Hon'ble Apex Court in the case of Balvant N. Viswamitra and Ors. Vrs. Yadav Sadashiv Mule (D), reported in (2004) 8 SCC 706, wherein, at paragraph-9, it has been held which reads as under:-

"9.The main question which arises for our consideration is whether the decree passed by the trial court can be said to be "null" and "void". In our opinion, the law on the point is well settled. The distinction between a decree which is void and a decree which is wrong, incorrect, irregular or not in accordance with law cannot be overlooked or ignored. Where a court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction, non est and void ab initio. A defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no jurisdiction is a nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings."

(Own emphasis)

14. Hence, according to the considered view of this Court that the order passed by the Deputy Commissioner is considered to be passed without any authority of law and as such, it is bad in the eye of law due to want of jurisdiction and once the order is without jurisdiction, the writ petition can well be maintainable, as per the decision

rendered by the Hon'ble Apex Court in the case of Whirlpool Corporation Vs. Registrar of Trade Marks. Mumbai & Ors., (supra).

15. In view thereof and as per the discussion made hereinabove, this Court is of the view that the issue of maintainability, as has been raised on behalf of the respondent-State is not worth to be considered, accordingly, rejected.

16. This Court, after coming to the conclusion about the impugned order having been passed by the Deputy Commissioner without any authority of law, is of the view that the said order is not sustainable in the eye of law.

17. Accordingly, the order dated 24.05.2013 passed in Jamabandi Cancellation Case No.87/2011-12 is hereby quashed and set aside.

18. In the result, the instant petition stands allowed.

19. It is left open upon the respondent-State to approach before the competent court of civil jurisdiction, if the State so wishes, for declaration of right and title/cancellation of Jamabandi.