Satyawati Khemka v. Deputy Commissioner, Ranchi

Mr. Vishal Kumar Tiwary, Advocate Mr. R.K. Shahi, Advocate ----- O R D E R 4th August 2022 Per, Shree Chandrashekhar, J. The appellants who challenged the order dated 29th December 1986/ 10th January 1987 before the writ Court are aggrieved of the order dated 16th September, 2002 by which CWJC No.628 of 1995(R) filed by them challenging the aforesaid orders passed in Urban Land (Ceiling) Case No.178/232 of 1976 has been dismissed.

2. The appellants set up a case that Satya Narayan Khemka along with his two sons Laxmi Kant Khemka and Vishnukant Khemka (who is the appellant No.3 before us) constituted a joint Hindu family and out of the family properties about 1.87 acres land in RS Plot No.54 appertaining to Khata No.7 situated in village Gari within Ranchi District was purchased by the appellant No.3 by two sale deeds registered on 4th October 1994. The appellants further claimed that in an amicable oral partition about 1994.75 square meter land out of the aforesaid 1.87 acres land came in the share of Satya Narayan Khemka; 1988 square meter each was allotted to Laxmi Kant Khemka and Vishnukant Khemka and; 1555.75 square meter was kept jointly for being used as road – for ingress and egress. The appellants pleaded that a memorandum of partition in the aforesaid terms was drawn on 31st March 1975. 2 LPA No. 710 of 2003

3. However, the aforesaid plea set up by the appellants was not accepted by the Deputy Commissioner in the proceeding initiated under section 6(1) of the Urban Land (Ceiling & Regulation) Act, 1976 and on verification of the return 7405.20 square meter vacant land was found in possession of the land holder. The competent authority, therefore, declared

5405.20 square meter land surplus vide order dated 10th January 1987.

4. The aforesaid order passed by the Deputy Commissioner, Ranchi was taken into appeal under section 33 of the Act, however, without any success and the appellate authority vide its order dated 6th January 1995 concurred with the order passed by the Deputy Commissioner that only one ceiling unit area of about 2000 square meter can be retained by land holder.

5. Before the writ Court, the aforesaid stand taken by the appellants was reiterated with the help of verification report of the halka karmachari as affirmed by the Circle Inspector in his report dated 8th February 1980. As would appear from the pleadings of the parties, the aforesaid report was prepared on the basis of oral partition which was reduced into memorandum of partition dated 31st March 1975.

6. The writ Court declined to accept the report of the halka karmachari and the Circle Inspector on the ground that mutation in the name of Satyawati Khemka and Ashu Poddar were not carried out. Moreover, the memorandum of partition was drawn only with respect to the lands under dispute and other properties of the joint Hindu family were not shown to have been partitioned.

7. The writ Court has held as under: “11. No step for mutation of the names of two others pursuant to the alleged partition in Register II was taken till the year 1990.As such it is clear that the Halka Karmachari as well as the Circle Inspector made reference of the alleged partition and allotments in their reports only on the basis of the memorandum of partition shown to them and it was not based on their independent enquiry/ investigation about the factum of partition. 12. It is pertinent to note that the memorandum of partition (Annexure 2) was exclusively in respect of the land in the proceeding. The other properties, if any, of the joint family were not shown to have been partitioned. 13. It appears that during pendency of the proceeding under the Act, some time in the year 1990-91, on the basis of the aforesaid memorandum of partition, Annexure 2 the names of land holder's father and elder brother were also mutated and the Jamabandi standing in the name of the land- holder alone was bifurcated into three parts and consequently the rent receipts, Annexures 9 and 9/1 were issued to both of them on 8.2.1991. 3 LPA No. 710 of 2003

14. Issuance of the aforesaid rent receipts and/or the mutation of their names in the Register II, on the basis of the memorandum of partition, Annexure 2, the father and brother of the land- holder cannot acquire title over the land in the proceeding, unless it was established that they had also interest therein, along with the land holder, Vishnu Kant Khemka. 15. In my opinion, the land-holder failed to establish that in the vacant land of the proceeding, his father and brother had also interest and the authorities under the Act on the basis of the materials brought on record rightly held that the entire vacant land in the proceeding belonged to the land-holder, Vishnu Kant Khemka exclusively and under the provisions of the Act, 5405.20 square meters land was surplus. 16. 1, therefore, find no reason to interfere with the impugned orders as contained in Annexures 11 and 12. This Writ application is dismissed, but without costs.”

8. This Letters Patent Appeal was filed on 17th October 2003 and vide order dated 27th February 2006 it was admitted for hearing.

9. The proceedings in the present Letters Patent Appeal would indicate that hearing of this appeal could not be concluded primarily for the reason that adjournments were sought by both the parties on as many as 36 occasions.

10. Mr. Vishal Kumar Tiwary, the learned counsel for the appellants, draws our attention to the supplementary affidavit dated 5th May 2015 filed by the appellants in the present proceeding.

11. In the supplementary affidavit dated 5th May 2015, the appellant No.3 has stated as under: “7. That it is humbly stated that it is not out of place to mention here that the Govt. of Jharkhand has taken a decision to implement / to adopt the Urban Land (Ceiling & Regulation) Repeal Act 1999 in the year 2011 and thereafter held that the all proceedings pending before any Court including the Apex Court pertaining to the above Act shall stand abated. 8. That the appellants humbly submit that thus appellants are in peaceful possession of the land and the State Government has never passed any order under section 10.3 of the Urban land Ceiling Act, 1976. And thus the proceeding of the present appeal has also abated and the present appeal is fit to be disposed off by setting aside the impugned order and holding that the entire proceeding of the ceiling has abated in view of adoption of repealing Act by the State of Jharkhand. 9. That it is also pertinent to mention here that this Hon'ble Court vide its order dated 18.08.2011 has raised the query with regard to the fact as to whether any notification has been published U/s 10.3 of the said Act or not. 10. That it is humbly stated that in compliance of the said orders the respondents have filed a counter affidavit dated 2.9.2011, in which they have shown their inability to state anything with regard to the said fact because the records of case are not traceable. 11. That in view of the present circumstances and as because the present appellants are in possession of the land and the State Govt, 4 LPA No. 710 of 2003 has never taken the possession of the land either before or after filing of the present appeal/ the present appeal is fit to be allowed by setting aside the impugned order and holding that the entire proceeding of ceiling has abated.”

12. Mr. Vishal Kumar Tiwary, the learned counsel for the appellants, would submit that after the order under section 10(1) of the Urban Land (Ceiling and Regulation) Act, 1976 was passed no further proceeding has been taken by the authorities and the appellants have remained in peaceful possession of the entire extent of land admeasuring about 5405.20 square meter.

13. The learned counsel for the appellants further submits that in view of the Urban Land (Ceiling and Regulation) Repeal Act, 1999, which according to the appellants has been adopted by the State of Jharkhand, the entire proceeding under the Urban Land (Ceiling and Regulation) Act has abated.

14. The learned counsel for the appellants, therefore, submits that in view of the statements made in paragraph No.7 of the supplementary affidavit dated 5th May 2015 the present Letters Patent Appeal has been rendered infructuous and, accordingly, LPA No. 710 of 2003 can be disposed of as such.

17. Ordered accordingly. LPA No. 710 of 2003 is disposed of, in the above terms. IA No.1907 of 2004 stands disposed of. (Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated-4th August 2022 Sharda/S.B.-NAFR