East Singhbhum, Jharkhand v. …
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 4802 of 2019 Rajendra Prasad, aged about - 63 Yrs, S/o. Late Raghunath Prasad, R/o. 12 Sarita Vihar, Road No.7, Sonari, Jamshedpur, P.O. + P.S.- Sonari, Dist: East Singhbhum, Jharkhand Versus … … Petitioner 1. State of Jharkhand 2. Divisional Commissioner, Kolhan Division, Chaibasa, P.O. + P.S. - Chaibasa, Dist: West Singhbhum, Jharkhand 3. Deputy Commissioner, Seraikella, P.O. + P.S. - Seraikella, Dist: Seraikella Kharswan, Jharkhand 4. Land Reform Deputy Commissioner, Chandil, P.O. + P.S. - Chandil, Dist: Seraikella Kharswan, Jharkhand 5. Circle officer, Chandil, P.O. + P.S.- Chandil, Dist: Seraikella - Kharswan, Jharkhand 6. Devendra Kumar Singh, S/o. Late Sambhu Singh, R/o. 7, C.H. Area(North) Road No.5, Bistupur, Jamshedpur, P.O.+P.S.- Jamshedpur, Dist: East Singhbhum, Jharkhand … … Respondents --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner For the Respondents
Legal Reasoning
--- : Mr. Abhishek Kumar Dubey, Advocate : None --- 08/09.07.2024 Learned counsel for the petitioner is present. 2. 3. Nobody appears on behalf of the respondents. The private respondent has entered his appearance by filing a Vakalatnama and a counter-affidavit on behalf of the respondent – State has also been filed. 4. This writ petition has been filed for the following reliefs: "For issuance of appropriate Writ(s) / Order(s) / direction(s), directing the concerned respondent to send to this Hon'ble court all records appertaining issuance of order dated 28.08.2019 (Annexure-7) passed by Divisional Commissioner, Kolhan Division, Chaibasa in Revenue Misc. Case No. 02/2019. to And/Or For issuance of appropriate Writ / Order / direction especially in the nature of certiorari, quashing the order dated 28.08.2019 (Annexure- 7) passed by Divisional Commissioner, Kolhan Division, Chaibasa in Revenue Misc. Case No. 02/2019 whereby and where under learned commissioner while entertaining an application purportedly u/s 28 of the Bihar Tenant Holding (Maintenance of Records) Act, 1973 has entertained a second revision application which is barred under the law and has in the most illegal and arbitrary manner quashed and set aside order dated 12.06.2018 passed in mutation Revision No. 1 01/2015-2016 passed by learned Deputy Commissioner, Seraikella- Kharswan u/s 16 of the aforesaid act." 5. Learned counsel for the petitioner submits that the original order in connection with mutation was passed by the Circle Officer, Chandil dated 23.02.2012 in Mutation Case No. 2359 of 2011-12. The petitioner filed appeal being Mutation Appeal No. 22 of 2013-14 and thereafter, the petitioner filed Mutation Revision No. 1 of 2015-16 which was allowed vide order dated 12.06.2018. 6. The learned counsel for the petitioner submits that subsequently the private respondent filed second revision before the Commissioner, which was entertained in purported exercise of power under section 28 of Bihar Tenants' Holding (Maintenance of Records) Act, 1973 (hereinafter referred to as 'the Act of 1973') and was numbered as Revenue Miscellaneous Case No. 02 of 2019. The said revision was
Decision
disposed of with certain directions. 7. The learned counsel for the petitioner submits that by the impugned order passed in Revenue Miscellaneous Case No. 02 of 2019, the order of the Revisional Authority was set-aside and the order passed by the Circle Officer in Mutation Case No. 2359 of 2011- 12 was restored. The learned counsel submits that the 2nd revision is not maintainable and the exercise of power by referring to section 28 of the aforesaid Act of 1973 to deal with the mutation matter on merit and to set-aside the revisional order passed by the Deputy Commissioner is wholly without jurisdiction. 8. Learned counsel for the petitioner has relied upon the judgment passed by this Court in W.P.(C) No. 5526 of 2016 and has referred to paragraph 21 of the said judgment. The learned counsel for the petitioner has also referred to the judgment passed by this Court reported in 2015 SCC OnLine Jhar 5363 (Baldeo Dangi and others Vs. The State of Jharkhand and others) to submit that it has been held that section 28 merely indicates administrative control of the Collector, Commissioner and the Member, Board of Revenue over the Circle Officer and Land Reforms Deputy Collector and it is primarily intended at ensuring compliance of the Circle Officer and the Land Reforms Deputy Collector of the directions issued by the Collector, 2 Commissioner and the Board of Revenue. The said provision cannot be said to confer an adjudicatory power upon the Board of Revenue and to entertain an application purportedly under section 16 of the Act. 9. After hearing the learned counsel for the petitioner and considering the facts and circumstances of this case, apparently the matter regarding mutation travelled up till the revision and the order of revision was passed by the Deputy Commissioner, Seraikella- Kharsawan in Mutation Revision No. 1 of 2015-16 in favour of the petitioner. The 2nd revision being Revenue Miscellaneous Case No. 02 of 2019 was filed before the Divisional Commissioner. 