Allowed

Head Master,K.N.High School v. State of Jharkhand And Ors.

Jharkhand HC8 Mar 2022WPC/1676/2005

Case brief

AI extract

What is this about?

This High Court allowed a writ petition seeking to restore a mutation order granted to a school. The court quashed the impugned orders of the LRDC and Additional Collector which had set aside a rent receipt based on physical possession verified by the Circle Officer against claims of forgery and adverse possession.

What did the court decide?

The writ petition was allowed; impugned orders of LRDC and Additional Collector were set aside; authorities directed to issue rent receipt to the school.

Head Master,K.N.High School Vs State of Jharkhand And… — Property and Title | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI (Civil Writ Jurisdiction)

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W.P.(C) No. 1676 of 2005

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….....

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Head Master, K. N. High School, P.S.-Ichak, District- Hazaribagh. …. ..... Petitioner

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Versus

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State of Jharkhand & Others …. ..... Respondents

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CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO

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…......... For the Petitioner : Dr. P. C. Sinha, Advocate For the Respondents/ State : Mr. Ashish Kumar Thakur, A.C. to Mr. Ashutosh Anand, AAG-III For the Respondent No.5 : Mr. Binod Kumar Dubey, Advocate

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06/08.03.2022.

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Heard, learned counsel for the parties.

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Learned counsel for the petitioner, Dr. P. C. Sinha has submitted that the petitioner has preferred this writ petition for quashing the order dated 13.09.2002 & 10.06.2004 passed by respondent No.3, LRDC, Sadar, Hazaribag and respondent No.2, Additional Collector, Hazaribag respectively, whereby the order passed by the Circle Officer in Mutation Case No.17/2001-02 granting mutation in favour of the petitioner has been set aside by the LRDC, Hazaribag in terms of order dated 13.09.2002 passed in Dakhil Kharij Case No.02/2002, which has been affirmed by the Additional Collector, Hazaribag under the revisional jurisdiction in terms of order dated 10.06.2004 passed in Misc. Revision No.11/2002.

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Learned counsel for the petitioner has submitted that as a matter of fact, the land of Plot No.2765, Area-1.21 Acres, originally recorded in khatiyan in the name of Gobardhan Ram was purchased by the Secretary of K. N. High School, P.S.- Ichak, District- Hazaribag vide sale deed dated 08.06.1966, which has already been brought on record as Annexure-1 to the writ petition. Thereafter, the mutation was applied before the Circle Officer, who after due verification, found possession of the petitionerSchool and passed the order in Mutation Case No.17/2001-02, which has wrongly been set aside by the LRDC, Hazaribag in terms of order dated 13.09.2002 passed in Dakhil Kharij Case No.02/2002, which has been affirmed by the Additional Collector, Hazaribag in Misc. Revision No.11/2002 dated 10.06.2004.

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Learned counsel for the petitioner has further submitted that respondent No.5, Durga Ram, S/o Dhaneshwar Ram, who claimed the land has never preferred any suit for cancellation of Sale Deed dated 08.06.1966 executed by Gobardhan Ram and Dhaneshwar Ram in favour of the Secretary, K. N. High School and as such, the Appellate authority as well as the revisional revenue authority have committed gross error in cancelling the jamabandi, which was initiated and created in the name of K. N. High School by the competent authority after due verification regarding possession.

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Learned counsel for the petitioner has further submitted that possessions are of two types, one is notional possession other is physical possession. If a property is purchased by a registered sale deed, the presumption lies in favour of the purchaser, who has purchased the same and the legal remedy available to the persons who are aggrieved of such thing is to file a suit for cancellation of sale deed, as the order of mutation never creates a title in favour of any person. The title is covered by sale deed, which can only be assailed before the competent court of civil jurisdiction.

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Learned counsel for the petitioner has further submitted that objection, which was considered by the appellate authority i.e. LRDC and the revisional authority i.e. Additional Collector, Hazaribag are such as:-

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(i) That petitioner has never applied for mutation soon after execution of registered sale deed on 18.06.1966, rather after 36 years such mutation has been applied in the year 2002, which has wrongly been allowed by the Circle Officer, Ichak, Hazaribag.

