Allowed

M/S.Tata Iron And Steel Co.Ltd. v. State of Jharkhand And Ors.

Jharkhand HC7 Sept 2018WPC/5047/2004

Case brief

AI extract

What is this about?

The High Court of Jharkhand held that the Revenue Authority acted beyond its jurisdiction under Section 90 of the Chhotanagpur Tenancy Act, 1908 by adjudicating disputed title and possession. The petition for quashing was allowed, and the impugned order was set aside as it was based on disputed present possession rather than a discoverable material error in the record.

What did the court decide?

The impugned order dated 10.10.2002 recorded in the petition was set aside as it was perverse and beyond the scope of Section 90 of the Act.

M/S.Tata Iron And Steel Co.Ltd. Vs State of Jharkhand… — Landlord and Tenant | Jharkhand HC (2018)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(C) No.5047 of 2004

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M/s. Tata Iron and Steel Company Limited, a company incorporated under the Indian Companies Act, having its Office and factory at Jamshedpur, Town Jamshedpur, District Singhbhum (East).

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… … Petitioner

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Versus

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The State of Jharkhand

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Deputy Commissioner, Singhbhum (East) at Jamshedpur, Town Jamshedpur, District Singhbhum East.

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Charge Officer, Jamshedpur, Town Jamshedpur, District Singhbhum East.

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Assistant Settlement Officer, Jamshedpur, Town Jamshedpur, District Singhbhum East.

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Shalendra Mahato son of Late Rabi Charan Mahato, resident of Old Sonary, Police Station Sonary, Town Jamshedpur, …

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District Singhbhum East. … Respondents

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Petitioner : Mr. Indrajit Sinha, Advocate Mr. Bibhash Sinha, Advocate For the Respondents : Mr. Ashish Kumar Thakur, A.C. to S.C. (L. & C.)

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12 /07.09.2018 Heard Mr. Indrajit Sinha, Advocate assisted by Mr. Bibhash Sinha, counsel appearing for the petitioner.

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2. Heard Mr. Ashish Kumar Thakur, counsel appearing on behalf of the respondent- State.

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3. The counsel for the petitioner submits that in spite of service of notice upon the private respondent, nobody is appearing on his behalf.

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4. This writ petition has been filed for the following reliefs: “For quashing the order dated 10.10.2002 passed by the Assistant Settlement Officer, Jamshedpur, District Singhbhum East, respondent No. 5 in Case No. 112 of 2002 in the purported exercise of power under Section 90 of the Chhotanagpur Tenancy Act, contained in Annexure 7 to this writ application whereby and whereunder the Assistant Settlement Officer, Jamshedpur has passed order for recording illegal possession of Shailendra Mahato, the respondent No.

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6 with respect to 0.01.84 hectatares of land being portion of new plot No. 3222/6829 of Khata No. 622 situated at Sonari, Police Station Sonari, District Singhbhum East within Ward No. 1 of Jamshedpur Notified Area Committee in the remarks column of the last survey finally published record of right.”

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5. Counsel for the petitioner submits that the property involved in this case is Old Plot No. 455 of Khata No. 218 situated at Mouza Sonari, Police Station Sonari, District Singhbhum East, which according to the petitioner, was recorded as Anabad Malik in the name of TISCO Limited.

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6. He further submits that admittedly the property involved in this case falls within the TISCO lease area. A portion of the aforesaid land recorded during current survey under New Khata No. 622, New Plot No. 3222/6829 in the name of Anabad Bihar Sarkar and during the draft preparation of record-ofrights, the property was shown in possession of one Priti Banerjee. Therefore, the petitioner on 23.03.1991 filed an application under Section 83 of Chotanagpur Tenancy Act, 1908 which was registered as Objection Case No. 954 of 1986-87 and vide order dated 23.03.1991, an order was passed to carve out a separate plot bearing no. 3222/6829 measuring area 00.28.10 hectares and to record the name of the petitioner as lessee under the State of Bihar in Column No. 6 in the record-of-right with illegal possession of Mohan Lohar since 1989.

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7. Against the aforesaid order, the petitioner filed a representation under Section 89(1) of the Chotanagpur Tenancy Act, 1908 before the Charge Officer, Jamshedpur which was registered as Revision No. 1237 of 1991-92 and after hearing all the parties, the petition of the petitioner was allowed and by deleting the noting of illegal possession of said Mohan Lohar by order dated 30.10.1995 subsequently, on 08.01.1996 a final publication of record of rights was made and the new Plot No.

