Badri Prasad vs State Of Jharkhand And Others

Anil Kumar Choudhary, J

Heard the parties.

This Writ Petition has been filed under Article 226 of the Constitution of India with a prayer to quash the order dated 10.01.2018, copy of which has been kept at annexure-5, passed by the respondent no.2 –Commissioner, Santhal Pargana Division, Dumka, in Revenue Misc. Second Appeal No. 53 of 2002-03 by which the order dated 18.01.2003, passed by the Deputy Commissioner, Dumka being respondent no.3 in Revenue Misc. Appeal No. 44 of 2001-02 has been confirmed and the order dated 15.11.2001, passed in R.E. Case No. 06 of 2000-2001 has been set aside and further prayer has been made for quashing the order dated 18.01.2003 (Annexure-4) passed by the respondent no.3 in Revenue Misc. Appeal No. 44 of 2001-2002 and the consequential reliefs.

The brief facts of the case is that the original private respondents filed RE Case No. 06 of 2001-02 before the respondent no.4 for ejectment of the writ petitioner from the vacant agricultural land adjacent to their house and in the application filed under Section 42 of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949, it has been categorically mentioned in the last sentence of paragraph no.5 that the petitioner is preparing to take legal steps for eviction of the opposite party to the said petition under Section 42 of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949 who is the writ petitioner herein; from the rented house as well. The respondent no.4 observed that unless and until the forged record of right is cancelled by the Deputy Commissioner, passing any order of ejectment against the petitioner, will not be legal on the part of the respondent no.4. The original private respondents thereafter filed Revenue Misc. Appeal No.44 of 2001-02 before the respondent no.3. The respondent no.3 allowed the appeal, set aside the order passed by the respondent no.4 and held that the Privilege Person Patta (P.P. Patta) on the basis of which the writ petitioner is claiming ownership and possession, is a forged one. The writ petitioner being aggrieved by the order of the respondent no.3 filed Revenue Misc. Second Appeal No. 53 of 2002-03 before the respondent no.2 and the respondent no.2 by the impugned order dated 10.01.2018, considering the fact that the admitted nature of the land is non-transferable agricultural land, so the land cannot be settled to any person by any means and also took note of the fact that the respondent no.3 in the said order impugned before the respondent no.2 has taken note of the fact that the Privilege Persons Patta (P.P. Patta) issued in Case No. 48/83-84 and 49/83-84 have not been entered in the Register-II of the Circle Office, Dumka and the Privilege Persons Patta (P.P. Patta) is forged and fabricated one, hence such transfer is in violation and contravention of Section 42 and 20(5) of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949. So Kurfa itself is invalid and upheld the order of the respondent no.3 and set aside the order of the respondent no.4.

It is submitted by the learned counsel for the petitioner that Section 42 of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949 which reads as under:-

“42. Ejectment of a person in unauthorised possession of agricultural land. – The Deputy Commissioner may at any time either of his own motion or on an application made to him pass an order for ejectment of any person who has encroached upon, reclaimed, acquired or come into possession of agricultural land in contravention of the Provisions of this Act or any law or anything having the force of law in the Santal Parganas.” (Emphasis supplied)

Empowers the Deputy Commissioner for ejectment of a person in unauthorized possession of agricultural land but admittedly over the land, a house has been constructed and which was let out on rent to the writ petitioner, hence the Deputy Commissioner being the respondent no.3 has acted beyond the power vested upon him by Section 42 of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949 by passing an ejectment order in respect of a land over which a house is situated and is thus not an agricultural land.

In support of his contention, the learned counsel for the petitioner relies upon the Judgment of Hon’ble Patna High Court in the case of Bishwanath Ghirla Vs. The State of Bihar & Others, reported in 1984 0 Supreme (Pat) 411 and the Judgment of a Coordinate Bench of this Court in the case of Shanti Devi Vs. Md. Farppque Azam, reported in MANU/JH/0974/2006. Hence, it is submitted that the prayer as prayed for in this writ petition be allowed.

The learned counsel for the Respondent-State and the learned counsel for the private respondents on the other hand submits that in the writ petition itself, the copy of the original application submitted by the original private respondents under Section 42 of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949 has been annexed by the writ petitioner as annexure-1 and in the last sentence of the para-5 thereof, it has been categorically mentioned that the petitioner is preparing to take legal steps for the eviction of opposite party from the rented house as well and the petition under Section 42 is only in respect of the portion of “the non-transferable agricultural land of the petitioner” as has been categorically mentioned in para-6 of the said petition and the respondent no.2 in the impugned order has also categorically mentioned that admittedly nature of the land is non-transferable agricultural land. So the land cannot be settled to any person by any means and by no stretch of imagination, it can be said that the order of ejectment has been passed by any of the respondents in respect of any lands other than the land in respect of which the private respondents prayed for ejectment of the writ petitioner; other than the agricultural land of the respondents. Hence, it is submitted that there being no merit in this writ petition, the same be dismissed.

Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that as rightly submitted by the learned counsel for the private respondents that there is categorical averment in the petition under Section 42 of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949 that the said petition is filed only in respect of the portion of the non-transferable agricultural land and not the house rented to the petitioner which has been categorically mentioned therein and the Schedule to the said petition also corroborates the said contention of the learned counsel for the private respondent that the land and house of the private respondents of this writ petition in occupation of the writ petitioner is to the north of the land in respect of which the petition under Section 42 of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949; was filed.

After carefully going through the orders passed by the respondent nos. 2 & 3, this Court finds that nothing has been mentioned in the order passed by the respondent no.2 or 3 that the ejectment order is passed in respect of any land other than the one mentioned in the said petition filed under Section 42 of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949. Hence, this Court clarifies that the orders of the respondent nos. 2 & 3 are in respect of the Schedule of the petition filed by the original private respondents under Section 42 of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949 which was numbered as Raiyati Eviction Case No. 6 of 2001-02 dated 09.05.2001, the copy of which has been kept at annexure-1 and as already indicated above, the said land is purely an agricultural land and does not includes the land and house over which the writ petitioner is in possession.

Hence, this Court do not find any merit in the contention of the petitioner that the said orders were passed by the respondent nos. 2 & 3 in respect of any land over which any house is situated. Accordingly, the said order having been passed only in respect of agricultural land, therefore, the respondent no. 2 and 3 have not committed any violation of Section 42 of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949 nor the respondent no.2 or 3 have acted beyond the power vested upon the Deputy Commissioner, by Section 42 of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949. Hence, there is no merit in this writ petition.

Accordingly, this writ petition is disposed of with the above clarification.