Allowed

Doman Mahto v. the State of Jharkhand through the Secretary Revenue Registration Land Reforms Deptt

Jharkhand HC17 Oct 2023LPA/218/2019

Case brief

AI extract

What is this about?

The High Court held that Section 4(h) of the Bihar Land Reforms Act, 1950 empowers authorities only to annul a transfer to frustrate the Act's object, not to cancel a Jamabandi. Consequently, the Deputy Commissioner lacked jurisdiction to cancel the petitioner's long-standing Jamabandi, leading to the quashing of the impugned order and remittal for fresh proceedings.

What did the court decide?

Order dated 14.07.2011 passed by Deputy Commissioner, Ranchi is quashed and set aside. Matter remitted to revenue authority to pass order afresh.

Doman Mahto Vs the State of Jharkhand through the… — Land Acquisition | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No.218 of 2019

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Doman Mahto, aged about 86 years, son of Late Kartik Mahto, Resident of Village-Dumartaur, Banta Hazam, P.O. & P.S. – Silli, District-Ranchi, Jharkhand.

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Versus

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1.The State of Jharkhand through the Secretary, Revenue Registration, Land Reforms Department, Government of Jharkhand, having its office at Project Bhawan, P.O.Dhurwa, P.S.-Jagarnathpur, District-Ranchi, Jharkhand.

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2.The Deputy Commissioner Ranchi, P.O.-G.P.O., P.S. – Kotwali, District-Ranchi, Jharkhand.

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3.The Additional Collector Ranchi Office at P.O. –G.P.O., P.S. – Kotwali, District-Ranchi, Jharkhand.

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4.The Additional Collector Ranchi Office at P.O.-G.P.O, P.S. – Kotwali, District-Ranchi, Jharkhand.

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5.Circle Officer, Silli Office at P.O. & P.S. – Silli, DistrictRanchi.

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… … Respondents

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------- CORAM :HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE NAVNEET KUMAR

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For the Appellants : Mr. Ram Prakash Singh, Advocate For the Respondent : Mr. Gaurav Raj, AC to AAG II

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Ms. Sweta Shukla, AC to AAG II

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Order No.12 : Dated 17^th October, 2023 Per Sujit Narayan Prasad, J.

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1. The instant intra-court appeal, preferred under Clause 10 of the Letters Patent, is directed against the order/judgment dated 11.12.2018 passed by learned Single Judge of this Court in W.P.(C) No.7856 of 2011 whereby and whereunder the order passed by the revenue authorities have been refused to be interfered with by dismissing the writ petition.

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2. Brief facts of the case as per the pleadings made in the writ proceeding, which are required to be enumerated herein, read as under :-

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3. The entire village of Banta Hazam, Police Station Silli was put in auction certificate in the year 1893 on failure of the raiyat to pay rent to the then landlord. The said village was purchased by one Brajeshwar Sahay and Ramyad Sahu. Accordingly, Khewat No. 3/1 and 3/2 were prepared in their name respectively. In course of survey and settlement operation in the year 1935 Khatian was prepared in joint ownership with respect to Khata No. 842 of village Banta Hazam.

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4. It is stated that Rameshwar Sahu and Tapeshwar Sahu, both sons of late Ramyad Sahu were the Zamindar of village Banta-Hazam, as would be evident from the Zamindari rent receipt issued by them. The exintermediary Rameshwar Sahu settled the land under khata no. 842 plot no. 2588 and 2589 measuring an area 0.31 acre and 0.27 acres respectively by Hukumnama coupled with grant of rent receipt on 05.12.1952 in favour of plaintiff/appellant.

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5. It is the case of the petitioner that after settlement of land by the ex-intermediary on 05.12.1952, he came into possession of the land in question and constructed pucca house thereupon and fenced the boundary wall and

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further dug a pond for irrigation.

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6. After vesting of ex-intermediary interest and on the stage of Bujharat by the State, the petitioner was found in possession over the land and thereafter Jamabandi was opened in his favour by entering his name in Register-II.

