Quashed

Ashpati Kunwar And Anr. v. State of Jharkhand And Ors.

Jharkhand HC7 Nov 2019WPC/7160/2011

Case brief

AI extract

What is this about?

This writ petition challenged an order by the Sub-Divisional Officer remitting a mutation record to the Circle Officer. The court held that under the Bihar (now Jharkhand) Tenant's Holdings Act, 1973, only the Circle Officer, Deputy Collector, and Collector have jurisdiction. The Sub-Divisional Officer had no authority, so the order was quashed.

What did the court decide?

The order dated 18.06.2011 passed by the Sub-Divisional Officer is quashed. The Circle Officer, Garhwa is directed to pass order on the mutation application without being influenced by the quashed ord

Ashpati Kunwar And Anr. Vs State of Jharkhand And Ors. — Land Acquisition | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(C) No.-7160 of 2011

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Ashpati Kunwar

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Raj Kumar Pandey …Petitioners

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-V e r s u s-

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State of Jharkhand through Deputy Commissioner, Garhwa

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Sub-Divisional Officer, Garhwa

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Land Reforms Deputy Collector, Garhwa

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…Respondents

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CORAM: - HON’BLE MR. JUSTICE RAJESH SHANKAR

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For the Petitioners :- Mr. Rajiv Kumar, Advocate For the State :- AC to SC-I

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Order No.-10 Dated: 07.11.2019

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The present writ petition has been filed for quashing the order dated 18.06.2011 passed by the Sub-Divisional Officer, Garhwa (respondent no.2) whereby the said respondent remitted the record related to correction of the revenue record and fixation of rent to the Circle Officer, Garhwa seeking certain information and directed him to resend the record through the respondent no. 3- Land Reforms Deputy Collector, Garhwa.

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2. The factual matrix of the case as stated in the writ petition is that the petitioner no.1 applied for correction of revenue record before the Circle Officer, Garhwa on 03.07.2009 which was registered as Misc. Case No. 25 of 2009-10 and the Circle Officer, Garhwa made recommendation to the respondent no. 3 for necessary correction in the revenue record and for realization of rent. However, the said file was returned by the respondent no. 3 on 18.08.2010 to the Circle Officer, Garhwa for ascertainment of genealogical table and also to find out as to whether any appeal was preferred against the order passed in Misc. Case No.19 of 1984-85 by the recorded tenant. Thereafter, the Circle Officer, Garhwa again made recommendation to the respondent no. 3 along with proposed rent to be realized from the petitioner. The respondent no. 3 accepted the recommendation of the Circle Officer, Garhwa and sent the record to the respondent no. 2 for its approval. However, the respondent no.2 resent the file to the Circle Officer, Garhwa making certain queries.

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3. Learned counsel for the petitioner submits that the respondent no.2 has not applied his mind while passing the impugned order dated

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18.06.2011. There was no partition suit pending regarding the land in question among the partners in which father of the petitioner no.1 was one of the defendants as manifested from the description of the suit land given in the decree dated 08.12.1982 prepared in T.S. No. 20 of 1979 (annexed as Annexure-6 to the writ petition). Moreover, the land in question was not the subject matter of the partition suit as it was self-acquired property and not an ancestral one. It is further submitted that earlier an application of the heirs of recorded tenant (seller) was rejected on 18.10.1984 in Misc. Case No. 19/1984-85 having considered the registered sale deed no. 1437 dated 03.07.1939 which was executed in favour of the father and uncle of the petitioner no. 1.

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4. On the contrary, the learned counsel for the respondents submits that the order dated 18.06.2011 passed by the respondent no.2 is not without jurisdiction and the same is justified. The application giving rise to Misc. Case No. 25 of 2009-10 does not come under the purview of Section 14 of the Bihar (now Jharkhand) Tenant’s Holdings (Maintenance of Records) Act, 1973 (in short “the Act, 1973) as the same is not related to mutation of the land, rather for opening of new Jamabandi in favour of the applicant (the petitioner no.1 herein) who is neither the recorded tenant of the land nor the sole successor of the recorded tenant as per the record of rights. The land is recorded in the name of one Bhikari Kandu under Khata No.201, plot nos. 1040 and 1042 measuring an area of 3.03 acres in cadastral survey of Khatian. The applicant (the petitioner no.1) claimed her right upon the said land contending that her father and uncle had purchased the said land in year 1939 and she is the sole successor of her father and uncle. It is further submitted that the petitioner no.1 has not submitted any document to show her right on the land being successor of the purchasers. The petitioners have stated that the land was purchased in year 1939 but it has not been explained as to why the land was not mutated since then. It is a settled principle of law that a sale deed, which is not produced for mutation within 12 years of execution of the sale deed, loses its legal value and the revenue authorities are not bound to mutate that land after 12 years. It is also submitted that the Circle Officer, Garhwa got

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the land inspected by the Revenue Officer, Circle Inspector and Anchal Amin wherein it was found that the land was still “jangal-jhari”. Thus, the possession of the petitioner upon the said land has also not been established. No one has ploughed the land till date.