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(ii) The School has no boundary wall to say that this land belongs to the School.

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(iii) Several houses have been constructed over the same land under the Indra Awas Yojana by the local Administration.

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(iv) The land has been purchased in the name of Secretary of School, which ought to have been purchased in the name of Governor of Bihar or might be donated in the name of Governor of Bihar at the relevant time.

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Learned counsel for the petitioner has further submitted that it is not the case that :

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(i) any individual has purchased this land in his own name for his own benefit, rather it was purchased for welfare of the society though registration was made in the name of the Secretary. It is true that such land ought to have been transferred in the name of His Excellency, the then Governor of Bihar at the relevant time on 08.06.1966 or the State of Jharkhand in year 2000, but on this account a sale deed cannot be nullified.

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(ii) that so far if a person has applied for mutation of his name after 36 years, it doesn’t mean that the right which has accrued in his favour by virtue of a sale deed is being affected. It is also the duty of the State authorities particularly the Circle Officers, who are posted in Circle to collect the rent of the raiyats with respect to the land. If a Circle Officer is not doing his duty, it is none of the fault of the petitioner, who is a School named as K. N. High School.

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(iii) Schools are constructed by the villagers for welfare of the society and subsequently those are acquired or taken up by the Government, so initially the motto of the School is to have some roof and ground, which can be used as a class room and playground by the students and as such, this is not a ground for interfering by the LRDC as well as Additional Collector, Hazaribag that School has no boundary wall though as on today, there is a boundary of the School and land is also in possession of School.

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(iv) if some of the land has been used by the State authorities for construction of the Indra Awas because of their high handedness, a School authority cannot fight with the State Administration, who are doing illegal activities and as such, it is also not a ground to cancel a mutation standing or created in the name of School after due verification by the Circle Officer. The legal remedy lies to the respondent No.5 namely Durga Ram to file a suit before the competent court of civil jurisdiction, where prayer can be made to cancel the sale deed dated 08.06.1966 is to be cancelled by a competent court of civil jurisdiction, as such, the impugned order passed by the LRDC, Hazaribag dated 13.09.2002 passed in Dhakhil Kharij Case

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No.02/2002 as well as order dated 10.06.2004 passed by the Additional Collector, Hazaribag in Misc. Revision Case No.11/2002 are fit to be set aside by upholding the order dated 14.02.2002 passed in Mutation Case No.17/2001-02 by the Circle Officer, Ichak, Hazaribag.

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Learned counsel for the respondent No.5, Mr. Binod Kumar Dubey has relied upon the counter affidavit dated 07.02.2006, emphasis has been laid at para-4 to 8, which may profitably be quoted hereunder:-

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“4. That it is humbly submitted that the Respondent No.5 humbly submits that the present writ petition has been filed in which the petitioner prayed before this Hon'ble Court that it is a cancellation of Jamabandi but in fact, it is not cancellation of jamabandi. Jamabandi was opened in the name of grandfather of Respondent No.5 and it was running and the Respondent No.5 after the death of grandfather paid the rent to the State Govt. and the petitioner claiming the property that prior to 40 years the uncle of counsin grandfather sold the land in favour of the petitioner and during his life time they did not approach before the Competent Authority for jamabandi but when he died then by way of forged and fabricated document, they filed the petition for grant of Zamabandi before the Circle Officer who without deciding the legality and propriety of the Sale Deed as well as Title and without hearing the respondent no.5 Circle Officer allowed the petition filed by the petitioner and opened the Zamabandi in the name of petitioner without giving notice to respondent no.5. Then the Respondent no.5 approached before the Additional Collector who set aside the order passed by the Circle Officer / or L.R.D.C. and passed an order vide order dated 13.9.2002 in favour of the Respondent no.5 and set aside the order passed by the Circle Officer and clearly held that Respondent no.5 is in physical possession over the land in question and after about thirty five years petitioner applied for Mutation after the death of Gobardhan Ram and Dhaneshwar Ram which creates doubt on the case of petitioner. 5. That it is humbly submitted that against that order they preferred a Revision before the Commissioner, Hazaribagh i.e. M.S. Case No.11/2002 which was dismissed on 10.6.2004 and the learned Commissioner also confirmed the order passed by the Ld. Addl. Collector Hazaribagh and he has also stated that the petitioner may approach before the Competent Civil Court to confirm the title for testing the legality and propriety of the Sale Deed.

