Jharkhand High Court
Nirmal Kumar Singh vs The State Of Jharkhand on 11 July, 2022
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 3907 of 2013
Nirmal Kumar Singh, son of late Sudhanshu Shekhar Singh, resident of-
Maheshpur Raj, P.S. Maheshpur, District-Pakur ....... Petitioner
Versus
1.The State of Jharkhand.
2.The Lands Reforms Deputy Collector, Pakur
3.Circle Officer, Maheshpur, District-Pakur.
4.Smt. Bandana Singh, wife of late Tarun kumar Singh, resident of-
Landsdown Road, Kolkata (West Bengal). .... Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioners : Mr. Rajeeva Sharma, Sr. Advocate
: Mr. Om Prakash, Advocate
For the State : Mr. Sudhanshu Kumar Singh, A.C to S.C-III
For the Resp. No.4 : Mr. Dilip Kumar Prasad, Advocate
: Mrs. Nitu Sinha, Advocate
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th
06/Dated: 11 July, 2022
1. This writ petition is under Article 226 of the Constitution of India,
wherein, the order dated 21.01.2013 passed by Deputy Collector Land
Reforms (D.C.L.R), respondent no.2, in Mutation Appeal No.03/2012-13
has been questioned, by which, while allowing the appeal of the respondent
no.4 directed mutation of land for Plot Nos. 09 and 10 (total area 10 Bighas,
17 Dhurs) of Mouza-Aanapur, Thana No.246, as against the claim of the
private respondent for mutation of only 6 Bigha 1 Katha and 9 Dhurs out of
given plot Nos.9, 10, 38 and 39 belonging to separate Jamabandi Nos.17, 8
and 4 belonging to the separate recorded tenants, namely, Lal Mohan Singh,
grandfather of the petitioner. With a direction upon the Circle Officer to
mutate the lands.
2. Mr. Rajeeva Sharma, learned senior counsel appearing for the
petitioner, before entering into the merit of the case has submitted by
referring to the impugned order that the same, according to him, has been
passed without providing an opportunity of hearing.
According to him, in order to substantiate the fact that the order
impugned has been passed without providing an opportunity of hearing,
entire order sheet has been appended to the writ petition, wherefrom, it is
evident that the last date fixed, before passing of the impugned order, i.e.
26.11.2012, on the date, although, the applicant (respondent no.4 herein)
was absent but the opposite party (writ petitioner) was present. The authority
has referred in the said order that court record is available and as such
passed an order to keep the same on record and posted the matter on
28.12.2012 but, the impugned order has been passed on 21.01.2013,
therefore, it is not in dispute, after going through the order dated 26.11.2012
that the matter was posted on 28.12.2012 but there is no order on the date,
rather, the order has been passed finally on 21.01.2013 and hence the final
order has been passed without providing an opportunity, since, no date for
hearing was fixed.
3. Mr. Dilip Kumar Prasad, learned counsel appearing for the private
respondent as also Mr. Sudhanshu Kumar Singh, learned A.C. to S.C-III are
fair enough to say that what has been brought on record, i.e., the order sheet
cannot be disputed.
4. This Court has heard the learned counsel for the parties and perused
the document available on record.
The fact leading to the writ petitioner to file this writ petition by
invoking the extraordinary jurisdiction conferred to this Court under Article
226 is concerned that an order of mutation has been passed in favour of the
writ petitioner, by the concerned Circle Officer, in exercise of power
conferred under Section 14 of the Bihar (Maintenance of Record, Act) 1973
(herein after referred to as the 'Act, 1973) with respect to the land in
question. The private respondent, being admitted the said order of creating
mutation in favour of the petitioner, has preferred an appeal, by invoking the
jurisdiction conferred under Section 15 of the Act, 1973, by approaching the
Deputy Collector Land Reforms, which was registered as Mutation Appeal
No.03/2012-13.
It is apparent from the order sheet, as has been appended as
Annexure-4 to the paper book, that the matter was proceeded and in
pursuance to the notice issued, the petitioner has appeared. The appellate
authority has called upon the original record, by which, the order of
mutation has been passed in favour of the writ petitioner. The matter
proceeded finally, as would appear from the order dated 26.11.2012, the
entire record of office of the Circle Officer, by which, the order of mutation
was passed, has been received before the appellate authority, which has been
directed to be taken on record and the matter has been posted on 28.12.2012.
