SWARNLATA DEVI Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THIS appeal is filed by respondent No. 3 in WP (C) No. 3064 of 2001 of the file of this Court. That writ petition was filed by her challenging the recognition or appointment of the appellant as Pradhan of village Kurma in the district of Godda under the provisions of the Santhal Parganas Tenancy (Supplementary) Provisions Act, 1949. One Nageshwar Mishra was the Pradhan. He died on 16.7.1981. On 9.12.1982, the appellant, the eldest daughter of Nageshwar Pradhan, was appointed as the Pradhan. A rival claim to the post of Pradhan was raised by respondent No. 3 herein. The order of the authority recognizing the appellant as Pradhan was challenged in an appeal before the Deputy Commissioner, Godda. The appellate authority set aside the order of the Sub -Divisional Officer and remanded the case for a fresh consideration after issuance of notices to the raiyats in Form A. The order of the appellate authority was upheld in revision by the Commissioner, Santhal Parganas Division, Dumka, by his order dated 1.8.1994. There was further challenge to that order before the High Court of Judicature at Patna in CWJC No. 7892 of 1994. The High Court at Patna by judgment dated 7.4.2000, refused to interfere since the matter had only been remanded. On the facts and in the circumstances of the case, it thought it desirable to direct the Sub -Divisional Officer to take a decision about the appointment of the village Pradhan in accordance with law and after due notices to the raiyats as prescribed under Rule 3 of the Santhal Parganas Tenancy (Supplementary) Rules, 1950.

(2.) SUBSEQUENT to the said direction, by order dated 1.6.2001, the Sub -Divisional Officer, Godda, appointment the appellant, the eldest daughter of Nageshwar Mishra, as the Pradhan of the village. The said order was directly challenged before this Court by respondent No. 3 herein essentially on the ground that the Sub -Divisional Officer had not issued notices to all the raiyats as directed by the High Court while passing the order and hence the order was illegal and unsustainable. Though an objection was raised on behalf of the appellant and the writ petitioner had an efficacious alternative remedy under the Act and hence it was not a case for exercise of jurisdiction by this Court under Article 226 of the Constitution of India, the same was brushed aside by the learned Single Judge. Taking the view that notices to all the Jamabandi raiyats of the village was necessary, the learned Single Judge set aside the order of the Sub -Divisional Officer and remanded the proceeding to the Sub -Divisional Officer for a fresh decision after notices to all the raiyats. Feeling aggrieved by the decision of the learned Single Judge, the appellant who was appointed as Pradhan by the Sub -Divisional Officer, has filed this appeal.

(3.) CLAUSE 3 of Schedule V of the San -thai Pradhan Tenancy (Supplementary) Rules provides that the office of the Headman being hereditary, the next heir who is fit, should be the Headman. If the heir be a minor, he may be appointed Headman with a Sarbrokhar to manage for him until he attains majority. A person may be refused succession for reasons to be recorded if he is considered unfit for the post. It is therefore, the case of the appellant that the village in question being a non -khas village and the position of the Headman of a non -khas village being hereditary and she being the eldest daughter of the deceased Pradhan and there being to incapacity or disqualification attached to her, she was rightly appointed as the Pradhan by the Sub -Divisional Officer. Learned counsel for the respondent No. 3 sought to challenge Clause 3 of Schedule V of the Rules by contending that the same was violative of Article 16 of the Constitution. Learned counsel contended that the office of the village Headman was an office of profit and in support, relied on the decision in Gazula Dasharatha Rama Rao v. State of Andhra Pradesh, AIR 1961 SC 564, wherein Section 6(1) of the Madras Hereditary Village Office Act, 1895 was struck down as being violative of Article 16 (1) and (2) of the Constitution of India. We are not satisfied that respondent 3 can be permitted to urge this contention at this stage in this appeal in the circumstances of this case. It is not seen that such a contention was urged even before the learned Single Judge while arguing the writ petition. We are, therefore, not adverting to or answering this contention raised on behalf of respondent No. 3. We proceed on the basis that for the purpose of this case, the said rule is also valid. Rule 3 of the Rules lays down the manner in which consent of Jamabandi raiyats has to be ascertained in the manner of appointment of Headman under Section 5 of the Act. But on a scrutiny of Section 5 of the Act, it is seen that, that section has application only in the matter of appointment of a village Headman for a khas village. Section 6 refers to the appointment of a Headman of a village which is not a khas village, by providing that on the death of Headman, the same has to be reported within three months of the death to the Deputy Commissioner with a view to appoint a village Headman in the prescribed manner. It is in this context that the clause in Schedule V are relevant and Clause 4 thereof clearly shows that the next of heir of the deceased Headman, unless he is disqualified, shall be the successor Headman of the village. The procedure laid down in Rule 3 of the General Rules is seen to relate to the appointment of Headman on application under Section 5 of the Act.