Allowed

Sumitra Devi v. State Of Jharkhand And Ors.

Jharkhand HC4 Apr 2019WPC/5526/2016

Case brief

AI extract

What is this about?

This writ petition challenged orders by the Divisional Commissioner and Deputy Commissioner regarding mutation of land. The Court held the Commissioner lacked jurisdiction for second revision and the Deputy Commissioner lacked power to decide mutation applications, directing the parties to approach the Circle Officer.

What did the court decide?

Impugned orders dated 13.01.2016 and 16.09.2016 set aside. Petitioner allowed liberty to approach Circle Officer for mutation application.

Sumitra Devi Vs State Of Jharkhand And Ors. — Landlord and Tenant | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(C) No.5526 of 2016

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Sumitra Devi aged about 59 years W/o Late Anand Burman alias Anand Sao, R/o Panchayat Kandra P.O. & P.S. Kandra District – Seraikela Kharsawan.

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… …. Petitioner

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Versus

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State of Jharkhand.

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Commissioner, Singhbhum (Kolhan) Division, P.O. and P.S. Chaibasa, District West Singhbhum

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Deputy Commissioner Seraikela – Kharsawan, P.O. and P.S. Seraikela, District Seraikela – Kharsawan.

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Amit Roy S/o Badrinarain Roy, Director of M/s Puskar Techno Private Limited having office at 48, Phase – I, Industrial Area, Adityapur District Seraikela – Kharsawan.

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M/s Puskar Techno Private Limited through its Director Amit Roy, Director having its office at B – 48, Phase – I, Industrial Area, Adityapur Estate P.S. Adityapur P.O. Adityapur District Seraikela – Kharsawan.

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Basanti Mahato W/o Late Gandhi Mahato resident of Krishnapur P.O. and P.S. Adityapur District Seraikela – Kharsawan.

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Raj Kumar Mahato S/o Late Gandhi Mahato resident of Krishnapur P.O. and P.S. Adityapur District Seraikela – Kharsawan. … Respondents

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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Petitioner : Mr. Rajesh Kumar, Advocate : Mr. Gaurav Raj, Advocate : Mr. Apoorva Singh, Advocate For the Respondent Nos.6 & 7 : Mr. Pandey Neeraj Rai, Advocate For the Respondent No.4 & 5 : Mr. Rohit Ranjan Sinha, Advocate For the Respondent -State : Mr. Abhijeet Kumar Singh, A.C. to G.P. IV

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10/04.04.2019 Heard Mr. Rajesh Kumar, counsel appearing on behalf of the petitioner assisted by Mr. Gaurav Raj, Advocate.

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2. Heard Mr. Pandey Neeraj Rai, counsel appearing on behalf of the respondent nos.6 and 7.

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3. Heard Mr. Rohit Ranjan Sinha, counsel appearing on behalf of the respondent nos.4 and 5.

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4. Heard Mr. Abhijeet, counsel appearing on behalf of the respondent no.1 to 3.

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5. This writ petition has been filed for the following relief:

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“ For quashing the order dated 13.01.2016 passed by the Divisional Commissioner Singhbhum (Kolhan) Division, Chaibasa in Misc. Appeal 01/2016 whereby and whereunder he has remanded the mutation case in which an order was earlier passed by Deputy Commissioner as also the subsequent proceedings being Misc. Appeal Case 1 of 2015-16 which have been initiated by the Deputy Commissioner Seraikela – Kharsawan and which is still pending, even though Title Suit No.35/2010 filed by the private respondent as plaintiff on the same issue has been dismissed by the Learned Civil Judge Senior Division II Seraikela – Kharsawan vide judgment and decree dated 28.01.2014 in relation to plot no’s 53, 54, 55, 57, 58 of Mauza Khrishnapur under Khata No. 41 of old survey settlement operation of 1964 under Thana No.132 Ward No.9 of Adityapur corresponding to Plot Nos.901, 920, 921, 922, 923, 924, 925, 926, 927, 928, 929 and 930 under Khata No.70.”

