Debu Napit, Kali Napit and Dasu Napit @ Dasi Napit vs State of Jharkhand and Others

This appeal has been preferred against the order dated 25.6.2008 passed in W.P. (C) No. 6340/2002 by which the learned Single Judge had been pleased to dismiss the writ petition and upheld the order passed by the Commissioner, North Chhotanagpur Division, Hazaribagh, holding therein that after the death of the recorded ''Dar-Raiyat'', the heirs of the ''Dar-Raiyat'' will not have the right of cultivation as ''Dar-Raiyat'', as there is no such provision under the Chhotanagpur Tenancy Act.

In order to make the controversy explicitly clear, it may be noted that the appellants herein are the admitted heirs of ''Under-Raiyat'', which is akin to ''Dar-Raiyat'', meaning thereby ''Dar-Raiyat'' and ''Under-Raiyat'' are on equal footing. The appellants, after the death of their predecessor, claimed occupancy right and cultivation of land, which admittedly belongs to the Raiyats and their predecessors were cultivating the land as ''Under-Raiyat'' but after the death of the ''Under-Raiyat'', the legal heirs also claimed the right of cultivation. The contesting respondents, however, opposed it, as a result of which a case was filed by the appellants herein before the Deputy Collector, Land Reforms, who decided the matter on the basis of the provisions of the Bihar Tenancy Act, wherein a provision u/s 48 D(3) envisages that the heirs of the ''under-raiyat'' also will have a right of cultivation after the death of the ''under-raiyat'' This order was challenged by the respondents before the Additional Collection, who also upheld the order passed by the Deputy Collector, Land Reforms. The respondents thereafter filed a revision petition before the Commissioner, North Chhotanagpur Division, Hazaribagh, who, by order dated 2.7.2002, as contained in Annexure - 7 to the writ petition, was pleased to hold that the Bihar Tenancy Act was wrongly applied in Chhotanagpur as it is the general knowledge and plain common sense that the Chhotanagpur Tenancy Act will be applicable in a place at Chhotanagur. Admittedly the disputed land is situated in the North Chhotanagpur Division and hence, the Chhotanagpur Tenancy Act will govern the case of the contesting parties.

The Commissioner was further pleased to hold that under the Chhotangapur Tenancy Act, there is no provision granting the right of occupation and cultivation to the heirs of ''Dar-Raiyat'' or ''Under-Raiyat''. Since the appellants are admittedly the legal heirs of the ''Dar-Raiyat'', i.e. ''Under-Raiyat'' and there being no provision under the Chhotanagpur Tenancy Act to inherit the right of cultivation after the death of the ''under-raiyat'', the appellants were denied the right of cultivation.

In course of argument, we, therefore, permitted the Counsel for the appellants to point out any provision under the Chhotanagpur Tenancy Act which might be pari-materia with the Bihar Tenancy Act indicting that the heirs of an ''Under-Raiyat'' also will have a right of occupation and cultivation after the death of the ''Under-Raiyat''. The Counsel submitted that there is no such provision under the Chhotanagpur Tenancy Act but there is a customary practice to cultivate the land by the heirs of the ''Under-Raiyat'' even after the death of the ''Under-Raiyat''.

This argument advanced by the Counsel for the appellants is obviously full of legal infirmities for if there is a specific Act defining the right of the ''Under-Raiyat'', the customary right, even if there be one, cannot be allowed to prevail over the specific provision of the Act, where there is no provision granting any right to the heirs of an ''Under-Raiyat'' after the death of the ''Under-Raiyat''. We, therefore, find no infirmity in the order passed by the Commissioner, which has been upheld by the learned Single Judge. The appeal has, thus, no substance and is consequently dismissed at the admission stage itself.