Patna High Court
Manohar Prasad Singh, Ram Karan ... vs The State Of Bihar And Ors. on 22 April, 1993
Equivalent citations: 1994(42)BLJR421
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. As all these writ applications arias out of the same matter, they were with the consent of the parties taken up for hearing together and are being disposed of by this common judgment.
FACTS A land ceiling proceeding being Ceiling Case No. 54/37 of 1973-74 was started against Upendra Narain Singh father of the petitioner of CWJC No. 4810 of 1983 with regard to 15-3 acres and 191/2 decimals of land i.e. 20-59 acres of class III. 12-18 acres of class IV and 120-42 acres of class V lands.
2. Asha Devi (who is petitioner in CWJC No. 597/84), the daughter of the land-holder is said to have taken settlement on 39.99 1/2 acres of land in the year 1944-45 from the then landlord. Her name was allegedly mutated and she had been granted rent receipts by the ex-landlord.
3. Shri Ram Karan Choudhary petitioner of C.W.J.C. No. 605 of 1984 is said to be purchasers in respect of 19.84 acres of land.
4. By an order dated 31-7-1975 as contained in Annexure-1 to the writ application, the then Additional Collector dropped the proceeding holding that there was no surplus land in the family of Upendra Narain Singh and Manohar Prasad Singh.
5. By another order dated 25-8-1976 (Annexure-1/A) the Additional Collector Samastipur exempted the land of the settlee Asha Devi and the lands measuring an area 19.84 i acres of laud belonging to the strangers and 1 decimal of homestead land, The said Court granted two units, one to Upendra Narain Singh and the second to the petitioner Manohar Prasad Singh and 2/10th to the minor children and declared 13.03 acres as surplus land.
6. According to the petitioner no appeal was preferred against the aforementioned two orders. By a letter dated 28th December, 1976 (Annexure-2) the State directed the Additional Collector to look to the alleged defects pointed out therein and send the records to the State Government.
7. However, according to the petitioner before re-opening of the said proceeding the petitioner was not given a show-cause notice, pursuant to the aforementioned direction the Additional Collector called for a report from the Anchal Adhikari Kusheshwar-Asthan who by reason of his report dated 17-11-1979 (Annexures 3 and 3/A) stated that settlement in favour of Asha Devi was made prior to 22-10-1959 and Jamabandi also stands in her name and she is in possession of the lands in question.
It is further stated that Jamabandi stands in the name of vendees of the land-holder and/or his predecessor also.
8. The Additional Collector, thereafter issued a notice upon late Upendra Narain Singh. Similarly, Asha Devi and the transferees were also noticed by an order dated 17-6-1981 (Annexure-3/C) in L.C. Case No. 2 of 1980, The Additional Collector annulled the transfers made in favour of transferees and declared Asha Devi to be a farzidar of the land-holder. He further did not classify the lands as Class V land and declared 71.76 acres of land were to be surplus. Upendra Narain Singh as also Asha Devi and the transferees preferred appeals against the said order which was registered as L.C. Case No. 36 of 1981 and 37/81 and 38 of 1981.
9. Upendra Narain Singh died on 12-9-1981 and-an application under Section 245(C) of the said Act was filed intimating that he left behind Manohar Prasad Singh four daughters namely Asha.Devi, Ishwar Devi, Punam Kumari and Shanti Devi as Ms heirs and legal representatives and order of substitution was passed by the Collector on 5-4-1982.
10. However, in the meanwhile, Ordinance No. 66 of 1981 was promul gated in terms whereof Section 32(A) was inserted and as a result of coming into force of the said provision, the said appeals abated. All the appeals thereafter was remitted to the Additional Collector.
11. The Additional Collector after the aforementioned order of remand published a draft statement under Section 10(2) of the Act.
An objection was filed by Manohar Prasad Singh as also Asha Devi and the transferees.
12. The objection petition filed on behalf of the Asha Devi is contained in Annexure 3/E to the writ application. Allegedly various documents includ ing affidavits of Asha Devi, Manohar Prasad Singh and others were filed on 6-10-1982.