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6. That it is humbly submitted that the petitioner after suppressing the facts came before this Hon'ble Court though they claimed the land by virtue of the Sale Deed. According to him, which was registered on 8.6.1966 and for the first time they approached for granting of Jamabandi in the year 2001 when the so called seller died which itself creates doubt on the veracity of the Sale Deed and infact the petitioner has got no knowledge about the Sale Deed as the writ petitioner was never in possession of the land in question and mother of Respondent No.5 sold the land to different persons who are in physical possession over the land in question. So the present writ petition is fit to be dismissed.

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7. That it is humbly submitted that the order of the learned C.O. is ex-parte without giving proper opportunity of hearing, the order was passed and in fact the writ petitioner is not in possession over the land in question which fact is evident from the order of the learned Addl. Collector and learned Commissioner itself. So there is no scope for this Hon'ble Court to interfer with the order passed by the Learned Commissioner as well as Addl. Collector, Hazaribagh. So the Respondent prays for justice.

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8. That it is relevant to state that the land in question was initially in the Khatiyan name of Ram Lal Ram as mentioned who has got 3 sons Dhani Ram, Lakhan Ram and Gobardhan Ram, in which Lakhan Ram was issueless and Gobardhan Ram was also issue less. This Respondent No.5 is the son of Dhani Ram and the petitioner claimed that Gobardhan Ram sold the land in the year 1966 and till 2001 they were sleeping over the matter and now after a lapse of time they are claiming that the mutation be allowed in their favour and in fact on the garb of School, the persons interested want to grab the land in question by way of forged document, and they want to snatch away the valuable property of the Respondent No.5 which action on the part of the petitioner is wholly illegal and without jurisdiction and in fact the Jamabandi was running in the name of the Respondent No.5 and before that it was running in the name of the grandfather of the Respondent No.5 who paid rent regularly and it is well settled law that disputed question of title cannot be decided / adjudicated in the writ petition. So the best course or action for the petitioner would be to approach before the Civil Court which is stated in the order of the learned Commissioner itself.”

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Learned counsel for the respondent No.5 has submitted that mutation was running in the name of father of the respondent No.5 and as such, before granting rent receipt in mutation Case No.17/2001-02 by the Circle Officer, Ichak, Hazaribag on 14.02.2002, it was incumbent upon the Circle Officer to notice respondent No.5 or the legal heirs of the last person from whom the rent was collected to make such necessary correction.

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Learned counsel for the respondent No.5 has further submitted that writ is not maintainable in disputed question of facts.

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Learned counsel for the respondents / State, Mr. Ashish Kumar Thakur, A.C. to Mr. Ashutosh Anand, A.A.G.-III has submitted that it is true that initially the rent was issued in favour of the recorded tenant namely Gobardhan Ram and Dhaneshwar Ram, but after execution of a registered sale deed on 08.06.1966 in the name of K. N. High School and after having knowledge, that the land has been transferred validly by registered sale deed, the mutation with respect to the land transferred through sale deed has been made on the basis for physical verification. On showing physical possession over the land, the Circle Officer has not committed any error in passing the order of mutation in Mutation Case No.17/2001-02 vide order dated 14.02.2002. However, that order has been set aside by the appellate authority i.e. LRDC on 13.09.2002 and affirmed by the revisional authority on 10.06.2004 passed in Misc. Revisional Case No.11/2002 setting aside the order of the Circle Officer, as such, Circle Officer is duty bound to comply the order passed by the Superior Officer.