10. In the judgment passed by this Court in W.P.(C) No. 5526 of 2016, this Court has held in paragraphs 18 and 21 as follows: "18. After hearing the counsel for the parties and after considering the materials on record, this Court finds that as per the provisions of Sections 14, 15 and 16 of the aforesaid Act of 1973, the application for mutation is required to be filed before the “Circle Officer”, the appellate authority is “Land Reforms Deputy Collector” and the revisional authority is the “Collector of the District”. This Court further finds that there was a provision for second revision before the “Commissioner”, which was subsequently deleted and admittedly the power of second revision is not available under the aforesaid Act of 1973. 19… 20… 21. This Court finds that the provisions of Section 28 of the aforesaid Act of 1973, Rule 3 of the Bihar Board’s Miscellaneous Rule, 1958 and Section 270 of the Chotanagpur Tenancy Act, 1908, are in connection with general superintendence regarding the functioning of the authorities under the Commissioner. This Court is of the considered view that the said provisions do not confer power upon the Commissioner to exercise power of second revision against the order of revision passed by the Deputy Commissioner. Accordingly, the impugned order dated 13.01.2016 by which the matter was remanded to the Deputy Commissioner, is wholly without jurisdiction, which is hereby set-aside." 11. Further, in the judgment passed by this Court in the case of Baldeo Dangi and others (Supra), the scope of section 28 of the Act of 1973 has been considered in paragraph 4 as follows: "4. The question of jurisdiction is a pure question of law. The jurisdiction of an authority/court to entertain a petition and decide the lis between the parties and provisions of appeal and revision are creature of statute. It is well settled that jurisdiction cannot be conferred by the consent of the parties. A waiver on the part of the parties also cannot constitute jurisdiction upon the authority which otherwise is not competent to hear and decide the petition filed 3 before it. The Bihar Tenants' Holding (Maintenance of records) Act, 1973 is a complete code in itself which provides an elaborate mechanism for deciding application filed for Mutation. The Act provides appeal under Section 15 before the Land Reforms Deputy Collector. Section 16 of the Act provides that the Collector of District may for the purpose of satisfying himself as to the legality and propriety of an order made under the Act, can entertain the petition and examine the record and pass appropriate order. In view of specific provision under Section 16 of the 1973 Act, conferring power of revision upon the Collector of the District, no other authority which has not been notified to exercise power under Section 16 of the Act, can entertain the petition. The reliance placed upon Section 28 of the Act is misconceived. Section 28 merely indicates the administrative control of the Collector, Commissioner and the Member, Board of Revenue over the Circle Officer and Land Reforms Deputy Collector. Section 18 is primarily intended at ensuring compliance of the Circle Officer and the Land Reforms Deputy Collector of the directions issued by the Collector, Commissioner and the Board of Revenue. The said provision cannot be said to confer an adjudicatory power upon the Board of Revenue and to entertain an application purportedly under Section 16 of the Act." 12. This Court finds that by the impugned order the Divisional Commissioner, Kolhan Division at Chaibasa has undertaken adjudicatory role by referring to Section 28 of the Act of 1973. This Court has already held in earlier judgements that the 2nd revision is not maintainable and in view of the aforesaid judgments, the impugned order dated 28.08.2019 passed by Divisional Commissioner, Kolhan Division at Chaibasa in purported exercise of power under section 28 of the Act of 1973 which is in the nature of adjudication cannot be sustained in the eyes of law and is accordingly set-aside. 13. This writ petition is accordingly allowed. 14. Pending interlocutory application, if any, is closed. Pankaj (Anubha Rawat Choudhary, J.) 4