AI Structured Summary
Not yet generated for this judgment
Judgment
Heard Mr. Kundan Kumar Ambastha, Advocate counsel appearing on behalf of the petitioners.Â
Heard Mr. Shahid Khan, counsel appearing on behalf of the respondent no 1 to 4.Â
No one appears on behalf of the private respondent no. 5 inspite of service of notice . The notice upon Respondent no 5 was accepted as valid vide
order dated 18.04.2001.Â
This writ petition has been filed for the following reliefs:-Â
“For quashing the order dated 01.04.1998 passed by the Additional Collector, Ranchi, Respondent No. 3 in S.A.R. Appeal No. 30R15 of 1996-97
whereby and whereunder he has allowed the appeal filed by the Respondent No. 5 and has remanded the case to the Special Officer, Scheduled
Areas Regulation, Ranchi, Respondent No. 4 for determination of compensation with respect to 13 decimals of land out of Revisional Survey plot No.
1473 of Khata No. 117 situated at village Morhabadi P.S. Bariatu, District Ranchi under the third proviso to Section 71A of the C.N.T. Act as
contained in Annexure-14 to the writ application and the order dated 18th of May, 1999 passed by the Commissioner, South C.N. Division, Ranchi,
Respondent No. 2 confirming the order passed by the Additional Collector, Ranchi and dismissing the Revision filed by the petitioner No. 1 contained
in Annexure-15 to this writ application.â€Â   Â
Counsel for the petitioner submits that the writ petitioners number 1 and 2 are husband and wife respectively. He submits that this case can be
decided on the short point :
“ whether any adverse order could have been passed by the authorities below against the petitioner no. 2 in connection with right, title and interest
of her property , in a proceeding where she was never made a party inspite of the fact that the petitioner no 1 had raised this objection at the initial
state of the proceedings? And whether on this ground alone the impugned appellate order as well as revisional orders are fit to be set-asideâ€
Counsel for the petitioners submits that  the property involved in this case is of revisional survey plot no. 1473, area 0.13 acres of Khata No.
117 situated at village Morhabadi, Ranchi.Â
The specific case of the petitioners is that the property was transferred from one person to another vide a number of registered deed of sale/gift to
one Mritunjay Prasad and the petitioner no. 2 has purchased a portion of the aforesaid property from said Mritunjay Prasad being 4 katthas 5
chhatak of Chhaparbandi land out of R.S. Plot No. 1473 supplementary plot no. 1473/A of Khata No. 117 of village Morhabadi along with other
structures by virtue of registered sale deed dated 01.02.1971 for a valuable consideration and Renu Jha was put in possession of the property. Another
portion of the said property being 2 khatas, 8 chataks of R.S. Plot no 1473, Khata no. 117 was sold by Mritunjay Prasad to one Shyam vide sale deed
dated 01.02.1971 who sold the same to the petitioner vide another registered deed of sale dated 02.02.1972 and since then the petitioner number 2 is in
possession of the property.Â
Thus, it is submitted that the petitioner no. 2 is in possession of the property by virtue of two registered deed, one dated 1.02.1971 and another dated
2.02.1972.Â
An application being S.A.R. Case No. 199/1989-90 was filed by one Kisun Munda under Section 71-A of the Chotanagpur Tenancy Act, 1908
before the Special Officer, Santhal Pargana Regulation , Ranchi claiming restoration of the entire aforesaid land . In the said proceedings only the
petitioner no. 1 was made party and petitioner no 2 was not made a party to the proceedings.
The petitioner no. 1 filed his show cause before the Special Officer, Santhal Pargana Regulation , Ranchi, and contested the case on merit as well
as raised objection that the property is of petitioner no. 2 and that she has not been made party in the proceeding. In spite of this objection no steps
were taken by the applicant to implead the petitioner no. 2 as party respondent in the proceedings. However, the Special Officer, Santhal Pargana
Regulation , Ranchi after hearing the parties, vide order dated 14.03.1996 dismissed the application for restoration filed by Kishun Munda.
