ASHUTOSH PRASAD SAH vs THE STATE OF JHARKHAND

Heard Mr. Niraj Kishore, counsel appearing for the petitioner.

Heard Mr. Akshay Kr. Thakur, A.C. to S.C.(L&C) appearing for the State.

Heard Mr. Anand Kr. Sinha, counsel for the respondent no. 4

Heard Mr. Ashish Kumar, counsel for the respondent no. 5.

This writ petition has been filed by the petitioner for the following reliefs:-

a. For quashing the order dated 23.02.2004 as contained in Annexure-5 to the writ petition passed by the Commissioner, Santhal Pargana, Division at

Dumka in Miscellaneous Revision Case No. 62 of 2003-04.

b. For quashing the order dated 25.07.2002 as contained in Annexure-4 to the writ petition passed by the Settlement Officer, Santhal Pargana, Dumka

in T.L. Case No. 23 of 2001.

The counsel for the petitioner has submitted as under:

a. The property involved in this case is appertaining to J.N. No. 39 of the last Gantzor's Survey Settlement of Mouza Choupa No. 789 within police

Station Mohanpur District Deoghar having plot No.967, 487, 488, 490, 766, 787 of last Gantzor's Survey Settlement (Plot No. 935, 638, 640, 933 and

953 of present Survey Settlement appertaining to J.B. No. 53 of Mouza Choupa No. 789) having total area of 11.57 acres which according to the

petitioner was recorded in the name of Ruplal Mahatha.

b. Said Ruplal Mahatha settled the said land in name of the father of the petitioner namely Sarju Sah in the year 1936 and thereafter the father of the

petitioner came in the exclusive possession of the property in specifically in the year 1946. Ruplal Mahatha executed of khurfa in favour of the father

of the petitioner in the year 1968. The father of the petitioner applied for mutation of land before the Circle Officer, Mohanpur within the District of

Deoghar which was numbered as Mutation Case no. 55 of 1968-69 and the mutation was allowed in favour of the father of the petitioner.

c. Hari Mohan Mahatha was the son of Ruplal Mahatha .

d. A certificate case was instituted bearing Certificate Case No. 167 of 1956-57 against Hari Mohan Mahatha. Sarju Sah, father of the petitioner paid

certificate dues and exonerated Hari Mohan Mahatha from the liability.

e. In a proceeding u/s 145 of Cr.P.C. in Cr. Case No. 43 of 1978 the Executive Magistrate vide order dated 04.07.1979 confirmed the possession of

the petitioner.

f. Earlier one Ram Dayal Manjhi filed an application for restoration being R.E. Case No. 56 of 1968-69 in the Court of Sub-Divisional Officer,

Deoghar which was ultimately decided against him.

g. Suddenly, respondent no. 4 filed an application for restoration before the respondents’ no. 3. This case was numbered as This case was

numbered as T.L. Case no 23 of 2001.The respondent no. 3 passed an order of eviction of the petitioner and directed for opening jamabandi in the

name of heir of the recorded raiyat vide impugned order dated 25.7.2002.

h. Against this order dated 25.07.2002, the petitioner filed Miscellaneous Revision Case No. 62 of 2003-04 before the respondent no. 2 and the

respondent no. 2 vide impugned order dated 23.02.2004 dismissed the revision petition.

i. Respondent no. 4 is grandson of Saniya Devi daughter of Hari Mohan Mahatha.

j. The counsel for the petitioner has submitted that the respondent no. 3 has no jurisdiction to pass an order of eviction on a petition for eviction from

the land in question.He submits that the possession of the father of the petitioner was beyond the statutory period of 12 years form the date of

enactment of Santhal Pargana Tenancy (Supplementary Provision) Act, 1949. Accordingly, he submits that the proceeding before the respondent no.

3 is itself is bad in law.

k. The counsel submits that although a statement has been made in the writ petition that even respondent no. 2 had no jurisdiction to pass any order

but during the course of argument the petitioner submits that he is not pressing any point in connection with the jurisdiction of the respondent no. 2.

In response to the aforesaid submissions, counsel for the State submits that they have filed a counter-affidavit and in paragraph 6 (iii) & (iv) the

delegation of power vide notification has been specifically mentioned.

