1. The matter has been heard with the consent of learned counsel for the parties through video conferencing. There is no complaint about any audio and visual quality.

I.A. No. 3968 of 2021

Heard the parties.

This Interlocutory Application has been filed for expunging the name of appellant nos. 1 and 2 namely, Patia Manjhian and Rupamani Manjhain, who are said to have been died on 23.09.2020 and 28.01.2021 respectively and for substituting the names of their heirs and legal representatives fully described in paragraph nos. 2 and 3.

There is no opposition to the aforesaid application by filing any counter affidavit etc. or even by making any submission.

Having regard to the facts and circumstances mentioned in the Interlocutory Application, this application stands allowed.

Let the names of appellant nos. 1 and 2 be expunged from the array of the appellants and their respective heirs and legal representatives fully described in paragraph nos. 2 and 3 be substituted in their places.

It is noted that learned counsel for the appellants has claimed that he has filed the Vakalatnama on behalf of all the heirs and legal representatives of deceased-appellant nos. 1 and 2.

It is further made clear that this order would be subject to objection, if any, raised on behalf of any of the parties or aggrieved persons in future.

L.P.A. No. 620 of 2018

The instant intra-court appeal under Clause-10 of Letters Patent of Patna High Court is directed against the order/judgment dated 18.07.2018 passed by the learned Single Judge of this Court in W.P.(C) No. 4107 of 2017, whereby and whereunder, the learned Single Judge has quashed the letter no. 436 dated 22.06.2017 issued under the signature of Sub-Divisional Officer, Saraikella, respondent no. 2 to the writ petition, whereby, the respondent no. 3, the Circle Officer, Gamharia has been directed to take appropriate steps for giving possession of the land in question in favour of the respondent no. 4, namely, Patia Manjhian within time and to inform accordingly as also letter no. 1520 dated 04.07.2017 issued by the respondent no. 3, the Circle Officer, whereby the writ petitioner has been directed to hand over the possession of the land in question in favour of respondent no. 4, namely, Patia Manjhian and respondent no. 5, namely, Rupmani Manjhian and further the order passed by the Land Reforms Deputy Collector dated 03.09.2015 passed in Mutation Appeal No. 06/2012-13 has also been set-aside, having been passed without jurisdiction.

2. The brief facts of the case required to be enumerated as per the pleading made in the writ petition which reads as hereunder:-

It is the case of the respondent-writ petitioner that an application was made under the provision of Section 49 of the Chhotanagpur Tenancy Act, 1908, (hereinafter referred to as "the C.N.T. Act") before the Deputy Commissioner, Saraikella-Kharsawan seeking permission for transfer of the land in favour of the writ petitioner for establishment of a Company, which was marked as T.A. Misc. Case No. 12 of 2010-11.
The Deputy Commissioner, Saraikella-Kharsawan, has granted such permission vide order dated 06.08.2010 for transfer of the land in favour of the writ petitioner and thereafter, the writ petitioner had purchased 2.47 acres of land situated at Mouja-Srirampur, Thana No. 48, pertaining to Khata No. 19, Plot Nos. 22, 24 and 26, area 0.22 acre, 0.15 acre & 0.32 acre, respectively, Khata No. 32, Plot Nos. 5, 6, 56, 57, 58, 59, 127, 128, 129, 130, 131 and 132, area 0.11, 0.25 acre, 0.11 acre, 0.27 acre, 0.47 acre, 0.07 acre, 0.03 acre, 0.12 acre, 0.05 acre & 0.27 acre, respectively, (Total 2.47 acres) from Late Balram Murmu, Late Gorkha Murmu and Jagaran Murmu by virtue of Registered Sale Deed No. 4753/4738 dated 26.08.2010. The respondent-writ petitioner, thereafter, has made an application for mutation of the land in its favour, which was registered as Mutation Case No. 864 of 2010-11 and accordingly, the land was mutated vide order dated 04.10.2010.

At this juncture, one Patia Manjhian and Rupamani Manjhain filed an appeal in the Court of Land Reforms Deputy Collector, Saraikela for setting aside the order dated 04.10.2010 passed in Mutation Case No. 864 of 2010-11 which was numbered as Mutation Appeal No. 06/2012-13, was allowed vide order dated 05.04.2013 by quashing the order dated 04.10.2010 passed in Mutation Case No. 864 of 2010-11.

