1 W.P.(C) No.3785 of 2016
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.3785 of 2016
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Sunita Devi, Wife Gopal Nayak, Resident of Village - Gas Godown Road, Near - Shiv Mandir, Hesal, P.O.- Hesal, P.S.- Sukhdeo Nagar, Dist- Ranchi … Petitioner
Versus
1. State of Jharkhand
2. The Deputy Commissioner, Ranchi.
3. The Land Reform Deputy Collector, Sadar, Ranchi
4. The Circle Officer, Namkum, Ranchi
5. (i) Mangi Devi widow of Late Aditya Ram Nayak
(ii) Dayanand Nayak
(iii) Kailash Nayak
(iv) Tulsi Nayak Sl. No. (ii) to (iv) all sons of Late Aditya Ram Nayak resident of village Oberia, P.O. Oberia, P.S. Jagarnathpur, District- Ranchi.
6. Bhagat Nayak, Son of Late Ram Sahay Nayak and Resident of Village- Oberia, P.S.- Jagarnathpur, Dist- Ranchi.
7. (i) Kaileshwari Devi widow of Late Lartik Nayak
(ii) Pintu Nayak @ Deepak Nayak
(iii) Rupa Nayak Sl. No. (ii) and (iii) both minor son and daughter of Late Kartik Nayak resident of village Oberia, P.O. Oberia, P.S. Jagarnathpur, District- Ranchi. … Respondents
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For the Petitioner : Mr. Shashank Shekhar, Advocate For the Respondents : Mr. Ravi Kerketta, SC VI Mr. Satyam Parmar, AC to SC VI
Mr. Prashant Pallav, Advocate
Mr. Parth Jalan, Advocate
Mr. Bajrang Kumar, Advocate
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P R E S E N T
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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By the Court:- Heard the parties.
2. This Writ Petition has been filed with a prayer for quashing of the order dated 10.06.2016 passed by the respondent No.2, the Deputy Commissioner, Ranchi whereby and where under the respondent No.2 has been pleased to allow the Mutation Revision No.144-R-15/2014-15 of the Respondent No.5-7 by setting aside the order dated 20.08.2014 passed by the learned Land Reforms Deputy Collector, Sadar, Ranchi in Mutation Appeal No.20-R15/2013-14 as well as the order dated 18.12.2006 passed by the learned Circle Officer, Namkum in Mutation Case No.1954-R-27/2005-06 and also for direction upon the respondents for issuance of rent receipts as the petitioner is the bona fide purchaser in possession of the land pertaining to Khata No.25, Plot No.856, 579, 737 and 738 measuring an area of 1.64 acre of land situated at village- Obaria, P.S. Jagarnathpur, District- Ranchi.
3. The brief fact of the case is that Chamru Ram Loharia was the recorded tenant of the land in question involved in this writ petition. According to the petitioner, he died in the year 1950 and his nearest agnates Kushal Ram Nayak and Mangal Ram Nayak inherited his property having perfect right, title and interest over the property. They sold the said property inherited by them besides the petitioner; to the wife of the respondent No.5 (i), wife of respondent No.6 and the mother of the respondent No.6 and the original respondent No.7, as well. The petitioner purchased the land involved in this writ petition from Kushal Nayak, Son of Shiv Tahal Nayak through registered deed of sale bearing deed No.609/88 on 19.01.1988. After purchase, the petitioner applied for mutation of the land in her name and the land was mutated in the Sherista of the State vide Mutation Case No.1954-R-27-2006-07 on 18.12.2006. Being
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aggrieved by the said order dated 18.12.2006 passed by the Circle Officer, Namkum, the respondent Nos.5 to 7 challenged the said order after the period of limitation for filing of said appeal; vide Mutation Appeal No.20/2013 but the L.R.D.C. vide order dated 20.08.2014 directed the original respondent Nos.5 to 7 of this writ petition to move before the appropriate civil court. The original respondent Nos.5 to 7 of this writ petition challenged the said order dated 20.08.2014 passed in Mutation Appeal No.20/2013 before the Deputy Commissioner, Ranchi in Mutation Revision No.144-R-15/2014-15. The Deputy Commissioner, Ranchi allowed the revision and set aside the order of the L.R.D.C. and the Circle Officer, Namkum, Ranchi.
