Jharkhand High Court
Sahid Anwar vs The State Of Jharkhand on 3 April, 2018
Author: Rajesh Shankar
Bench: Rajesh Shankar
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 1378 of 2016
Sahid Anwar ..... Petitioner
Versus
1. The State of Jharkhand, through the Secretary, Department of Land and
Revenue, Government of Jharkhand, Ranchi
2. The Commissioner, North Chota Nagpur Division, Bokaro
3. The Deputy Commissioner, Bokaro
4. The Additional Collector, Bokaro
5. The Land Reforms Deputy Collector, Bokaro
6. The Circle Officer, Kasmar, Bokaro ..... Respondents
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CORAM HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner: Mr. Rohit Roy
For the State: Md. Shamim Akhtar, G.A-III
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05/03.04.2018 The present writ petition has been filed for issuance of direction upon the
respondents for mutating the name of the petitioner in tenant's ledger (Register- II) respect of the land purchased by him.
2. The factual background of the case, as stated in the writ petition, is that one Mehboob Ali @ Hazi Mehboob was the owner of the land appertaining to Plot No. 3, Tauzi No. 28, Khewat No. 1, Mouza-Kamlapur, District-Bokaro, measuring an area of 49 decimals (hereinafter referred to as 'the said land') and his name was also entered in the Record of Rights with respect to the aforesaid land with Kayami Rights. On vesting of the intermediary interest, Mehboob Ali was found in possession of the said land and accordingly his name was entered in Registrar-II after due enquiry and following all the procedures. After the death of Mehboob Ali, the said property devolved upon his son, namely, Alam Safi who sold the said land to his son, namely, Gulam Rasool by virtue of registered sale-deed No. 323 dated 04.02.1997 and his name was also mutated in the Register-II and he paid rent of the said land to the State Government. Gulam Rasool transferred 24 ½ decimals out of the said land in favour of the petitioner by virtue of registered sale-deed dated 15.09.2008 and the remaining 24 ½ decimals in favour of Hamid Hasmi. Subsequently, Hamid Hasmi transferred 24 ½ decimals in favour of the petitioner on 30.07.2009. Thus, the petitioner came in possession of the entire 49 decimals of the said land and accordingly applied for mutation of his name with respect to the said land 2 before the Circle Officer on 07.8.2013. However, till date the petitioner's name has not been mutated with respect to the said land. The petitioner was informed vide the letter as contained in Memo No. 846 dated 11.11.2014 that the land purchased by the petitioner is 'Gair Mazarua Khas' land and therefore the mutation of the said land cannot be done in favour of the petitioner.
3. The learned counsel for the petitioner submits that till date no order has been passed by the respondents on the application of the petitioner. The Bihar Tenants Holdings (Maintenance of Records) Act, 1973 [hereinafter referred to as 'the Act, 1973'], inter alia, provides for maintenance of up-to-date records of holding of raiyats and the matters connected therewith. It provides for the procedures to be adopted by the Circle Officer for disposal of an application for mutation. The mutation is only a fiscal exercise to ascertain that the government collects the rent from the person who is in possession of the land. The authorities are only entrusted with a job to see as to whether the applicant is in possession of the concerned land. It does not in any manner affect the right and title of a person. The respondents have no jurisdiction to refuse mutation in favour of the petitioner in respect of the property purchased by him particularly when the names of his predecessors-in-title were already entered in Registrar-II. The respondents have no power to pass a general order prohibiting mutation of a particular category of the land under the Act, 1973. The respondents are only entitled to look into the possession of the applicant over the land while considering the application for mutation. The said action of the respondents is violative of the fundamental and legal rights of the petitioner. The respondents have admitted that the land in question is 'Gair Mazarua Khas' land of the ex-landlord and the same has been vested as raiyati land on operation of the Bihar Land Reforms Act, 1950 (hereinafter referred to as 'the Act, 1950'). The names of the predecessors-of-title of the petitioner were entered in Register-II on enquiry conducted under Bihar Land Reforms Rules and therefore the said land cannot be said to be a government land. Hence, the said action of the respondents is illegal, arbitrary, whimsical and colorable 3 exercise of powers.
4. The learned counsel for the respondents submits that the land purchased by the petitioner is 'Gair Mazarua' land and as such in view of the circular/rules of the government, mutation with respect to 'Gair Mazarua' land cannot be done. Before passing the order of mutation, the mutating authority has the power to see as to whether the applicant had purchased the land from the rightful owner and is in possession of the same.
5. Heard the learned counsel for the parties and perused the materials available on record. The petitioner has purchased the said land by virtue of registered sale-deeds and is also in possession of the same. The mutation of the said land has been denied by the respondents on the ground that the said land is a 'Gair Mazarua' land. The petitioner has claimed that after coming into force of the Act, 1950, the nature of the said land has been changed as "raiyati" and the mutation was allowed in the names of the predecessors-in-interest of the petitioner. Thus, the respondents cannot be permitted to deny mutation of the said land in favour of the petitioner.
6. In the case of Municipal Corporation, Aurangabad Vs. State of Maharashtra, reported in (2015) 16 SCC 689, the Hon'ble Supreme Court has held as under:
"13. It is settled that mutation does not confer any right and title in favour of any one or other, nor cancellation of mutation extinguishes the right and title of the rightful owner. Normally, the mutation is recorded on the basis of the possession of the land for the purposes of collecting revenue."
7. On perusal of the aforesaid judgment of the Hon'ble Supreme Court, it would be clear that the order of mutation neither confers nor extinguishes any right of the parties. The purpose of mutation is only to collect government revenue from a person who is in possession of the land. The revenue authorities while deciding the mutation cases are not supposed to look into the right and title of a person upon the said land.
8. It is an admitted position that though the land in question was originally recorded as 'Gair Mazarua Khas' in the Revisional Survey Records of Right and 4 the Jamabandi in respect of the said land had been running in the name of Mehboob Ali and the vendor of the petitioner, namely, Gulam Rasool. On the basis of the said Jamabandi, the respondents all along accepted the rent and recognized the predecessors-in-interest of the petitioner as raiyats in respect of the said land since long. The petitioner is a purchaser of the said land. After purchasing the said land, he applied for mutation in his favour before the Circle Officer, Kasmar, Bokaro (the respondent No.6), however, the same was kept pending since 2013. Though the said land is recorded as 'Gair Mazarua Khas' in the Revisional Survey Records of Right, the State had recognized the tenancy right of the processors-in-interest of the petitioner by accepting the rent for last several decades. Their names had been running in the Tenant's Ledger/Register- II maintained in the Circle Office since long without objection from any quarter. The respondent No.6 is not the authority to decide the right, title and interest of any person over the land while deciding the mutation case or granting the rent receipt. The respondents have not disputed that the petitioner is not in possession of the said land. Merely because the land was recorded as 'Gair Mazarua Khas' in the Revisional Survey Records of Right does not permit the Circle Officer to deny the mutation.
9. In view of the discussions made herein above, the respondent No.6 is directed to dispose of the application of the petitioner for mutation by following the procedures prescribed under the Act, 1973 within one month from the date of receipt/production of a copy of this order.
10. The writ petition is accordingly disposed of with aforesaid observation and direction.
(RAJESH SHANKAR, J) High Court of Jharkhand, Ranchi Dated 03.04.2018 Satish/A.F.R