The said paragaraphs 6(iii) and 6(iv) of the counter affidavit filed by the state are quoted herein below for ready reference:

“6 (iii) That according to the povisions of Clause-(xxv)-(viii) A and B of Santhal Parganas Settlement Notification No. - S.O. 1079 dated 8th

August, 1978 and also according to the provisions of Section- 57 (c) of Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949. Hon'ble

Commissioner Santhal Parganas Division has jurisdiction to pass order in this matter.

(iv) That according to the Clause-(xv) of Santhal Parganas Settlement Notification No.- S.O. 1079 dated 8th August, 1978 Settlement Officer, Dumka

has been vested with the power Deputy Commissioner, under the provisions of Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949

which is called Bihar Act 14 of 1949.â€​

 The counsel for the State further submits that the petitioner claims possession of the property on the basis khurfa of the year 1949 and there is no

evidence on the record that the petitioner was in possession over the land since 1933 so as to claim possession of 12 years prior to coming into force

of Santhal Parganas Tenancy (Supplementary Provision) Act, 1949. He further submits that the petitioner had applied for mutation only in the year

1968 for the first time. Counsel for the private party, on the other hand, submits that counsel for the respondent no. 4 submits that the property

admittedly has been recorded in the name of Ruplal Mahto and they have been paying rent and have paid rent till the year 2005 for which the rent

receipt annexed along with the counter-affidavit.

Counsel for the respondent no. 5 submits that he is the adopted son of Hari Mohan Mahatha and he submits that the impugned order has been

rightly passed. Counsel for the respondent submits that the land involved in this case is nontransferable under the provisions of Santhal Parganas

Tenancy (Supplementary Provision) Act, 1949.

After hearing the counsel for the parties, this court finds no merits in this writ petition and this writ petition is dismissed on account of the following

facts and reasons:

i) So far as the jurisdiction of Settlement Officer, Santhal Pargana, Dumka is concerned as per the counter-affidavit filed by the respondent state, the

Settlement Officer, Santhal Pargana, Dumka was duly conferred the power of the Deputy Commissioner and accordingly, he has rightly exercised his

power of eviction u/s 42 Santhal Parganas Tenancy (Supplementary Provision) Act, 1949.No rejoinder has been filed to the counter-affidavit. In view

of this, the contention of the petitioner that the Settlement Officer, Santhal Pargana, Dumka had no jurisdiction to entertain the application under the

provisions of Santhal Parganas Tenancy (Supplementary Provision) Act, 1949 is hereby rejected.

iii) So far as the claim of the petitioner that he has possession of the property beyond 12 years of the enactment of Santhal Parganas Tenancy

(Supplementary Provision) Act, 1949 is concerned, there is no material on the record before this Court and no such material was ever produced by the

petitioner before the authorities below to substantiate this claim and accordingly, this plea of the petitioner has no basis. So far as Other document i.e

the order passed in proceeding u/s 145 of Cr.P.C. is concerned which is contained at Annexure-2 of the writ petition, the same also does not help the

petitioner in any manner as the possession of the petitioner in the said order was not declared since any date prior to enactment of Santhal Parganas

Tenancy (Supplementary Provision) Act, 1949 as per the claim of the petitioner. The said order is dated 4.7.79 passed in case no 43 of 1978.

iv) The petitioner has also relied upon the order passed in the case of one Ram Dayal Manjhi who had claimed the property by initiating R.E. Case

No. 56 of 1968-69 and his claim was rejected vide order . This court is of the considered view that no reliance can be placed on this document as the

petitioner in this case has been passed in favour of the petitioner in which the private respondents were not party. The petitioner could not show any

concern or connection of the respondents herein with said Ram Dayal Manjhi so as to bind the respondents.

v) Admittedly, after a long time the father of the petitioner had applied for the mutation only in the year 1968 which as per the Annexure-1 was

granted, but mere mutation in favour of the father of the petitioner does not help the petitioner in any manner.

In the facts and circumstances of this case, this court finds that the respondent no. 3 as well as the respondent no. 2 have rightly exercised their

jurisdiction. There being no perversity or illegality in the impugned orders, the writ petitioner is dismissed.