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6. During the pendency of this case, pursuant to the impugned order dated 13.01.2016, order dated 16.09.2016 was passed by the Deputy Commissioner, Seraikela Kharsawa, which was challenged in this case by filing I.A. No.7304 of 2016, which has been allowed vide order dated 28.11.2016 and accordingly, the aforesaid order passed by the learned Deputy Commissioner is also under challenge.

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7. The counsel appearing on behalf of the petitioner submits that there has been serious dispute in connection with right, title and interest relating to the property involved in this case, and certain orders were passed by the revenue authorities in connection with the mutation proceedings in this matter and ultimately one order dated 15.07.2009 as contained in Annexure – 1 to this writ petition, was passed by the Deputy Commissioner, Seraikela Kharsawan in Mutation Revision Case No.20 of 2008-09. The said order was under challenge before this Court in W.P.(C). No.4213 of 2009 and the said writ petition was disposed of vide order dated 15.07.2010 with a clear observation that ultimately, it is only the civil court which can decide the dispute with regard to right, title, interest and possession between the parties and a liberty was given to the

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petitioner to file a suit for the redressal of their grievances, raising all the points available to the petitioner. It was also made clear that the orders passed by the revenue authorities and the orders passed by this Court in this writ petition will not prejudice the respective case of the parties on merits and/or in the matter of injunction, if prayed. The counsel submits that this order passed by the writ court was subject matter of challenge in L.P.A. No.294 of 2010, which was dismissed vide order dated 16.08.2010, wherein, it was observed that mutation does not create any title or take away any title and whether it is the petitioner or the appellant or the plaintiff or defendant, makes no differences. Ultimately, the parties are required to prove their title, by adducing evidence.

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8. The counsel submits that after the order passed by this Hon’ble Court in L.P.A. No.294 of 2010, a title suit was filed which was numbered as T.S. No.35 of 2010 and the title suit was decided vide judgment dated 28.01.2014. He further submits that in the meantime, respondent nos. 5 and 6 moved the court of Divisional Commissioner, Singhbhum, (Kolhan) Division, Chaibasa in Misc. Appeal No.1 of 2016 raising a grievance against the order dated 15.07.2009, passed by the Deputy Commissioner in Mutation Revision Case No.20 of 2008-09, which was the subject matter of W.P.(C). No.4213 of 2009 and also prayed that the mutating authority be directed to mutate the plot in their favour.

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9. The counsel for the petitioner submits that the learned Divisional Commissioner in the impugned judgment dated 13.01.2016 in purported exercise of power under Section 28 of Bihar Tenants Holdings (Maintenance of Records) Act, 1973 and Section 270 of the Chotanagpur Tenancy Act, 1908 remanded the matter to the Deputy Commissioner, Seraikela Kharsawan for deciding the case particularly in view of the pending application of the respondent nos.5 and 6 dated 07.05.2014. 10. The Counsel by referring to the provisions of the aforesaid Act of 1973 submits that the order of mutation is required to be

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passed under Section 14 by the Circle Officer and the appellate authority is “Land Reforms Deputy Collector” and the revisional authority is the “Collector of the District”. There is no provision for any second revision before the “Commissioner”. There was a provision earlier for second revision before the “Commissioner”, which was subsequently deleted, and the parties are governed by the provisions contained in Sections 14, 15 and 16 of the aforesaid Act of 1973.