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7. It is case of the petitioner that he is in actual physical possession over the land appertaining to land of plot no. 2588 and 2589 under Khata No. 842 and is regularly paying rent to State exchequer since 1956-57 till date i.e., 2018. It is stated that since 1952 till 1992, no objection was raised from any quarter over the possessory right of the petitioner with respect to plot no. 2588 and 2589 area 0.27 and 0.31 acres respectively and sometimes in the year 1992 a dispute was raised at the instance of villagers of Banta Hazam regarding encroachment made by the petitioner on the public land over Khata no. 842 plot no. 2588 and 2589 area 0.27 and 0.31 acres respectively.

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8. Upon such complaint, the Circle Officer drawn a proceeding being Miscellaneous Case No. 24/R8-91-92. The Circle Officer, on the basis of report submitted by Halka Karamchari, Circle Inspector and Amin, vide order dated 08.05.1992 ordered for removal of encroachment over Khata No. 842 plot no. 3030 area 3.06 sq. meters and also directed to Halka Amin to stop issuance of rent

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receipt in favour of petitioner with respect to plot no. 2588 and 2589. Even after the aforesaid order, the petitioner is still paying rent to the State exchequer and rent receipt has been issued in his favour.

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9. A public complaint was made on 04.07.2001 before the Circle Officer, Silli with regard to encroachment made by Bhagirath Mahto, Niranjan Mahto, Milan Mahto and Ratan Mahto over plot nos. 3030, 2576, 2591 and 2531 causing disturbance in the ingress from Basudih to Banta Hazam but no action was taken. At the behest of one Bhagirath Mahto a petition was filed in the Court of Circle Officer, Silli for removal of encroachment over plot no. 2588, which was sent before the learned Additional Collector Land Reforms where it was numbered as Miscellaneous Case No. 33/01-02. The learned Additional Collector Land Reforms recommended for cancellation of Jamabandi running in the name of petitioner and sent the record in the Court of learned Deputy Commissioner, Ranchi for taking appropriate action.

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10. In pursuance to the notice issued by learned Additional Collector a notice was served upon the petitioner from the Court of Deputy Commissioner, Ranchi in Case No. 33/01-02 and Case No. 44/02-03 asking him to appear and plead his case.

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11. The learned Deputy Commissioner, after hearing the

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Miscellaneous Appeal, recommended for cancellation of jamabandi running in the name of petitioner vide order dated 14.07.2011.

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12. Aggrieved thereof, the petitioner approached this Court by filing writ petition being W.P.(C) No. 7856 of 2011, which was dismissed vide order dated 11.12.2018, against which, the instant intra-court appeal has been preferred.

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13. It appears from the factual aspect, as referred hereinabove based upon the pleading made on behalf of the writ petitioner, that the property under khata no. 842 plot no. 2588 and 2589 said to have been settled in favour of one Rameshwar Sahu Son of Ramyad sahu by virtue of Hukumnama dated 05.12.1952. It is the case of the writ petitioner that after the aforesaid settlement, the predecessor-in-interest of settlee, who happens to be writ petitioner herein, continued to be in possession over the land in question. It is further case of the petitioner that the rent is being paid continuously in favour of State. Further case of the appellant is that they are in peaceful possession of the land in question for the last 65 years.

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14. The grievance of the petitioner is that all of a sudden a proceeding under Section 4(h) of the Bihar Land Reforms Act, 1950 (in short BLR Act, 1950) was initiated by issuance of notice providing an opportunity to the

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appellant as to why the jamabandi be not cancelled on the ground that Jamabandi has been created based upon the settlement of property in question on 05.12.1952 and as such it comes under the purview of enquiry contemplated to be conducted under Section 4(h) of the BLR Act, 1950 wherein it has been provided that in order to meet the object of the BLR Act, 1950, if the land has been settled on or after 01.01.1946, the Collector has been conferred with the power to conduct an enquiry for annulling the transfer subject to affirmation by the State Government. A reply was submitted wherein the ground was taken that issuance of such notice is highly unwarranted reason being that the predecessor-ininterest/ appellant were/are in the continuous possession of the land for the last 65 years and further rents are also being paid to the State, which is being accepted. But the learned Deputy Commissioner Land Reforms discarding the said response to the show cause has recommended for cancellation of jamabandi on the ground that the property in question said to have been settled on 05.12.1952, which is post 01.01.1946, hence, the learned Collector has got power under Section 4(h) of the BLR Act, 1950 to conduct the enquiry so as not allow to frustrate the very object and intent of the Act.

