(R) Arjun Pandey @ Arjun Mani Pandey v. 1. The State of Bihar; 2. The Commissioner, South Chhotanagpur Division, Ranchi; 3. The
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI C.W.J.C. No. 1637 of 1993(R) Arjun Pandey @ Arjun Mani Pandey Versus 1. The State of Bihar; 2. The Commissioner, South Chhotanagpur Division, Ranchi; 3. The Settlement Officer, Ranchi; 4. The Assistant Settlement Officer, Ranchi; 5. Patu Tana Bhagat; 6. Bargi Tana Bhagat; 7. (a) Magi Oraoin (b) Fakira Oraon (c) Reyata Oraon -------- Coram: THE HON’BLE MR JUSTICE P.P. BHATT -------- For the Petitioner : Mrs. Sheela Prasad, Advocate For Respondent-State : J.C. to G.A. ....Petitioner … Respondents /20.6.2013: Petitioner, by way of filing the present writ petition, under Articles 226 and 227 of the Constitution of India, has prayed for issuance of an appropriate writ/ order/ direction for quashing and setting aside the order dated 29.1.1993, passed by respondent No.2, whereby appeal filed by respondent Nos. 5 to 7 has been allowed and direction has been given to enter the names of the respondent Nos. 5 to 7 in the Revisional Survey Khatian. 2.
Legal Reasoning
Heard the learned counsel for the petitioner as well as the learned counsel appearing for the respondent- State Government. None appears on behalf of the private respondents. 3. Learned counsel for the petitioner submitted that the petitioner is the rightful owner and in possession of the plot being Khata No. 68 (Khewat No.6) total area 1.21 decimals in Plot No. 692 (Old) which was bifurcated in revisional survey in two plots i.e. Plot Nos. 961 and 962. It is further submitted that the land, in question, is Gair Majurwa Malik in the name of one Ram Chandra Pandey, the ex-landlord, grand father of the petitioner. It is further submitted that after Bihar Land Reforms Act, Zamindari was vested in State of Bihar and accordingly, returns were filed vide case No. 394/57-58 and after due enquiry Form-M was issued on 30.10.1957 in the name of the petitioner. Learned counsel appearing for the petitioner, in support thereof, has referred to and relied upon Annexure-1 to the petition to show that the entry was made in the register on 30.10.1957. Learned counsel for the petitioner also submitted that the first survey was conducted in the year 1908 and it was revised in the year 1934 and accordingly, return was filed in the year 1956 and thereafter, entry was made in the register on 30.10.1957. It is further submitted that one petition was filed by Madhu Oraon for correction of the revenue records and for entry their names in the revisional survey on 15.6.1977 i.e. after 23 years of the revisional survey. The said application was rejected by Assistant Settlement Officer vide order dated 1.7.1978. Learned counsel for the petitioner has referred above order (Annexure-2) in support of her contention. It is further submitted that thereafter respondent Nos. 5 to 7 filed another case i.e. Case No. 49 and the said application was also rejected by the Assistant Settlement Officer vide its order dated 29.9.1981. Learned counsel for the petitioner further submitted that against the above referred two orders, no appeal or revision has been preferred by these applicants and therefore, according to the learned counsel for the petitioner, these orders have attained finality. It is further submitted that thereafter three application were made by the applicants- Patu Oraon and others by way of filing Ranchi Misc. Judicial Case No.445/ Ghaghra/82, 517/Ghaghara/82 and 608/Ghaghara/82. The said applications were rejected by the in-charge officer after careful consideration of all the relevant facts and documents. Learned counsel for the petitioner has referred to the order passed by the In-charge Officer, which is produced vide Annexure-4. It is further submitted that being aggrieved and dissatisfied with the said order, an appeal was preferred by the said Patu Oraon and others before the learned Commissioner and the learned Commissioner without careful consideration of the relevant facts and documents allowed the said appeal and thereby, set aside the order passed by the Assistant Settlement Officer vide Annexure-4. It is further submitted that the learned Commissioner has mainly relied upon the two facts - (i) that the land, in question, is a Bakast Malik land and there is nothing on record to show that the land in question has been settled in favour of the present petitioner and (ii) the inspection report submitted by Kanoongo in respect of land in question. In this context, learned counsel for the petitioner, while referring the order vide Annexure-4 passed by the In-charge Officer, pointed out that there is a reference about this report in the order but the said report does not indicate any specific observation with regard to possession in favour of the appellant before the learned Commissioner. However, based on that report, the learned Commissioner proceeded further with the case and allowed the appeal in favour of the appellant and thereby set aside the long standing mutation, which was running in the name of the present petitioner. Learned counsel for the petitioner, in support of her contention, has referred to and relied upon Annexure-6 series to show the title in respect of land in question. 