The writ petitioner, being aggrieved with order dated 05.04.2013 passed in Mutation Appeal No. 06/2012-13 had preferred revision before the revisional authority being Mutation Revision No. 11 of 2013-14 before the Deputy Commissioner, Saraikella-Kharsawan, wherein, the matter has been remanded and finally the order was passed by allowing the appeal vide order dated 03.09.2015, by which, the order dated 04.10.2010 passed in Mutation Case No. 864 of 2010-11, has been set aside.

It is the further case of the respondent writ petitioner that Sub Divisional Officer, Saraikella-Kharsawan vide letter no. 436 dated 22.06.2017 directed the Circle Officer, Gamharia, Saraikela to take appropriate steps for giving possession of the land in question in favour of appellant-Patia Manjhian and accordingly, steps have been taken for handing over the possession of the land in question which led the writ petitioner to file writ petition before this Court by invoking the jurisdiction conferred under Article 226 of the Constitution of India being W.P.(C) No. 4107 of 2017 and the learned Single Judge of this Court on contest, has quashed the orders dated 22.06.2017 and 04.07.2017, which is the subject matter of the instant intra-court appeal.

3. Mr. Jitesh Kumar, learned counsel appearing for the appellants-respondents, at the outset, has submitted by showing infirmity in the order passed by the learned Single Judge to the effect that the learned Single Judge has exceeded his jurisdiction by quashing the order dated 03.09.2015 passed by the Land Reforms Deputy Collector, Seraikella in Mutation Appeal No. 06/2012-13 having found to be without jurisdiction, even though, no such prayer has been made in the writ petition.

He, apart from the legality and propriety of the impugned order has also questioned the jurisdiction of the learned Single Judge in quashing the order passed by the Land Reforms Deputy Collector, Seraikella in Mutation Appeal No. 06/2012-13.

4. Mr. Arpan Mishra, learned counsel appearing for the writ petitioner on being called upon, has put his appearance and defended the order passed by the learned Single Judge by making submission that under the provision of Section 49(5) of the Chhotanagpur Tenancy Act, it is only the State Government who has conferred with the power to one of the transfer of the land but the State Government has not taken any decision rather it is the functionary of the State Government either the Circle Officer or the Land Reforms Deputy Collector, has taken such decision by questioning the transfer of the land by virtue of registered sale deed dated 26.08.2010 on the basis of the permission having been accorded by the Deputy Commissioner in view of the provision of Section 49 of the C.N.T. Act, 1908 and the learned Single Judge after considering that aspect of the matter, is correct in quashing the orders impugned.

He further submits that the Land Reforms Deputy Collector while passing the order in Mutation Appeal No. 06/2012-13 since has exceeded his jurisdiction in declaring therein the title by grabbing the power which has been vested under the provision of Section 49(5) of C.N.T. Act, 1908 for annulling the transfer but the Land Reforms Deputy Collector while passing order in Mutation Appeal, has questioned the title of the writ petitioner, even though, such prayer was not there, considering that, the learned Single Judge has quashed and set aside the order dated 03.09.2015 passed by the Land Reforms Deputy Collector in Mutation Appeal No. 06/2012-13 and in view thereof, it cannot be said that the order passed by the learned Single Judge suffers from an error, as such, the order impugned may not be interfered with.

5. We have heard the learned counsel for the parties, perused the documents available on record as also gone across the finding recorded by the learned Single Judge.

6. This Court, before scrutinizing the legality and propriety of the impugned order, deems it fit and proper to refer certain undisputed fact in this case as per the pleading made on behalf of the parties.

7. It is the admitted case that the land in question has been transferred by virtue of registered sale deed dated 26.08.2010 after the permission having been accorded by the Deputy Commissioner of the concerned district in view of the provision of Section 49 of the C.N.T. Act, 1908.

The respondent writ petitioner has made an application for mutation of the said land before the concerned Circle Officer, Gamharia which was allowed and mutated vide order dated 04.10.2010 being aggrieved with the same, mutation appeal was filed by one Patia Manjhian and Rupmani Manjhian before the competent appellate authority for setting aside the order dated 04.10.2010 passed in Mutation Case No. 864 of 2010-11 which was marked as Mutation Appeal No. 06 of 2012 and the Land Reforms Deputy Collector, Saraikela was allowed the appeal vide order dated 05.04.2013 and quashed the order dated 04.10.2010 passed in Mutation Case No. 864 of 2010-11.