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15. Based upon the said recommendation of Additional Collector Land Reforms order was passed on 14.07.2011 for cancellation of jamabandi which has been passed in Misc. Appeal 33 of 2001-02/ 44 of 2002-03. Aggrieved thereof, the appellant has approached this Court by filing writ petition challenging the order passed by Deputy Commissioner Land Reforms by taking the ground that long running jamabandi cannot be cancelled.

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16. The learned Single Judge has considered the said submissions and after calling upon the State has passed order based upon the plea of the State that there is no impropriety in passing the order impugned since it is admitted case of the appellant that the property in question was settled on 05.12.1952 while provision of Section 4(h) confers power to conduct enquiry, if any settlement of the land for the purpose of frustrating the very object and intent of the Act is there if the land has been transferred on or after 01.01.1946. The writ petitioner being aggrieved with the aforesaid has preferred the instant intra-court appeal.

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17. Mr. Ram Prakash Singh, learned counsel for the appellant-writ petitioner, in order to challenge the impugned order passed by learned Single Judge, has taken the following grounds:

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I. That the learned Single Judge has not appreciated the fact in right prospective that the long running Jamabandi cannot be cancelled and without appreciating the aforesaid fact the order passed by the Deputy Commissioner Land Reforms (DCLR) has been affirmed, hence, the present appeal.

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II. Learned counsel for the appellant in addition to aforesaid ground has taken the ground rather under the provision of Section 4(h) of the BLR, 1950 the power has been conferred upon the Collector to annul the transfer, as would be evident from the provision of Section 4(h) itself. Hence, the very sanctity of the order since is based upon the jurisdictional error; hence the said order also suffers from impropriety.

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18. Learned counsel for the appellant based upon the aforesaid ground has submitted that the order passed by learned Single Judge suffers from error, hence require interference by this Court.

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19. Per contra, Mr. Gaurav Raj, learned A.C to AAG-II, appearing for the respondents-State of Jharkhand, by defending the order passed by learned Single Judge, has submitted that it is incorrect on the part of appellant to take the ground that the long running jamabandi cannot be cancelled, which has been cancelled by the revenue-

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authorities since it is based upon the settlement dated 05.12.1952, which is post 01.01.1946, as per cut-off date provided under Section 4(h).

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20. The Deputy Commissioner after coming to the conclusive finding for the purpose of frustrating the very object of the Act the land was settled since has cancelled the jamabandi, as such if any proceeding has been initiated on that ground it cannot be said to suffer from error reason being that in order to maintain the very object and intent of the Act, 1950 a proceeding has been initiated.

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21. Further submission has been made that the objection which has been raised on behalf of the appellant that the provision of Section 4(h) does not confer power upon the DCLR to cancel jamabandi rather the Collector has been conferred power under the aforesaid provision to annul the transfer but no such ground was agitated before the learned Single Judge, hence, it cannot be agitated now.

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22. In response to the aforesaid submission, learned counsel for the appellant has submitted that so far as objection raised pertaining to issue of applicability of Section 4(h) in the matter of cancellation of jamabandi is concerned, since it has illegally been passed and hence it can be raised at any stage and that is the reason it has

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been raised before the appellate stage which requires consideration by this Court.

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23. We have heard learned counsel for the parties, perused the documents available on record as also the finding recorded by learned Single Judge in the impugned order.

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24. This Court, before entering into the illegality and propriety of the impugned judgment/order, deems it fit and proper to refer the undisputed facts involved herein.

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25. The land in question said to have been settled by Hukumnama on 05.12.1952. It is the case of the appellant, as per the pleading that they claim over the possession over the land in question since 05.12.1952 i.e, since the date of settlement. They have also claimed that they have paid rent to the State, which was duly accepted.

