The State Of Jharkhand vs The Consultants Cooperative Swablambi ...
2024 Latest Caselaw 4871 Jhar

Jharkhand High Court

The State Of Jharkhand vs The Consultants Cooperative Swablambi ... on 6 May, 2024

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  L.P.A. No. 266 of 2022
                                     -----
1. The State of Jharkhand
2. The Deputy Commissioner, Ranchi, P.O. G.P.O., P.S. Sadar,
    District Ranchi
3. The Additional Collector, Ranchi, P.O. G.P.O., P.S. Sadar,
    District Ranchi
4. The Deputy Collector Land Reforms, Sadar, Ranchi 1, P.O.
    G.P.O., P.S. Sadar, District Ranchi
5. The Sub-Divisional Officer, Ranchi P.O. G.P.O., P.S. Sadar,
    District Ranchi
6. The Circle Officer, Kanke, Ranchi, P.O. Kanke, P.S. Gonda,
    District Ranchi                        ... ...     ...    Appellants
                                 Versus
   The Consultants Cooperative Swablambi Housing Society Limited,
   a registered society under the Self Supporting Societies Act, 1996
   formerly known as the Consultants Cooperative Housing
   Construction Society Limited having its office at Mecon Limited,
   Doranda, Ranchi - 2 through its Chairman, Devendra Kumar
   Singh, son of Late Madan Mohan Singh, resident of Saket Nagar,
   Hinoo, Ranchi - 2, P.O., P.S. Doranda, District Ranchi
                                           ... ...     ...    Respondent
                            -------
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
            HON'BLE MR. JUSTICE ARUN KUMAR RAI
                                  -------
For the Appellants          : Mr. Ashutosh Anand, AAG - III
                            : Mr. Sharad Kaushal, AC to AAG - III
For the Respondent          : Mrs. Rashmi Kumar, Advocate
                                      ------
Order No. 19/Dated 06th May, 2024

Per Sujit Narayan Prasad, J.:

1. The instant intra-court appeal is under Clause - 10 of Letters Patent directed against the order/judgment dated 14.03.2022 passed by the learned Single Judge of this Court in W.P.(C) No. 4276 of 2010, whereby and whereunder, the order dated 13.07.2007 passed by the Circle Officer, Kanke, Ranchi in Misc. Case No. 02 of 2007-08 has been quashed and set aside by which the Circle Officer has recommended for cancellation of Jamabandi running in the name of petitioner-society with respect

Page 1 to the lands measuring an area of 11.49 acres out of Plot Nos. 3737, 3728 and 3727 of Khata Nos. 365 situated at Mauza Simalia, P.S. Ratu, District - Ranchi.

Factual Matrix: -

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

The land measuring an Area 111/68 Acres of Khewat No.19/2 situated at Village- Simalia, P.S.- Ratu, District- Ranchi was owned and possessed by Syed Shahadulla Shah and the same has been acquired on account of auction purchase dated 19.11.1895 and 18.03.1904 respectively which is evident from the entries made in remarks column of Khewat of the said village, which has been brought on record as Annexure-1 to the writ petition.

The said Syed Shahdulla Shah remained in possession of the land so long alive and after his death, there was a partition suit being Partition Suit No. 91 of 1948 amongst the family members of Syed Shahdulla Shah and in the said partition suit, Syed Multan Shah and Syed Sultan Shah both sons of Syed Shahdulla Shah got 9 (nine) Annas (9/16th) share in the aforementioned lands.

The said suit was decreed and the Pleader Commissioner submitted his report and possession was duly given and Sk. Najib and other have also got possession of 6 (six) Annas share. The report of the Pleader Commissioner's has also clarified the possession of the land.

Further that the Ex. Landlord had submitted ‗M' Form establishing the fact that Sk. Najib and others were in possession of the lands allotted in their share. The said form 'M' has been

Page 2 brought on record by way of Annexure-3 appended to the writ petition.

