Jharkhand High Court
Gopal Mishra vs State Of Jharkhand on 3 July, 2019
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI.
W.P. (C) No. 129 of 2016
...
Gopal Mishra ... ... Petitioner
-V e r s u s-
1.State of Jharkhand
2.Secretary, Revenue and Land Reforms Department, Govt. of Jharkhand, Ranchi.
3.Deputy Commissioner, Chatra.
4.Additional Collector, Chatra.
5.Land Reforms Deputy Collector, Chatra.
6.Sub Divisional Officer, Simaria, District Chatra.
7.Circle Officer, Tandwa, District Chatra. ... Respondents.
...
CORAM: - HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD ...
For the Petitioner : - Mr. Amar Kumar Sinha, Advocate. For the Respondent-State :- Mr. J. F. Toppo, S.C. (L&C) III and Ms. Sunita Kumar, A.C. to S.C. (L&C) III.
...
07/03.07.2019 This writ petition is under Article 226 of the Constitution of India, whereby and whereunder the order dated 22.06.2015, passed by the Deputy Commissioner, Chatra in Case No. 05 of 2012-13 (Annexure-5) has been sought to be quashed on the ground that the authorities have cancelled the still long standing jamabandi running in the name of the father of the petitioner with respect to the land measuring 4.00 acres, comprised within plot no. 541 of Khata No. 278 situated at village Saradhu, P.S. Tandwa, District Chatra.
2. It is the case of the petitioner that the land in question has been recorded in the record of rights as gair mazarua khas land, having in the nature of jungle jhari but the same is beyond the purview of the coverage of the forest area. The said land has been settled in favour of the predecessor in interest by the ex-landlord sometime in the year 2001 vikram Sanvat, corresponding to, sometime in the year 1943 and 1944 and thereafter, the ex-landlord has issued rent receipt. From vikram Sanvat, 2001-2007-2008 continuously by accepting the rent to the tune of Rs.4/- after vesting of the jamindari with effect from 01.01.1956, the rent receipt has been issued in the year vikram Sanvat 2010-11 on 04.01.1955 being Government receipt No. 222655 and thereafter, the name of the petitioner on the basis of the said document has been entered in the Register II at page no. 20/2003 and hence, the petitioner is in 2 possession, since the predecessor in interest of the petitioner was in possession of the land and thereafter, the petitioner has come in possession thereof and making payment of the rent and all of a sudden, the Revenue authorities have initiated a proceeding for cancellation of jamabandi running in the name of the predecessor in interest of the petitioner, which ultimately culminated into the final order dated 22.06.2015, passed by the Deputy Commissioner, Chatra.
3. The ground has been raised by the learned counsel appearing for the petitioner in assailing the aforesaid order is that the long running jamabandi cannot be cancelled, if the land has been settled by the ex- landlord by way of Sada hukumnama coupled with the rent receipt, issued by the ex-landlord in lieu of acceptance of rent thereof and after vesting of jamindari, the Government has entered the name of the predecessor in interest/petitioner in the record of rights. The said document cannot be discarded merely on account of the fact that the jamabandi has not been created by the competent authority as also on the ground that the reference of settlement, as has been made, there is no reference of deposit of the rent and further, the proof of settlement of the land prior to 01.01.1946 has not been substantiated and further on or after 1965, no proof regarding continuation of jamabandi is available and in view thereof, it has been contended that the authority before coming to the said reasoning in cancelling the jamabandi has not appreciated the report submitted by the revenue authorities consisting of four public servants under the chairmanship of the Sub-Divisional Officer, Chatra, annexed as Annexure-3, wherein, the fact about settlement of land against landlord, issuance of rent receipt by the ex-landlord and the reference of the vikram Sanvat i.e. 2001 reflects that the settlement by the ex-landlord has been made prior to 01.01.1946 and therefore, it will not come within the domain of initiating the proceeding under Section 4
(h) of the Bihar Land Reforms Act, 1950 and hence, his submission is that the order passed by the concerned authority, which has been challenged in the instant writ petition, suffers from illegality and hence, not sustainable in the eyes of law.
