Rafique Roy &Anr v. The State of Jharkhand &Ors
Case Details
IN THE HIGH COURT OF JHARKHAND,RANCHI. W.P.(C) No. 4520 of 2011 Rafique Roy &Anr .......................................... Petitioners Versus The State of Jharkhand &Ors... . ...............................Respondents For the Petitioner :- Mr. P.K. Mukhopadhaya Advocate For the Respondents No.1-6 :- Mr.Shyam Narshria J.C to S.C(L &C) For the respondent no.7 :- Mr. Atanu Banerjee, Advocate CORAM :- HON’BLE MR. JUSTICE P.P.BHATT 4/20.2.2013. The present petitioners by way of filing this petition under Article 226 of the Constitution of India have prayed for quashing of the order dated 01.07.2009/08.07.passed by the Circle Officer, Nawadih in Case No. – 6 of 2009-10 whereby the Jamabandi standing in the name of the petitioners and their ancestors has been cancelled and in place thereof a fresh Basgit Purcha (Fresh Jamabandi) has been opened in the name of the Respondent No. – 7 in respect of 0.04 decimals of lands of village Junodih under Khatyan Nos. – 24, 15, 44 plot Nos. – 666,667 and 670 on the basis of the report of Revenue Karmachari. Heard the leaned counsel appearing for the petitioners as well as the respondents. Perused the impugned order and the materials placed on records. The main question which arises for consideration in the present petition is as to whether requisite procedure prescribed in the Bihar Privileged Persons Homestead Tenancy Act and Rules has been followed before taking decision in the matter or not? The leaned counsel appearing for the petitioners by referring rule – 5 of the Bihar Privileged Persons Homestead Tenancy Rules, 1948 pointed out that the procedure, as prescribed under rule – 5, is required to be followed and the Enquiry Officer is required to issue notice to the petitioners, as prescribed under the said rule. In the instant case, according to him, no such notice was ever served upon the petitioners and therefore, the order passed by the Circle Officer is clear in contravention of the said rule as well as the principle of natural justice. The leaned counsel appearing for the petitioners further submitted that the order passed by the Circle Officer is final and binding as there is no provision of appeal against the said order. Therefore, the petitioners were constrained to approach this court by way of filing this petition under Article 226 of the Constitution of India for quashing the impugned orders. The leaned counsel appearing for the petitioners in support of his contention has referred to and relied upon the following cases:- (i). 1992 (2) PLJR 242 (ii). 1985 PLJR 163 (iii). 1978 BBCJ (6) 623 (iv). 1993 (2) BLJ 298 As against that, the leaned counsel appearing for the respondents- state Government by referring the counter affidavit filed by the Respondents – State authority submitted that required procedure has been followed in the instant case and accordingly Aam Ishtehar was issued. However, the petitioners neither appeared nor filed any objection and therefore, decision taken by the Respondents-State Government is in accordance with law. The
Legal Reasoning
leaned counsel for the respondents further submitted that the order passed by the Circle Officer can be taken in to revision by the Collector and therefore, this petition is not maintainable and the petitioners are required to approach the District Collector by way of preferring revision. The leaned counsel appearing for the respondent No. – 7 submitted that this petition is not maintainable as the alternative efficacious remedy is available to the petitioners. It is further submitted that the Respondents- State authority have followed the requisite procedure prescribed under the law and therefore, the allegation made by the present petitioners is not correct and the order passed by the Respondent-authority is in accordance with law. It is further submitted that in the instant case the order passed by the Circle Officer can be examined by the Collector as provided under section 21 of the Bihar Privileged Persons Homestead Tenancy Act, 1947. It is further submitted that the Collector of the district may on his own motion or on the application of any party, or on reference being made by any subordinate authority, call for and examine record of any case. It is further submitted that in the instant case since the decision is taken by the Circle Officer, the power under section 21 of the Act can be exercised by the District Collector and therefore, the present petition is not maintainable as the alternative efficacious remedy is available to the petitioners under the Act itself. Now aforesaid rival submission are requires to be consider in light of following provisions:- 2. Definitions – In this Act, unless there is anything repugnant in the subject of context – (b) “Collector” includes any officer appointed by the State Government to discharge all or any of the functions of a Collector under this Act; 18. Order under this act to be final – The orders passed under this Act shall be final. Subject to the provisions of Section – 21, all order passed by the Collector in any proceeding under this Act shall be final, and no suit shall lie in any Civil Court to vary or set aside any such order except on the ground of fraud or want of jurisdiction. 