Further, the land of R.S. Khata No. 365, Plot No. 3737, area 1.50 acres being sub plot no. 3737/1, situated at Village- Simalia, P. S. - Ratu, District- Ranchi have been purchased by the Consultant Cooperative House Construction Society Limited, Mecon Ranchi from Sheikh Alaudin, Sheikh Gafoor and Sheikh Surmali, all sons of Sheikh Niyamat by virtue of registered deed of sale dated 07.12.1991 being Deed No. 12261 for valuable consideration.

The society came into possession and is still continuing in possession. The said society after purchase got its name mutated vide Mutation Case No. 260 R 27/1993-94, against which, no appeal had ever been preferred.

The society had also purchased 1.50 acres of land being portion of R. S. Plot No. 3737 marked as sub plot 3737/G of Khata No. 365 of the said village from Sheikh Alimuddin, Sheikh Umer Ali, Sheikh Sobrati and Sheikh Mohammad, all sons of late Sheikh Jamir by virtue of registered deed of sale dated 07.12.1991 being deed no. 12218 and came in possession. The mutation case was also filed for getting the name mutated in the revenue records being Mutation Case No. 261R 27 of 1993- 94. The order was passed by the Circle Officer against which no appeal was preferred.

The petitioner's society had also purchased 1.50 acres of land being portion of R.S., Plot No. 3737 marked as sub plot no. 3737/C of khata No. 365 of the said village from Anand Hazam son of Late Ajinath Hazam by virtue of registered deed of sale dated 07.12.1991 being deed No. 12215/ deed of rectification dated 13.03.1992 being deed No. 2317 for valuable consideration and came into possession of the same. The society got its name

Page 3 mutated vide mutation case No. 262R 27/1993- 94, against which, no appeal had ever been preferred.

Likewise, the petitioner's society also purchased 1.50 acres of land being portion of R. S. Plot No. 3737 marked as sub plot no. 3737/D of khata No. 365 of the said village from Sheikh Akbar son of Late Sheikh Badu by virtue of registered deed of sale dated 07.12.1991 being deed no. 12211 for valuable consideration and came into possession of the same and is still continuing in possession. The society got its name mutated vide mutation case No. 263 R 27 of 1993- 94.

The petitioner's society also purchased 1.50 acres of land being portion of R.S. Plot No. 3737 marked as sub plot No. 3737/F of Khata No. 365 of the said village from Sheikh Nazib son of late Sheikh Badu by virtue of registered deed of sale dated 07.12.1991 being deed No. 12210 for valuable consideration and came into possession of the same and is still Continuing in possession. The society got its name mutated vide Mutation case No. 264 R 27 of 1993-94 in the Anchal Office, Kanke.

The petitioner's society also purchased 1.50 acres of land being portion of R. S. Plot No. 3737 marked as sub plot no. 3737/E of Khata no. 365 of the said village from Digambar Paramanik, Narayan Pramanik and Naresh Pramanik sons of late Bhikhari Hazam by virtue of registered deed of sale dated 07.12.1991 being deed no. 12213 for valuable consideration and came into possession. The society got its mutated vide Mutation case No. 265 R 27/1993- 94 in the Anchal Office, Kanke.

The petitioner's society also purchased 0.52 acres of land being portion of R. S. Plot No. 3737 of khata No. 365 and 0.98 acres of land being portion of R. S. Plot No. 3728 of khata No. 353 of the said village from Lattu Mahto son of Late Bal Govind Mahto, Mahendra Mahto son of late Karma Mahto and Mahadhan Mahto

Page 4 son of late Tirtu Mahto by virtue of registered deed of sale dated 07.12.1991 being deed No.12212 for valuable consideration and came into possession of the same and is still continuing in possession. The society got its name mutated vide Mutation case No. 266 R 27/1993-94.

The petitioner's society also purchased 1.50 acres of land being portion of R. S. Plot No. 3737 marked as sub plot no. 3737/H of khata no. 365 of the said village from Sheikh Imam Ali son of Late Sheikh Kailu by virtue deed no. 12214 for valuable consideration and came into possession of the same and is still continuing in possession. The society got its mutated vide mutation case No. 267 R 27/1993-94.