4. Learned counsel for the petitioner relies upon the judgment of the Hon'ble Division Bench of this Court in the case of Rajesh Kumar vs. Smt. Indu Devi reported in 2016 (3) JLJR 286 wherein the Division Bench of this Court relied upon the judgment of the Hon'ble Supreme Court of India in the case of State of M.P. vs. Pradeep Kumar reported in (2000) 7 SCC 372
paragraph-10 of which reads as under:-
10. It has been held by Hon'ble the Supreme Court in the case of State of M.P. v. Pradeep Kumar, reported in (2000)7 SCC 372, especially paragraph nos. 17, 18 and 19 thereof, as under:
"17. A Division Bench of the Kerala High Court has subsequently overruled the dictum laid down by the Single Judge in the above case (vide Maya Devi v. M.K. Krishna Bhattathiri.) The same fate had fallen on the view adopted by the Single Judge of the Karnataka High Court in Madhukar case when a Division Bench had subsequently overruled it (State of Karnataka v. Nagappa). N. Venkatachaliah and S.A. Hakeem, JJ. (as they then were) dealt with the background of introducing Rule 3-A in Order 41 of the Code and after discussion held that sub-rule (1) of Rule 3-A is mandatory. However, learned Judges pointed out that sub-rules (2) and
(3) have been employed by the legislature for highlighting the purpose of introducing such a new Rule. The following passage from the judgment of the Division Bench of the Karnataka High Court can usefully be quoted in this context:
"A combined reading of sub-rules (1) and (2) of Rule 3-
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A makes it manifest that the purpose of requiring the filing of an application for condonation of delay under sub-rule (1) along with a time-barred appeal, is mandatory, in the sense that the appellant cannot, without such application being decided, insist upon the Court to hear his time-barred appeal. That was the very purpose sought to be achieved by insertion of sub-rules (1) and (2) of Rule 3-A, becomes clear from the legislative history of new Rule 3-A to which we have already adverted."
18. We may also point out that a Division Bench of the Patna High Court has adopted the same view even earlier in State of Bihar v. Ray Chandi Nath Sahay. The object of enacting Rule 3-A in Order 41 of the Code seems to be twofold. First is, to inform the appellant himself who filed a time-barred appeal that it would not be entertained unless it is accompanied by an application explaining the delay. Second is, to communicate to the respondent a message that it may not be necessary for him to get ready to meet the grounds taken up in the memorandum of appeal because the court has to deal with application for condonation of delay as a condition precedent. Barring the above objects, we cannot find out from the Rule that it is intended to operate as unremediably or irredeemably fatal against the appellant if the memorandum is not accompanied by any such application at the first instance. In our view, the deficiency is a curable defect, and if the required application is filed subsequently the appeal can be treated as presented in accordance with the requirement contained in Rule 3-A Order 41 of the Code.
Thus, in the facts and circumstances of the present case, along with Misc. Case No. 57 of 2009, there ought to have been an application for condonation of delay, which was approximately two years and without condoning delay, Misc. Case No. 57 of 2009 could not have been decided, on merits."
5. Learned counsel for the petitioner further relies upon the judgment of the Hon'ble Gujarat High Court in the case of Kalpeshbhai Natwarlal Patel vs. State of Gujarat & Another reported in AIR 2009 (NOC) 2924 (GUJ)
paragraph-12 of which reads as under:-
"12.The law is well settled that in case where a statutory time limit is prescribed for initiating remedial action, the aggrieved person is bound by the said time schedule and in the event the remedy is invoked beyond the statutory period of limitation, the Authority cannot entertain the proceeding on merits before first recording a decision as to whether the delay which has occasioned in instituting the proceeding has been explained or not. In the facts of the present case, in absence of any such decision by the Deputy Collector, the
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order dated 23.10.2003 is bad in law having been made without jurisdiction to entertain the Appeal on merits." and submits that no prayer for condonation of any delay was filed before the appellate court being the Deputy Collector Land Reforms, Ranchi, hence, the Deputy Collector Land Reforms, Ranchi did not allow the appeal being barred by the limitation and considering the fact that disputed question of title is involved which cannot be adjudicated by a revenue court, rightly ordered that the parties must approach the civil court but the Deputy Commissioner, Ranchi without considering this aspect of the inordinate delay of about seven years in filing the appeal, has erroneously set aside the order passed by the L.R.D.C. ignoring the delay in filing the appeal.
6. Learned counsel for the petitioner next relies upon the judgment of the Hon'ble Supreme Court of India in the case of Suraj Bhan & Others vs. Financial Commissioner & Others reported in (2007) 6 SCC 186 paragraph-9 of which reads as under:-
"9. There is an additional reason as to why we need not interfere with that order under Article 136 of the Constitution. It is well settled that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. It is settled law that entries in the revenue records or jamabandi have only "fiscal purpose" i.e. payment of land revenue, and no ownership is conferred on the basis of such entries. So far as title to the property is concerned, it can only be decided by a competent civil court (vide Jattu Ram v. Hakam Singh [(1993) 4 SCC 403 : AIR 1994 SC 1653] ). xxxxX." and submits that it is a settled principle of law that title to a property can only be decided by a competent civil court.