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26. It further appears that a notice was issued for cancellation of jamabandi pursuant thereto a reply was furnished before the original authority i.e, DCLR but the aforesaid reply was found to be not satisfactory, hence recommendation was made for cancellation of jamabandi by the Additional Collector. The Deputy Commissioner based upon the said recommendation has cancelled the jamabandi vide order dated 14.07.2011. The said order was challenged before this Court by filing writ petition

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being W.P.(C) No. 7856 of 2011, which was dismissed, against which the instant intra-court appeal has been filed.

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27. This Court, on the basis of aforesaid factual aspects and pleadings made by the parties, is of the view that following issues requires consideration:

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I. Whether the long running jamabandi can be cancelled by a proceeding by the reveneue authority, which is quasi-judicial in nature?

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II. Whether Section 4(h) of the BLR Act, 1950 confers power to cancel jamabandi or it confers power to annul transfer?

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III. Whether on technicality if any wrong decision has been committed the appellant can be allowed to take advantage without any logical end regarding claim of the rival parties?

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28. The issue nos. I and III are inter-linked. Although issue no. II is co-related but since issue no. II was not raised before the learned Single Judge and that is the reason an objection has been raised on behalf of State that the aforesaid issue since was not raised before the learned Single Judge it may not be allowed to be agitated herein.

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29. But we are not in agreement with such submission made on behalf of learned counsel for the State mainly for

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the reason that the authority which is to exercise by any authority/incumbent holding the post is required to be exercised by virtue of statutory powers. If the authority concerned exercises the said power contrary to the statutory command/mandate then the said issue will be said to be the issue related to the jurisdiction and jurisdiction since goes to the root of the issue, hence, it can be raised at any stage of proceeding.

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30. Reference in this regard is made to the judgment rendered by Hon’ble Supreme Court in Balvant N. Viswamitra & Ors Vs. Yadav Sadashiv Mule (Dead) through LRs [(2007) 8 SCC 706] , in particular paragraph 9, which reads as under:

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9 .The main question which arises for our consideration is whether the decree passed by the trial court can be said to be “null” and “void”. In our opinion, the law on the point is well settled. The distinction between a decree which is void and a decree which is wrong, incorrect, irregular or not in accordance with law cannot be overlooked or ignored. Where a court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction, non est and void ab initio . A defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no jurisdiction is a nullity. Validity of such decree or order can be challenged at any stage, even in

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execution or collateral proceedings.”

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(emphasis supplied)

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31. It is further settled position of law that even right decision by a wrong forum is no decision as has been held by Hon’ble in Pandurang & Ors Vs. State of

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Maharashtra [(1986)4 SCC 436].

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32. For ready reference, relevant paragraph 4 thereof is quoted as under:

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“4. When a matter required to be decided by a Division Bench of the High Court is decided by a learned Single Judge, the judgment would be a nullity, the matter having been heard by a court which had no competence to hear the matter, it being a matter of total lack of jurisdiction. The accused was entitled to be heard by at least two learned Judges constituting a Division Bench and had a right to claim a verdict as regards his guilt or innocence at the hands of the two learned Judges. This right cannot be taken away except by amending the rules. So long as the rules are in operation it would be arbitrary and discriminatory to deny him this right regardless of whether it is done by reason of negligence or otherwise. Deliberately, it cannot be done. Negligence can neither be invoked as an alibi, nor can cure the infirmity or illegality, so as to rob the accused of his right under the rules. What can be done only by at least two learned Judges cannot be done by one learned Judge. Even if the decision is right on merits, it is by a forum which is lacking in competence with regard to the subject-matter. Even a “right” decision by a “wrong” forum is no decision. It is non-existent in the eye of law. And hence a nullity. The judgment under appeal is therefore no judgment in the eye of law. This Court in State of M.P. v. Dewadas [(1982) 1 SCC 552 : 1982 SCC (Cri) 275 : AIR 1982 SC 800 : (1982) 3 SCR 81] has

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taken a view which reinforces our view. We, therefore, allow the appeal, set aside the order passed by the learned Single Judge, and send the matter back to the High Court for being placed before a Division Bench of the High Court, which will afford reasonable opportunity of hearing to both the sides and dispose it of in accordance with law, expeditiously. We wish to add that the Registry of the High Court was expected to have realized the true position and ought not to have created a situation which resulted in waste of court time, once for hearing the appeal, and next time, to consider the effect of the rules. No court can afford this luxury with the mountain of arrears which every court is carrying these days.”