The writ petitioner, being aggrieved with the order dated 05.04.2013 passed in Mutation Appeal No. 06 of 2012-13, had preferred revision before the revisional authority being Mutation Revision No. 11 of 2013-14 before the Deputy Commissioner, Saraikella, Kharsawan and the Deputy Commissioner vide order dated 03.12.2013 stayed the operation of the said order and remanded the matter directing the Land Reforms Deputy Collector to hear both the parties afresh and pass necessary order. Thereafter, the Land Reforms Deputy Collector, Saraikella, vide order dated 03.09.2015 has set aside the order dated 04.10.2010 passed in Mutation Case No. 864 of 2010-11.

The Sub Divisional Officer, Saraikella, has come out with the decision as contained in letter no. 436 dated 22.06.2017, whereby and whereunder, the concerned Circle Officer i.e., Circle Officer, Gamharia, was directed to take appropriate step for giving possession of the land in question in favour of the applicant, namely, Patia Manjhian within time and inform accordingly. In pursuant to the said direction, the Circle Officer, Gamharia had issued letter addressed to the Manager of the writ petitioner-Company bearing letter no. 1520 dated 04.07.2017, directing the writ petitioner to hand over the possession of the land in question in favour of Smt. Patia Manjhian and Rupmani Manjhian, daughters of Late Rup Singh Manjhi, failing which, appropriate step will be taken against the writ petitioner in accordance with law.

The respondent writ petitioner, being aggrieved with the same, has approached to this Court by filing writ petition by invoking the jurisdiction conferred under Article 226 of the Constitution of India, wherein, the learned Single Judge has quashed and aside the orders dated 22.06.2017 and 04.07.2017 as also the order passed by the appellate authority in Mutation Appeal No. 06/2012-13 holding it without jurisdiction.

Thus, it is evident from the material available on record that the land in question has been transferred after the permission having been accorded by the Deputy Commissioner of the concerned district as required under the provision of Section 49 of the C.N.T. Act, 1908.

Section 49 of the C.N.T. Act, 1908 is required to be referred herein, which reads hereunder as:-

"49. Transfer of occupancy-holding or Bhuinhari-tenure for certain purposes.-[Notwithstanding anything contained in Sections 46, 47 and 48 any occupancy raiyat or any member of a Bhuinhari family, who is referred to in Section 48 may transfer his holding or tenure or any part thereof for the following purposes,-

(a) in any case, the use of the land for any industrial purposes or for any other purposes which the State Government may, by ratification declare to be subsidiary thereto or for access to land used or required for any such purpose.

(b) in any case, the use of the land for the purpose of mining or for any other purposes which the State Government may, by notification, declare to be subsidiary thereto or for access to land used or required for any such purpose.

(2) The transferee in such cases shall not be entitled to use the land so transferred for any other purpose except for which it was transferred.]

(3) Every such transfer must be made by registered deed, and before the deed is registered and the land transferred, the written consent of the Deputy Commissioner must be obtained to the terms of the deed and to the transfer.

(4) Before consenting to any such transfer, the Deputy Commissioner shall satisfy himself that [adequate compensation is tendered to landlord for the loss (if any) caused to him by the transfer], and, where only part of a holding or tenure as transferred, may, if he thinks fit, apportion; between the transferee and the original tenant the rent payable for the holding or tenure.

[(5) The State Government may, at any time within a period of twelve years from the date on which written consent is given by the Deputy Commissioner in regard to the transfer of any holding or part thereof belonging to an occupancy-raiyat, who is a member of the Scheduled Tribes either on its own motion or on an application made to it in this behalf set aside such written consent and annul the transfer, if after holding the inquiry in the prescribed manner and after giving reasonable opportunity to the parties concerned to be heard it finds that the consent had been obtained in contravention of the provisions of sub-sections (1) and (2) by misrepresentation or fraud, and in case any holding or part thereof has been transferred on the basis of such written consent direct the Deputy Commissioner to take further necessary action under clause (c) of sub-section 4-A of Section 46.]"

It is evident from the aforesaid Section that power has been conferred for transfer of occupancy-holding or Bhuinhari-tenure for certain purposes and every such transfer must be made by registered deed, and before the deed is registered and the land transferred, the written consent of the Deputy Commissioner must be obtained.

It is further evident from sub-section 5 of Section 49 that the State Government may, at any time within a period of twelve years from the date on which written consent is given by the Deputy Commissioner in regard to the transfer of any holding or part thereof belonging to an occupancy-raiyat, who is a member of the Scheduled Tribes either on its own motion or on an application made to it in this behalf set aside such written consent and annul the transfer, if after holding the inquiry in the prescribed manner and after giving reasonable opportunity to the parties concerned to be heard it finds that the consent had been obtained in contravention of the provisions of sub-sections (1) and (2) by misrepresentation or fraud, and in case any holding or part thereof has been transferred on the basis of such written consent direct the Deputy Commissioner to take further necessary action under clause (c) of sub-section 4-A of Section 46.

