VIVEK SAHU Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) The instant writ petition is under Article 226 of the Constitution of India wherein following prayers have been made:

(2.) The brief facts of the case as per the pleading made in the writ petition, which is required to be enumerated, read as under: It is the case of the petitioner that the last settlement of plot no.675 appertaining to Anabadi Khata No.121 of the mouza Pakuria within Pakuria P.S. came to be recorded as Puratan Patit (Waste Land) of the mouza and such waste land were/are available for settlement with the deserving raiyats as per clause 16 of the record of right and such lands were governed by Regulation 3 of 1872 of the Santhal Parganas Settlement Regulation, 1872. The mouza Pakuria was under the proprietorship of Maheshpur Raj and the Zamindar (Proprietor) having the rights to make raiyati settlement of waster lands had made raiyati settlement of 01 bigha 07 katha 17 dhurs of land within plot no. 675 with Sarbeshwar Sahu, Gopeshwar Sahu and Hare Krishna Sahu in the year 1937 prior to coming into force the act of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949, hereinafter referred to as the Act, 1949. According to the petitioner, the plot no.675 was rocky and uncultivable land and under such circumstances the ancestors of the petitioners made a reservoir over a portion of the said plot and made few structures over the same and also kept paying the rent for the said land to the zamindar. The petitioners and ancestors of the proforma respondents received a notice from the office of the Sub-Divisional Officer, Pakur in connection with an eviction proceeding under Public Land Encroachment Act vide Revenue Misc. Case No.04/2012-13 in which these petitioners along with the proforma respondents were directed to file their show cause against their eviction from the plot no.675. The proforma respondents had appeared before the Sub- Divisional Officer, Pakur in connection with the eviction proceeding under the Public Land Encroachment Act vide Revenue Misc. Case No.04/12-13 but during pendency of the said proceedings, the S.D.O., Pakur sent a letter being letter no.201/D.B. dtd. 30/5/2012 with a recommendation to cancel the settlement of the plot no.675 with the petitioners ancestors and for taking steps for the eviction of the petitioners from the said plot and on that basis Revenue Misc. Petition No.01/2012 came to be registered in the court of the learned Deputy Commissioner of Pakur. It is the further case of the petitioner that during pendency of the aforesaid proceeding, ex-parte enquiry reports vide letter no.199/R dtd. 2/5/2012 and letter no. 193/R dtd. 30/4/2012 of the circle officer were being sent to the Deputy Commissioner of Pakur in which it was reported that in Register-II names of Sarbeshwar and others has been recorded with respect to the plot no.675 and rent for this land is also being realized by the State, however, it was falsely and incorrectly reported that a portion of the plot has been transferred to some others. It is the further case of the petitioner that the petitioners and the proforma respondents were not being noticed from the court of the Deputy Commissioner of Pakur in Revenue Misc. Petition No.01/2012 and the Revenue Misc. Case No.04/2012-13 pending in the court of the S.D.O. and in their absence the order was passed on 1/6/2012 in R.M.P. No.01/2012 with a direction to cancel the jamabandi created in the name of the ancestors of these petitioners and showing the settlement of the land with proforma respondents as temporary and cancelled the settlement of the said plot no.675 presuming the possession of the said land with the petitioners and the proforma respondents as illegal and further directed the Circle Officer Pakuria to take steps for removing the alleged encroachment by these petitioners and proforma respondents from the said plot. The petitioner being aggrieved and dissatisfied with the order of Deputy Commissioner, Pakur dtd. 1/6/2012 in R.M.P. No.01/2012, preferred Revenue Misc. Revision No.512 of 2012-13 before the Commissioner, Santhal Praganas Division, Dumka. It is the further case of the petitioner that one Harendra Nath Das was appointed as receiver of Maheshpur Raj Estate by Hon...ble Patna High Court in Misc. Appeal No.116/1930 and in that capacity he had filed a Title Suit No.29/1944 before the Sub-Divisional Officer, Pakur against the settlement of Sarbeshwar Sahu for declaration that he had no right to excavate a ditch over the plot no.675 of mouza Pakuria without the permission of the Zamindar and for ejectment of Sarbeshwar Sahu from the said plot and for recovery of possession in favour of the zamindar. The title suit, however, stood dismissed on 24/11/1944 since the plaintiff stopped taking steps in the said suit. The petitioners in the backdrop of the aforesaid fact, has filed the instant writ petition invoking the jurisdiction conferred to this Court under Article 226 of the Constitution of India raising the issue that the settlement since has been made in the year 1937, as such, there is no question of applicability of the provision of Sec. 35(1) of the Act, 1949 but the revenue authorities without appreciating the aforesaid fact has erroneously come to the conclusion by applying the provision as contained under Sec. 35(1) of the Act, 1949 discarding the plea and holding the writ petitioners to be encroachers over the aforesaid plot no.675, therefore, submission has been made that the orders passed by the revenue authorities are without consideration of the said material fact as also no notice was issued from the office of the Deputy Commissioner when the matter was referred by the circle officer.

(3.) The State has appeared and filed counter affidavit inter alia taking the plea that there is no infirmity in the order passed by the revenue authorities. The issue as has been raised is incorrect on the part of the writ petitioners about non-applicability of the provision of Sec. 35 since no record has ever been placed about the settlement of the said land said to have been settled sometime in the year 1937 and that is the reason, the Deputy Commissioner as also the Commissioner have given specific finding therein that in absence of any record about the settlement of the land sometime in the year 1937, it cannot be accepted about the settlement of the land in the year 1937 so as not to make the provision of Sec. 35(1) of the Act, 1949 applicable.