Allowed

Mangal Das Oroan v. State of Jharkhand And Ors.

Jharkhand HC5 Sept 2018CWJC/630/2001

Case brief

AI extract

What is this about?

The High Court of Jharkhand allowed this writ petition and set aside an order compelling settlement cancellation. The court held the cancellation was perverse, finding the petitioner entitled to settlement under the Chotanagpur Tenancy Act as he cultivated the abandoned land and resided in the village. The order also rejected supplementary justifications via counter-affidavit.

What did the court decide?

The impugned order dated 28.8.2000 quashing the settlement in Annexure-5 is set aside.

Mangal Das Oroan Vs State of Jharkhand And Ors. — Land Acquisition | Jharkhand HC (2018)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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C.W.J.C. No. 630 of 2001

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Mangal Das Oraon son of Late Bishram Oraon resident of village- Lurutola, police station Raidih, District- Gumla

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… … Petitioner

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Versus

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The State of Jharkhand.

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The Commissioner, South Chhotanagpur Division Ranchi.

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The Additional Collector, Gumla.

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Budhan Lohra son of Karmu Lohra.

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Jhagru Lohra son of Karmu Lohra. Both are residents of village- Lurutola, Sapo, police station- Raidih, District- Gumla.

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Raj Kuwar Lohra son of Late Kolha Lohra, resident of village- Lurutola, Sapo, police station- Raidih, District- Gumla … … Respondents

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Petitioner : Mr. Manish Kumar, Advocate For private Respondents : Mr. Praveen Akhouri, Advocate For the Respondent- State : Mr. Aditya Raman, A.C. to G.A.-IV ---

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11 /05.09.2018 Heard Mr. Manish Kumar, counsel appearing for the petitioner.

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2. Heard Mr. Praveen Akhouri, counsel appearing for the private respondents.

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3. Heard Mr. Aditya Raman, counsel appearing on behalf of the respondent- State.

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4. This writ petition has been filed for the following reliefs: “For quashing of order dated 28.8.2000, passed by the Commissioner, South Chotanagpur Division, Ranchi in Gumla set appeal no. 11/98 (Annexure-5), by which the Respondent no. 2 has passed an order cancelling the settlement made in favour of the petitioner by Additional Collector Gumla (Respondent no. 3).”

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5. Counsel for the petitioner submits that a settlement proceeding was initiated on the basis of a report of the Circle Officer vide his letter dated 19.02.1994 which was numbered as Miscellaneous Case No. 1 of 1994-95. Upon initiation of this proceeding, a report was called for from the Circle Officer and

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the report indicated that the land involved in this case measuring 4.78 acres comprising in Plot Nos. 1489, 1745, 1746, 1747, 1750, 1587, 1999, 2000, 1567 and 1784 all under Khata No. 249 situated in village Lurusopa, Thana No. 14, P.S. Raidih, District- Gumla were abandoned land.

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6. He further submits that thereafter, in the said proceeding the petitioner had filed a petition dated 12.08.1994 for settlement of the aforesaid land and also for opening Jamabandi in his favour and it was indicated that the petitioner, during the lifetime of the recorded tenant, was cultivating the land and was also looking after the two recorded tenants namely, Prabhu Das Oraon and Chonhas Oraon, who died issueless.

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7. The Additional Collector, after considering the case of the petitioner as well as the case of the private respondents passed an order of settlement to the extent of 2.59 acres of land in favour of the petitioner in Khata No. 249, Plot No. 199 area 0.81 acres, Plot No. 2000 area 0.13 acres, Plot No. 1750 area 1.34 acres and Plot No. 1587 area 0.31 acres. Further, by the same order settlement of land was also made in favour of the private respondent no. 4, 5 and 6.

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8. Counsel for the petitioner submits that as the private respondents were already owning properties, therefore, the settlement of land which was made in favour of the private respondents was less than that of the petitioner and accordingly, he submits that if the property which was already owned by the private respondents on the date of settlement is taken into consideration, then as per the order of settlement involved in this case , the settlement in totality is equitable amongst all the four persons.

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9. He submits that being aggrieved by the order of settlement involved in this case , a petition for review was filed before the same which was numbered as authority,

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Miscellaneous Case No. 1 of 1994-95 and the review was dismissed vide order dated 12.11.1997/08.02.1997.

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10. By referring to the order of review, counsel for the petitioner submits that the authority clearly held that he does not have the power of review and also held on merit that there is no new point raised in the petition for review which calls for review of the order of settlement dated 12.07.1996 which is involved in this case.

