Suresh Kumar Tewari vs The State Of Jharkhand & Ors
2022 Latest Caselaw 4382 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                            (Civil Writ Jurisdiction)
                              WP(C) No. 1646 of 2018
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1. Suresh Kumar Tewari

2. Naresh Kumar Tewari

3. Anil Kumar Tewari

4. Ajay Tewari

5. Arwind Tewari ...... ...... Petitioners Versus The State of Jharkhand & Ors. ...... ...... Respondents

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CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO

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For the Petitioners : Mr. Prabhat Kumar Sinha, Advocate Ms. Kumari Ranjna Singh, Advocate For the Respondents-State : Mr. Anuj Barman, AC to Mr. Mithilesh Singh, GA-IV

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The matter is being taken up through Video Conferencing. Learned counsel for the parties have no objection with it and submitted that audio and video qualities are good. Order No. 09/Dated: 03rd November, 2022 Heard, Mr. Prabhat Kumar Sinha, learned counsel for the petitioner assisted by Ms. Kumari Ranjna Singh, learned counsel and Mr. Anuj Barman, AC to Mr. Mithilesh Singh, learned GA-IV appearing for the respondents-State.

2. The instant writ petition has been filed by the petitioners for a direction upon the respondent authorities to accept the land revenue from 1988-89 till today and issue rent receipt with respect to the land situated at Mouza Hesalong, Thana Mandu, Thana No.41, Tauzi No.28, Khata No.66, Plot Nos.1342, 1351, 1846, 458, 459, 1343, 1344, 1345, 1346, 1347, 1348 and 55 total area 16 acres 18.5 decimals recorded in Register-II in the name of Champa Devi and Subhashani Devi of Khata No. 66, Plot Nos. 1563, 1555, total area 3 acres and 26.5 decimals, which were acquired by above named persons by two Hukumnama dated 26.12.1944.

3. Learned counsel for the petitioners has submitted, that after settlement of the aforesaid land said Champa Devi and Suhashini Devi came in possession of the land in question and started paying rent to the ex- landlord and subsequently after vesting of Zamindari to the State of Bihar till 1986-87 but due to paucity of time the rent could not be paid though the name of their ancestors has been shown in Register-II online, even then

respondents are not issuing the rent receipt to the petitioners only because some political persons, who have rivalry with the petitioners, have made an objection before the Circle Officer, Dari Circle, Hazaribag for not granting rent receipt and on the basis of such objection, the Circle Officer, Dari Circle, Hazaribag has initiated a doubtful jamabandi cancellation case, which was referred through proper channel to the Deputy Commissioner, Hazaribag for passing an appropriate order. The Deputy Commissioner, Hazaribag instituted a Doubtful Zamabandi Cancellation Case No. 09 of 2017, whereby in terms of order dated 24.12.2017, the Deputy Commissioner, Hazaribag has cancelled the Zamabandi of the aforesaid land.

4. To buttress his argument, learned counsel for the petitioners has submitted, that several persons, whose lands are situated in Khata No.66 of the said Mouza are being granted rent receipts and their Zamabandi have never been considered to be doubtful and no proceeding for cancellation has been initiated against them with respect to Khata No.66 of Mouza Hesalong, PS Mandu, Thana No.41, Touzi No.28, District Hazaribag but with respect to the land of the petitioners of Khata No.66, Thana No.41, area 3.26 ½ acres at Village Hesalong, which is running in the Register-II at page No.339/1 and area of 16.18 ½ acre of Khata No.66 running in Register-II at page No.10/3, total area of 19.5 acre, which is Gairmazarua khas land, the record has been sent to the office of the Commissioner, North Chotanagpur Division, Hazaribag.

5. Though, recently the Additional Chief Secretary, Revenue, Registration and Land Reforms Department, Government of Jharkhand has filed affidavit in WP(C) No.3552 of 2014 whereby State has clarified that Gairmazarua Aam land is State land and Gairmazarua Khas or Malik land is not the land of the State.

6. Learned counsel for the petitioners has further submitted, that a long standing jamabandi cannot be cancelled in a summary proceeding as it has held by a Co-ordinate Bench of this Court in the case of "Dilip Kumar Mahto v. State of Bihar & Ors." reported in 2001 SCC Online Jhar 310 / (2001) 1 JLJR 75(HC), the relevant paragraph No.4 where the Co-ordinate Bench has considered as follows:

"4. ............ In such circumstances the revisional authority was not justified in passing impugned order of

cancellation of Zamabandi running in the name of the petitioner. At best, Revisional Authority could have asked the respondents to go to the Civil Court for adjudication of their title and possession. It is well settled that Zamabandi running in the name of the particular person for several years cannot be cancelled at the instance of the claimant in summary proceeding. The proper course, for the claimant is to move to Civil Court of competent jurisdiction for proper relief. In this connection reliance may be placed on two Division Bench judgments in the case of "Harihar Singh v. Addl. Collector (1978 BBCJ-

323)" and in the case "Jamaluddin Ahmad v. S.D.O., Khagaria (1979 BBCJ-605)".

