Allowed

MD Rabbani Mian v. Union of India through Ministry of Power

Jharkhand HC6 Jun 2022LPA/855/2019

Case brief

AI extract

What is this about?

This Letters Patent Appeal allowed, setting aside an order that dismissed a writ petition challenging a direction to initiate proceedings for Jamabandi cancellation. The High Court held that the lower court failed to address the legality of the Deputy Commissioner's power to cancel Jamabandi without a final order, emphasising that such disputes require civil suits.

What did the court decide?

Order dated 3rd July 2019 in W.P.(C) No. 3538 of 2016 set-aside; L.P.A No. 855 of 2019 allowed; order in letter no. 1158 dated 16th May 2016 quashed.

MD Rabbani Mian Vs Union of India… — Constitutional and Fundamental Rights | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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(Letters Patent Appellate Jurisdiction)

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L.P.A No. 855 of 2019

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Md. Rabbani Mian, s/o late Elahi Mian, r/o village & PO-Pandu, PS-Keredari, District-Hazaribagh. … Appellant

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Versus

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Union of India, through Ministry of Power, Rafi Marg, Sansad Marg, PO+PS-Sansad Marg, New Delhi-110001

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The Additional General Manager (Project), National Thermal Power Corporation Limited (NTPCL), Coal Mining Projects, Ujjwal Complex, Pugmil Road, Hazaribagh, PO & PS-Hazaribagh, DistrictHazaribagh.

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The State of Jharkhand.

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The Deputy Commissioner, Hazaribagh, PO & PS-Hazaribagh, District-Hazaribagh.

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The Additional Collector, Hazaribagh, PO & PS-Hazaribagh, District-Hazaribagh.

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The Land Reforms Deputy Commissioner, Hazaribagh, PO & PSHazaribagh, District-Hazaribagh.

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The Sub Divisional Officer (Sadar), Hazaribagh, PO & PSHazaribagh, District-Hazaribagh.

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The Circle Officer, Keredari Anchal, Hazaribagh, PO & PSHazaribagh, District-Hazaribagh. … Respondents

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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MR. JUSTICE RATNAKER BHENGRA

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For the Appellant : Mr. Rahul Kumar Gupta, Advocate For the Respondent-State : Mr. Ashok Kumar Yadav, GA-I For Respondent Nos. 1 & 2: Mr. Prashant Pallav, ASGI

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O R D E R

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Per, Shree Chandrashekhar, J.

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I.A No. 11902 of 2019

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This interlocutory application has been filed for condonation of delay of 131 days in filing this Letters Patent Appeal.

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The State has raised no objection.

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For the reasons stated in the application, I.A No. 11902 of 2019 is allowed and delay of 131 days in filing this Letters Patent Appeal is condoned.

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L.P.A No. 855 of 2019

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L.P.A No. 855 of 2019

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This is an assigned matter vide order dated 12^th January 2021 passed on the administrative side by Hon'ble the Chief Justice, High Court of Jharkhand.

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2. The appellant who was the writ petitioner has challenged legality of the order dated 3^rd July 2019 passed in W.P.(C) No. 3538 of 2016.

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3. By the said order, the writ petition which challenged issuance of communication dated 16^th May 2016 by the Deputy Commissioner, Hazaribagh directing the Circle Officer, Keredari to initiate proceeding for cancellation of Jamabandi and to institute First Information Report against the persons involved has been dismissed.

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4. Briefly stated, the appellant who is the legal heir of late Elahi Mian was aggrieved of the aforesaid communication by the Deputy Commissioner, Hazaribagh primarily for the reason that before issuing a direction for initiating an enquiry in the matter no notice was issued to him. It appears that on the basis of the letter dated 16^th May 2016 of the Deputy Commissioner, Hazaribag a notice was issued to the appellant by the Additional General Manager (Project), Keredari Coal Mining Project requiring the appellant to deposit a sum of Rs. 71,10,000/- (Seventy One Lakhs Ten Thousand) through a demand draft prepared in favour of NTPC Limited within 15 days.

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5. Before the writ Court, a preliminary objection was raised by the State of Jharkhand that no final decision was taken in the matter on the basis of the proceeding for cancellation of Jamabandi proposed to be conducted by the Circle Officer, Keredari and, therefore, the writ petition was not maintainable. The aforesaid objection raised by the State of Jharkhand was sustained by the writ Court observing as under:

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“8. Therefore, this Court is of the view that since factual aspect is to be adjudicated and there is availability of alternative remedy under the Statute, this Court is not inclined to interfere with the impugned communication. Since the communication dated 16.05.2016 is not a final order; hence on the date of filing of writ petition there was no

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3 L.P.A No. 855 of 2019

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cause of action to file the writ petition because there was no final order to the effect that jamabandi was cancelled or recommendation was made to cancel the jamabandi and merely on the basis of such communication, the writ petition was filed, hence it was premature as at that point of time.