Thereafter the applicant of the case Kishun Munda expired and the respondent no. 5 filed appeal before the Additional Collector, Ranchi which
was numbered as S.A.R. Appeal No. 30R 15 of 199697 and the said officer allowed the appeal and remanded the case to the said the Special Officer,
Santhal Pargana Regulation , Ranchi for determination of compensation payable by the respondent no. 5 to the petitioner under Section 3rd proviso to
Section 71A of the Chotanagpur Tenancy Act,1908Â vide order dated 01.04.1998.Â
Against the appellate order dated 01.04.1998Â , the petitioner no. 1 filed revision before the Revisional Authority being Ranchi S.A.R. Revision
no 64 of 1998 and again raised objection that the property stands in the name of petitioner no. 2 and she was not a party in the entire proceedings.Â
The Revisional Authority i.e the Commissioner South Chotanagpur Division , Ranchi dismissed the revision and rejected the plea of the petitioner no
1 on the point of non joinder of petitioner no 2 in the entire proceedings.  And the reasons in connection with this point are mentioned inÂ
paragraph no. 3 of the impugned order dated 18.05.1999 passed by the Commissioner South Chotanagpur Division , Ranchi in Ranchi S.A.R. Revision
no 64 of 1998Â . The reason for rejection of plea of non joinder of petitioner no 2 as party in the impugned order dated 18.05.1999 is that the
petitioner no 1 had no where mentioned as to whether the petitioner no 2 being his wife had any independent source of income and whether she had
acquired this property by such independent source of income. Another ground of rejection of the said plea which has been mentioned in the
impugned order dated 18.05.1999 is that the petitioner no 1 has been contesting the case on merits so that he could take this point at a later stage and
the petitioner no 1Â has full knowledge of the facts , the petitioner no 2 also has full knowledge of the proceedings , so she ought to have herself
appeared in the proceedings.
Counsel for the petitioners while assailing the order dated 18.05.1999 submits that instead of going into the merits of the matter and other aspects,
the writ petition is fit to be allowed on the ground of non joinder of petitioner no. 2 as party in the entire proceedings. He submits that the revisional
court has rejected the contention of the petitioner no. 1 in connection with non joinder of his wife i.e. petitioner no. 2Â (who is the owner of the
property)  by assuming that the property is that of the petitioner no 1 purchased in the name of petitioner no 2 i.e the property is the benami
property of the petitioner no 1 . He submits that it was nobody’s case that the property is the benami property of the petitioner no 2 and there is
a presumption in law that the property is of the person in whose name it is standing. Moreover the revisional authority has failed to consider that the
objection regarding non joinder of petitioner no 2 in the proceedings has been taken by the petitioner no 1 at the threshold but no steps were taken for
impleading petitioner no 2 in the proceedings. He submits that the impugned order affects right , title and interest of the petitioner no 2 and the
petitioner no 2 being not a party to the proceedings before the court below , the impugned order is fit to be set-aside on this short point itself. It is
submitted that the impugned order is absolutely perverse and illegal which cannot be sustained in the eyes of law.  Â
Counsel for the respondent State on the other hand submits that admittedly the petitioner no. 2 was not made a party in the proceeding and
therefore the case should be remitted back to the S.A.R. Officer for fresh consideration. He further refers to the counter affidavit and he submits that
the objection regarding non joinder of party has already been considered by the revisional court and accordingly he submits that the impugned order
requires no interference under Article 226 of the Constitution of India.Â
After going through the materials available on record and after considering the submissions made by the parties this court finds that the petitioner
no. 1 had raised specific objection before the Special Officer, Santhal Pargana Regulation , Ranchi that the property stands in the name of his wife
and she has not been made a respondent in the case. But in spite of the objection, the private party did not take any step to implead the petitioner
no. 2 as respondent in the matter and accordingly no notice was issued to the respondent no. 2 and she was never impleaded as a party in the
proceeding. However, the Special Officer, Santhal Pargana Regulation , Ranchi had dismissed the case and therefore there was no adverse order
against the petitioner no. 2.
Before the appellate authority, admittedly the petitioner no. 2 was not a party and the order which has been passed by the appellate authority
certainly affects the right, title, interest and possession of the petitioner no. 2 and accordingly this court is of the considered view that no adverse order
affecting the right, title and interest of the petitioner no. 2 in connection with the property could have been passed without she being a party in theÂ
proceedings.
So far as the revisional authority is concerned , the revisional court rejected the contention of the petitioner no 1 on three grounds:- (a) the
petitioner no 1 has not mentioned that the petitioner no 2 had independent source of income and that she had bought the property by such independent
source of income. (b) the petitioner no 1 had contested the case through out on merits and he has done so , so that at later stage he can take a plea
that his wife was not made a party. (c) the petitioner no 2 i.e the wife of the petitioner no 1 was throughout aware of the proceedings but she did not
take any step to become party in the proceedings.
