The High Court
Case Details
1 W.P. (C) No.5214 of 2018 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (C) No. 5214 of 2018 1(a) Jagarnath Prajapati, son of Late Nand Kishore Prajapati 1(b) Kedar Prajapati, son of Late Nand Kishore Prajapati 1(c) Rakesh Prajapati, son of Late Madan Mohan Prajapati, 1(d) Mukesh Prajapati, son of Late Madan Mohan Prajapati, All residents of Pugru, P.S. –Dhurwa, P.O. –Hatia, District –Ranchi. 2. Lakhraj Prajapati, son of Nand Kishore Prajapati, age 56 years, resident of Pugru, P.S. –Dhurwa, P.O. –Hatia, District –Ranchi. .... Petitioners Versus 1. The State of Jharkhand through Sub Divisional Officer, Collectorate Building, P.O.-G.P.O., P.S. Kotwali, District – Ranchi. 2. Special Officer, Schedule Area Regulation, Collectorate Building, P.O.-G.P.O., P.S. Kotwali, District –Ranchi. 3. Circle Officer, Namkum Anchal, P.O. –Hatia, P.S. –Namkum, District –Ranchi. 4(a) Punam Oraon, W/o Late Hembo Oraon 4(b) Sumit Kachhap, S/o Late Hembo Oraon 4(c) Sagar Kachhap, S/o Late Hembo Oraon 5. Kallu Oraon son of Charo Oraon 6. Pradeep Oraon, son of Sidha Oraon 7(a) Rupa Kachhap, W/o Late Sandeep Kachhap 7(b) Ankit Kachhap, S/o Late Sandeep Kachhap 8. Francis Oraon, son of Pandey Oraon 9. Manoj Kachhap, son of Somra Kachhap 10. Shankar Kachhap, son of Somra Kachhap 11. Aniket Kachhap, son of Sameer Kachhap 12. Jeerka Kachhap, son of Late Dhuchu Oraon 13. Sadho Kachhap, son of Late Dhuchu Oraon 14. Vishnu Kachhap, son of Late Dhuchu Oraon 15. Hembo Oraon, son of Late Shankar Oraon 2 W.P. (C) No.5214 of 2018 Sl. No. 4 to 15 all residents of Kumbha Toli, Pugru, P.O. –Hatia, P.S. –Dhurwa, District –Ranchi. …. Respondents P R E S E N T
Legal Reasoning
HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioner For the Resp-State For the Resp. No.6 : Mr. Shashank Shekhar, Advocate : Mr. Prakash Kr. Rai, Advocate : Mr. Sanjay Kumar, Advocate : Mr. Harendra Kr. Mahato, Advocate ….. By the Court:- 1. 2. 3. 4. Heard the parties. This Writ Petition has been filed under Articles 226 of the Constitution of India inter-alai with a prayer for quashing the annexure-5 which is the copy of the Memo No. 1163 (ii) dated 15.09.2018 passed by the Circle Officer, Namkum Circle, Ranchi, whereby the Circle Officer, Namkum Circle, Ranchi, pursuant to order dated 02.08.1977, passed by the Special Officer, Scheduled Area Regulation, Ranchi directed the petitioner to vacate the land situated over Plot No. 320, Khata No. 69, Thana No. 250, Mouja – Pugru, District –Ranchi of area 25 decimals and vacate the same in compliance of the order passed in S.A.R. Case No. 961 of 1976. Though the petitioners have also prayed for quashing the order dated 02.08.1977, passed in S.A.R. Case No. 961 of 1976, it is submitted by the learned counsel for the petitioners that the petitioners does not press the said prayer and abandons the same. The brief facts of the case is that annexure-5 was issued to the petitioner by claiming that an eviction order from the said land 3 W.P. (C) No.5214 of 2018
Decision
has been passed against the writ petitioner in S.A.R. Case No. 961 of 1976 on 02.08.1977. 5. It is submitted by the learned counsel for the petitioners that in fact no such case record bearing S.A.R. Case No. 961 of 1976 exists. Drawing attention of this Court to the order dated 12.10.2018, passed in I.A. No. 9633 of 2018 arising out of this writ petition, it is submitted by the learned counsel for the petitioner that the Predecessor Judge in the roster, in this writ petition directed the Special Officer, Scheduled Area Regulation, Ranchi to produce the entire record of S.A.R. Case No. 961 of 1976 as well as of the execution proceeding, if any, before this Court but the same has not been produced; which substantiates the contention of the petitioners that no such case record ever exists. 6. Drawing attention of this Court to Section 181 of the Chota Nagpur Tenancy Act, 1908 which reads as under:- for application 181. Limitation of time for execution - [No application for the execution of a decree or order passed by the Deputy Commissioner under this Act shall be entertained unless such application be made] within three years from- (a) the date on which the decree or order is signed, or (b) where there has been an appeal, the date of the final decree or order of the appellate Court, or (c) where there has been a review of judgement, the date of the decision on the review. (Emphasis supplied) It is submitted by the learned counsel for the petitioner that even assuming for the sake of argument, that the order dated 02.08.1977 in S.A.R. Case No. 961 of 1976, the copy of the certified copy of which has been filed by the respondent no.6 as annexure-X to his counter-affidavit exists, still the application for execution of such order should have been filed within three years from 02.08.1977 4 W.P. (C) No.5214 of 2018 but for the first time in the year 2018, much after the expiry of three years from 02.08.1977, such an execution proceeding, the nature of which is evident from annexure-5 is barred by limitation. 