Jharkhand High Court
Smt. Geeta Agarwal vs State Of Bihar (Now Jharkhand) And Ors. on 10 August, 2007
Equivalent citations: [2007(4)JCR165(JHR)]
Author: D.G.R. Patnaik
Bench: D.G.R. Patnaik
JUDGMENT D.G.R. Patnaik, J.
1. The instant writ application has been filed by the petitioner for an appropriate writ for quashing that part of the order dated 30.10.1996 passed by the Deputy Commissioner, Ranchi (respondent No. 2) in U.L.C. Case No. 8 of 1976, whereby finding was recorded that the sale of lands by Smt. Tribeni Devi, which was eventually acquired by the petitioner, was in violation of Sections 3 and 4 of the Bihar Ceiling On Urban Property (Temporary Restrictions on Transfer) Ordinance, 1976 and as such, the sale-deed was not legal. Prayer for further direction has been made for a writ in the nature of mandamus commanding upon the respondents to forbear from giving effect to or acting pursuant to or in furtherance of the impugned order of the respondent No. 2.
2. The grounds advanced in support of the prayer are that the respondent No. 2 had no authority or jurisdiction to pass the impugned order with the finding that the sale-deed executed by Smt. Tribeni Devi was null and, void in view of the Ordinance since the Ordinance was never enacted into any Act and had lost its force much prior to the date of execution of the sale-deed and further, that the State of Bihar had no competence to promulgate the Ordinance in respect of the subject which did not fall under any of the entries in List 2 of VIIth Schedule of the Constitution of India. It is also contended that the respondent No. 2 has passed the impugned order on wholly irrelevant and extraneous consideration not germane for the purpose of passing the said order.
3. For better appreciation, facts of the case may be referred to in brief.
As per the petitioner's case, the land being M.S. plot No. 126 Ward No. 1 situated at village Morabadi n the district of Ranchi, had originally belonged to the ex-landlord Babu Harihar Singh. By a registered hukumnama dated 20.4.1907. The ex-landlord sold the entire plots of the land measuring 7 bighas together with structures standing thereon to one Bidhubhushan Banerjee. Almost three years later, Bidhubhushan Banerjee sold the entire land by a registered sale-deed dated 14.10.1918 to one Gobardhan Das Sarawgi of Ranchi, whereby the vendee came in physical possession of the land and got his name mutated in the municipal records of right vide municipal holding No. 1572, which was later renumbered as municipal holding No. 21 and at present, is recorded as municipal holding No. 28 M.S. Plot No. 128 within Ward No. 1 of Ranchi Municipality. Subsequently, by way of family arrangement, said property was allotted to the share of one Jagannath Saraogi who got his name mutated in the municipal records. Jagannath Saraogi died in the year 1941 leaving behind a number of heirs who jointly owned and possessed the said property. After the death of Jagannath Saraogi, a portion of his property which is the land under reference in this case, fell on partition in the share of Smt. Tribeni Devi, widow of Sheo Bhagwan Saraogi. Pursuant to the partition, Smt. Tribeni Saraogi got her name mutated in the municipal records. Having acquired absolute right over the properties which were mutated in her name, Smt. Tribeni Devi by a family arrangement gave 57 katthas 44 sft. of the land together with existing structures thereon to Bimla Devi and Usha Kumari, two daughters of Nikhab Chand Saraogi. Out of the remaining land, Tribeni Devi sold one biglia four katthas ten chataks of land within the aforesaid plot to one Satya Narayan Jalan, son of Mahabir Prasad Jalan of Calcutta by a registered sale-deed dated 19.3.1976. The purchaser Satya Narayan Jalan got his name mutated in the revenue records under orders of the Circle Officer, Town Anchal, Ranchi (respondent No. 3) in Mutation Case No. 1484-R-27/77-78 and since then, he has been paying Chhaparbandi rent at the rate of Rs. 7/- besides cess and other charges. Satya Narayan Jalan vide two registered sale-deeds dated 17.6.1980 and 18.8.1980 respectively sold the entire 1 bigha 4 katthas 10 chataks of land of the said M.S. plot No. 126 to the petitioner and one Lalmuni Devi. Both the sale-deeds were executed by Satya Narayan Jalan in favour of the purchasers