21. Power of the Collector of the District to call for and examine records – “Notwithstanding anything to the contrary contained in any judgment, decree or order of any Court or authority; the Collector of the district may on his own motion or on the application of any party, or on reference being made by any subordinate authority, call for and examine record of any case decided or proceeding taken by the Collector under the Act for satisfying himself as to the regularity of the proceeding or to the correctness, legality or propriety of an order passed by the Collector under the Act in the case or proceeding, and may after, allowing the parties concerned opportunity of being heard, direct that the case or the proceeding be re-opened and disposed of afresh in accordance with the provisions of this Act. I find substance in the arguments advanced by the learned counsel appearing for the petitioners which is based on rule – 5 of Bihar Privileged Persons Homestead Tenancy Rules, 1948. Rule -5 is reproduced herein below:- 5. (1) The Collector shall either himself make local enquiry or have such enquiry made by any responsible officer not below the rank of a Circle Inspector or Welfare Inspector and satisfy himself as to the correctness or otherwise of the contents of such applications. (2). The Enquiring officer shall issue a notice in Form F to all the interested parties intimating the date on which the inquiry shall be made and directing parties to produce all the evidence in their possession in support of or against the application. (3). The enquiring officer shall make a record of the evidence produced before him and, if he is not the Collector, submit his report to the Collector. (4). The Collector shall after hearing the parties on all points arising out of the application pass such order as to him seems to be just and proper. (5). The Collector shall prepare a record of homestead held by privileged tenant in Form G. The main record shall be maintained in the office of the Collector and a copy of the record bearing the signature and seal of the Collector shall be made over to the landlord and the privileged tenant. From the facts and materials placed on record it transpires that in the present case inquiry has been conducted by the Revenue Karmchari and not by the officer as required under sub rule – 1 of rule – 5 of the Bihar Privileged Persons Homestead Tenancy Rules, 1948. Moreover, the requisite notice, as prescribed under sub-rule – 2 of rule – 5 of the said Rules, is not served upon the present petitioners as it reveals from the Counter Affidavit that Aam Ishtehar was issued and the said Ishtehar cannot be treated as valid service under sub-rule -2 of rule – 5 of the said Rules and therefore, it is evident from the record itself that this is a clear case of contravention of rule – 5 and therefore, it can be said that principle of natural justice has not been followed in the instant case. Judgment cited by the learned counsel for the petitioners reported in 1993 (2) BLJ 298 and 1985 PLJR 163 are applicable to the facts and circumstances of the case. In these cases, it is held that the order cancelling the Parcha granted to the petitioner by a Collector without issuing any notice to the petitioner is a violation of principle of natural justice. In view of provision contained in section – 21 of the Act, the District Collector is having revisional power. But in the instant case since the Circle Officer has not followed the procedure prescribed under the relevant rule and thereby not followed the Principle of natural justice and therefore in exercise of supervisory powers conferred by Article 227 of the Constitution
Decision
of India the impugned order is required to be quashed and set aside and matter is required to be remitted for de novo consideration by following due process of law. In the light of the above discussion the present petition deserves to be allowed and the impugned order passed on 01.07.2009/08.07.2009 by the Circle Officer is ordered to be set aside. Respondent authority shall start de novo procedure for cancellation of Jamabandi after following due processes of law as required under rule – 5 of the Rules. Till final decision is taken by the Circle Officer the parties to the proceeding shall maintain status quo as on today. (P. P. Bhatt, J) SD