TMI Blog2004 (6) TMI 638X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Let it be recorded that by reason of the impugned Order, the respondent No. 2 observed as follows :-- Though the OP claims to be in possession but they failed to adduce any evidence to the effect as to how they obtained the ownership over the land in dispute. They even failed to adduce evidence about legal possession over the land in dispute. From records it transpires that entire claim of OP is based on forged and fabricated documents i.e. hukumnama and Government rent receipt. Mere possession does not confer any right and title to them to hold the land in dispute, when the same is encircled from all directions by the land of the petitioners. It is well established that any Government land cannot be claimed by any individual or organization only because some revenue officer has allowed issue of rent receipt in his favour. It is also clear that the proprietary of the entire land was purchased by the petitioner way back in 1911 and after that date the outgoing landlord lost all interest in the land and had no right to settle the land or a part thereof in favour of anybody. The hukumnama on the basis of which OP claims title or possession even if not forged is without any aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one of which, belongs to the Digambars while the other to the Swetambars--the two sects of the Jain Community. (3) (d) The petitioner, Manager of the Digambar Jain Community, States that in order to facilitate the comfort of the devotees of the Digambar sect, a raiyati settlement was taken in respect of an area measuring 0.34 Acres on Plot No. 179, Khata No. 79 in the year 1944. This Plot is situated in village Parasnath. According to the petitioner, the settlement was made by the issuance of a sada hukumnama by the ex-landlord on payment of salami which was fixed at ₹ 6 and 4 Annas and rent which was also fixed at ₹ 2 and 8 Annas. This settlement was followed by delivery of possession and issuance of rent receipts in the year 1944 itself. On the basis of such a transaction, the petitioner acquired raiyati right over this land and constructed the aforementioned bhata ghar . (3) (e) It is the further case of the petitioner that upon vesting of Zamindari under the provisions of the Bihar Land Reforms Act, 1950, jamabandi was created in favour of the petitioner and rent receipts were issued recognizing the status of the petitioner as a tenant of the State Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Circle Officer. (3) (n) According to the petitioner, this order became final and no second revision was maintainable but nevertheless, the respondent No. 6, again filed a Miscellaneous Revision before the Commissioner, North Chhotanagpur Division, Hazaribhag (respondent No. 2) vide Misc. Revision No. 14/1999-2000 (Annexure-5) and in answer to the notice received, the petitioner file a written note of argument wherein the point in relation to the maintainability of a second revision was also raised. This written note of argument is Annexure-6 to the Written Petition. (3) (o) The further case of the petitioner is that notwithstanding there being not provisions for a second revisions and this point having been set at rest by various Judgments, the respondent No. 2, in spite thereof, proceeded to entertain the same and by order dated 2.5.2002 (Annexure-7 i.e. the impugned order), allowed the revision holding that under his powers of superintendence, he had the necessary competence to interfere and accordingly set aside the order dated 4.10.1999 passed by the Additional Collector. It is against the aforesaid order that the petitioner has filed the instant Writ Petition. 2. Poi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der with regard to mutation has to be passed only on the basis of possession and the High Court will not interfere with findings of fact arrived at by the mutation authorities. He further submits that the said Act came into force with effect from 2.10.1990 and the instant proceeding was initiated on the basis of an application filed on 19.1.1996 when admittedly, Section 17 stood deleted by reason of the Amending Act of 1983 (Act 3 of 1983). In that view of the matter, the Commissioner could not have proceeded to entertain the second revision application at all therefore, the entire proceeding in so far as it related to the second revision being Misc. Revision No. 14/2000 was wholly misconceived and not maintainable. In support of the aforementioned contention, Mr. Mahato relied upon the judgments passed in the case of Dattatray Nath Pandy v. State of Bihar reported in (1994) 1 BLJR 406 and also in the case of Arun Kumar Sinha and Anr. v. Suresh Prasad and Ors. reported in (1998) 1 BLJ 526. He also relies on the proposition that the deletion of Section 17 with effect from 2.10.1990 will have effect upon all proceedings initiated after 2.10.1990 and therefore, the Commissioner could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court vide LPA No. 332/97. This Court can take judicial notice of the fact that the subject-matter involved in the LPA is the effect of vesting of the Bihar Land Reforms Act in relation to entire area and also, as to which of the two communities would be entitled to claim the status of propriety. This case concerns the jurisdiction of the Revenue Courts including the original Court and therefore, it is not necessary to go into the merit of the question that since LPA is pending, this Court should await. (4) (d) Mr. U.N. Bacchawat, learned Senior Advocate appearing for the respondent No. 