after seeking permission from the competent authority, namely, respondent No. 2. Permission was granted to Satya Narayan Jalan by the respondent No. 2 by his order dated 27.3.1980 (Annexures-5). After purchasing the land from Satya Narayan Jalan, petitioner's name was mutated in the municipal records pursuant to the order of the Circle Officer, Town Anchal, Ranchi dated 19.2.1981 passed in Case No. 9928/27/80-81 and since thereafter, petitioner has been paying rent at the rate of Rs. 7/- to the State of Bihar. Likewise, for the sale of the land measuring 12 katthas of M.S. Plot No. 126 out of 24 katthas 10 chataks sold to Lalmuni Devi, permission was granted by respondent No. 2 under Section 26 of the, Land Ceiling Act vide his letter No. 181 dated 23.2.1989. The purchaser Lalmuni Devi got her name mutated in the revenue records of right and she has constructed her house over the said plot. Despite this, the petitioner received information on 7.6.1991 that the Circle Officer, Town Anchal, Ranchi (respondent No. 3) was trying to take possession of the land claiming that the land had vested in the State of Bihar pursuant to the order dated 6.3.1988 passed by the Deputy Commissioner, Ranchi (respondent No. 2) in U.L.C. Case No. 3 of 1976. On further inquiry, petitioner came to know that the Urban Land Qeiling Proceeding was initiated with respect to M.S. Plot No. 126 in the year 1976 vide case No. U.L.C. No. 8 of 1976 on the basis of the purported statement filed by one P.F. Reynold under Section 6 of the Urban Land Ceiling Act. The records of the proceeding had revealed that though it was initiated in the year 1976, but no order was passed in the same till 1.3.1988. By order dated 1.3.1988 notice was issued to Smt. Tribeni Devi. Petitioner explains further that in the year 1972, for the self same land, a suit was filed on behalf of Tribeni Devi against P.F. Reynold, which was registered as Title Suit No. 177/72 of 1972/75 and by judgment of the Court dated 26.6.1976, the suit was decreed in favour of Tribeni Devi against P.F. Reynold directing him to give vacant possession of the suit premises to Tribeni Devi. Yet, P.F. Reynold continued to advance false claims over the same in respect of M.S. Plot No. 126 and used to file returns before the Deputy Commissioner, Ranchi. On the basis of the false claims advanced by P.F. Reynold, respondent No. 2 after allotting one unit of 2000 sq. mtrs to the person concerned, issued a draft publication showing the remaining 7293 sq. mtrs as surplus land and having vested in the State of Bihar and the purported surplus land was sought to be delivered to the Bihar State Electricity Board (respondent No. 4) for the purpose of constructing an electric sub-station. Later, the respondent No. 2, treating the land as abandoned holding, passed an order dated 27.6.1988/6.8.1988 directing the Circle Officer, Town Anchal, Ranchi to take possession of the land and to issue publication under Section 10(1) of the Act. Petitioner claims that she was never made aware of the aforesaid proceedings since no notice was served upon her despite the fact that her name appears in the revenue records of right ever since the year 1981. Against the aforesaid order of the respondent No. 2 (Annexure-8), petitioner preferred a writ application before this Hon'ble Court vide CWJC No. 1253 of 1991 (R) and vide order dated 2.4.1992 the order of the respondent No. 2 (Annexiire-8) was set aside by this Court with a direction that the petitioner shall appear before the Deputy Commissioner, Ranchi within two weeks from the date of the order and shall produce all documents in support of her claim over the land and the Deputy Commissioner shall proceed to decide the matter in accordance with law. Pursuant to the aforesaid order of this Court in the writ application, the petitioner appeared and filed her representation before the respondent No. 2. By order dated 30.10.1996 (order impugned) the respondent No. 2 dropped the proceeding as against P.F. Reynold, but had recorded his finding that the sale-deed executed by Tribeni Devi was null and void as being in violation of Section 3 and 4 of the Bihar Ceiling on Urban Property (Temporary Restriction on Transfer) Ordinance, 1976, Petitioner has challenged the above finding of the respondent No. 2 as recorded in the impugned order.