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11. Against the order refusing to review, the private respondents filed appeal which was numbered as Gumla Set. Appeal No. 11 of 1998 before the Court of Commissioner, South Chotanagpur Division, Ranchi and the said appeal was allowed by the appellate authority. He submits that the review petition was itself not maintainable and was held to be not maintainable and the appellate authority has not reversed the finding of the original authority that the review itself was not maintainable. There being no provision for review, he submits that the review petition was rightly held to be not maintainable.

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12. Counsel for the petitioner submits that the only reason which has been assigned by the appellate authority while disposing of the appeal is that the petitioner does not reside in the village in which the land in dispute is situated and further that the petitioner has land of 13.5 acres in the name of his father in his village namely, Pokhra and one acre of land in the name of his wife in another village namely, Uchchadih.

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13. By referring to Section 73 of the Chotanagpur Tenancy Act, 1908, counsel for the petitioner submits that there is no condition prescribed under Section 73 of Chotanagpur Tenancy Act, 1908 that the land cannot be settled to person who has got land in another village and he further submits that as the petitioner was through out living in the village involved in this case and was through out working with the recorded tenants who subsequently expired, it cannot be said that the petitioner

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does not belong to the village involved in this case. Rather, the petitioner resides in the village involved in this case although he and his wife has certain properties in another village.

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14. Further, by referring to the impugned dated 28.08.2000 passed by the learned Commissioner, South Chotanagpur Division, Ranchi, counsel submits that the Commissioner, while setting-aside the order of settlement made in favour of the petitioner has opined that the settlement is not justified on the alleged ground that the petitioner does not reside in the village in which the land in dispute is situated. He submits that this particular finding which has been recorded by the Commissioner is also perverse and is fit to be set-aside.

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15. Counsel appearing on behalf of the private respondent submits that the petitioner is not a landless person and is not a permanent resident of the village involved in this case and he is a permanent resident of another village and accordingly, he is not a tenant of this particular village. He refers to the definition of ‘tenant’ as given in Section 3(xxvi) of Chotanagpur Tenancy Act, 1908 and submits that as per the provisions of the said Act, a tenant means a person who holds land under another person and is or for special contract would be liable to pay rent for that land to that person.

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16. Counsel further submits that the petitioner cannot be said to be a tenant in connection with the property involved in this case and accordingly, the impugned order has been rightly passed. He further submits that the private respondents herein already have land in the same village and therefore, they are covered within the meaning of the term ‘tenant’ and they are already a tenant under the provisions of Chotanagpur Tenancy Act, 1908 in the same village.

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17. Counsel appearing on behalf of the respondent- State, on the other hand, has referred to counter-affidavit and with particular reference to para 8 of the counter-affidavit he submits

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that the Miscellaneous Case No. 1 of 1994-95 was opened by the respondent no. 3 on the basis of a wrong report by the Circle Officer and later, it was found that the report was submitted on the basis of queries made from the villagers and under the influence of the petitioner and hence, on the basis of that report the land was settled by respondent no. 3 and accordingly, he submits that the impugned order of cancellation of settlement in the name of the petitioner has been rightly passed.

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18. Counsel for the respondent- State further submits that the petitioner is an army employee and is a resident of another village namely village Pokhra which appears from the voter list and the petitioner is not a landless person and hence he is not entitled to settlement of the land.

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19. Counsel appearing for the petitioner, in response to the arguments advanced by the counsel for the respondents, submits that the private respondents herein were earlier settled with certain land on the ground that they were the landless persons. Accordingly, he submits that the contention of the private respondents that unless a person is a tenant within the meaning of Section 3(xxvi) of Chotanagpur Tenancy Act, 1908, no land can be allotted to any person is baseless.

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20. After hearing the counsel for the parties and after considering the materials on record, this Court finds that a proceeding bearing Miscellaneous Case No. 1 of 1994-95 was initiated at the instance of a report by the Circle Officer. Admittedly, the property involved in this case was recorded in the name of two persons namely, Prabhu Das Oraon and Chonhas Oraon, who expired leaving behind no legal heirs and successors.

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21. The specific case of the petitioner is that the petitioner has been cultivating this property and has been serving those two persons for a number of years and accordingly, after their

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death, a petition was filed by the petitioner for settlement of this property in his favour.

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22. It further appears that after considering the application of the petitioner and also the application of the private respondents who also prayed for settlement before the Settlement Officer, an order of settlement dated 12.07.1996 was passed taking into consideration that the petitioner has been residing in this village and has been cultivating the land belonging to the original recorded raiyats and at the time of settlement, the Settlement Officer considered that some of the property in the same village was already owned by the private respondents herein and taking this fact into consideration, the private respondents were given lesser property as compared to that of the petitioner.