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33. The Hon’ble Apex Court further in the judgment rendered in A. Mohammad Yunus (Dead) by LRs Vs. Food Corporation of India & Anr. [(2000) 0 Supreme (SC)192] has held that if arbitrator has not been appointed as per agreement, the award would be said to be a quorum-non-judis .

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34. Thus, it is evident that where a Court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction, non est and void ab initio . A defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the Court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a Court or an authority having no jurisdiction is a nullity.

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Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings.

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35. This Court based upon the aforesaid proposition of law, as has been settled by Hon’ble Apex Court in the cases referred above and coming to the facts of the case that since the issue has been raised on behalf of learned counsel for the appellant that Section 4(h) of the BLR Act, 1950 does not confer power upon the Deputy Commissioner to take any step for cancellation of jamabandi rather it confers power to annul the transfer hence the same being the jurisdictional issue as such it cannot be incorrect on the part of the State to raise an objection that since this was not raised before the learned Single Judge it cannot be allowed to be raised herein.

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36. However, before coming to the said finding we deem it fit and proper to consider as to whether Section 4(h) of the BLR Act, 1950 confers power of ‘annulment of transfer’ or ‘cancellation of Jamabandi’. For ready reference, Section 4(h) of the BLR Act, 1950 is quoted hereunder as :

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“4. Consequences of the vesting of an estate or tenure in the State

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(a). xxx xxx xxx

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xxx xxx xxx

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(h) The Collector shall have power to make inquiries in respect of any transfer including the settlement or lease of any land comprised in such estate or tenure or the transfer of any kind of

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interest in any building used primarily as office or cutchery for the collection of rent of such estate or tenure or part thereof, [* * ] and if he is satisfied that such transfer was made [at any time after the first day of January, 1946, with the object of defeating any provisions of this Act or causing loss to the State or obtaining higher compensation thereunder the Collector may, after giving reasonable notice to the parties concerned to appear and be heard [ * *] annul such transfer, dispossess the person claiming under it and take possession of such property on such terms as may appear to the Collector to be fair and equitable:”

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37. It is evident from Section 4 (h) of the BLR Act, 1950 that the Collector has been conferred with the power to conduct an enquiry and if the land, after coming into effect of BLR Act, has been transferred by the ex-landlord so as to frustrate the very object, he can annul such transfer. The statute also provide a cut-off date i.e., if any transfer has been made on or after 01.01.1946 such transfer will come into the domain of the enquiry to be conducted by the Deputy Commissioner.

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38. It further appears that Section 4 (h) of the BLR Act, 1950 confers power to conduct the enquiry and based upon the finding after providing a reasonable opportunity to the party concerned the transfer is to be annulled. The word ‘transfer’ is the issue which has got bearing since it cannot be disputed that there is difference in between „annulment of land‟ and ‘ cancellation of jamabandi‟ . The word transfer which has been referred in Section 4(h) of the BLR Act, 1950 reflects the mode of transfer by virtue

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of Transfer of Property Act while ‘cancellation of jamabandi’ pertains to consequence of transfer meaning thereby the transfer if made of an immovable proper in favour of party, then the title will shift upon such party based upon such title, the jamabandi will be created in his favour which is for the purpose of payment of rent in favour of State exchequer.

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39. Thus it is evident that the ‘transfer of land’ and ‘cancellation of jamabandi’ are two different notions having two different implications.

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40. In Section 4(h) of the BLR Act, 1950 since reference of word annulment of transfer is there, meaning thereby, if the jamabandi will be cancelled then the question would be that what will happen to such transfer by virtue of that the title of the land has been vested to another party and it is for that reason the word transfer has been used under Section 4(h) and the basic purpose of this is that if the land has been transferred only for the purpose of frustrating the object and intent of Section 4(h) of BLR Act, 1950 then the requirement as per law would be, in order to achieve the object and intent, to cancel the transfer so that the land be vested in the State after abolition of intermediary system by virtue of BLR Act, 1950.