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11. He submits that in the instant case, the learned Commissioner by remanding the matter to the Deputy Commissioner for fresh consideration, has for all practical purposes set-aside the order passed in mutation Revision Case No.20 of 2008-09 dated 15.07.2009, which was the subject matter in the writ petition being W.P.(C). No.4213 of 2009. He submits that accordingly the order of remand before the Deputy Commissioner for fresh decision is wholly without jurisdiction. 12. He further submits that Section 28 of the aforesaid Act of 1973 relates to general supervision in connection with the functioning of the authorities and has got no relation to exercise of any quasi-judicial power and the power of second revision which was conferred before the Commissioner, having been deleted,such power, could not have been exercised by the Commissioner by resorting to Section 28 of the aforesaid Act of 1973. So far as Section 270 of Chotanagpur Tenancy Act, 1908 is concerned, the same is similarly worded as that of Section 28 and accordingly, he submits that the order passed by the Deputy Commissioner in Mutation Revision No.20 of 2008-09 dated 15.07.2009, could not have been interfered with, by the learned Commissioner. He submits that pursuant to the order passed by the learned Commissioner, the Deputy Commissioner has passed the order, and has allowed the mutation.

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13. He submits that the power to pass an order of mutation has been conferred under Section 14 on the “Circle Officer” and the “Deputy Commissioner” is the revisional authority. In the

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instant case, Deputy Commissioner has passed the order of mutation which itself is wholly without jurisdiction and de-hors the provisions of the aforesaid Act of 1973.

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14. Counsel appearing on behalf of the respondents on the other hand submits that the petitioner has not come with clean hands before this Court in as much as there has been misstatement and suppression of facts in the writ petition. He has referred to certain paragraphs of the writ petition particularly para – 5 and 6 to submit that there are two sets of the private respondents in the instant case, one set is respondent no.4 and 5 and the other set of respondent nos.6 and 7, but the petitioner has merely referred to respondents without giving any specific reference to respondent numbers, which has created confusion in the writ petition and accordingly such statements are misleading. 15. He has also submitted that in view of judgment passed by this Court in judgment reported in 1999 2 PLJR 593 (Ashok Kumar Vs. State of Bihar) para – 10 in a case, where the petitioner is guilty of gross suppression of facts for misleading the Court, the writ jurisdiction may not be exercised. He has also referred to a judgment reported in 1996 (2) PLJR 345 para – 6 and 7 to submit that the conduct of the petitioner has to be taken care of while granting equitable relief under Article 226 of the Constitution of India.

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16. He further submits that as per the provision of Rule 3 of Bihar Board Miscellaneous Rules, 1958 a higher authority has all the powers of any lower authority and further may with or without any appeal modify or reverse any orders passed by a lower authority in a matter primarily within the competence of the lower authority unless by any law, the order of the lower authority is final. He submit that in view of the provisions of Section 28 of the Act of 1973 read with Rule – 3 of Bihar Board Miscellaneous Rules, 1958, the Commissioner had the power to remand the matter to the Deputy Commissioner for fresh consideration and accordingly, the Deputy Commissioner has

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6 rightly passed the order of mutation, which does not call for any interference. Counsel submits that the property involved in this case was subject matter of Title Suit No.35 of 2010 and the same was decided in favour of respondent nos.6 and 7 and the respondent nos.6 and 7 had filed an application before the Circle Officer dated 07.05.2014 for mutation of land in their favour, which in turn was filed pursuant to the decision in the title suit.

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17. He submits that the Circle Officer was not deciding the matter for a long time and accordingly that was an occasion to move the Divisional Commissioner, Singhbhum for seeking direction. He has referred to the petition which was filed before the learned Commissioner, which is contained in Annexure – A to the counter-affidavit filed by the respondent nos. 6 and 7 and submits that a prayer was made before the learned Commissioner that the mutating authority be directed to mutate the plots in question, in their favour, after cancelling the order of Deputy Commissioner, Seraikela. Accordingly, he submits that learned Commissioner has not committed any error in passing the impugned order and consequently the Deputy Commissioner has also not committed any mistake in passing the impugned order.