4. Counter affidavit has been filed by the State-Respondent.
Placing the same, Ms. Sunita Kumari, learned A.C. to S.C. 3 (L&C) III appearing for the State Respondents, has submitted that the stand, which has been taken by the Deputy Commissioner, Chatra in cancelling the long running jamabandi has been substantiated by taking the plea in the counter affidavit that the land is in the nature of gair mazarua khas land and no proof is available for acceptance of rent receipt etc., as has been contended by the petitioner. She further submits by referring to the statement made by the State authority in the counter affidavit that the land has been recorded as gair mazarua in the cadastral survey khatiyan, having in the nature of jungle jhari and therefore, the authorities after considering that aspect of the matter, has recommended for cancellation of jamabandi and in pursuance thereto a thorough enquiry was conducted, which ultimately resulted into the cancellation of jamabandi.
5. In response thereto, Mr. Amar Kumar Sinha, learned counsel appearing for the petitioner has submitted that the specific statement made by the writ petitioner at paragraph 9, which has been supported by Annexure-3 has been answered by the State Respondents, while giving para wise reply to the averment made thereof, wherein, the said statement made at para 9 has not been disputed, rather, it has been said to be as matter of record and therefore, what has been contended and stated in the writ petition at paragraph 9 is not in dispute, therefore, the Respondents cannot turn around and take a contrary stand, as has been contended in the counter affidavit. He further submits that the creation of jamabandi, since does not lead to conferment of title over the property and if the State is disputing the title, not the petitioner, the proper Forum is to approach before the competent court of civil jurisdiction for getting the right and title declared by initiating a proper proceeding therein.
6. Having heard the learned counsel for the parties and on appreciation of their rival submissions, this Court before entering into the merit of the claim of the petitioner, deem it fit and proper to have a discussion about the relevant provision of the Bihar Land Reforms Act, 1950 with its object and intent in its enactment.
7. The Bihar Land Reforms Act, 1950 was enacted with the object to end the colonial land governance system (Jamindari system) by following all intermediary (tenure holders) between the State and the 4 tenant and brought State and tenant in direct relation. It provided for the transference to the State of the interest of the proprietors and the tenure holders in the hall of the mortgagee and lessee in such interests including interest in Trees, Forests, Fisheries, Jalka, Ferries, Hats, Bazars, Mines and Minerals. All the intermediary interest, except Mundari Khutkattari tenancy and the Bhuihari tenure vested in the State. The salient features of the Act came for detailed discussion before the Hon'ble Apex Court in the case of Gurucharan Singh-Vs.-Kamla Singh and others reported in (1976) 2 SCC 152, wherein, the Hon'ble Apex Court while discussing the object and scope has been pleased to observe "although there is a blanket vesting of proprietorship in all the lands in the State, the legislation is careful, in the initial stage of agrarian reform, not be deprivatory of the cultivating possession of those who have been tilling the land for long, therefore, while the consequence of vesting is stated to be an annihilation of all interested encumbrances and the Collector, in the land, certain special categories of rights are save, thus, the Raiyats and under-Raiyats are not dispossessed and their rights are preserved. The full proprietorship, Khas possession is also not disturbed. Certainly, the large land holders, whose lands have, for long been tenancies, lease their land to the State by virtue of vesting operations, nevertheless, the reform laws consists the continuation of the limited species of interest, in favour of those Jamindars. The three classes of lands is brought into the saving bucket by including them in the Khas possession of the proprietors. They are legislatively included in the Khas possession by an extended inteitemijation in Section 6 (1). The purpose and the purport of the provision is to allow the large land holders to keep the small areas, which may designated as the private or the privileged or the mortgaged lands, traditionally held directly and occasionally made over law to others, often servant or others in the shape or of lease or mortgaged. The crucial point to remember is that Section 3 in all its transfers of the interest of lands to the State, the exception being the lesser interest under the State set out in detail in Sections 4, 5, 6 and 7, so much so, anyone, who claims their title after the date of vesting, notified under Section 4 has no longer any such proprietorship. All the same, he may have a lesser rights, if he feels within same provision i.e. Section 5, 6 and 7. These sections does 5 not stop, which merely saving lands in the Khas possession of the intermediaries, provides to include certain lands on temporary leases or mortgages with others. Section 3 provides that the State Government, may from time to time by Notification, declare that estate or tenure of the proprietor or the tenure holder specified in the Notification, have passed up and become vested in the State.