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3222/6829 of Khata No. 622 was recorded in the name of the petitioner as lessee under the State.

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8. He further submits that no appeal was filed against the said order under Section 89(2) of Chotanagpur Tenancy Act, 1908 and the order passed under Section 89(1) attained finality. 9. After expiry of about 7 years, a petition was filed by the private respondent no. 5 herein under Section 90 of Chotanagpur Tenancy Act, 1908 claiming to be in possession of the property which was registered as Case No. 112 of 2002. 10. Counsel for the petitioner further submits that the petition which was filed by the private respondent no. 5 for recording the possession over the property was not maintainable under Section 90 of Chotanagpur Tenancy Act, 1908 and he submits that it has been held by Hon’ble Patna High Court in judgment reported in 1990 (1) PLJR 577 (N. Subramanian @ Shri Mani Iyer Vs. The State of Bihar and Ors.”) that the term used being “such bonafide mistake or material error” must be found out on the basis of the record of the case itself and while doing so, it is not open upon the authorities to adjudicate upon the dispute involving serious question of title or possession.

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11. Counsel also submits that the said petition was entertained and the petitioner was noticed and petitioner raised serious objection and also indicated that one title suit is also pending in connection with the property which was filed by Mohan Lohar which was numbered as Title Suit No. 37 of 1996. However, the said authority entertained the petition and passed an order by holding that upon enquiry, it was found that the private respondent is in possession of the property and on such basis, he directed that the record-of-rights be rectified.

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12. Counsel for the petitioner submits that on the one hand, the authority has acted beyond its jurisdiction vis-à-vis scope of applicability of Section 90 of Chotanagpur Tenancy Act, 1908

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and further, the order was passed on the basis of the so-called present possession of the private respondent which is also disputed by the petitioner.

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13. Accordingly, he submits, that the impugned order is fit to be set-aside.

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14. Counsel appearing on behalf of the respondent- State submits that under the provisions of Section 81 of Chotanagpur Tenancy Act, 1908, the particulars which have to be recorded are the name of each tenant or occupant, amongst other details, and he submits that although the private respondent did not file any objection under Section 83 or any appeal under Section 89(2) of the Act, but he filed an objection under Section 90 for the rectification in view of the fact that he claimed to be in possession of the property.

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15. He further submits that such error could be entertained and considered by the authority and accordingly, the authority has found that the private respondent was in possession of the property. He says that mere possession does not confer any title and the authority is duty-bound to act pursuant to the application filed under Section 90 of Chotanagpur Tenancy Act, 1908. He further submits that although the application was filed after 7 years of publication of the final record-of-rights, but the provisions of Limitation Act are applicable and the delay was also condoned and by the impugned order, the private respondent has been declared to be only an “Awaidh Dakhalkar” i.e. illegal occupant and he submits that this does not adversely affect the petitioner in any manner.

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16. After hearing the counsel for the parties and after considering the materials on record, this Court finds that there is no dispute that the name of occupant is also one of the particulars to be recorded in the record-of-rights. 17. Sections 83, 89 and 90 of Chotanagpur Tenancy Act, 1908 read as follows:

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“83. Preliminary publication, amendment and final publication of record-of-rights – (1) When a draft record-of-rights has been prepared under this Chapter, the Revenue Officer shall publish the draft in the prescribed manner and for the prescribed period and shall receive and consider any objections which may be made to any entry therein, or to any omission therefrom during the period of publication.

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(2) When such objections have been considered and disposed of in the prescribed manner, the Revenue- officer shall finally frame the record and shall cause it to be finally published in the prescribed manner, and the publication shall be conclusive evidence that the record has been duly made under the Chapter.

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(3) Separate draft or final records may be published under sub-section (1) or sub-section (2) for different local areas, estates, tenures or parts thereof.

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89. Revision by Revenue- officer.- (1) Any Revenue – officer specially empowered by the State Government in this behalf may on application or on his own motion within twelve months from the making of any entry in the draft record-of-rights or of any order or decision under section 83 , section 85 or section 86 , revise the same, whether it was made by himself or by any other Revenue – officer, but not so as to affect any order passed under section 87 or any order passed in appeal under section 85, sub-section (4):

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Provided that no such order or decision shall be so advised if a suit or a appeal in respect thereof is pending, under section 85, subsection (4) or section 87 until reasonable notice has been given to the parties concerned to appear and be heard in the matter.