13. According to the petitioner, the Additional Collector did not consider the Circle Officer's report dated 17-11-1979 or the documents filed on behalf of the petitioner but held that Asha Devi as also the transferees were Farzidar of the land-holder.
He granted two units to the land-holder and declared 76.61 acres of land were to be surplus. Allegedly the Court did not grant any unit to the daughters namely Asha Devi, Ishwar Devi, Punam Devi and Shanti Devi.
14. The Collector further did not accept the contention of the petitioner that the lands in question are Class V lands. The said order is contained in Annexure-4 to the writ petition.
15. An appeal was preferred by the land-holder, Asha Devi and transferees being Appeal No. 12 of 1983 which was dismissed by an order dated 28-6-1982 as contained in Annexure-5 to the writ application.
16. Revision applications were filed against the said order which were registered as Revision Case Nos. 138 of 1983 and 139 of 1983 and the Member Board of Revenue by a judgment dated 14-9-1983 affirmed the orders of the Additional Collector as also the appellate authority.
17. In this case, no counter-affidavit has been filed on behalf of the state.
18. However an intervention application has been filed oh behalf of one Lal Chand Paswan wherein it has been stated that purchase in respect of the surplus have been granted on 26-3-1983 to 62 persons including the intervenor.
According to the intervenor this writ application has been filed on 7-10-1983 without impleading the purcha-holders as parties thereto and thus the writ application is not maintainable.
19. A counter-affidavit to the said intervention application has been filed in C.W.J.C. No. 4810 of 1983, wherein it has been contended that by an order dated 28-1-1983 the Appellate Authority stayed the operation of the order dated 28-1-1983 as contained in Annexure-4 to the writ application. After the said appeal was dismissed, the Member Board of Revenue in the revision application filed by the petitioner also granted stay of the operation of the order of the Additional Collector as also the Collector of the Samastipur. The said revision applications were dismissed by an order dated 14-9-1983 and on 7-10-1983. C.W.J.C. No. 4810 of 1983 was riled and by an order dated 21-11-1983 the operation of the orders impugned in the said writ application namely Annexures 4, 5 and 6 were stayed.
It has further been stated that although in the intervention application a purcha had been annexed but possession had never been delivered to the purchas-holders. According to the petitioner the.said purchas bears the date 26-3-1983 and has been issued under the signature of Anchal Adhikari, but the Sub-divisional Officer has made an endorsement on 29-5-83.
20. It has further been pointed out that some other authorities had also made endorsements and thus the allegation that the Anchal Adhikari issued purchas in question on 26-3-1983 is not sustainable.
21. It was submitted that as an order of stay was passed by the Collector of the District, the question of grant of parcha did not arise. It has been submitted that there exists a suspicsion as to whether the purcha granted are genuine ones.
22. Mr. Singh learned Counsel appearing on behalf of the petitioner has principally raised four contentions in support of these applications.
23. The learned Counsel firstly submitted that the Courts below was bound to give a finding as to whether the settlement made in favour of Asha Devi was prior to 22-10-1959 or thereafter.
24. It was next contended that Annexures 3, (sic) 3/A and 7 which are rent receipts clearly demonstrate that the settlement made in her favour by the ex-landlord were genuine documents, It was further pointed out that Jamabandi No. 22 stands in the name of Asha Devi and thus the question of including the said land with the land of the land-holder does not arise.
The learned Counsel in this connection has relied upon a decision of this Court in Satya Narain Agarwal and Ors. v. The State of Bihar and Ors. 1978 BBCJ 391.
25. It was further submitted that no proceeding against the petitioner of C.W.J.C. No. 605 of 1984 for annulment of the transfer was initiated under Section 5(l)(iii) of the Act and thus the draft statement where by the lands of the purchasers were included must be held to be illegal.
26. With regard to classification of the lands it was submitted that an objection had been filed that all the lands are Class V lands, but the finding to the effect that there are Classes III, IV and Class V lands has been arrived at only on the basis of a report of the Karmchari, which in illegal.