4. Shri Section Srivastava, learned Counsel for the petitioner, emphasizes that the Ordinance was never enacted as an Act and it had died its natural death after the statutory period of its promulgation and even otherwise, admittedly no proceeding was initiated at the time when the Ordinance was in force and, therefore, in absence of any enactment, respondent No. 2 had no authority or jurisdiction to record its finding that the sale-deed executed by Smt. Tribeni Devi was null and void. Learned Counsel would argue further that even if there was an Ordinance, the same was not saved by the Urban (Ceiling and Regulation) Act, 1976. Learned Counsel adds that the aforesaid finding of the respondent No. 2 in the impugned order is perverse and is based wholly on irrelevant and extraneous considerations. Learned counsel, by referring to the counter-affidavit filed in this case on behalf of the respondent No. 2, submits that in the light of the objection taken by the petitioner, this Court had directed the respondent No. 2 to inform by way of a counter-affidavit as to when did the Ordinance lapse and when and in what manner the Government of Bihar adopted the Urban Ceiling Act after lapse of the Ordinance, but respondents have failed to furnish any such information.
5. Respondents have filed counter-affidavit denying and disputing the claim of the petitioner. Respondents have sought to explain that the returns under Section 6(1) of Urban Land (Ceiling the Regulation) Act, 1976 was submitted by P.F. Reynold with respect to the lands of M.S. plot No. 126 ward No. 1 measuring 9560 square meters, after inquiry, draft statement for the above land was made and the same was served on P.F. Reynold and also on Tribeni Devi and after allowing the land holder to retain 2000 square meters, remaining area of the land was declared as surplus and such surplus land was to be surrendered to the State of Bihar. No objection was filed either by P.F. Reynold or by Tribeni Devi. Ultimately, vide order dated 6.8.1988 the competent authority has observed that since P.F. Reynold had expired and Tribeni Devi had no interest on the land, the land was to be treated as abandoned. The Circle Officer, Town Anchal, Ranchi was ordered to take immediate possession of the land and pursuant to the order, the Circle Officer had taken over the possession of 0.21 acres of land in question as appearing in the letter of the Circle Officer dated 4.12.1992. Respondents have acknowledged in their counter-affidavit that pursuant to an order passed in the writ application filed by the present petitioner and one Dr. Ghanshyam Das vide CWJC No. 2319 of 1991 (R) and CWJC No. 1253 of 1991(R), the writ petitioners filed their respective representations before the competent authority putting forward their claim that they had purchased portions of the land in question from different persons, who had purchased the same from Tribeni Devi and it was only after hearing the parties, that the competent authority h, ' passed its order dated 30.10.1996 (order impugned). The counter-affidavit of the respondent, however, raise no dispute of the facts that though the Urban Land Ceiling proceeding vide U.L.C. Case No. 8 of 1976 in respect of the lands pertaining to M.S. Plot No. 126 of Ward No. 1 was initiated on the basis of the returns submitted by P.F. Reynold under Section 6 of the Act, no order was passed in the said proceeding till 1.3.1988 and it was for the first time by order dated 1.3.1988 passed by the Deputy Commissioner (respondent No. 2) in the said proceeding that notice was ordered to be issued to Smt. Tribeni Devi to submit her objection, if any.