4. Learned counsel for the petitioner, in support of her submission, has referred to and relied upon the following two decisions: (i) 1989 BBCJ 296 [Chand Mahto and others versus The State of Bihar and others]; and others]. (ii) 2003(4) JCR 394 (Jhr) [Ganesh Sao and another versus State of Bihar 5. As against the above arguments, learned counsel appearing for the respondents- State Government submitted that the order passed by the learned Commissioner is in accordance with law and is based on factual findings recorded by the learned Commissioner. It is further submitted that the order passed vide Annexure-4 was not in consonance with the provisions of CNT Act and therefore, the learned Commissioner has rightly and properly set aside the said order while allowing the appeal filed by the respondent Nos. 5 to 7. It is further submitted that the private respondents have filed counter-affidavit in this matter and the learned counsel appearing for the respondents- State Government has also referred to para- 12 & 13 of the said counter-affidavit so as to justify the order passed by the learned Commissioner. 6. Considering the aforesaid rival submissions and on perusal of the impugned order as well as other materials placed on record, it appears that the land, in question, was settled in favour of the present petitioner in the survey settlement, which was carried out in the year 1908 and subsequently, revised in the year 1934 and accordingly, final entry was made in the register on 30.10.1957. It also reveals that an objection petition u/s 83 of the C.N.T Act being No. 49 was filed by one Pantu Tana Bhagat against Arjun Nath Pandey for his claim on Khata No.68 Plot No.961 & 962 and the same was dismissed. Against the said order, a revision petition u/s 89 was filed before the In-charge Officer vide Ranchi Misc. Judicial Case No.445/Ghaghra/82 and the same was heard with case 517/Ghaghara/82 and 608/Ghaghara/82. The In-charge Officer in his order mentioned that the petitioner claimed his right on the ground of possession as recorded in column 11 of the Khatian. The In- charge Officer has also discarded the report of the Kanoongo on the ground that the same was found to be suspicious as the same was not appears to be made in proper manner. Lastly by a common order, the claim of the revisionist was dismissed. Against the order of the In-charge Officer, an appeal was filed before the Commissioner and the Commissioner allowed the appeal mainly on the two reason. Firstly that the land in question was Bakast Malik and Secondly on the basis of report received from the Kanoongo in respect of said land. The appellate authority observed in its order that the In-charge Officer has not given any cogent reason for discarding the report of the Kanoongo. The view express by the Commissioner cannot be accepted because the order of the In-charge Officer appears to be detailed reason order. It appears that the appellate authority has not properly appreciated fact of the case and set aside the order of the In-charge Officer. It also appears that the learned Commissioner has not properly considered the documents as also the findings recorded by the In-charge Officer while dealing with the appeal filed by the respondent Nos. 5 to 7 wherein detailed discussion is made about the documentary evidence, which was available with the In-charge officer. 7. The submission of the learned counsel for the Respondents that the Gair Majurwa land ordinarily settled in favour of the members of the Schedule Tribe cannot be accepted because the learned counsel has not showed any rule/scheme that the Gair Majuruwa land can only be settled to the Schedule Tribe. The other submission of the learned counsel for the Respondent no.5 to 7 that the commissioner as a superior revenue officer rightly hold to prepare a khata in favour of Respondent no.5 to 7 who are poor landless persons and descendent of freedom fighter also cannot be accepted because as a appellate authority, the Commissioner cannot order for resettlement of the land but it can only see the irregularity or illegality committed by the lower court. 8. The case-law referred to and relied upon by the learned counsel for the petitioner in the case of Chand Mahto & others Versus The State of Bihar and others, reported in 1989 BBCJ 296 is relevant for the purpose of determination of the present case. In the case of Chand Mahto (Supra) a division bench of this court held that it is the duty of an appellate authority to consider and appraise such evidence in an appeal and the appellate authority is bound to apply its mind to the evidence on the record where the findings of fact are challenged. It is further held that the authority not having done the duty assigned to it by the Act is hit by principle of non-application of mind. 9. In view of above discussion as also the case-laws referred to and relied upon by the learned counsel for the petitioner, this writ petition deserves to be allowed. Accordingly, impugned order dated 29.1.1993 passed by respondent No.2 i.e. the Commissioner, South Chhotanagpur Division, Ranchi is ordered to be quashed and set aside. . S.B. (P.P. Bhatt, J.)