This court is of the considered view that all the reasons assigned by the revisional court for rejecting the plea of the petitioner no 1 regarding non
joinder of petitioner no 2 are perverse and not sustainable in the eyes of law. This court finds that the petitioner no
1 at the threshold , while filing his show cause reply before the Special Officer, Santhal Pargana Regulation , Ranchi had taken a specific plea that
the property is in the name of the petitioner no 2 and she has not been made party in the proceedings but the applicant did not take any steps to
implead petitioner no 2 as respondent in the matter. Accordingly the finding in the impugned order, that the petitioner no 1 had contested the case on
merits , so that he can take this point of non joinder at a later stage, is perverse and fit to be set-aside as the petitioner no 1, at the beginning of
the proceedings itself, had taken the plea of non joinder of petitioner no 2.
So far as the other ground in the impugned order on the point of non joinder of petitioner no 2 , that the petitioner no 2 i.e the wife of the petitioner
no 1 was throughout aware of the proceedings but she did not take any step to become party in the proceedings , is concerned , this court is of the
considered view that it was for the applicant of the case to take steps for impleding her as a respondent once it was brought on record that the
property is standing in her name. This court is of the considered view that the applicant having not taken such steps for impleading petitioner no 2 as a
party , no latches can be imputed upon the petitioner no 2 in not appearing in the proceedings suo-moto even if she had knowledge about the
proceedings.
So far as the other ground as mentioned in the impugned order on the point of non joinder of petitioner no 2 , that the petitioner no 1 has not
mentioned that the petitioner no 2 had independent source of income and that she had bought the property by such independent source of income is
considered , this court finds that it was nobody’s case that the property is a benami property of the petitioner no 1 , i.e the property was purchased
by the petitioner no 1 in the name of his wife. Otherwise also it has been held by Hon’ble the Supreme Court in judgement reported in (1974)1
SCC 3 in paragraph 6 and 7 as follows:Â
“It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the
person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly
prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the
intention of the party or parties concerned; and not unoften, such intention is shrouded in a thick veil which cannot be easily pierced through. But such
difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance
of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable
deliberation, and the person expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his favour that the
apparent state of affairs is the real state of affairs. Though the question, whether a particular sale is benami or not, is largely one of fact, and for
determining this question, no absolute formulae or acid test, uniformly applicable in all situations, can be laid down; yet in weighing the probabilities and
for gathering the relevant indicia, the Courts are usually guided by these circumstances: (1) the source from which the purchase money came; (2) the
nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties
and the relationship, it any, between the claimant and the alleged benamidar; (5) the custody of the title-deeds after the sale and (6) the conduct of the
parties concerned in dealing with the property after the sale.â€
The aforesaid view of Hon’ble the Supreme Court has been followed in the judgement reported in (2017) SCC 263.
This court finds that there is neither any pleadings, nor any material on records to even remotely suggest that the property involved in this case is
benami property of the petitioner no 1 purchased in the name of the petitioner no 2. Merely because the petitioner no 2 had contested the case on
merits also, no adverse inference can be drawn against the petitioners and the same does not absolve the applicant from his initial onus of pleading and
proving that the property was the benami property of the petitioner no 2 purchased in the name of petitioner no 1.
So far as the plea of the counsel appearing for the respondent state regarding remitting the matter before the Special Officer, Santhal
Pargana Regulation , Ranchi for fresh consideration after hearing both the petitioners is concerned, this court is not inclined to accept this contention
due to the reason that the applicant ( respondent herein) was totally negligent and careless in not taking any steps in impleding petitioner no 2 as a
respondent in the proceedings although it was never his case that the property was the benami property of petitioner no 1 purchased in the name of
petitioner no 2 and in spite of specific objection being taken by the petitioner no. 2
at the threshold that the property is in the name of his wife, no steps were taken for her impledement.Â
As the impugned order passed by the appellate authority and affirmed by the revisional authority affects the right, title and interest of the petitioner
no. 2 ,and the petitioner no. 2 admittedly was never made party in the entire proceeding right from the proceedings before the Special Officer,
Santhal Pargana Regulation , Ranchi, this court is inclined to set-aside the appellate order as well as the revisional order. This court is of the
considered view that no adverse order could have been passed by the authorities below against the petitioner no. 2 in connection with right, title and
interest of her property, in a proceeding where she was never made a party inspite of the fact that the petitioner no 1 had raised this objection at the
initial state of the proceedings.Â
The question framed in para 5 above is accordingly answered in favour of the petitioners.
In view of the aforesaid findings, this writ petition is hereby allowed on the aforesaid short point and the impugned order dated 01.04.1998 passed
by the Additional Collector, Ranchi, Respondent No. 3 in S.A.R. Appeal No. 30R 15Â of 1996-97 and the order dated 18th of May 1999 passed by
the Commissioner, South Chotanagpur Division, Ranchi in Ranchi S.A.R. Revision no. 64 of 1998 are hereby set aside. Â