The petitioner's society also purchased 0.37 acres of land being portion of R. S. Plot no. 3737 marked as sub plot no. 3737/K of khata No. 365 besides others land of the said village from Sheikh Jummauddin and Sheikh Niyazuddin sons of late Sheikh Akbar by virtue of registered deed of sale dated 26.04.1993 being deed no. 3629 for valuable consideration and came into possession of the same and is still continuing in possession. The society got its name mutated vide mutation case No. 372 R 27/ 1993-94.

The petitioner's society also purchased 0.19 acres of land being portion of R.S. Plot No. 3727 of khata No. 365 of the said village from Parku Mahto and Ramu Mahto sons of late Koka Mahto by virtue of registered deed of sale dated 07.12.1991 being deed no. 12217 for valuable consideration and came into possession of the same and is still continuing in possession. The society got its name mutated vide Mutation case No. 259 R 27 /1993 - 94.

3. Thus, the petitioner society purchased the entire 11.02 acres of land comprised within R. S Plot No. 3737 of khata No. 365, 0.19 acres comprised within R. S. Plot No. 3727 of khata no.

Page 5 365 and 0.98 acre of R. S plot no. 3728 under khata no. 365 of the said village and acquired absolute and indefeasible title and is continuing in possession since the time of purchase.

4. The petitioner society after getting the name mutated in the revenue record had requested the Circle Officer to accept the rent. But instead of its acceptance, a notice was issued by the Deputy Collector Land Reform (DCLR) Sadar, Ranchi in Miscellaneous Case No. 02 of 2007-08, asking the petitioner society to file show-cause as to why the Jamabandi be not cancelled based upon the recommendation made to that effect by the Circle Officer of the concerned circle.

5. Petitioner's society filed objection before the DCLR, Ranchi wherein it is stated that the C.O. Kanke, Ranchi by terms of order dated 13.07.2007 illegally recommended for cancellation of demand with respect to the lands measuring 11.49 acres out of plot nos. 3737, 2727 and 3728 of khata no. 365 of village-Simalia, P.S. Ratu, District-Ranchi.

6. But the D.C. L.R., Sadar, Ranchi relying upon report of the Circle Officer, Kanke, Ranchi recommended for cancellation of demand with respect to the aforementioned lands holdings that Zamabandi created in favour of the petitioner's society seems doubtful and record was sent to the Additional Collector, Ranchi for passing necessary orders. The D.C.L.R., Sadar, Ranchi by terms of order dated 14.06.2008 recommended for cancellation of demand with respect to the aforementioned lands.

7. Further, the Additional Collector, Ranchi by terms of order dated 03.07.2008 recommended for cancellation of demand with respect to the aforementioned lands relying on the report of Circle Officer, Kanke, D.C.L.R., Ranchi and Sub-Divisional Officer, Ranchi.

Page 6

8. Further, the Additional Collector, Ranchi by terms of order dated 14.07.2008 without properly considering the materials of the record and the relevant provisions of law has arbitrarily and erroneously cancelled the long running Zamabandi crated in favour of the petitioner's society.

9. The petitioner for redressal of his grievance has approached to this Court by filing writ petition being W.P.(C) No. 4276 of 2010 questioning the very jurisdiction of the concerned Officer in making recommendation for cancellation of jamabandi as also the entire proceeding initiated by the Deputy Collector Land Reform which was based upon the recommendation made by the Circle Officer of the concerned circle.

10. The State has been called upon and counter affidavit was filed wherein the ground was taken that all these transactions since it is based upon the fraudulent activities, hence making recommendation of cancellation of jamabandi by the circle officer of the concerned circle cannot said to be unjustified.

11. The learned Single Judge vide order dated 14.03.2022 had allowed the aforesaid writ petition and has observed that all revenue authorities are not following the state litigation policy and they are confused about Gairmazarua Aam and Gairmazarua Khas or Malik land and thus passing such cryptic order.

12. The appellants aggrieved with the aforesaid order has preferred the instant appeal.

Submission of the learned counsel for the appellants

13. The learned counsel for the appellant has assailed the

impugned order on the following grounds:

Page 7

(i) Parallel jamabandi in respect of the said land was also running in the name of Sk. Nazir, Sk. Akbar, Sk. Hanif, Sk.