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(2) An appeal shall lie, in the prescribed manner and to the prescribed officer, from any order passed under sub-section (1).

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90. Correction by Deputy Commissioner or Revenue-officer of mistake in record-of-rights- In case of discovery of bonafide or material error in record-of-rights within five years from the date of the certificate of its final publication under sub-section (2) of section 83, the Deputy Commissioner or any Revenue-officer specially empowered by the State Government in this behalf may, on his own motion or on

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application made to him within the said period, after holding an enquiry in the prescribed manner, by order in writing, direct that such error shall be corrected in the manner specified in the order:

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Provided that no such correction shall be made-

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(i) Until reasonable notice has been given to the parties concerned to appear and be heard in the matter;

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(ii) If a suit under section 87, clause (8) of section 111 or 252 or an appeal under clause (10) of section 111 or section 253, affecting such an entry is pending.”

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18. This Court finds that in a proceeding under Section 83 of Chotanagpur Tenancy Act, 1908, when a preliminary publication is made, then the possession of the property is also indicated as per Section 81, to which it is open to the parties to file objection. In the instant case, the objection was duly filed by the petitioner and after due enquiry and considering the materials, an order under Section 83(2) was passed. The same order was subject matter of appeal under Section 89(1) of the Act and ultimately, a finding was arrived at in connection with the possession of the petitioner.

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19. This Court also finds that if the private respondent was aggrieved by such finding, he ought to have filed appeal against the order passed under Section 89(1) of the Chotanagpur Tenancy Act, 1908, but, instead of the same, an application under Section 90 of Chotanagpur Tenancy Act, 1908 was filed.

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20. This Court further finds that the scope of Section 90 is indicated in the Section itself which clearly indicates “in case of discovery of bonafide or material error in record-of-rights within five years”. This particular provision was subject matter of interpretation by Hon’ble Patna High Court, Ranchi Bench in judgment reported in 1990 (1) PLJR 577, wherein it was held vide para 9 and 10 that the bonafide mistake or material error must be found on the basis of records of the case itself and there

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was no scope for a detailed enquiry or adjudication in connection with the disputed questions of possession or title. Para 9 and 10 of the said judgment is quoted herein below for ready reference :

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“9. From a plain reading of the aforementioned provision it is clear that the Deputy Commissioner or any revenue authority specially empowered by the State Government may take recourse to the aforementioned provision only in the event of discovery of bonafide or material error in the record of rights.

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10. This Court in the case of Mewalal Nigam V. The State of Bihar held as follows:

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From a perusal of the aforementioned provision, in my opinion, there cannot be any doubt that the authority concerned exercises a very limited jurisdiction. While exercising the purported jurisdiction under Section 90 of the Act, the authority cannot embark upon a disputed question of title and possession nor can it question the legality or propriety or otherwise of an order passed by a revenue authority or by the revisional authority which in this case was an authority higher than, Respondent No. 2. To me it appears that the impugned order was wholly unwarranted. On a plain reading of Section 90 of the said Act, it is evident that a settlement which has been made in favour of person by the ex-tenure holder whether legally or illegally can not be questioned a proceeding under Section 90 of the said Act. Only the question of title can be gone into in a suit filed in terms of Section 87 of the said Act which again is subject to the judgment and decree passed by a civil court.”

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21. This Court also finds that the enquiry which was undertaken by the authority was beyond the scope of section 90 of Chotanagpur Tenancy Act, 1908. Otherwise also, the impugned order simply records that the private respondent

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herein was found in possession of the property (though disputed by the petitioner) and there is no such finding that at the stage of the draft preparation and final publication of record-of-right, they were in possession of the property. 22. Accordingly, the impugned order is perverse and it is setaside.

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23. However, it will certainly be open to the private respondent herein to get his right, title and interest declared in an appropriate proceedings in accordance with law.

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(Anubha Rawat Choudhary, J.)

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Pankaj

M/S.Tata Iron And Steel Co.Ltd. v. State of Jharkhand And Ors.

Case brief

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M/S.Tata Iron And Steel Co.Ltd. v. State of Jharkhand And Ors.

Case brief

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