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18. After hearing the counsel for the parties and after considering the materials on record, this Court finds that as per the provisions of Sections 14, 15 and 16 of the aforesaid Act of 1973, the application for mutation is required to be filed before the “Circle Officer”, the appellate authority is “Land Reforms Deputy Collector” and the revisional authority is the “Collector of the District”. This Court further finds that there was a provision for second revision before the “Commissioner”, which was subsequently deleted and admittedly the power of second revision is not available under the aforesaid Act of 1973. 19. This Court further finds that the order of the Deputy Commissioner, which is dated 15.07.2009 was subject matter of writ petition and ultimately the High Court did not interfere

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with the order of the Deputy Commissioner, and also observed that the matter relates to title dispute, which can be adjudicated only through a title suit, the title suit was ultimately filed and was decided on 28^th January, 2014. Pursuant to such decision, in title suit, the respondent nos.6 and 7 had filed an application for mutation before the Circle Officer. In the meantime, an application was filed before the learned Commissioner making a prayer for setting aside the order passed by the Deputy Commissioner in Revision Case No. 20 of 2008-09 dated 15.07.2009 and also a direction for mutation in their favour.

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20. The order of the learned Commissioner is in two parts one is, that he has remanded the case to the learned Deputy Commissioner and thereby has virtually exercised the power of second revision and the other is, that there was a direction to decide the pending application dated 07.05.2014, which was filed by the respondent nos.6 and 7 before the Circle Officer.

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21. This Court finds that the provisions of Section 28 of the aforesaid Act of 1973, Rule 3 of the Bihar Board’s Miscellaneous Rule, 1958 and Section 270 of the Chotanagpur Tenancy Act, 1908, are in connection with general superintendence regarding the functioning of the authorities under the Commissioner. This Court is of the considered view that the said provisions do not confer power upon the Commissioner to exercise power of second revision against the order of revision passed by the Deputy Commissioner. Accordingly, the impugned order dated 13.01.2016 by which the matter was remanded to the Deputy Commissioner, is wholly without jurisdiction, which is hereby set-aside.

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22. This Court further finds that the impugned order also directs the Deputy Commissioner to decide the pending application dated 07.05.2014, although, the said application for mutation was admittedly filed before the Circle Officer. Pursuant to order dated 13.01.2016, the Deputy Commissioner passed an order dated 16.09.2016 allowing the application for mutation. This Court finds that the statute has conferred

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specific power for passing order of mutation upon the Circle Officer and the Deputy Commissioner is the revisional authority, therefore, the original power for mutation could not have been exercised by the Deputy Commissioner. This Court has already held that the second revision was not maintainable before the Commissioner and accordingly, in the matter regarding mutation, which was remanded to the Deputy Commissioner, the Deputy Commissioner had no jurisdiction to decide the same as per the provision of Act of 1973. Therefore, the consequential order which has been passed by the Deputy Commissioner dated 16.09.2016 is also without jurisdiction, which is hereby set-aside.

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23. So far as the arguments of the respondents regarding suppression of fact by the petitioner is concerned, this Court finds that on account of absence of specification regarding respondent numbers in the pleadings, some confusion has been there but the same does not appear to be intentional or with a view of mislead this Court. Moreover, as the impugned orders are without jurisdiction, this allegation cannot come in the way of exercising power under writ jurisdiction to quash such orders.

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24. This Court is of the considered view that so far as the application which was filed before the Circle Officer by the respondent nos.6 and 7, the same is to be decided by the Circle Officer himself, after considering the materials available with him and after following the procedure established by law and the same is to be decided without being influenced by any observation or any order which were passed earlier by the revenue authorities and/or were subject matter of earlier writ petition and letters patent appeal. Accordingly, the respondent nos. 6 and 7 are at liberty to move the Circle Officer for expeditious disposal of their application for mutation dated 07.05.2014 and upon such request being made by them, the Circle officer is directed to decide the application for mutation

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in accordance with law as early as possible and not later than 6 months from the date of receipt of a copy of this order. 25. It is made clear that this Court has not gone into the merits of the application for mutation said to have been filed by the respondent nos.6 and 7.

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(Anubha Rawat Choudhary, J.)

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Saurav/

Sumitra Devi v. State Of Jharkhand And Ors.

Case brief

What is this about?

What did the court decide?

Sumitra Devi v. State Of Jharkhand And Ors.

Case brief

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