7. Learned counsel for the petitioner then submits that undisputedly the complicated question of title and inheritance is ignored in this case and the same certainly cannot be adjudicated by a revenue officer, hence, the L.R.D.C. rightly ordered that the parties must approach the civil court but which was
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erroneously set aside by the revisional court being the Deputy Commissioner, Ranchi that too illegally taking in record several documents namely the R.S. and C.S. Record of Rights, the affidavits of Raju Nayak, Mani Lal and Mala Devi, sale-deed purportedly executed by Chamru Ram Loharia and also the information collected under the Right to Information Act vide Memo No.168 dated 20.08.2014 which were not before the appellate forum being the L.R.D.C.
8. It is next submitted by the learned counsel for the petitioner that revisional court has acted like a civil court but committed a gross error by not considering that there is absolutely no document in the record to show that there was one lady namely Mudri Devi being the sister of Chamru Ram Loharia. It is further submitted that the revisional court has also committed a gross illegality by accepting a certificate issued by the Mukhiya regarding the genealogy of the respondent Nos.5 to 7 of this writ petition as a certificate of inheritance- which can only be decided by the civil court and Mukhiya cannot substitute the civil court. It is next submitted that revisional court has further committed a gross illegality by considering some affidavits filed by some persons as evidence which is in fact, not an evidence admissible in law.
9. It is next submitted by the learned counsel for the petitioner that under Section 16 of the Bihar Tenant's Holdings (Maintenance of Records) Act, 1973, the collector of the district is supposed to call for and examine the record of any case pending before or disposed of by such authority or such officer but the power of such revision obviously confers a narrower jurisdiction than that of an appeal as envisaged in Section 15 of the said act and regarding the scope of revision, learned counsel for the petitioner relies upon the judgment of the Hon'ble Supreme Court of India in the case of Hindustan Petroleum
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Corporation Limited vs. Dilbahar Singh reported in (2014) 9 SCC 78
paragraph-31 of which reads as under:-
"31. We are in full agreement with the view expressed in Sri Raja Lakshmi Dyeing Works [Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar, (1980) 4 SCC 259] that where both expressions "appeal" and "revision" are employed in a statute, obviously, the expression "revision" is meant to convey the idea of a much narrower jurisdiction than that conveyed by the expression
"appeal". The use of two expressions "appeal" and "revision" when used in one statute conferring appellate power and revisional power, we think, is not without purpose and significance. Ordinarily, appellate jurisdiction involves a rehearing while it is not so in the case of revisional jurisdiction when the same statute provides the remedy by way of an "appeal" and so also of a "revision". If that were so, the revisional power would become coextensive with that of the trial court or the subordinate tribunal which is never the case. The classic statement in Dattonpant Gopalvarao Devakate v. Vithalrao Maruthirao Janagaval ., (1975) 2 SCC 246] that revisional power under the Rent Control Act may not be as narrow as the revisional power under Section 115 of the Code but, at the same time, it is not wide enough to make the High Court a second court of first appeal, commends to us and we approve the same. We are of the view that in the garb of revisional jurisdiction under the above three rent control statutes, the High Court is not conferred a status of second court of first appeal and the High Court should not enlarge the scope of revisional jurisdiction to that extent." (Emphasis supplied) and submits that the revisional court has committed a perversity, hence, the impugned order passed by it is not sustainable in law.
10. Learned counsel for the petitioner next submits that the revisional court also failed to consider that the petitioner has been in possession of the land in question having constructed her residential house and residing there with her family and thus, being in possession of the land in question; is entitled that her name being recorded in the revenue records.
11. Learned counsel for the petitioner next submits that since the original respondent Nos.5 to 7 have also executed a sale-deed in respect of the land in question in favour of a third person being Mohan Singh on 29.05.2013 i.e. prior to filing of the Mutation Appeal No.20/2013 on 03.06.2013, hence, the original
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respondent Nos.5 to 7 had no locus standi to file the said mutation appeal before the L.R.D.C;. Hence, it is submitted that the prayer made in this writ petition be allowed.
12. Learned counsel for the respondent Nos.2 to 4 opposes the prayer made by the writ petitioner but fairly submits that they are the formal parties to the writ petition and the contest is between the petitioner and the original respondent Nos.5 to 7.
