M.Y.EQBAL,J. - (1.) THIS appeal at the instance of the appellant - The State of Jharkhand is directed against the judgment and order dated 22.8.2003 passed in WP (C) No. 5126 of 2002 whereby the learned single Judge directed the appellants to mutate the name of the petitioner -respondent in respect of the land in question.
(2.) THE fact of the case lies in a narrow compass. Petitioner -respondent alleged to have purchased raiyati land measuring an are of 3 kathas appertaining to Mouza Dhaiya No. 6. khata No. 119. Plot No. 4051 from one Mohan Manjhi son of Late Gangu Manjhi a scheduled tribe by registered sale -deed dated 2.12.1988. It is stated by the petitioner -respondent that after purchase he came in peaceful possession of the said land and continuing possession since the date of purchase. Petitioner -respondent, therefore filed an application for mutation of the land in question by entering his name in the revenue register but the Circle Office, Dhanbad sat tight over the matter, The petitioner then filed a writ petition being WP (C) No. 3921 of 2001 for a direction to the respondent -Circle Officer, Dhanbad to mutate the land in his favour. The writ petition was disposed of on 24.8.2001 with a direction to the Circle Officer to pass appropriate order on the mutation application after hearing the parties. It is alleged that the Circle Officer without making any inquiry with regard to possession of the land rejected the application on the ground that transfer of the land itself was invalid and illegal and, therefore, mutation cannot be allowed. The petitioner challenged the said order by filing WP (C) No. 5126 of 2002 which was disposed of by the impugned Judgment and order dated 22.8.2003. Learned Single Judge held that the Circle Officer has no jurisdiction to see the right or title of the parties in respect of the land for which mutation application is filed. The relevant portion of the judgment of the learned Single Judge which is impugned in this appeal is quoted hereinbelow ; 'In a judgment passed in the case of Dipan Ram etc. v. State of Jharkhand passed in WP (C) No. 5522 of 2001' and other analogous cases reported in '2002( 1) JCR page 146' it has been held that an authority vested with the power of mutating a land cannot refuse to register the land on the ground that the sale deed of the land had been executed outside the State. It is well settled that mutation of land does not create any right and title in favour of one or another. It merely allows a person to have his name entered in Register -11 for purposes of payment of rent. If any application for mutation is preferred, the competent authority cannot refuse. This Court also had the occasion to deal with a similar matter in the case of Smt. Rita Chakraborty v. The State of Jharkhand and others, WP (C) No. 4847 of 2002. For the foregoing reasons it is held that the first ground taken to the extent that there cannot be mutation on account of land having been registered outside the State, it is held that the Circle Officer had no authority or jurisdiction to make such observation. So far as the second reason is concerned, i.e. prior permission of the Deputy Commissioner not having been obtained, it is held that the mutating authority has no jurisdiction to see right or title in favour of the parties as the same can be done by any aggrieved person in an appropriate proceeding before an appropriate forum. Consequently, the Writ Application is allowed and the impugned order is set aside and a writ of mandamus is issued upon the Circle Officer, Dhanbad to mutate.'
(3.) MR . Shamim Akhtar, learned S.C. -II submitted that the Circle Officer while considering the application for mutation is empowered to consider atlas the prune facie title of the petitioner besides possession of the land. According to the learned counsel, when transfer itself is illegal and void mutation of the land in favour of the transferee can be refused. Learned counsel relied upon the decision of the Supreme Court in the case of Lincari Garmango v. Dayanidhi Jena reported in 2004 (3) PLJR 212;