It further appears from the aforesaid order sheet that thereafter no date
has been fixed for hearing the matter, rather, the final order has been passed
on 21.01.2013.
The aforesaid fact, has not been disputed, either by the private
respondent or by the respondent-State, since, they have filed counter
affidavit, i.e., counter affidavit filed on behalf of respondent no.4 on
25.10.2013 and counter affidavit filed on behalf of respondent nos.2 and 3
on 17.12.2013 but there is no denial to that fact.
5. This Court, in view of the aforesaid admitted fact and taking into
consideration the entire order sheet pertaining to the appeal in question, is of
the view that the appellate authority, although, has received the original
record from the office of the Circle Officer and directed it to keep on record
and the matter was posted on 28.12.2012 but there is no order on
28.12.2012, rather, final order has been passed on 21.01.2013, meaning
thereby, the Deputy Collector Land Reforms, in a highly arbitrary and illegal
manner, without enlistment of the case on 28.12.2012 has passed final order,
which does to suggest that the petitioner has not been provided an
opportunity of hearing.
6. However, Mr. D. K. Prasad, learned counsel appearing for the private
respondent, has raised the issue of maintainability of writ petition on the
ground of availability of alternative remedy of revision as provided under
Section 16 of the Act, 1973.
7. This Court has considered the aforesaid submission and is discarding
the same, on the ground that the maintainability of the writ petition on the
ground of availability of alternative remedy is self-imposed restriction of the
High Court in exercising the power conferred under Article 226 of the
Constitution of India and that is to be dealt with by the High Court,
depending upon the facts and circumstances of the case, i.e., if any violation
of principle of natural justice or the order passed by the authority which has
no jurisdiction or there is miscarriage of justice, as has been held by Hon'ble
Apex Court in the case of Whirlpool Corporation vs. Registrar of Trade
Marks, Mumbai and others reported in (1998) 8 SCC 1.
This Court, on the basis of the legal position as settled by Hon'ble
Apex Court in the aforesaid judgment and applying the same in the given
facts of the case, is of the considered view that herein also the petitioner has
not been provided an opportunity of hearing, since, Deputy Collector Land
Reforms, the appellate authority has fixed the case on 28.12.2012, but,
without enlistment of the case on 28.12.2012, the final order has been
passed.
Further it appears from the entire order sheet that there is no reference
of any hearing has been provided to the petitioner and as such it is a case
where the principle of natural justice has not been followed and not only that
the Deputy Collector Land Reforms, who has been conferred with the power
to exercise the statutory jurisdiction, i.e., to exercise the power of appeal, in
view of the provision of Section 15 of the Act, 1973, it is not expected to act
like this in exercising the quasi-judicial function.
8. It is settled position of law that when an Act confers power upon an
authority to exercise the quasi-judicial power, such authority is required to
deal with the issue strictly in accordance with law, i.e., after calling upon the
record, if the authority concerned is exercising the power of appeal or
revision and after delving upon the issue raised before such authority and
after giving a cogent finding either discarding or accepting, but, it does not
appear that the concerned authority, i.e., the Deputy Collector Land Reforms
has performed its duty as conferred to him under the statute.
9. Therefore, the order impugned, is required to be interfered with by
issuing writ of certiorari.
Accordingly, the order dated 21.01.2013 is quashed and set aside.
In consequence thereof, the Mutation Appeal No.03/2012-13 is
restored to its original file. The Appellate Authority is directed to pass order
afresh after providing an opportunity of hearing to the parties, within a
reasonable period of eight weeks from the date of receipt of copy of the
order.
10. This Court, considering the fact that the Deputy Collector Land
Reforms has misutilized the official position, since, the concerned authority
has failed to discharge his statutory duty, therefore, the same is required to
be dealt with by the concerned department.
11. Accordingly, the Additional Chief Secretary, Department of Revenue,
Registration and Land Reforms, is directed to take appropriate action against
the authority who has passed the order on 21.01.2013 in the capacity of
Deputy Collector Land Reforms.
12. Accordingly, the writ petition stands disposed of.
(Sujit Narayan Prasad, J.)
Saket/-