26. It was further contended that before classifying a particular land as Class IV, the State must establish that 'works' exist for providing irrigational facilities as is required under Section 4 of the said Act.
The learned Counsel in this connection has relied upon a decision of this Court in Mohammad Fakhruddin v. 'State of Bihar and Ors. 1976 PLJR 384.
28. It was further submitted that although Upendra Narain Singh died in the year 1981 leaving behind the petitioner Manohar Prasad Singh and others as his heirs but no notice having not been issued to the" daughters the entire proceeding must be held to be illegal.
The learned Counsel in this connection has placed a strong reliance in 1976 BBCJ 455.
29. Mr. Raghib Ahsan, learned Counsel appearing on behalf of the State, on the other hand, submitted that the Collector has jurisdiction to decide as to whether any settlement or transfer had been made or after 22-10-1959 and in this view of the matter, the finding of fact at by the Collector cannot be interfered with by this Court in exercise to its writ jurisdiction.
30. The learned Counsel in support of this contention has relied upon a division of this Court in Shiv Narain Khawaray v. State of Bihar 1977 BBCJ 452 and Satya Narain Agarwal v. State of Bihar 1978 BBCJ 391.
31.With regard to the case of the transfer it has been submitted that even the original sale-deed has not been produced by the transferees.
32. With regard to the classification of land, Mr. Ahsan pointed out that the petitioner has not asserted that there is no provision for irrigation of the lands in question or there does not exist any work.
33. Mr. Pasupati Narain Singh, learned Counsel appearing on behalf of the Intervenors submitted that as purchas have already been distributed, the purchas-holders are necessary parties to this writ application and in their absence, the writ application cannot be disposed of.
The learned Counsel in this connection has relied upon a decision of this Court in Kumar Vijay Vekram v. State of Bihar 1988 PLJR 828.
34. From a perusal of the order-sheet dated 17-6-1981 it appears that the claim of the petitioner Ram Karan Choudhary was rejected without assign ing any reason whatsoever. It does not appear that the Collector under the said Act considered any materials on records. Evidently Ram Karan Choudhary produced his registered deeds. But according to the Collector under the said Act he did not produce any Government receipts or the Khatian of the recent survey. Only on that ground, it has been held that the actual possession of the purchaser could not be proved.
35. A document registered under the Indian Registration Act had some sanctity. A transaction evidenced by a registered instrument cannot be held to be a mala fide one or entered into for the purpose of defeating the provi sions of the Act on the basis of ipse. dixit of the Collector. Such a finding has to be arrived at only on the basis of the materials brought on records. The question as to whether the purchasers have been paying rent or their names had been entered into in the recent khatian or not could have also been verified from the revenue records.
36. Further from the said order it does not appear that even any opportunity had been granted to the purchaser to prove his possession.
37. From a perusal of the order dated 17-6-1981 it appears that the cases of land-holders and various other persons have been considered together. The Collector under the said Act had considered the matter in most purfuncitionary manner.
So far as the case of Asha Devi is concerned, she appears to have filed various documents which are contained in Annexures 3, 3/A and 7 to the writ application.
38. It may be true that Asha Devi did not file any rent receipts prior to 13-2-1981 but from the order-sheet, it appears that the Anchal Adhikari Kuseshwar-Asthan in his letter pointed out that her name had been entered in the Register II from the time of abolition of the Jamindari. The Anchal Adhi kari Kuseshwar Asthan also gave a report by reason of his letter bearing No. 1344 dated 28-2-1980. The Collector under the said Act further noticed that the Anchal Adhikari had also reported that Asha Devi and Manohar Prasad Singh had obtained settlement from Shri Upendra Narain Singh in 1351 B.S. and the lands in question had been allotted to Asha Devi in a partition. The Collector, however, jumped to be conclusion that as the settlement deed has not been produced nor any receipt granted by the ex-Jamindar having been produced to show that in fact such settlement had been made, the stay of settlement must be rejected.
It was held further allegedly held that no document was filed in order to prove partition.