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41. This Court in view of provision of Section 4(h) of the BLR Act. 1950 therefore, is not hesitant in holding that Section 4(h) of the BLR Act, 1950 does not confer any power upon the revenue authority to cancel jamabandi and if it will be accepted then the very purpose of the Act will be frustrated reason being that the land will be allowed to be remained in the title of the private party instead of its vesting to the State after abolition of intermediary system.

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42. Herein the Deputy Commissioner has initiated a proceeding for cancellation of Jamabandi even though such power is not conferred to him.

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43. The law is well settled that if any authority has exercised power contrary to the authority as conferred with statutory provision then such decision will be said to be without any authority of law and it will suffer from jurisdictional error and such decision will be said to be nullity in the eye of law.

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44. Reference in this regard is made to the judgment rendered by Hon’ble Supreme Court in Balvant N. Viswamitra & Ors Vs. Yadav Sadashiv Mule (Dead) through LRs (supra) and Pandurang & Ors Vs. State of Maharashtra (supra).

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45. This Court based upon the aforesaid discussion, as above, is of the view that whatever issue which has been

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raised regarding the jurisdictional error of the Deputy Commissioner in passing the order of cancellation of Jamabandi, according to our considered view is fit to be considered at this stage in view of judgment referred above, since the jurisdiction issue goes to the root of the issue.

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46. Therefore, the requirement now is that all the issues are to be discussed for the purpose of coming to the conclusive finding regarding the propriety of the impugned order.

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47. Admittedly, herein as would appear from the material available on record more particularly order dated 14.07.2011 passed in Misc. Appeal 33 of 2001-02/ 44 of 2002-03 whereby and whereunder based upon the show cause for cancellation of jamabandi the Deputy Commissioner and its reply, decision was taken for cancellation of Jamabandi. The question is that if the show cause notice has been issued under Section 4(h) of the BLR Act and when the Section 4(h) does not confer power upon the Deputy Commissioner to cancel jamabandi then whether there is jurisdiction of the Deputy Commissioner concerned to pass an order for cancellation of jamabandi.

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48. As per discussions made hereinabove and laws laid down by Hon’ble Apex Court, this Court is of the view

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that the order passed by the Deputy Commissioner dated 14.07.2011 cannot be said to be sustainable in the eye of law as the Deputy Commissioner has got no power to cancel the jamabandi. The said is being referred herein for the purpose that if there would have been any provision for cancellation of Jamabandi having been vested to the Deputy Commissioner and even if the power confers under Section 4(h) of the BLR Act then it could have been understood that the actual power means the power vested to a person under the provision of law and merely on the basis of wrong reference of provision of law, the order cannot be allowed to be sustained.

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49. The fact about power having not available with the State of Jharkhand for cancellation of Jamabandi has also fell for consideration before this Court in the case of State of Jharkhand & Ors vs. Izhar Hussain arising out of LPA No. 786 of 2018 wherein the Co-ordinate Division Bench of this Court has made an specific observation based upon the contention of the State that the State of Jharkhand has not come out with any provision for cancellation of jamabandi.

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50. Reference in this regard be made to the relevant paragraphs of judgment rendered in State of Jharkhand

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& Ors vs. Izhar Hussain [LPA No. 786 of 2018].

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“19. …….

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It is further settled position of law that Jamabandi once created cannot be annulled. Herein it is admitted fact that Jamabandi can be created under the provisions of Bihar Tenants Holdings (Maintenance of Records) Act, 1973. We have gone across the provisions thereof, as contained in the Act, 1973 and have found that no provision confer upon any authority of the State to cancel the Jamabandi.

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The question would be that in absence of any power conferred by Statute upon any of the revenue authority can Jamabandi be cancelled. The answer of this question would be in negative as statute confers power upon the authority and the authority can purportedly exercise the power conferred upon it under the statutory power and if any decision is taken in absence of any provision the same would be said to be nullity in the eye of law when found to be without jurisdiction.