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5. Heard the learned counsel for the parties and perused the materials available on record.

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6. The main submission of the learned counsel for the petitioners is that the circle officer is the competent authority to pass any order relating to correction/mutation of the revenue record on account of succession, purchase etc. and the respondent no.2 has wrongly assumed his jurisdiction without any such power conferred to him under the provisions of the Act, 1973.

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7. The petitioner no. 1 has claimed her right upon the land in question being the sole heir of the purchaser of the land. She has claimed that the said land was purchased by her father and uncle by way of registered sale deed no. 1437 executed on 03.07.1939 also claiming that the she is in possession of the same.

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8. The jurisdiction of the authorities relating to mutation/changes to be made in the Tenants' Ledger Register has been provided in the Act, 1973. Section 12 of the Act, 1973 provides that every person who is claiming the right upon any land by way of transfer may file application before the Anchal Adhikari for mutation of his/her name in respect of that holding. Further section 14 provides for disposal of the mutation application and Sections 15 and 16 provide the forum of appeal and revision respectively.

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9. For better appreciation of the issue, the relevant provisions of the Act, 1973 are quoted as under:

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“ 14. Requisition and disposal of mutation case.- (1) On receipt of notice under Sections 4, 5, 6, 7, 8, 9 and 10 or an application under Sections 11 and 12 or a report under Section 13, the Anchal Adkhikari shall start a mutation proceeding and after entering it in the mutation case register which shall be maintained in the prescribed form shall cause such enquiry to be made as may be deemed necessary. ……..”

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“ 15. Appeals .- (1) An appeal shall lie to the Land Reforms Deputy Collector against the order of the Anchal Adhikari passed under sub-section (2) of Section 14, if preferred within thirty days of the date of the order appealed against. ……..”

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“ 16. Revision.- The Collector of the district may, on an application made to him in this behalf or for the purpose of satisfying himself as to the legality or propriety of any order made under this Act or the rules made thereunder by any authority or officer call for and examine the record of any case pending before or disposed of by such authority or officer and pass such order as he thinks fit :………”

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10. On conjoint reading of Sections 14, 15 and 16 of the Act, 1973, it would abundantly be clear that the original authority for receiving the requisition and disposing of the mutation case is the circle officer. The Land Reforms Deputy Collector is the appellate authority under Section 15 of the Act, 1973 and the Collector is the revisional authority in terms with Section 16 of the said Act.

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11. “ The Sub-divisional Officer” has been defined under Section 2(t) of the Act, 1973, which reads as under:

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“ 2(t)- ‘Sub-divisional Officer’ means the officer-in-charge of the civil administration of the sub-division of a district”

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12. It would be evident from the said definition that the Subdivisional Officer is the officer-in-charge of the civil administration of the sub-division of a district for the purpose of the said Act, however, the Sub-divisional Officer is not an authority under the provisions of Sections 14, 15 & 16 of the Act, 1973.

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13. It is well settled that the power/jurisdiction of any authority is conferred by the statute and the same cannot be exercised in absence of any such power conferred by virtue of the statute.

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14. In the case of Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. & Ors. , reported in (2003) 2 SCC 111 , the Hon'ble Supreme has held as under:

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“40. ---- It is well settled that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The State and other authorities while acting under the said Act are only creature of statute. They must act within the four corners thereof. ”

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15. Further in the case of Indian Charge Chrome Ltd. & Another Vs. Union of India & Ors. , reported in (2003) 2 SCC

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533 , the Hon'ble Supreme Court has held as under:

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“27. The Central Government and the State Government are statutory authorities. They must, thus, act within the four corners of the statute. When an order is meant to be passed by the State Government or the Central Government the same must be passed by an authority competent

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therefor. An order which has been passed by an officer without an authority would be non est. The Central Government, therefore, could not have acted thereupon particularly when the State itself took such a stand. It failed to take into consideration that the recommendation dated 30-6-2001 being withdrawn, was no longer operative. ”

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16. Considering the aforesaid provisions of law, I am of the view that the respondent no. 2 has erroneously assumed his jurisdiction on the present issue. Thus, the order dated 18.06.2011 passed by the respondent no.-2 is quashed for want of jurisdiction. The Circle Officer, Garhwa is directed to pass order on the application for mutation filed by the petitioners on its own merit in accordance with law without being influenced by the order dated 18.06.2011 earlier passed by the respondent no. 2.

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17. The writ petition stands disposed of.

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(Rajesh Shankar, J.)

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Ritesh/A.F.R.

Ashpati Kunwar And Anr. v. State of Jharkhand And Ors.

Case brief

What is this about?

What did the court decide?

Ashpati Kunwar And Anr. v. State of Jharkhand And Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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