7. Learned counsel for the petitioners has also placed reliance upon the judgment passed by the Hon'ble Division Bench of this Court, affirmed by the Hon'ble Apex Court in the case of "The State of Jharkhand & Ors. v. Chancla Devi" passed in LPA No. 142 of 2010 and in the case of "The State of Jharkhand & Ors. v. Dineshwar Prasad" passed in LPA No. 307 of 2009 reported in (2018) 2 JCR 486 (Jhr.) and 2018 (1) JBCJ 584.

8. Learned counsel for the petitioners has further submitted, that similar view has been taken by this Court in the case of "Izhar Hussain v. State of Jharkhand & Ors." passed in WP(C) No. 593 of 2017 reported in (2018) SCC Online Jhar 787, affirmed by the Hon'ble Division Bench of this Court in the case of "The State of Jharkhand & Ors. v. Izhar Hussain" passed in LPA No. 786 of 2018 and the same has also been affirmed by the Hon'ble Apex Court in SLP No. 8108 of 2021 (State of Jharkhand & Ors. v. Izhar Hussain) in terms of order dated 06.07.2021.

9. Learned counsel for the petitioners has further submitted, that in the case of "Muslim @ Md. Muslim Ansari v. State of Jharkhand & Ors." the same view has been considered by a Co-ordinate Bench of this Court in WP(C) No.1119 of 2006, affirmed by the Hon'ble Division Bench of this Court in LPA No. 474 of 2006, which was affirmed by the Hon'ble Apex Court in SLP (Cvl.) No. 8279 of 2009, vide judgment dated 11.05.2009, learned counsel for the petitioners has thus submitted that it is settled principle of law in absence of any specific provisions of law regarding cancellation of jamabandi in Bihar/ Jharkhand Tenant's Holdings (Maintenance of Records) Act, 1973, the Revenue Authority cannot cancel the Jamabandi rather have to file suit before Civil Court as referred above in the case of "Dilip Kumar Mahto" (supra).

10. Mr. Anuj Barman, AC to Mr. Mithilesh Singh, learned GA-IV appearing on behalf of the respondents-State has submitted, that counter affidavit has been already been filed in this case on 08.09.2022 by Mr. Vinod Kumar, District Land Acquisition Officer, Hazaribag, son of Lt. Lakshman Prasad, R/o Hazaribag, PO Sadar, PS Muffasil, District Hazaribag placing reliance upon the judgment passed by the Hon'ble Division Bench of this Court in the case of "Lekho Prasad @ Lekho Prasad Chouhan @ Lekho Beldar v. the State of Jharkhand & Ors." in LPA No.525 of 2014 with LPA No. 540 of 2014.

11. Learned counsel for the respondents-State has further submitted, that the Division Bench of this Court in the case of "Lekho Prasad" (supra) has held at paragraph No.12 (vi), which reads as under:

"12 (vi)Once the fraud is alleged by the State for creation of Jamabandi in favour of the private parties upon the Government land the best remedy available with the private parties is to approach the competent civil court for claiming the title upon the property in question instead of writ petition under Article 226 of the Constitution of India, so that the title upon the property can be established by cogent and convincing evidences."

12. In reply, Mr. Prabhat Kumar Sinha, learned counsel for the petitioners has submitted, that the Hon'ble Division Bench has not followed the other judgments of the Division Bench as referred above and it is only on the basis that once the fraud is alleged by the State in the case of "Dilip Kumar Mahto" (supra) it has been held by a Co-ordinate Bench of this Court that it is well settled that jamabandi running in the name of particular person for several years cannot be cancelled at the instance of the claimant in summary proceeding. The proper course of the claimant is to move to Civil Court of competent jurisdiction for proper relief. The reliance has been placed in the case of "Harihar Singh v. Addl. Collector" (1978 BBCJ-323) and in the case of "Jamaluddin Ahmad v. S.D.O., Khagaria" (1979 BBCJ-

605), these judgments specifies that once a jamabandi has been created and rent receipt has been issued for a long time, the course of action for the State is to go for civil suit not in a summary proceeding.