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9. It further transpires that in course of pendency of writ petition when a regular proceeding has been initiated and order for recommendation for cancellation of jamabandi was passed that order has not been challenged by the petitioner even by way of filing Interlocutory Application.

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10. In view thereof, the writ petition is dismissed.”

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6. Before us, it is not disputed that following due procedure in law an award was prepared under section 11 of the Land Acquisition Act, 1894 in favour of father of the appellant and after inviting objections the amount of compensation was paid to him. The acquisition of the lands belonging to father of the appellant and others was made in exercise of the powers under section 17 of the Land Acquisition Act, 1894 which provides that after publication of the notice under sub-section (1) to section 9 and taking of the possession of the land which is required for public purpose such lands shall vest absolutely in the Government free from all encumbrances.

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7. Mr. Rahul Kumar Gupta, the learned counsel for the appellant submits that the Land Acquisition Act, 1894 is a complete Code in itself and unless the award so prepared in favour of father of the appellant is modified, varied or set-aside, no action for recovery of the amount of compensation paid to the father of the appellant could have been initiated. In support of this submission, Mr. Rahul Kumar Gupta, the learned counsel for the appellant refers to the decision in “Shyamali Das v. Illa Chowdhry” (2006) 12 SCC 300 .

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8. In “Shyamali Das” the Hon'ble Supreme Court has held

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as under:

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“19. The Act is a complete code by itself. It provides for remedies not only to those whose lands have been acquired but also to those who claim the awarded amount or any apportionment thereof. A Land Acquisition Judge derives its jurisdiction from the order of reference. It is bound thereby. His jurisdiction is to determine adequacy or otherwise of the amount of compensation paid under the award made by the Collector. It is not within his domain to entertain any application of pro interesse suo or in the nature thereof.”

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4 L.P.A No. 855 of 2019

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9. We are of the opinion that the issues which are germane to the plea raised by the appellant were not addressed by the writ Court and only on the ground that the writ petition was premature the same was dismissed. Under section 4(h) of the Bihar Land Reforms Act, 1950 a proceeding can be initiated by the Collector (Deputy Commissioner in the present case) on the grounds specified therein. We have not been shown any provision in law under which the Deputy Commissioner of a district can order cancellation of Jamabandi which is running in the name of the occupier of the land for the last several years. We are of the opinion that after an enquiry if at all it is found that the land belonged to the State Government and in collusion with the Circle Officer or any other officer of the Government a Jamabandi was created, the appropriate remedy for the State is to file a civil suit primarily for the reason that the questions of fraud, misrepresentation etc. cannot be decided in a summary proceeding without leading evidence oral as well as documentary.

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10. It is also by now well settled that challenge to a show-cause notice is maintainable in a writ proceeding if the notice itself was without jurisdiction [refer , “Union of India v. Kunisetty Satyanarayana” (2006) 12 SCC 28 ]. Since the direction issued by the Deputy Commissioner, Hazaribagh to the Circle Officer for initiating a proceeding for cancellation of Jamabandi and registration of a First Information Report would entail serious civil as well as criminal consequences against the appellant, merely by saying that the writ petition is premature the same could not have been dismissed by the writ Court.

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11. For the aforesaid reasons the order dated 3^rd July 2019 passed in W.P.(C) No. 3538 of 2016 is set-aside.

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12. The State and other respondents shall be at liberty to take recourse to the remedy as available to them in law. However, we hastened to add that the report which has been prepared by the Circle Officer can be relied upon by the State of Jharkhand in the proceeding of First Appeal filed under section 54 of the Land

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5 L.P.A No. 855 of 2019

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Acquisition Act or any other collateral proceeding between the parties.

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13. L.P.A No. 855 of 2019 is allowed and, consequently, order contained in letter no. 1158 dated 16^th May 2016 passed by the Deputy Commissioner, Hazaribag is quashed.

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(Shree Chandrashekhar, J.)

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(Ratnaker Bhengra, J.)

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R.K/Amit

MD Rabbani Mian v. Union of India through Ministry of Power

Case brief

What is this about?

What did the court decide?

MD Rabbani Mian v. Union of India through Ministry of Power

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

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