Therefore, the annulment of the transfer of the land by virtue of registered sale deed has been vested upon the State Government.

It further requires to refer herein that for mutation, a separate rule is prevalent i.e., the Bihar Tenant's Holdings (Maintenance of Records) Act, 1973 which is a self-contained Act containing therein the provision as under Section 14 thereof, vesting power upon the Circle Officer concerned to pass an order on mutation case as also having the power of appeal under Section 15 and revision under Section 16 of the aforesaid Act.

Thus, the scope of power conferred under the various provisions of C.N.T Act, 1908 is totally different to that of the scope of Bihar Tenant's Holdings (Maintenance of Records) Act, 1973. While, the provision of C.N.T. Act, 1908 as under Section 49 speaks about the transfer of occupancy-holding or Bhuinhari-tenure for certain purposes, subject to fulfillment of condition i.e., written consent to be obtained from the concerned Deputy Commissioner, while on the other hand, the Bihar Tenant's Holdings (Maintenance of Records) Act, 1973 deals with the power of the concerned revenue authorities to mutate the land for the purpose of collection of land revenue.

In the given facts of this case, it is the admitted case that the land in question has been transferred after the written consent has been obtained from the concerned Deputy Commissioner, thereafter, the deed of registration has been executed. In consequence of such transfer, an application was filed for mutating the land under Section 14 of the Bihar Tenant's Holdings (Maintenance of Records) Act, 1973, which was allowed, against which, an appeal was preferred before the appellate authority being Mutation Appeal No. 06/2012-13.

8. In this factual backdrop, the question which is required to be considered by this Court is as to whether the revenue authority has power to pass such order for delivery of possession of land by dispossessing the respondent writ petitioner from the land in question, when the land has been transferred by way of registered sale deed in pursuance to the provision of Section 49(5) of the C.N.T. Act, 1908, as has been referred by this Court hereinabove that the provision of C.N.T. Act, 1908 and the Bihar Tenant's Holdings (Maintenance of Records) Act, 1973 read in two different fields, while the provision of C.N.T. Act speaks about the transfer of land after following certain statutory provision as contained therein along with cancellation of the transfer and dispossession of the concerned either under Section 46 or Section 49(5) of the C.N.T. Act, as the case may be, in pursuance to the order passed under Section 49 of the C.N.T. Act, while on the other hand, the provision of Bihar Tenant's Holdings (Maintenance of Records) Act, 1973 speaks about creation of mutation in favour of the person concerned in whose possession the land is. However, the fact of case is that the revenue authorities have passed the order for dispossession of the respondent writ petitioner while the land in question has been transferred by virtue of registered sale deed dated 26.08.2010 after following the procedure laid down under Section 49(5) of the C.N.T. Act, 1908.

Such order could not have been passed, if there would have been an order of annulment of transfer of the land in question by the decision taken by the State Government in pursuance to the provision of Section 49(5) of the C.N.T. Act, 1908 but no such decision has been taken by the State Government since the issue has not been raised before it, which is competent to take decision under the provision of C.N.T. Act, 1908.

The appellants claim to have cause of action for creation of mutation by an order passed by the Circle Officer in Mutation Case No. 864 of 2010 and finally, an order was passed by the appellate authority in Mutation Appeal No. 06/2012-13 cancelling the order of mutation vide order dated 03.09.2015, basis upon which, the impugned order has been passed for dispossession.

We have gone across the provision of Bihar Tenant's Holdings (Maintenance of Records) Act, 1973, wherefrom, it is evident that no power has been conferred upon the revenue authority under the said statutory provision for dispossession of the concerned person who is in the possession of the land, save and except, the power to create the mutation or to pass an order for correction in the record of rights i.e., registered deed and therefore, in such scenario, the impugned order passed by the revenue authorities for dispossession of the writ petitioner, cannot be said to be proper which is not within the jurisdiction of the concerned authority rather the order of dispossession could have been passed, if there would have been proceeding under Section 49(5) of the Act, 1908 but admittedly, no such proceeding has ever been initiated as has been admitted, by the learned counsel appearing for the appellants.