7. Drawing attention of this Court to Section 182 of the Chota Nagpur Tenancy Act, 1908 which reads as under:- 182. Decrees and orders by what Court to be executed - A decree or order passed by a Deputy Commissioner under this Act may be executed either by his own Court or by any other prescribed Court. It is submitted by the learned counsel for the petitioner that the order passed by a Deputy Commissioner or whose delegated power is exercised by the Special Officer under the Special Areas Regulation can be executed either by his own court or by any other prescribed court but the same does not include Circle Officer, Namkum, who has issued the direction vide annexure-5. Hence, it is submitted that the annexure-5 is bad in law having been issued by an authority who is not competent to make such direction and thus the order be passed without jurisdiction. 8. It is next submitted by the learned counsel for the petitioner drawing attention of this Court to Section 183 of the Chota Nagpur Tenancy Act, 1908 which reads as under:- 183. Form of application for execution - Every application for the execution of a decree or order passed by a Deputy Commissioner under this Act shall be in writing, shall be made in the prescribed form, and shall be verified by the applicant or his agent in the form provided in Section 147. That for execution of an order passed by the Special Officer under the Special Areas Regulation, who exercises the delegated power of the Deputy Commissioner, an application for execution 5 W.P. (C) No.5214 of 2018 in writing in the prescribed form is a sine-qua-non and such application is required to be verified by the applicant or his agent in the form provided in Section 147. 9. It is next submitted by the learned counsel for the petitioners that undisputedly, no such application for execution in writing in the prescribed form, having been filed; which is also the mandate of law as per Rule 27 of the Chota Nagpur Tenancy Rules, 1959; the passing of such order is also illegal. Hence, it is submitted that annexure-5 be quashed and set aside, on this ground as well. 10. The learned counsel for the respondent no.6 submits that as the respondent no.6 has filed the copy of the certified copy of the order, so there is no merit in the contention of the petitioners that no such order dated 02.08.1977, passed in S.A.R. Case No. 961 of 1976 was ever passed. It is further submitted by the learned counsel for the respondent no.6 drawing attention of this Court to page no. 8 & 9 which has been marked annexure-Y Series to the counter-affidavit that upon an enquiry made by the Circle Officer, Namkum, the Special Officer under the Special Areas Regulation has intimated that there is an entry in the trial register of an order dated 02.08.1977 having been passed in respect of the land which is the subject matter of this writ petition, in favour of the first party, directing the petitioner no.1 to hand over the possession of the same and such verification of the certified copy on the basis of the entry made in the trial register, amounts to review of the order dated 02.08.1977 passed by the Special Officer under the Special Areas Regulation, hence the same having been done on 26.07.2018, 6 W.P. (C) No.5214 of 2018 the period of limitation of three years will start from 26.07.2018 in view of Section 181(c) of the Chota Nagpur Tenancy Act, 1908. Hence, it is submitted that there is no merit in the contention of the petitioner that the notice, the copy of which has been kept at annexure-5 is barred by limitation. It is next submitted by the learned counsel for the respondent no.6 that there is specific provision of appeal under Section 217 of the Chota Nagpur Tenancy Act, 1908 which is an efficacious alternative remedy, hence this writ petition is not maintainable. 11. The learned counsel for the respondent no.6 relied upon the Judgment of Hon’ble Supreme Court of India in the case of Pandey Oraon Vs. Ram Chander Sahu and Others., reported in 1992 Supp (2) SCC 77, para -7 of which reads as under:- similar situation in almost a “7. The provision is beneficial and the legislative intention is to extend protection to a class of citizens who are not in a position to keep their property to themselves in the absence of protection. In fact, that exactly is what has been said by a three Judge bench of in this Court Manchegowda v. State of Karnataka [(1984) 3 SCC 301 : (1984) 3 SCR 502] and what was said by a three Judge bench followed by a later decision of this Court in Lingappa Pochanna Appelwar v. State of Maharashtra [(1985) 1 SCC 479 : (1985) 2 SCR 224] . To the same effect is the observation of this Court in Gamini Krishnayya v. Guraza Seshachalam [AIR 1965 SC 639] . The House of Lords in D (a minor) v. Bershire County Council [(1987) 1 All ER 20 (HL)] said that broad and liberal construction should be given to give full effect to the legislative purpose. We would, therefore, in the facts and circumstances appearing in this case, hold that the authorities under the Act were justified in extending the provision of Section 71-A of the Chotanagpur Tenancy Act to the situation which emerged and the High Court took a wrong view in limiting the concept of transfer to the statutory definition in the T.P. Act and holding that Section 71-A was not applicable in a case of this type. On this basis, it must follow that the action of the statutory authority was justified and the conclusion of the Full Bench must not be sustained. We accordingly 12. 