6 submitted that in order to appreciate the rival contentions of the parties, four propositions are necessary to be taken note of for adjudication of this case. These four propositions are as follows :-- (i) In view of the facts involved in this case, even deletion of Section 17 from the Act, would not wrest the power of the Commissioner to undo an illegality and if this Court comes to a finding that the original authority acted de hors the provisions of the statute, then the decisions cited on behalf of the petitioner would not act as binding precedents and consequently, the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The respondent No. 6 filed a second revision before the Commissioner which was registered as Misc. Revision No. 14/2000. On 6.5.2002, the Commissioner set aside the order dated 4.10.1999 passed by the Additional Collector and allowed the appeal. (5) (B) Thus, the fact relating to a second revision having entertained at the level of the Commissioner cannot be disputed. (5) (C) In exercise of powers conferred by Sub-section (3) of Section 1 of 'The Bihar Tenants' Holding (Maintenance of Records) Act, 1973 (Bihar Act 28 of 1975), the Governor of Bihar was pleased to appoint 2nd day of October, 1990 as the date on which the said Act will be deemed to have come into force in respect of all the remaining Districts/Anchals which had not been notified previously. It is true that the proceedings was initiated thereafter, i.e. on 19.1.1996. It is also true that Section 17 stood withdrawn by the Bihar Act 3 of 1983. Therefore, logically, a second revision is not maintainable after the appointed day as has been held in the judgments cited by Mr. Ram Balak Mahato. However, what is relevant to be taken note of is that in all the cases cited by Mr. Maha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bed form for purposes of Section 14 (1) in Form No. 28. The petition dated 19.1.1996 as contained in Annexure-T/3 referred to above, is not in the prescribed manner. This Section 14(2) makes it mandatory upon the Circle Officer to issue a general notice and also to issue a notice to the concerned parties to file objections. Thereafter, on receipt of any objections, the Circle Officer is required to give reasonable opportunity to the parties concerned to adduce evidence, if any, and also to give opportunity of being hearing and only thereafter, he can dispose off the objection. In the instant case, and on perusal of the order-sheet, it does not appear that any of these mandatory procedures were recourse to the Circle Officer before the passed the order. The respondent No. 6, in their counter-affidavit, in paragraph 6(B) have specifically stated about the aforementioned irregularity committed at the level of the Circle Officer. They have specifically stated that in the instant case neither application was entered in the prescribed mutation case register nor the general notice was issued, nor notice was issued to the parties concerned. Anchal Adhikari called for the report of the Kar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not the ratio decidendi. (5) (J) In the case at hand, it is found that the very initiation of the proceeding was not as per the statute, therefore, the proceeding itself was a nullity. None of the judgments cited by Mr. Mahato were cases where this point was in issue. Since the foundation upon which the facts of this case have been woven, spring from an inherent lack of jurisdiction, the final outcome must also therefore, be deemed to be illegal and wholly misconceived. This is what the principle Debile fundamentum fallit opus (a weak foundation destroys the superstructure) signifies. For the same reason, the order of the Circle Officer must be held to be wholly without jurisdiction and therefore, it is of no consequence because it is Judicium a non suo judice datum nullius est mementi' (a judgment given by a judge without jurisdiction is of no importance). (5) (K) The Full Bench judgment reported in 1996 BBCJ 634, was taken into consideration by another Division Bench in the case of Dattatray Nath Pandey v. State of Bihar, reported in (1994) 1 BLJR 406. At paragraph 17 of the said judgment it has been held that a mutation proceeding is not a judicial proceeding b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uently, this Court holds that the Circle Officer not having acted within the parameters of law, his order was illegal and de hors the provisions of the statute. Since it is held that the original order passed by the Circle Officer was illegal, the Appellate and Revisional Orders dated 6.7.1998 and 4.10.1999 (Annexures 3 and 4) dismissing the Appeal and the Revision filed by the respondent No. 6, amount to upholding illegalities and therefore, they must be declared to be also illegal. Consequently, this Court refrains from setting aside the order of the Commissioner because by doing so, the effect would be to revive the illegal order of the Circle Officer and would virtually mean giving the seal of approval to an illegality. Therefore, this Court is of the view that the order of the Commissioner was within the confines of Law because by resorting to his inherent powers, he correctly set aside the order of the Additional Collector which arose out of the said illegal proceedings. In the instant case therefore, even on deletion of Section 17, the Commissioner must be held to have correctly exercised his powers under Section 28 which has the effect of rectifying an inherent defect in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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