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After hearing leaned counsel for the parties and on the basis of the materials available on record, it is not in dispute that the land of Plot No.2765, Area-1.21 Acres originally recorded in the name of Gobardhan Ram in the khatiyan, but no material has been brought on record by the respondent or the private respondent No.5- Durga Ram to allege that the registered sale deed dated 08.06.1966 has been cancelled by competent court of law. A document can be declared forged or can be cancelled by competent civil court. It cannot be said by contesting party that it is a forged document and that submissions cannot be accepted by a court. Such documents are disputed is questions of fact, which has to be alleged and

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prove in accordance with law, otherwise registered document has presumptive value under the Registration Act, 1908.

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Under the aforesaid circumstances, the order which has been passed by the Circle Officer, Ichak, Hazaribag as on the spot verification of the School, as found by the Circle Officer, Ichak, Hazaribag. The Circle Officer has rightly passed order on 14.02.2002 in Mutation Case No.17/2001-02, which is on the basis of possession and order of mutation never creates a title, it always speaks of possession. The possession may be of two types notional or physical. Here is a case where apart from notional possession, which has been accrued by virtue of a sale deed dated 08.06.1966, the physical possession has also been found by the Circle Officer after verifying the spot.

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Under the aforesaid circumstance, this Court finds that the order of the Circle Officer is justified. So far order which has been passed by the LRDC, Hazaribag in terms of order dated 13.09.2002 passed in Dakhil Kharij Case No.02/2002 as well as the Additional Collector, Hazaribag in terms of order dated 10.06.2004 passed in Misc. Revision No.11/2002 are concerned those are passed on the basis of presumption, as the petitioners have not applied for mutation for 32 years. Such plea is not available as it is duty of the Circle Officer of concerned circle to collect rent, which is the only source of the income of the State.

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It has been experienced by this Court that the Circle Officers are not collecting the rent and the State counsel is not able to satisfy this Court, that in any of the Circle in the State of Jharkhand, the rent is being collected regularly by the Circle Officer. The plea, which has been taken by the State counsels are that there is online provisions of payment of tax, which can be utilised by a raiyat, but it has been found that on several occasion, these online rents are not being accepted. The online rent collection provisions never exonerate the Circle Officers from collecting the rent, accordingly, the plea taken by the LRDC and the Additional Collector, Hazaribag are vacuous far from the truth and cannot be believed by this Court.

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So far the construction of Indra Awas over some part of the land is concerned, it is very difficult for a common citizen or for a School, which is a welfare organization, that any action of the administration can be

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protested in letter and spirit. It is expected that the Deputy Commissioner or Block Development Officer or the Government authority will construct the Indra Awas on the Government land or on the land of the poor downtrodden of the society for their benefit, but they are never authorized to construct the same over School land of the society.

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So far the plea taken by the LRDC and the Additional Collector, Hazaribag with regards to boundary is concerned, it is not an issue, that a School has a boundary or not. In several Government School there is no boundary, but School is functioning and play ground are used by the students of that Government School, accordingly, if the K. N. High School is suffering from financial crunch to construct the boundary wall, it doesn’t allow the State machinery to consider that possession was not there. The possession has rightly been considered by the Circle Officer on the basis of spot verification before grant of rent receipt and on physical verification at the spot, which should not have been interfered by the Additional Collector or by the LRDC, Hazaribag, accordingly, I allow the writ petition till the registered sale deed dated 08.06.1966 is not cancelled or quashed by competent court of law.

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Accordingly, the instant writ petition is hereby allowed.

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The respondent authorities are directed to issue rent receipt in favour of the K. N. High School because it is a welfare organization and it is not for benefit of one individual.

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(Kailash Prasad Deo, J.)

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Jay/

Head Master,K.N.High School v. State of Jharkhand And Ors.

Case brief

What is this about?

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Head Master,K.N.High School v. State of Jharkhand And Ors.

Case brief

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