The consequence of vesting has been allowed in Section 4 of the BLR Act. Section 4 (a) to (c) lays down different interests, which got vested in consequence of the Notification of vesting, once an estate vests in the State, the various interests of the intermediaries enumerated therein are also vested in the State absolutely free from all encumbrances, barring the Raiyati or under-Raiyati interest. When a State is vested in the State, any encumbrances is automatically wiped out.
The provision has been made under Section 4 (h), which provides that the Collector shall have power to make enquiry in respect of any transfer including the settlement or lease of any land comprised in such State or tenure or the transfer of any kind of interest in any building, used primarily as office or Kutchery for the collection of rent of such State or tenure or part thereof and if he is satisfied that such transfer was met at any time after the 01st day of January, 1946, with the object of defeating any provisions of this Act or causing loss to the State, he may after giving notice to the parties annul such transfer, dispossess the possession, claiming it and take possession of such property. The question of genuineness of transfer by 'Sada Hukumnama' is also to be verified by the Collector to assess its benefits of settlement deed under Section 4 (h), failing which the settlement cannot be challenged.
The question of consideration of the transfer by way of 'Sada Hukumnama' fell for consideration before the Hon'ble Patna High Court in the case of Ram Nath Mandal and others-Vs.-Jojan Mandal and others reported in AIR 1964 Patna 1, wherein, it has been held that if a person claims to have obtained Raiyati interest by virtue of an unregistered document and claiming to be actually in possession of the same by him in making payment of rent, which has been accepted by the landlord, his title to Raiyati interest must be recognized, even though the unregistered lease is inadmissible as evidence of title.
6The factual aspect, as has been detailed by the parties in the case in hand has been examined, keeping the legal position as well as the authoritative pronouncement, as referred hereinabove.
The fact, which has been brought to the notice of the Court, more particularly, a report i.e. Annexure-3, in support of the statement made at para 7 to the writ petition, transpires that the reference of the Vikram Sanvat, 2001 has been made, then the year would be 1943. The said aspect of the matter has been reflected by a four Member Committee, presided over by the Sub-Divisional Officer, Chatra, whereby and whereunder, it transpires that the land actually was recorded in Khatiyat as gair mazarua khas, having jungle jhari in nature, but outside the purview of the forest. A part of the said Khata i.e. Khata No. 278, i.e. Plot No. 541, comprising of an area of 4.00 acres, which has been referred by way of settlement made in favaour of one Ridhnath Mishra, S/o Raghunandan Mishra by the ex-landlord, namely, Durga Singh, which is sometime in the year 1943, Vikram Sanvat 2001. It further transpires that the ex-landlord have issued rent receipt from Vikram Sanvat 2001, 2007-08, continuously by accepting the rent to the tune of Rs.4/-, the period as per the Calendar year could be 1943 to 1950- 51, 1948-49. It further transpires that thereafter the intermediary system has been abolished sometime with effect from 01.01.1946 and the rent receipt was issued in the name of one of the Raiyat, namely, Raghunandan Mishra on 01.01.1955 being Receipt No. 222655 and thereafter, the rent was being issued continuously and at present in the Register II, the record of rights at page no. 20/03, the Jamabandi is running in the name of the predecessor in interest of the petitioner.
These factual aspects have not been disputed by the State in the counter affidavit, as would be evident from the statement made by the respondents in the counter affidavit at paragraph 9 thereof, wherein, the statement made by the petitioner at paragraph 7 in support of which, Annexure-3 has been annexed, has been said to be a matter of record.
In the backdrop of the decision rendered by the Full Bench of the Hon'ble Patna High Court in the case of Ram Nath Mandal and others (Supra), herein, as would be evident from the enquiry report annexed as Annexure-3, that the revenue authorities are accepting that 7 the transfer is by way of 'Sada Hukumnama' coupled with the rent receipts issued by the ex-landlord as also the possession of the petitioner is also not been disputed therein.