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It is further settled that long running Jamabandi cannot be cancelled, save and except by filing a suit before the competent Court of Civil Jurisdiction…..

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24 . The learned Single Judge on the basis of provisions, as contained in Section 2 of the Forest Conservation Act, 1980 and the judgment rendered in the case of T.N. Godavarman Thirumulkpad (supra) has come to the conclusive finding that the Section 2 of the Act, 1980 is applicable to the government as well as the private forest land, so as to check/restrict deforestation which ultimately results in ecological imbalance. The term „Forest‟ will not only mean forest as understood in the dictionary sense but will also include the land recorded as forest in the government record irrespective of its ownership. Therefore, the provision of section 2 of the Act, 1980 or the judgment rendered in the case of T.N. Godavarman Thirumulkpad (supra) cannot be applied by the respondent authorities for cancellation of Jamabandi much less the long running one.

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25 . We, on appreciation of the findings recorded by the learned Single Judge and on the basis of discussions made herein above, are of the view that there is no reason to differ with the view/opinion of the learned Single Judge, by coming to the conclusion that the order dated 09.09.2016 passed by the revenue authorities is illegal and not sustainable in the eyes of law, as they have exercised power conferred under section 4(h) of the Act, 1950 which as per the discussions made herein above have been found to be not applicable in the facts and circumstances of the case as because the case of the writ petitioner is that he is claiming title over the land in question on the basis of settlement made prior to 1^st January, 1946 and further the additional Collector by way of order passed in Misc. Case No. 56/2015-16 has already passed order on 17.03.2016 holding therein that the present raiyats i.e Izhar Hussain and Akhtar Hussain are the recorded raiyats of Register-II in Thoka (Lot) No. 1665 which is absolutely correct and proper. But without questioning and without reversal of that order a fresh proceeding was initiated under Section 4(h) of the Act, 1950 and further long running Jamabandi cannot be cancelled, save and except by instituting a litigation before the competent jurisdiction of Civil Court. Hence, the order passed by the learned Single Judge cannot be faulted with.”

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51. The view of this Court has been affirmed by Hon’ble Apex Court in Special Leave to Appeal (C) No.8108 of 2021 vide order dated 06.07.2021.

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52. This Court in view of aforesaid fact is of the view that since there is no provision for cancellation of jamabandi having been enacted by the State of Jharkhand and that is the reason the Deputy Commissioner has exercised the

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power conferred under Section 4(h) of the BLR Act, 1950 which does not confer power upon the Deputy Commissioner to cancel the jamabandi rather it confers power only to annul the transfer. Therefore, this Court is of the view that the order passed by the Deputy Commissioner dated 14.07.2011 suffers from patent illegality.

¶127

53. Now the question is that on this ground the matter is to be stopped here or the matter is to be remitted before the Deputy Commissioner for taking decision afresh.

¶128

54. The law is well settled that on technicality no one can be allowed to take advantage.

¶129

55. This Court, keeping the aforesaid proposition of law into consideration that admittedly herein land has been settled on 05.12.1952, which is post 01.01.1946 and hence an enquiry is required to be conducted for the purpose of coming to the conclusion that whether it is fit case for annulment of transfer or not, is of the view that the matter needs to be remitted before the Deputy Commissioner, Ranchi for taking decision afresh.

¶130

56. Accordingly, order dated 14.07.2011 passed by Deputy Commissioner, Ranchi is hereby quashed and set aside. The matter is remitted to the revenue authority to pass order afresh taking into consideration the provision of law and observations made hereinabove.

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57. It is made clear that while taking such decision the Deputy Commissioner, Ranchi will consider the objection which would be raised by the appellant.

¶133

58. Accordingly, the instant appeal stands allowed.

¶134

(Sujit Narayan Prasad, J.)

¶135

(Navneet Kumar, J.)

¶136

Alankar/- A.F.R.

Doman Mahto v. the State of Jharkhand through the Secretary Revenue Registration Land Reforms Deptt

Case brief

What is this about?

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Doman Mahto v. the State of Jharkhand through the Secretary Revenue Registration Land Reforms Deptt

Case brief

What is this about?

What did the court decide?

What the court decided

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