The learned Single Judge, while considering that aspect of the matter, has come to a conclusive finding by dealing with the effect of mutation, by which, no title is accrued, for which, reliance has been placed upon the judgment rendered in Mahabir Mahto & Ors. Vs. State of Jharkhand & Ors.,  2012 (4) JLJR 210, wherein, it has been laid down that mutation proceeding has limited scope. The order of mutation neither confers nor extinguishes any right of the parties. The purpose of mutation is only to collect government revenue from a person who is in possession of the land. The revenue authority while deciding the mutation case is not supposed to look into the right and title of a person upon the said land. The revenue authority, while dealing with the mutation proceeding, does not have the power to decide the question of title of any person upon a particular land and therefore, has given a finding on the backdrop of the factual aspect in the given case that the writ petitioner has acquired the said land by virtue of a registered sale deed after getting permission of the Deputy Commissioner under Section 49 of the C.N.T. Act which provides for annulment of any transfer made under Section 49 of the C.N.T. Act as has been provided under sub-section (5) of Section 49 of the C.N.T. Act but since no proceeding has ever been initiated within the limitation prescribed as contained in the said provision, the same cannot be annulled by the Land Reforms Deputy Collector as has been done in the instant case, and accordingly, orders impugned have been quashed and set aside.

9. This Court, therefore, is of the view that the decision taken by the learned Single Judge cannot be faulted with.

10. A contention has been raised that the learned Single Judge has exceeded his jurisdiction in quashing the order dated 03.09.2015 passed by the Land Reforms Deputy Collector, Seraikella in Mutation Appeal No. 06/2012-13.

This Court, in order to appreciate such argument has gone across the order dated 03.09.2015 passed in Mutation Appeal No. 06/2012-13 and found therefrom that the appellate authority in exercise of power conferred under Section 15 of the Bihar Tenant's Holdings (Maintenance of Records) Act, 1973 has decided the title in favour of the appellants which cannot be said to within the jurisdiction since the power of appeal conferred under Section 15 of the Bihar Tenant's Holdings (Maintenance of Records) Act, 1973 speaks about entertaining an appeal upon the order passed by the original authority under the provision of Section 14 of the aforesaid Act.

In view of such specific provision, the appellate authority has only been conferred with the power to look into the legality and propriety of the order passed by the original authority in the matter of an order of mutation and the mutation since does not confer any right and title rather it is for the purpose of collecting land revenue from the person concerned in whose possession the particular land is there, as such, the revenue authorities are having no jurisdiction to decide the title in favour of either of the parties as has been done by the appellate authority in exercise of power conferred under the provision of Bihar Tenant's Holdings (Maintenance of Records) Act, 1973.

Admittedly herein, there is no dispute about the settled position of Law that if any order has been passed by any authority exceeding its jurisdiction, the same will be nullity in the eye of Law and in such circumstances, if the learned Single Judge has come to conclusion that the order passed by the appellate authority in Mutation Appeal No. 06/2012-13, is having no jurisdiction to declare right and title which has not been vested under the statutory provision and if in such circumstances, the fact about acting beyond jurisdiction and based upon the said power, if any order has been passed which amounts to nullity in the eye of Law if this Court sitting under Article 226 of the Constitution of India exercises such power of quashing and setting aside such type of order, the same cannot be said to suffer from an error. Since the principle to exercise the power of writ of certiorari which has been vested upon the High Court under the provision of Article 226 of the Constitution of India, is mandatorily to be exercised if the order passed by the authority, is without jurisdiction and if it has been brought to the notice of the Court.

Herein, the fact about the order of the Land Reforms Deputy Collector in exercise of power of appeal has been brought to the notice of the learned Single Judge and taking into consideration the fact that the Land Reforms Deputy Collector has exceeded his jurisdiction in passing the order dated 03.09.2015 in Mutation Appeal No. 06/2012-13 and in such circumstances, if the learned Single Judge exercises the power conferred under Article 226 of the Constitution of India, has quashed and set aside it, the same cannot be said to suffer from error.

11. This Court, however, has provided an opportunity to the learned counsel appearing for the appellants to demonstrate about the legality and propriety of the order passed by the appellate authority in Mutation Appeal No. 06/2012-13 but he has also accepted the fact that the mutating authority or its appellate authority under the provision of Bihar Tenant's Holdings (Maintenance of Records) Act, 1973, has got no power to declare the right and title in favour of one or the other.

12. In view thereof, the order passed by the learned Single Judge to the effect, by which, the orders dated 22.06.2017 and 04.07.2017 have been quashed and set aside, according to our considered view, also does not suffer from an error.

13. In the result and in the entirety of the facts and circumstances as discussed hereinabove, the instant appeal fails and is, dismissed.