Neyamat, Sk. Jamir; Sk. Imam Ali, and Bhirkhari Hazam and Anand Hazan, and Koka Mahto, and Nageshwar Hazam, at Page No.-752, Volume IV of the Register II.

(II) No document with regard to settlement of the gair- majurwa land or document showing rent fixation of the "Gair Mazrua Khas" land was produced by the petitioner (respondent herein) either before the LRDC, Sadar, Ranchi or before Addl. Collector, Ranchi and Deputy Commissioner.

(III) The jamabandi created in the name of Sri D.K. Singh Secretary of the said society (respondent herein) at Page No.- 174 for 11.49 Acres of land is also wrong Jamabandi has been created without deleting or deducting the old jamabandi.

14. On the aforesaid score the learned counsel for the appellants has submitted that the Learned Single Judge without taking into consideration the aforesaid fact since has dismissed the writ petition, therefore the order passed by the Learned Single Judge suffers from error.

Submission of the learned counsel for the respondent-writ petitioner.

15. Per contra of Mrs. Rashmi Kumar, respondent-writ petitioner has defended the impugned order passed by learned Single Judge on the ground that the question which has been raised by the circle officer cannot be allowed to be agitated by making recommendation for cancellation of jamabandi.

16. The contention has been raised that making recommendation for cancellation of Jamabandi is not within the domain of the Circle Officer. In absence of any power vested upon

Page 8 the Circle officer rather there is no power said to confer any jurisdiction to any other revenue authority to make recommendation for cancellation of the Jamabandi.

17. The ground has been taken that once the order has been passed by the mutating authority entering the name of the subsequent purchaser in the revenue record by the Registered II, then it is incumbent upon the State to accept the rent but instead of its acceptance, the recommendation was made for cancellation of jamabandi based upon that the Deputy Collector Land Reform has initiated a proceeding to that effect.

18. It is submitted that the learned Single Judge had appreciated these facts and based upon the same if the recommendation so made by the Circle Officer of the concerned circle recommending to cancel the Jamabandi has been quashed and set aside, the same cannot be said to suffer from an error.

Analysis

19. This Court after having heard the learned counsel for the parties had gone through the material available based upon the pleading and the findings recorded by the learned Single Judge in the impugned order.

20. The issue which has been raised by the State by filing the instant appeal challenging the order passed by the learned Single Judge that the interference shown by the learned Single Judge in the recommendation made by the Circle Office for cancellation of Jamabandi cannot be said to be just and proper. Such ground has been raised on the pretext that there is an element of fraud but the learned Single Judge has not appreciated the aforesaid fact.

21. The question, therefore, needs to be considered by this Court in this appeal as to ―whether the Circle Officer or any

Page 9 functionary of the State officer said to be revenue authority is having any power said to be vested under the statutory command enacted by the State of Jharkhand to cancel the long running jamabandi‖.

22. This court before answering the said issue needs to refer herein the basic difference in between the jamabandi and the transfer.

23. The settled possession of law in this regard is that the transfer vest title upon a person when the immovable property has been transferred under the mode of the Transfer of Property as stipulated in the Transfer of Property Act and the process of jamabandi is the subsequent to transfer after vesting of title upon a party concern.

24. It needs to refer herein that for example if the transfer of immovable property has been made in favor of person ‗A' and he sold out the said property to ‗B' then the as per the requirement for the purpose of making payment of rent which is to be accepted by State, a mutation proceeding is to be initiated by making an application by the subsequent purchaser by filling application before the Circle Officer in view of the power conferred to the Circle Officer under Section 14 of the Bihar Tenant's Holdings (Maintenance of Records) Act, 1973. If there is no objection, then the Circle Officer is duty bound to pass an order creating mutation in favour of the subsequent purchaser.

25. The further process would be in such circumstances that there will be issuance of a correction slip by entering the name of the subsequent purchaser in the registered -II, revenue record and the same is for the purpose of acceptance of the rent to be deposited by the subsequent transferee in the State exchequer.

Page 10

26. This Court is failed to understand that for what purpose the recommendation was made by the Circle Officer for cancelation of jamabandi.