13. 7 W.P. (C) No.5214 of 2018 allow the appeal and reverse the decision of the High Court.” And submits that a liberal construction should have been given to give full effect to the legislative purpose in enactment of the Special Provisions of the Chota Nagpur Tenancy Act by ignoring the limitation or jurisdiction and absence of application for execution in the prescribed format. Hence, it is submitted that this writ petition being without any merit be dismissed. The learned counsel for the State adopts the contention of the respondent no.6. Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that the word ‘review’ as mentioned in Section 181(c) of the Chota Nagpur Tenancy Act, 1908 means a review as prescribed in Section 114 of the Code of Civil Procedure and the two essential ingredients of a review are that a person being aggrieved by the order has approached the court, who from the discovery of a new important matter or evidence which after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the order was made or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the order made against him and the court concerned on being finding the contention of the aggrieved person to be true, may change its order. 14. Now coming to the facts of the case, no aggrieved party ever approached the Special Officer under the Special Areas 8 W.P. (C) No.5214 of 2018 Regulation with a prayer to carry out any change in the order rather, it is the Circle Officer who sought clarification from the Special Officer under the Special Areas Regulation, as to whether in fact, the order dated 02.08.1977 in S.A.R. Case No. 961 of 1976 was ever passed or not by the Special Officer under the Special Areas Regulation and by the communication, the copy of which has been kept at page -10 of annexure-Y Series of the counter- affidavit filed by the respondent no.6, is only a confirmation made by the Special Officer, Special Areas Regulation that there is an entry in the trial register that such an order dated 02.08.1977 was passed in S.A.R. Case No. 961 of 1976. 15. The verification from the trial register about the existence of the case, in the considered opinion of this Court, cannot be termed as review as referred to in Section 181(c) of the Chota Nagpur Tenancy Act, 1908. So this Court do not find any force in the contention of the learned counsel for the respondent no.6 which was adopted by the learned counsel for the Respondent-State also that a fresh time period of three years is to be calculated from 26.07.2018. Hence, this Court is of the considered view that without any doubt, the annexure-5 is barred by limitation. Otherwise also, in view of Section 182 of the Chota Nagpur Tenancy Act, 1908, it was for the Special Officer under the Special Areas Regulation to pass the orders regarding the execution of its own order but the same having been passed by the Circle Officer, in the absence of any material placed before this Court to suggest that the Circle Officer has any jurisdiction to pass such order for 9 W.P. (C) No.5214 of 2018 execution of the order of the Special Officer under the Special Areas Regulation; though the specific plea was taken by the writ petitioner in its supplementary affidavit; this Court has no hesitation in holding that the Circle Officer, Namkum has no jurisdiction to pass the order as made in annexure-5. 16. So far as the contention of the petitioner that no application for execution in the prescribed format having been filed, still order under annexure-5 has been passed, the same is a procedural irregularity and had there been no other illegality, the same could have been considered in view of the Judgment passed by the Hon’ble Supreme Court of India in the case of Pandey Oraon Vs. Ram Chander Sahu and Others. (supra) but as this Court has already held that the annexure-5 having been made beyond the period of limitation and that the same was without jurisdiction, hence as the same was also passed without any proper application prescribed in law as envisaged in Section 183 of the Chota Nagpur Act, 1907 and Rule 17 of the Chota Nagpur Rules, 1959, this Court has no hesitation in holding that the annexure-5 of this writ petition is not sustainable in law. Accordingly, the same is quashed and set aside. This writ petition is disposed of and is allowed to the aforesaid extent only. 17. 18. High Court of Jharkhand, Ranchi Dated the 19th March, 2024 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.)