8. In the backdrop of the factual aspects and looking to the legal position as also authoritative pronouncement, as referred hereinabove, this Court has proceeded to examine the findings recorded by the Deputy Commissioner, Chatra apartfrom the question of jurisdiction. It is evident from the impugned order that the Collector has given the following reasons:-
(i) that the Jamabandi has not been created by the competent authority and there is no reference in the rent receipt of any concerned authority;
(ii) No details about the acceptance of the rent receipts by the ex-landlord in the hukumnama;
(iii) No proof is there with respect to settlement of the land made by the ex-landlord prior to 01.01.1946;
(iv) No proof has been produced with respect to creation of Jamabandi after 1965, since there is no order incorporated by the concerned Circle Officer.
(v) No proof has been found for creation of Jamabandi on or after 1965 by the concerned Sub-Divisional Officer
(vi) No proof of creation of jamabandi in accordance with the provisions of the Chhotanagpur Tenancy Act is available;
(vii) No proof about creation of Jamabandi is there, having been passed by the competent court and
(viii) The Circle Officer in course of physical verification has not found the physical possession of the petitioner. These reasons have been said to be the reasons for cancellation of Jamabandi.
If these reasons would be taken into consideration by comparing the details furnished at Annexure-3, the same would be found to be contrary, the Collector has given the reference about the illegality in creating the Jamabandi, running of the said Jamabandi, but, without any documentary evidence, while the Annexure-3, which is a report submitted by the Four Member Committee, headed by the Sub-
8Divisional Officer, Chatra, which ought to have been taken into consideration by the Collector, while taking the final decision, but this Court has failed to understand that when the Report was there by the said Committee, why it has not been considered and even, there is no reference of that.
Furthermore, in the said Report, the Reference of the Receipt No. 222655, dated 01.01.1955 is there as also the reference of the Vikram Sanvat, 2001 meaning thereby, the settlement has been found to be made before 01.01.1946, but has not been appreciated by the Collector, while exercising the power.
Further, the Collector cannot be said to be a competent authority in view of the Government Circular, which has been annexed by the State in the counter affidavit, which was issued on 09.12.1988, as under Annexure-A, the relevant is page 18, wherein at paragraph 6, the detailed procedure for cancellation of Jamabandi has been referred i.e. after initiating a proceeding under Section 4 (h). A proposal is to be sent before the State Government for its confirmation, meaning thereby the State Government has been conferred with the power to take final decision, as it also reflects from the provision of Section 4 (h), which confers power upon the Collector to make enquiry in respect of any transfer including the settlement or lease and the Collector may after giving reasonable notice to the parties to appear and be heard, dispossess the person claiming under it and take possession of such properties or such terms as may appear to the Collector to be fair and equitable. In the second proviso, reflects that no order annulling the transfer shall take effect nor shall possess the possession be taken in pursuance of it, unless such an order has been passed by the State Government, meaning thereby the Collector is the Advisory authority after conducting an enquiry and taking a decision for annulling but the same would be given effect to after being confirmed by the State Government, but as has been transpired by this Court by going through the impugned order that the long running Jamabandi has been cancelled.
This Court is further of the view that so far as the cancellation of Jamabandi is concerned, a regular proceeding under Section 4 (h) ought to have been initiated before cancellation of the 9 settlement since the land is being claimed as Gair Majarua Khas land and save and except the provision as provided under Section 4 (h), there is no provision in the Bihar Land Reforms Act for dealing with the cancellation of the long running Jamabandi.
9. In view thereof and in the entirety of the facts and circumstances, this Court is of the view that the order dated 22.06.2015 (Annexure-5), passed by the Deputy Commissioner, Chatra in Case No. 05 of 2012-13 is not fit to be stand in the eye of law, therefore, the same is held to be illegal. Accordingly, quashed.
10. The writ petition stands allowed.
11. Before parting with the order, it needs to refer herein that if the State is having any grievance for adjudication of his title it is open for the State to approach before the competent court of Civil jurisdiction for adjudicating the suit over the title of the property in question.
(Sujit Narayan Prasad, J.) APK