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23. This Court further finds that the private respondents herein filed a review petition before the same authority and the authority on the one hand held that the review petition is not maintainable, and on the other hand, it rejected the review petition on merit as well vide order dated 12.11.1997/08.12.1997. The private respondents herein filed appeal against the order dated 12.11.1997/08.12.1997 passed in Miscellaneous Case No. 1 of 1994-95 i.e. the order passed in the review petition and it appears that the order of settlement dated 12.07.1996 passed by the Settlement Officer was not challenged before the appellate authority.

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24. This Court further finds that the appellate authority decided the case by holding that the settlement made in favour of the petitioner is not justified because he does not reside in the village in which the property in dispute is situated.

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25. This Court finds that the order passed by the learned Commissioner on the basis that the petitioner is not a resident of the same village is perverse in view of the fact that the order of settlement clearly indicated that the petitioner has been

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residing in the village and was associated with the recorded tenants and was cultivating the land in question. Merely because the petitioner and his wife has property in another village, that does not mean that the petitioner is not resident of the village in which the property involved in this case is situated.

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26. So far as the contention of the respondents that as per Section 73 of Chotanagpur Tenancy Act, 1908, the property can be settled to a tenant only and the term ‘tenant’ has been defined under Section 3(xxvi) of the Chotanagpur Tenancy Act, 1908 is concerned , this Court for the following reasons finds it fit to be rejected.

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27. This Court finds that the petitioner having worked under the recorded tenant was certainly working under some arrangement between the recorded tenant and himself, and if the “tenant” as defined under Chotanagpur Tenancy Act, 1908 is taken to be the person who is liable to pay rent in connection with one or the other property, then under Section 73 of Chotanagpur Tenancy Act, 1908, no settlement in connection with abandoned land can be made in favour of the landless persons.

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28. This Court is of the considered view that in such circumstances, the ‘tenant’ as defined under Section 3(xxvi) of Chotanagpur Tenancy Act, 1908 cannot be restricted to only those persons who are liable to pay rent. There is no doubt that the petitioner was holding the land under the recorded tenants. In view of this interpretation, this Court finds that it cannot be disputed that the petitioner was residing in the same village and was associated with the property involved in this case for its cultivation. This Court is of the considered view that although, the petitioner was neither the recorded tenant nor was paying rent to anybody, but still in terms of Section 73 of

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Chotanagpur Tenancy Act, 1908, the petitioner was entitled to settlement in his favour.

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29. So far as the contention of the respondent- State that the order itself was passed on the basis of an incorrect report, this Court finds that there is no material to this effect in the record except a statement in the counter-affidavit. If there is any incorrect report by any authority, the same can be disputed or denied only by another report and merely by making a statement in the counter-affidavit, the report which was given by the Circle Officer, on the basis of which the order of settlement was passed, cannot be denied. Moreover the reasons given in the impugned order cannot be supplemented by giving additional reason in the counter-affidavit to justify the impugned order.

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30. Further, this Court finds that the settlement made on the basis of the report of the Circle Officer was not only in favour of the petitioner but also in favour of the private respondents herein and it is only the settlement of the petitioner which has been disturbed.

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31. In such circumstances, mere statement of the respondentState in the counter-affidavit cannot be a ground to uphold the impugned order, particularly when the impugned order itself does not indicate that the original report of the Circle Officer was incorrect. The law is well-settled that the impugned orders are to be judged and considered on the basis of reasons, which have been given in the impugned order and no supplementary reasons can be given by filing a counter-affidavit.

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32. In such circumstances, this Court finds that the impugned order dated 28.08.2000, which interferes with the settlement made in favour of the petitioner, is perverse and is hereby setaside. Moreover the impugned order arises out of a review proceedings in connection with the settlement made in favour of the petitioner and the review petition was held to be not

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maintainable by the order dated 12.11.1997/ 8.12.1997 and further the review was dismissed on merits as well. The appellate authority discussed the merits of the matter and reversed the findings but did not disturb the finding in the order dated 12.11.1997/ 8.12.1997 that the review petition was not maintainable. The counsel for the respondents have not argued on the point of maintainability of the review petition and this Court is or the considered view that the review petition was itself not maintainable in absence of any provision to that effect. No such provision for review has been brought to the notice of this Court by the counsel for the respondents.

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33. This writ petition is accordingly allowed and the impugned order dated 28.8.2000, passed by the Commissioner, South Chotanagpur Division, Ranchi in Gumla set appeal no. 11/98 (Annexure-5) is hereby set aside .

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(Anubha Rawat Choudhary, J.)

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Pankaj

Mangal Das Oroan v. State of Jharkhand And Ors.

Case brief

What is this about?

What did the court decide?

Mangal Das Oroan v. State of Jharkhand And Ors.

Case brief

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