39. In this situation, in my opinion, it was not only necessary for the Collector under the said Act to call for the entire revenue records and find out the true position. He even ought to have held spot verification and made other enquiries. In such a situation, it was also obligatory on his part to allow the parties to adduce their evidences in support of their respective cases.
40. The Collector under the said Act also could have called for the recent survey settlement records of right. He, in my opinion, has not assigned any cogent reason to reject the report of the Anchal Adhikari dated 24-8-1980 and accept the report dated 31-7-1976.
41. The Collector, evidently failed to take into consideration that payment of rent prior to or after 9-9-1970 was not a factor which would be decisive in the matter. So far as the claim of Asha Devi is concerned, he was obliged to take into consideration as to whether any settlement in fact had been made in her favour or not. If Asha Devi's name had been entered into in Register II, prima facie her possession has to be presumed unless it is found that the said entries. were made mala fide or in collusion with the revenue authorities by the land-holder in order to defeat the provisions of the Act. Once it is held that any settlement had been taken by Asha Devi prior to 22-10-1959, the Collector under the said Act in view of Section 5 of the said Act would have no jurisdiction to make any enquiry in relation thereto. How ever, if the Asha Devi became a land-holder in her own right a separate proceeding could have been initiated against her.
In Satya Narain Agarwal and Bothers v. The State of Bihar 1978 BBCJ 391, upon which reliance has been placed by Mr. Singh the learned Counsel for the petitioner as well as by Mr. Raghib Ahsan, it has been held that the Collector had a tight to enquire whether such transfer was infact made before 22-10-1959 or not.
42. It is not a case where it has been held that the transfer in fact was made after 22-10-1959.
After from the fact no such finding has been arrived at, no material in this regard has been brought on records to arrive at a finding that either a settlement, had been made after 22-10-1959 or the same has not been made at all.
43. For the reasons aforementioned, it is not possible to sustain the orders of the Court below.
44. So far as the classification of the lands are concerned, again the authorities have not applied his mind as to whether there exists any irrigational facilities or where any 'works' exists or not. This aspect of the matter is fully covered by a decision of this Court in Mohammad Fakhruddin v. The State of Bihar and Ors. 1976 PLJR 384, and thus it is not necessary to discuss the matter in details.
45. Mr. Ashan, has relied upon a decision of this Court in Shiv Narain Khawaray v. State of Bihar 1977 BBCJ 452. In that decision itself it has been held that a report of the Circle Officer concerning possession is not a statutory report.
46. There is no dispute with regard to the aforementioned proposition of law but as noticed hereinbefore in this case, the Collector had preferred one report to the other and therefore he had placed his reliance on the report of the Circle Officer itself.
47. Now remains the only question as to whether this writ application should fail for non-impleading the purcha-holder. In this case the records do not suggest for any purcha has been distributed.
48. The purported purcha as has rightly been pointed out by Mr. Singh contain many infirmities. The Circle Officer signed the purcha on 25-9-1983 and, thus it cannot be said that purchas had been distributed on 26-3-1983. Even the Intervenor has not disclosed the name of all the purcha-holders. No document has been produced by the State or the intervenor to show as to how and in what manner possession had been delivered to the purcha-holders. It is also relevant to mention that this Court upon admission of the writ petition stayed the operation of the impugned order. Thus for all intent and puiport the orders impugned remained under animeted suspension'. It, thus' cannot be held this writ application is not maintainable in absence of' the purcha-holders. For getting the writ application dismissed on such technical ground, the name of the purcha-holders should have been disclosed. There cannot be any doubt that purcha-holders are normally necessary parties to the writ petition.
However in this case, the matter has to be remitted back to the Collector under the Act for a fresh decision is accordance with law.
49. It would, thus, be open to the Collector to give notice to the purcha-holders if in fact the purchas had been distributed and possession thereof had been delivered to them.
50. For the reasons aforementioned, these writ applications are allowed the impugned order as also the notification under Section 15 of the said Act are set aside Act are set aside and the matters are remitted back to the Collec tor under the Act to pass a fresh order in accordance with law and in the light of the observations and directions made hereinbefore.
51. However, in the facts and circumstances of the case, there will be no order as to costs.