27. Whether such endeavour said to be taken by the Circle Officer can be said to be applied without any application of mind for the reason that even if the jamabandi will be cancelled then the title will remain be in favour of the person concerned, in whose favour the jamabandi was running reason being that so long the transfer will not be annulled, there is no question of shifting of title in favour of the private party said to be vested upon the State Government.

28. Here, reference needs to be made of the Bihar Land Reform Act, 1950 which has been enacted with the object to end the colonial land governance system (Jamindari system) by following all intermediary (tenure holders) between the State and the tenant and brought State and tenant in direct relation. It provided for the transference to the State of the interest of the proprietors and the tenure holders in the hall of the mortgagee and lessee in such interests including interest in Trees, Forests, Fisheries, Jalka, Ferries, Hats, Bazars, Mines and Minerals. All the intermediary interest, except Mundari Khutkattari tenancy and the Bhuihari tenure vested in the State.

29. The salient features of the Act came for detailed discussion before the Hon'ble Apex Court in the case of Gurucharan Singh v. Kamla Singh reported in (1976) 2 SCC 152, wherein, the Hon'ble Apex Court while discussing the object and scope has been pleased to observe that although there is a blanket vesting of proprietorship in all the lands in the State, the legislation is careful, in the initial stage of agrarian reform, not be deprivatory of the cultivating possession of those who have been

Page 11 tilling the land for long, therefore, while the consequence of vesting is stated to be an annihilation of all interested encumbrances and the Collector, in the land, certain special categories of rights are save, thus, the Raiyats and under- Raiyats are not dispossessed and their rights are preserved.

30. It has further been observed that the purpose and the purport of the provision is to allow the large land holders to keep the small areas, which may be designated as the private or the privileged or the mortgaged lands, traditionally held directly and occasionally made over law to others, often servant or others in the shape or of lease or mortgaged.

31. Thus, the provision has been made in the said Act under Section 4(h), which provides that the Collector shall have power to make inquiry in respect of any transfer including the settlement or lease of any land comprised in such Estate or tenure or the transfer of any kind of interest in any building, used primarily as office or Kutchery for the collection of rent of such Estate or tenure or part thereof and if he is satisfied that such transfer was made at any time after the 01st day of January, 1946, with the object of defeating any provisions of this Act or causing loss to the State, he may after giving notice to the parties annul such transfer, dispossess from the possession, claiming it and take possession of such property.

32. While doing so, a cutoff date has been fixed as 01.01.1946 meaning thereby prior if the land has been settled by the ex- landlord in favour of any settlement prior to 01.01.1946, the same will be outside the purview of the enquiry said to be conducted in view of the provision of Section 4(h) of Bihar Land Reform Act, 1950 by the Deputy Commissioner.

33. For ready reference Section 4(h) of the Bihar Land Reform Act, 1950 is being referred as under:-

Page 12 "4.(h) The Collector shall have power to make inquiries in respect of any transfer including the settlement or lease of any land comprised in such estate or tenure or the transfer of any kind of interest in any building used primarily as office or cutchery for the collection of rent of such estate or tenure or part thereof, [* * *] and if he is satisfied that such transfer was made [at any time after the first day of January, 1946, with the object of defeating any provisions of this Act or causing loss to the State or obtaining higher compensation thereunder the Collector may, after giving reasonable notice to the parties concerned to appear and be heard [* * *] annul such transfer, dispossess the person claiming under it and take possession of such property on such terms as may appear to the Collector to be fair and equitable:] [Provided that an appeal against an order of the Collector under this clause if preferred within sixty days of such order, shall lie to the prescribed authority not below the rank of the Collector of a district who shall dispose of the same according to the prescribed procedure:] Provided further that no order annulling a transfer shall take effect nor shall possession be taken in pursuance of it unless such an order has been confirmed by the State Government.]"

34. It appears from the Section 4(h) of the Bihar Land Reform Act, 1950 that the power has been conferred for annulment of transfer and there is no other power that is to cancel the Jamabandi.

35. Thus, it is evident that the jamabandi cannot be cancelled under Section 4(h) of the Bihar Land Reform Act, 1950, since, there is difference in between creation of jamabandi and annulment of transfer.