13. Learned counsel for the petitioners has further submitted, that in a fanciful manner, the State has considered the petitioners as the persons having jamabandi in their name and granted rent receipts up to 1986-87 but subsequently they have initiated a Doubtful Cancellation Jamabandi Case

No. 09 of 2017 only on the basis of allegation with proving the ingredients of fraud or taking legal action against erring officer. Mr. Sinha, learned counsel has placed reliance upon the judgment passed by the Hon'ble Apex Court in the case of "Bishundeo Narain & Anr. v. Seogeni Rai & Ors." reported in AIR (38) 1951 Supreme Court 280. Relevant paragraph No.25, which reads as under:

"25. It is also to be observed that no proper particulars have been furnished. Now if there is one rule which is better established than any other, it is that in cases of fraud undue influence & occasion, the parties pleading it must set forth full particulars & the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any Ct. ought to take notice, however strong the language in which they are couched may be, & the same applies to undue influence & coercion. See O.6, R.4, Civil P.C."

14. Learned counsel for the petitioners has further submitted, that if such law is allowed to prevail, then any jamabandi, which is running since independence or prior to the independence is at the verge of whims and fancies of the revenue authority by alleging and initiating a cancellation proceeding. The entire law, which has been affirmed by the Hon'ble Apex Court in the cases of "Izhar Hussain" (supra), "Chancla Devi" (supra) and "Muslim Ansari" (supra) became redundant for this purpose.

15. Learned counsel petitioners has thus submitted, that though the State can rely upon the judgment but it is duty of the State to consider the judgment passed by the Hon'ble Apex Court because the officers are assisted by the Department of Law in the State of Jharkhand, where Senior Judicial Officers are posted as Law Secretary and Additional Law Secretary to assist them but they are not taking their help and they are working as per their whims, as such, this issue is required to be settled before this Court that whether only a allegation of fraud is sufficient to initiate a proceeding for cancellation of long standing jamabandi or the proof of fraud is necessary with action against erring officer, who does so against the interest of the State. Learned counsel for the petitioner thus submitted that the action taken against the erring officer for committing such fraud be brought on record for initiating a doubtful cancellation jamabandi in such type of cases.

16. Learned counsel for the petitioners has further submitted, that once a jamabandi is running for a long time, it cannot be cancelled without

declaration by the competent civil court even fraud has been alleged by the State. It is the duty of the State to file a suit and declare the earlier order passed by the Circle Officer or DCLR or Additional Collector or Collector or any Revenue Authority passed under Bihar/ Jharkhand Tenant's Holdings (Maintenance of Records) Act, 1973 to be result of fraud. Unless the same is done, the initiation of cancellation proceeding is itself bad in law as there is no specific provision for cancellation under the Bihar/ Jharkhand Tenant's Holdings (Maintenance of Records) Act, 1973 or any specific act for the same.

17. Upon which, Mr. Anuj Barman, learned counsel for the respondents-State has submitted, that since there are contrary judgments of the Division Bench of this Court, as such, this Court may pass necessary order.

18. Mr. Prabhat Kumar Sinha, learned counsel for the petitioners has placed reliance upon the judgment passed by the Hon'ble Division Bench of thisCourt in the case of "The State of Jharkhand & Ors. Vs. Izhar Hussain" passed in LPA No. 786 of 2018 and analogous cases. Paragraph No.19 of which reads as under:

"19. ...... ....... .......

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. (Emphasis Supplied)"

19. Learned counsel for the petitioners has thus submitted, that in absence of any provision under the Bihar/ Jharkhand Tenant's Holdings (Maintenance of Records) Act, 1973, a State cannot initiate a doubtful cancellation jamabandi proceeding, which is nonest in the eyes of law.

20. It appears that the judgment passed by the Hon'ble Division Bench in the case of "Lekho Prasad" (supra) has never considered this aspect of the matter and thus such judgment has been passed, which is

contrary to the judgment passed by the Hon'ble Division Bench of this Court, affirmed by the Hon'ble Apex Court as referred above.

21. Under such circumstances, let the matter be referred before Hon'ble the Chief Justice for considering all the judgments referred above in view of the finding recorded in paragraph No.12(vi) in the case of "Lekho Prasad" (supra) judgment, so as to take a uniform and consistent view in this matter as it is contrary to the judgment of other Division Bench.

22. The Registrar General of this Court is directed to place the file before the Hon'ble Chief Justice so as to consider the same and place it before a larger Bench on these issues, if so consider.

23. Parties are at liberty to mention this case before the Hon'ble Chief Justice for listing of the case so as to settle the dispute arising out of two judgments of Hon'ble Division Bench as referred above so as to have a consistent view.

(Kailash Prasad Deo, J.) Madhav/-