Akash Devi And Ors vs State Of Jharkhand And Ors

This writ petition is under Article 226 of the Constitution of India whereby and whereunder notices dated 25.04.2017 and 15.05.2017 issued by the Circle Officer, Nirsa are under challenge, by which, the petitioners have been directed to remove the encroachment within a week from the date of issuance of the aforesaid noticed.

It is the claim of the petitioners that after recommendation having been made by the revenue authority for settlement of land in question in their favour, the petitioners have been treated to be Raiyat and to that effect a Khatiyan has been issued referring their name therein and as such they cannot be said to be an encroacher.

Counter affidavit has been filed by the State respondent inter aila therein stand has been taken that the land is in the nature of "Gair Awad" and the status of the petitioners as of Raiyat, has never been accepted by the State authority.

It has further been stated by refuting the claim of the petitioners on the basis of the Khatiyan by taking the ground that the C.S. Khatiyan has been disputed since then, Khatiyan has not been prepared in consonance with the provision as has been provided under Section 81 and 83 of the Chotanagpur Tenancy Act, 1908 (hereinafter referred to as the Act, 1908).

Having heard the learned Counsel for the parties and after appreciating the argument advanced on their behalf, it transpires from the material available on record that a recommendation for settlement has been made by the Circle Officer, Nirsa as has been annexed as Annexure-1 but no order having been passed by any competent authority for settlement, however, copy of the Khatiyan as has been annexed as Annexure-2 showing therein the name of one Smt. Akash Devi, W/o Brahmdeo Prasad Vishoni, basis upon which the petitioners are claiming the title over the land in question.

The question of legality and propriety of the Khatiyan has been questioned by the State respondent in the counter affidavit by making reference of Sections 81 and 83 of the Act, 1908, therefore, the provision of Sections 80, 81, and 83 needs to be referred herein under Chapter 12 of Act, 1908, the provision for record of rights and settlement of rent has been provided.

Section 80 stipulates provision of power to order survey and preparation of record of rights which reads hereunder as:-

Power to order survey and preparation of record-of-rights - (1) The [State] Government may make an order directing that a survey be made and a record-of-rights be prepared, by a Rev-enue Officer in respect of the lands in any local area, estate, or tenure or part thereof.

(2) A notification in the [* * *] [Official Gazette] of an order under sub-section (1) shall be conclusive evidence that the order has been duly made.

(3) The survey shall be made and the record-of-rights shall be prepared in the prescribed manner.

It is evident from the aforesaid provision that the State Government may make an order directing that a survey be made and a record of rights be prepared, by a Revenue Officer, in respect of the lands in any local area, estate, or tenure or part thereof and a notification in the official gazette of an order under sub-section (1) shall be conclusive evidence that the order has been duly made.

Section 81 contains provision of particulars to be recorded which reads hereunder as:-

Particulars to be recorded - Where an order is made under Section 80, the particulars to be recorded shall be specified in the order and may include, either without or in addition to other particulars, some or all of the following, namely :-

(a) the name of each tenant or occupant;

(b) the class to which each tenant belongs, that is to say, whether he is a tenure-holder,

'Mundari khunt-kattidah', settled 'Raiyat', occupancy 'Raiyat', non-occupancy-Raiyat khunti' having 'khuntkati' rights, or un-der-'Raiyat' and, if he is a tenure-holder, whether he is a per-manent tenure-holder or not and whether his rent is liable to enhancement during the continuance of his tenure;

(c) the situation and quantity and one or more of the bounda-ries of the land held by each tenant or occupier;

(d) the name of each tenant's landlord;

(e) the name of each proprietor in the local area or estate;

(f) the rent payable at the time the record-of-rights is being prepared;

(g) the mode in which that rent has been fixed-whether by con-tract, or by order of a Court, or otherwise;

(h) if the rent is a gradually increasing rent, the time at which and the steps by which it increases;

(i) the rights and obligations of each tenant and landlord in respect of,-

(i) the use, by tenants, of water for agricultural purposes, whether obtained from a river, 'jhil' tank or well or any other source of supply, and

(ii) the repair and maintenance of appliances for securing a supply of water for the cultivation of the land held by each tenant, whether or not such appliances be situated within the boundaries of such land;

(j) the special conditions and incidents (if any) of the tenancy;

(k) any easement attaching to the land for which the record-of-rights is being prepared;

(l) if the land is claimed to be held rent-free-whether or not rents is actually paid, and, if not paid, whether or not the oc-cupant is entitled to hold the land without payment of rent, and, if so entitled, under what authority;

(m) [the existence, nature and extent of] the right of any person whether a landlord or tenant or not, to take forest-produce from jungle-land or waste-land, or to graze cattle on any land [or to take fish from any water, or of any similar right] in any village in the area to which the record-of-rights applies;

(n) the right of any resident of the village to reclaim jungle-land or wasteland, or to convert land into korkar.

Section 83 provides the provisions of preliminary publication, amendment and final publication of record of rights which reads hereunder as:-

Preliminary publication, amendment and final publica-tion of record-of-rights. - (1) When a draft record-of-rights has been prepared under this Chapter, the Revenue Officer shall publish the draft in the prescribed manner and for the prescribed period and shall receive and consider any objec-tions which may be made to any entry therein, or to any omis-sions therefrom, during the period of publication.

(2) When such objections have been considered and disposed of in the prescribed manner, the Revenue Officer shall finally frame the record, and shall cause it to be finally published in the prescribed manner, and the publication shall be conclusive evidence that the record has been duly made under this Chap-ter.

(3) Separate draft or final records may be published under sub-section (1) or sub- section (2) for different local areas, estates, tenures or parts thereof.

It is thus evident by taking the provision of Sections 80, 81 and 83 together that the record of rights would be prepared on the basis of the a survey to be conducted recording therein the particulars like that of the name of landlord and the rent payable at the time the record of rights being prepared and therefore, stand as has been taken by the respondent, questioning the veracity of the Khatiyan prima facie seems to be correct.

This Court, therefore, is of the view that since the petitioners are claiming the settlement over the land in question on the basis of recommendation having not been annexed, any final order of settlement made in favour of the petitioners by the competent authority and therefore, merely on the ground of the said Khatiyan that to not prepared in pursuance to the provision of Sections 81 and 83 of the Act, 1908, no positive direction can been passed in favour of the petitioners.

Accordingly, the writ petition fails and is dismissed.