36. It is pertinent to mention here that in the case of The State of Jharkhand v. Izhar Hussain (L.P.A No. 786 of 2018), the co- ordinate Division Bench of this court has framed one of the legal issues as to whether Jamabandi created in favour of any raiyat can be cancelled under the provision of Section 4(h) of the Bihar Land Reforms Act and after referring the relevant provisions of the Act, 1950, has held as under:--

Page 13 "19. --------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. It is further settled that long running Jamabandi cannot be cancelled, save and except by filing a suit before the competent Court of Civil Jurisdiction, --.

37. From the aforesaid order it is evident that long running Jamabandi cannot be cancelled, save and except by filing a suit before the competent Court of Civil Jurisdiction.

38. The aforesaid judgment of Division Bench of this Court has been travelled up to Hon'ble Apex Court by way of special leave petition being SLP (Civil) 8108 of 2021 wherein the view as taken by the Division bench of this Court has been affirmed by the Hon'ble Apex Court by dismissing the said appeal.

39. In the said case that the proceeding was initiated under Section 4(h) for cancellation of jamabandi. But the Co-ordinate Bench after going through the content of the Section 4(h) and its object has found that there is no reference of the word jamabandi said to be recommended for cancellation, rather, it is the annulment of transfer that to subject to affirmation by the State Government if the Collector will take any concerned decision in this regard after following the stipulation made in the provision of Section 4(h).

Page 14

40. In the said judgment, it has been referred that the Circle Officer is having power under the act known as Bihar Holding of Maintenance Record Act, 1973 wherein as under provision 6 and 7 the Circle Officer has been made to the custodian of all record. Section 13 is to carrying out the mutation record and section 14 is the power vested upon him to pass appropriate order for the purpose of creating mutation in favour of one or other subject to appeal under Section 15 and revision under Section 16 of the said act.

41. The Division Bench, therefore, has come to conclusion the Circle Officer under the Act, 1973 is only to act for the purpose of passing the order at the time of subsequent transfer of the landed property in favour of the subsequent purchaser for the purpose of acceptance of rent itself.

42. Adverting to the factual aspect of the present case herein also the Circle Officer has made recommendation for cancelation of jamabandi and based upon the same, the Deputy Collector Land Reform has initiated the proceeding for cancellation of jamabandi.

43. ` This Court has confronted the learned State Counsel that on what ground this appeal has been filed when the issue has already been dealt with in the case of The State of Jharkhand v. Izhar Hussain (supra) and Others.

44. The learned State counsel has submitted that there is element of fraud and by virtue of the commission of fraud if the land has been transferred, the authority can exercise such power of cancellation of jamabandi.

Page 15

45. But this Court is not impressed with such argument due to the reason who will decide the fact that there is an element of fraud.

46. Appreciation of fraudulent act based upon the appreciation of fact which can only be made by filing a suit before a competent court of civil jurisdiction and by allowing the parties concern to lead the evidence.

47. There is no quarrel with the fact that if there is specific finding of fraud then the solemnity of act based upon the said fraud, in case of any declaration by the competent court of civil jurisdiction will have nullity in the eye of law.

48. But that stage has not yet come, rather, on mere presumption the Circle Officer himself based upon his satisfaction has made recommendation for cancellation of jamabandi but question is that how and what basis the Circle Officer has come to the conclusion that the said transfer is based upon the element of fraud.

49. The learned State counsel has also admitted the fact that in the State of Jharkhand there is no provision to cancel jamabandi, rather only provision is available by way of exercising the power conferred under Section 4(h) of the Bihar Land Reforms Act, 1950.

50. We have already referred herein the provision of Section 4(h) wherein the said provision does not provide to cancel jamabandi, rather the said provision confers power upon the Collector to annul the transfer to put restrictions that if any endeavour has been taken by the ex-landlord in settling the land in order to defeat the very purpose of the Bihar Land Reforms Act, 1950 in a case where the transfer is post 01.01.1946 then the

Page 16 transfer can be annulled meaning thereby the land will be vested in the State subject to affirmation of the decision as has been taken by the Collector.

51. But here the case is not of annulling the transfer rather, a recommendation has been made by the Circle Officer for cancellation of jamabandi.