13. Learned counsel for the respondent Nos.5 (i) to 7 (iii) submits that from the information obtained under the Right to Information Act, it is apparent that Kushan Ram Nayak and Mangal Ram Nayak S/o Shiv Tahal Nayak are the resident of village- Nigni. Learned counsel for the private respondents further submits that Chamru Ram Loharaia had not died in the year 1950 rather he executed a sale-deed in the year 1962. Hence, the revisional court has rightly set right the illegality caused by fraudulently inserting the name of Kushal Ram Nayak and Mangal Ram Nayak in the revenue records along with Chamru Ram Loharia. Learned counsel for these private respondents relies upon the judgment of the Hon'ble Supreme Court of India in the case of Sesh Nath Singh & Another vs. Baidyabati Sheoraphuli Cooperative Bank Limited & Another reported in (2021) 7 SCC 313 paragraph-61 and 62 of which read as under:-
"61. Section 5 of the Limitation Act, 1963 does not speak of any application. The section enables the court to admit an application or appeal if the applicant or the appellant, as the case may be, satisfies the court that he had sufficient cause for not making the application and/or preferring the appeal, within the time prescribed. Although, it is the general practice to make a formal application under Section 5 of the Limitation Act, 1963, in order to enable the court or tribunal to weigh the sufficiency of the cause for the inability of the appellant applicant to approach the court/tribunal within the time prescribed by limitation, there is no bar to exercise by the court/tribunal of its discretion to condone delay, in the absence of a formal application.
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62. A plain reading of Section 5 of the Limitation Act makes it amply clear that, it is not mandatory to file an application in writing before relief can be granted under the said section. Had such an application been mandatory, Section 5 of the Limitation Act would have expressly provided so. Section 5 would then have read that the court might condone delay beyond the time prescribed by limitation for filing an application or appeal, if on consideration of the application of the appellant or the applicant, as the case may be, for condonation of delay, the court is satisfied that the appellant applicant had sufficient cause for not preferring the appeal or making the application within such period. Alternatively, a proviso or an Explanation would have been added to Section 5, requiring the appellant or the applicant, as the case may be, to make an application for condonation of delay. However, the court can always insist that an application or an affidavit showing cause for the delay be filed. No applicant or appellant can claim condonation of delay under Section 5 of the Limitation Act as of right, without making an application." (Emphasis supplied)
and submits that Section 5 of the Limitation Act does not speak of any application and Section 5 of the Limitation Act makes it amply clear that it is not mandatory to file an application in writing before relief can be granted under the said act and such observation was made in the facts of the case involving the provisions of Section 238-A of the Insolvency and Bankruptcy Code, 2016 and submits that in view of Section 29(2) of the Limitation Act, 1963, Section 5 of the Limitation Act is applicable to the appeal filed under the Bihar Tenant's Holdings (Maintenance of Records) Act, 1973 as well; hence, in the absence of any application for condonation of delay, it is in the discretion of the court to condone the delay and even if the revisional court has not expressed in so many words that it is condoning the delay but impliedly it has condoned the delay. It implied that the appellate court could have condoned the delay entertaining the appeal. Hence, it is submitted that there being no illegality in the order dated 10.06.2016 passed by the respondent No.2, in the order dated 20.08.2014 passed by the learned Land Reforms Deputy Collector, Sadar, Ranchi in Mutation Appeal No.20-R15/2013-14 as well as in the order dated 18.12.2006 passed by the learned Circle Officer, Namkum in Mutation
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Case No.1954-R-27/2005-06, this writ petition, being without any merit, be dismissed.
14. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that it is a settled principle of law as has been re-iterated by the Hon'ble Supreme Court of India in the case of Hindustan Petroleum Corporation Limited vs. Dilbahar Singh (supra) that where both expressions "appeal" and
"revision" are employed in a statute, obviously, the expression "revision" is meant to convey the idea of a much narrower jurisdiction than that conveyed by the expression "appeal".
15. Section 16 of the Bihar Tenant's Holdings (Maintenance of Records) Act, 1973 which reads as under:-
"16. Revision.- The Collector of the district may, on an application made to him in this behalf or for the purpose of satisfying himself as to the legality or propriety of any order made under this Act or the rules made thereunder by any authority or officer call for and examine the record of any case pending before or disposed of by such authority or officer and pass such order as he thinks fit :
Provided that the Collector shall not entertain any application from any person, aggrieved by any order, unless it is made within thirty days from the date of the order;
Provided further that no order modifying, altering, or setting- aside, any order made by such authority or officer shall be passed by the Collector unless the parties concerned have been given a reasonable opportunity of being heard."