6. From the pleadings of the petitioner, it would appear that the lands including the lands under reference in this case were acquired by Smt. Tribeni Devi by virtue of partition of the joint family property belonging to the previous owner late Jagannath Saraogi. Lands so acquired by Tribeni Devi were mutated in her name in the municipal record. A portion of the said land was sold by Smt. Tribeni Devi to Satya Narayan Jalan by registered sale-deed dated 19.3.1976 and the land sold to the said purchaser was mutated in his name in the Government Revenue Records. The said mutation was done after inquiry conducted in a regular mutation proceeding bearing Mutation Case No. 14-84-R-27/77-78 and the transferee had been paying rent to the Government. It is also not disputed that Satya Narayan Jalan sold his aforesaid purchased lands to the petitioner and one Lalmuni Devi by executing two separate sale-deeds and that, prior to making such transfer, he had sought for and obtained permission from the competent authority, namely, respondent No. 2. Both the purchasers, namely, petitioner and Lalmuni Devi after having come in occupation and possession of the lands purchased by them, had obtained mutation of their names in the municipal records which was allowed after due inquiry in the mutation proceeding.
7. Issue which calls for consideration in this writ petition is, whether the findings recorded by the respondent No. 2 in the impugned order dated 30.10.1996 passed in U.L.C. Case No. 8 of 1976 that the sale of land by Tribeni Devi was in violation of Sections 3 and 4 of the Bihar Ceiling on Urban Property (Temporary Restriction on Transfer) Ordinance, 1976, was legal and competent.
8. From the nature of the order, it would appear that the Deputy Commissioner had sought to implement the Ordinance which was promulgated by the Government, State of Bihar in the year 1976. Admittedly, the Bihar Ceiling on Urban Property (Temporary Restriction on Transfer) Ordinance, 1976 was published on 24th January, 1976 in the Bihar Gazette which was to remain in operation till 30th April, 1976. The Urban Land (Ceiling and Regulation) Act, 1976 (Act 33 of 1976) was adopted on 1st April, 1976, which was published in Bihar Special Gazette on 24th May, 1976. Respondents have sought to explain that the Ordinance was in force till 30th April, 1976 which was followed by the Act with effect from 1.4.1976 and hence, there was no gap of any time period during which either the Ordinance or the Act of 1976 would have remained not in force. It is argued that the sale-deed executed by Tribeni Devi in favour of Satya Narayan Jalan (vendor of the present petitioner) on 19.3.1976 was within the period when the Ordinance was in force and, therefore, the impugned order of the Deputy Commissioner cannot be assailed as being without authority. There is no force in this argument.
The undisputed fact is that though, the Urban Land Ceiling Proceeding was initiated in the year 1976, but no order whatsoever was passed in the said proceeding till 1.3. 1988. The impugned order holding that the sale-deed executed by Smt. Tribeni Devi in favour of Satya Narayan Jalan on 19.3.1976 was illegal on 30.10 1996 on the basis of an Ordinance which had ceased to have effect since after 30.4.1976. It also appears that though Bihar Urban Land Ceiling Act was adopted on 1.4.1976, but it does not contain any savings Clause on the basis of which it could be claimed that any acts or deeds or orders passed under the earlier Ordinance could be deemed as acts, deeds or orders passed under the Act. It is apparent that the Ordinance was never enacted into any Act since admittedly it was not passed by both the houses of the State Legislature. The first Act in the context of Urban Land Ceiling as adopted by the State of Bihar, came into existence on 1.4.1976 i.e. much after the date when the sale-deed was executed by Smt. Tribeni Devi in favour of Satya Narayan Jalan.
9. The impugned order having been passed on the basis of purported violations of the provisions of the Ordinance which had long lapsed on the date when the order was passed, is illegal and beyond competence of the respondent No. 2.
10. In the light of the above discussion. I find merit in this application. Accordingly, the finding recorded in the order dated 30.10.1996 passed by the respondent No. 2 in U.L.C. Case No. 8 of 1976 declaring that the sale of land executed by Tribeni Devi was in violation of Sections 3 and 4 of the Bihar Ceiling on Urban Property (Temporary Restriction on Transfer) Ordinance, 1976, is hereby quashed and the respondents are directed not to give effect to or act pursuant to the order in furtherance of the aforesaid finding in the impugned order of the respondent No. 2.
With the aforesaid observations and, directions, this writ application is disposed of.