52. The aforesaid ground has been agitated by the writ- petitioner by raising the issue of purchase of the land by virtue of series of registered sale deed.

53. The ground has also been taken that after subsequent transfer, the mutating authority had passed order, accepting the right for making payment of rent in a quasi-judicial proceeding that is under Section 14 of the Bihar Maintenance of Record Act, 1973.

54. It is also admitted that against the order passed in the quasi- judicial proceeding by the mutating authority i.e. Circle Officer in different Proceeding, the State has not preferred any appeal, rather none of the parties said to be aggrieved have preferred any appeal. Further it appears that the land originally has been transferred in favour of the original vendor way back on 19.11.1895 and 18.03.1904.

55. But the learned State counsel has submitted there is no available document on the record to substantiate the said fact. Even accepting that there is no document, then whether the Circle Officer can be said to have power as has been exercised by the making recommendation for cancellation of jamabandi.

56. The answer of this Court will be in negative reason being that no authority can be allowed to exercise power if not vested under the statutory provision. Otherwise, if any decision has been

Page 17 taken by the authority in absence of any statutory power such decision will be said to be suffer from jurisdictional error and will be nullity in the eye of law.

57. The reference in this regard is made to the judgment rendered in the case of Shrisht Dhawan (Smt) v. Shaw Bros., (1992) 1 SCC 534 wherein the Hon'ble Apex Court has observed that no statutory authority or tribunal can assume jurisdiction in respect of subject matter which the statute does not confer on it and if by deciding erroneously the fact on which jurisdiction depends the court or tribunal exercises the jurisdiction then the order is vitiated. For ready reference the relevant paragraph of aforesaid judgment is quoted as under:

"19. --- No statutory authority or tribunal can assume jurisdiction in respect of subject matter which the statute does not confer on it and if by deciding erroneously the fact on which jurisdiction depends the court or tribunal exercises the jurisdiction then the order is vitiated. Error of jurisdictional fact renders the order ultra vires and bad.[ Wade, Administrative Law] In Raza Textiles [Raza Textiles Ltd. v. ITO, (1973) 1 SCC 633 : 1973 SCC (Tax) 327 : AIR 1973 SC 1362] it was held that a court or tribunal cannot confer jurisdiction on itself by deciding a jurisdictional fact wrongly. -"

58. Further the Division Bench of this Court in the case of The State of Jharkhand v. Izhar Hussain (supra) has also observed that 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. The Division Bench in the said case has further observed that long running Jamabandi cannot be

Page 18 cancelled, save and except by filing a suit before the competent Court of Civil Jurisdiction.

59. The reference of the said legal position assumes importance in the facts and circumstances of the present case where the question of snatching away the right over the immovable property is concerned, since, so far as the snatching of right in the immovable property is concerned, the power only lies with the competent court of civil jurisdiction, in absence of statutory provision.

60. This Court applying the issue as laid down by the Division Court in the case of The State of Jharkhand v. Izhar Hussain (supra), having been affirmed by the Hon'ble Apex Court is of the view that the order passed by the learned Single Judge cannot be said to have suffer from an error.

61. Accordingly, the instant appeal is hereby dismissed.

62. Pending interlocutory application, if any, also stand disposed of.

63. However, although we are dismissing the instant appeal, but it does not mean that the party is said to be remediless in view thereof, the State is at liberty to search out the remedy for redressal of their grievances.

64. If such liberty will be availed the same will be dealt with the concern competent forum/court of law in accordance with law.

65. It has been informed by Mr. Ashutosh Anand, learned AAG - III, learned counsel appearing for the State that the record, which was called for vide order dated 23.02.2023, is lying in the safe custody of learned Registrar General, High Court of

Page 19 Jharkhand, as such prayer has been made to direct the learned Registrar General to hand over the said original record to him.

66. In view thereof, the learned Registrar General, High Court of Jharkhand is directed to hand over the original record to Mr. Ashutosh Anand, learned AAG - III, after getting due receipt of the same.

(Sujit Narayan Prasad, J.)

(Arun Kumar Rai, J.)

Umesh-Abhishek/-A.F.R.

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