empowers the Collector of the District inter alia to call for and examine the record of any case pending before or disposed of by such authority or officer, for the purpose of satisfying himself as to the legality or propriety of any such order made and pass such order as he thinks fit. So, it is obvious that the revisional court in exercising the jurisdiction under Section 16 of the Bihar Tenant's Holdings (Maintenance of Records) Act, 1973 has to examine whether any illegality or impropriety has been committed by any officer under the
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Bihar Tenant's Holdings (Maintenance of Records) Act, 1973 or the rules made thereunder, while passing such order. Obviously that implies that it is to be seen by the revisional authority being the Collector of the district to see whether the officer concerned has passed the order in accordance with law upon the materials placed before it and the same does not include considering the materials which were not placed before the appellate authority; by taking any additional evidence, which were not placed before the appellate court. Therefore, this Court is of the considered view that the revisional authority being the Deputy Commissioner, Ranchi has exceeded its jurisdiction by; for the first time, entertaining new facts in shape of the documents, which were not produced before the appellate authority, as already indicated above the foregoing paragraphs of this judgment, while exercising the jurisdiction of revision under Section 16 of the said Act.
16. Further, undisputedly, the appeal preferred before the L.R.D.C was barred by limitation. Section 15 of the Bihar Tenant's Holdings (Maintenance of Records) Act, 1973 prescribed a limitation of 30 days of preferring the appeal and the order in this case was passed on 18.12.2006 by the original authority and the appeal was filed on 03.06.2013 i.e. after more than 6 years. The delay in filing the appeal, was considered by the appellate court for being one of the grounds, for not entertaining the appeal. The revisional court has not considered this inordinate delay in filing this appeal and has committed a gross illegality in still allowing the revision which the appellate court could not have allowed in view of the delay in filing of the appeal; without passing any express order regarding this inordinate delay in filing the appeal, which is rendered at the same barred by limitation.
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17. Further, admittedly the respondent Nos.5 to 7 were not the owners of the land in question as they have undisputedly sold it before filing the appeal. The revisional authority has not considered as to who is in possession of the land in question. It is a settled principle of law that the entry in the revenue records are for the fiscal purpose only and it neither creates any title nor extinguishes any title. "Possession" over the concerned land, is the important factor which is to be considered at the time of making the entry in the revenue records. The revisional authority has committed an illegality by not considering, that if the rent is not to be collected from the petitioner, then from whom it is to be collected.
18. Further, since there was serious dispute of question of title between the parties, which is evident from the fact that there is no document brought on record regarding Mudri Devi being the sister of Chamru Ram Loharaia; the revisional court being a revenue forum ought not have ventured into virtually deciding the title of the parties and ought to have directed the parties to approach the civil court; as was done by the Deputy Collector Land Reforms. The revisional court has also committed an illegality by accepting the affidavits filed for the first time before it by the parties as evidence and also accepting the genealogy certificate issued by the Mukhiya as the certificate of inheritance.
19. Under such circumstances, this Court is of the considered view that the order dated 10.06.2016 passed by the respondent No.2- the Deputy Commissioner, Ranchi whereby and where under the respondent No.2 has allowed the Mutation Revision No.144-R-15/2014-15 of the Respondent No.5-7 by setting aside the order dated 20.08.2014 passed by the learned Land Reforms Deputy Collector, Sadar, Ranchi in Mutation Appeal No.20-R15/2013-
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14 as well as the order dated 18.12.2006 passed by the learned Circle Officer, Namkum in Mutation Case No.1954-R-27/2005-06 is not sustainable in law.
20. Accordingly, the order dated 10.06.2016 passed by the respondent No.2- the Deputy Commissioner, Ranchi whereby and where under the respondent No.2 has allowed the Mutation Revision No.144-R-15/2014-15 of the Respondent No.5-7; is quashed and set aside.
21. So far as the second prayer of the petitioner is concerned, it is apparent that the petitioner was very much aware that the respondent Nos.5 to 7 have already sold the property to one Mohan Singh but Mohan Singh has not been impleaded as respondent. The petitioner has failed to bring in the record any material as to whether a mutation in respect of the land has been done in favour of Mohan Singh or not. Under such circumstances, this Court is not inclined to allow the prayer of the petitioner for direction to the respondent No.4 for issuance of rent receipts; particularly behind the back of Mohan Singh.
22. Keeping in view of the disputed question of right, title and interest between the petitioner and the original respondent Nos.5 to 7 and their vendees, if any, the parties to the suit are at liberty to approach the civil court for appropriate remedy.
23. This Writ Petition is disposed of accordingly.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi Dated the 02ndof April, 2024 AFR/ Animesh
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