Jharkhand High Court
Jetmull Bhojraj vs State Of Bihar And Ors. on 26 November, 2001
Author: S.J. Mukhopadhaya
Bench: S.J. Mukhopadhaya
ORDER
The Court
1. This writ petition has been preferred by petitioner M/s. Jetmull Bhojraj, a partnership firm, for issuance of an appropriate writ/order/direction in the nature of mandamus, commanding upon the respondents to forthwith enter the name of the petitioner-firm in the Jamabandi records of right by opening demand and also showing the Government of Sikkim as 'mortgages in possession' over the land in question.
2. The case of the petitioner is that in the year, 1944-46 it was notified by Raja of Tilaiya and Raja Kasmi in the Chhotanagpur area to assist in the development of the region. The petitioner-firm took raiyati settlement of about 3500 Acres of land in Village-Tilaiya and Debipur within Koderma Police Station in the district of Hazarlbagh (now Koderma), under different registered Pattas with an intention to establish a modern mechanised agricultural farm after acquiring forest. With the object aforesaid, the petitioner-firm built quarters, shades for labourers, roads, culverts, projects, and excavated tanks and water reservers in pursuance of programme started by Government of India after independence known as 'Grow More Food for Nation'. The petitioner-firm approached the Chogyal of Sikkim for fund for which the petitioner mortgaged the lands at Tilaiya as security creating Hen in favour of the Government of Sikkim including the right of possession.
The petitioner also applied for loan from the State Government for development of lands and on 2nd December, 1947 loan of Rs. 41,865/- was granted by the State, which was invested for development of the land. The petitioner-firm also invested huge amount of money but before it could get any return, the State Government issued a notification dated 11th June, 1948 under Sections 14 and 21 of the Bihar Private Forest Act, 1947 (Bihar Act IX of 1948) declaring the lands in ques-tion as protected forest. In pursuance of the said notification, the State Government took possession of lands from the petitioner though there was no power under the Act to acquire raiyati lands. Later the State Government when realised the legal flaw in the notification, issued under the Bihar Private Forest Act, issued another notification under Section 29 of the Indian Forest Act (Act XVI of 1927). Further case of the petitioner is that the second notification under Section 29 was misconceived in law as the State could not have taken possession of land, nonetheless the State continued to remain in possession of the lands in question, which belonged to the petitioner. Subsequently, releasing its mistake and in order to requlartse the matter relating to possession and its title a requisition was made on 24th January, 1959 submitted by Divisional Forest Officer, Koderma Division, to the Government wherein, it was accepted that the land in question were already in possession of the Government and wrongly notification under Section 29(3) of the Indian Forest Act has been issued though it should have been acquired under the provisions of the Art. In pursuance of the aforesaid requisition, a notification was is sued on 30th March, 1959 by the State under Section 4 read with Section 17(4) of the Act, stating, infer alia, that the lands were required to be taken at public expenee for a public purpose for including them within the demarcated area of the Tilaiya protected forest in Village-Tilaiya and Bobipur protected forest in Village-Bibipur. It was also stated that in view of urgency of the project in exercise of power conferred by Section 17(4) of the Act. The Government decided that the provision of Section 5A of the Act were not to apply and a notification under Section 6 of the Act was issued on 19th May, 1949 followed by notice under Section 9 issued on 4th August, 1959 by the State.
In pursuance of such notice, the petitioner is stated to have preferred its claim before the Land Acquisition Officer Kodernui by his letter No. 5110 dated 11th August, 1959, informed the Land Acquisition Officer that the dates of taking over of possession of the land were 8th December, 1953 and 22nd November, 1954. The compensation was also assessed by the Land Acquisition Officer vide letter dated 22nd November, 1960, showing a sum of Rs. 6,00,000/- as compensation payable to the petitioner with interest @ 6 p.c.p.a. from 8th December, 1953 and 22nd November, 1954.
3. It appears that for one or other reason, there was delay in payment of compensation for which a writ petition was filed by the petitioner before Patna High Court for completion of Land Acquisition proceeding in respect of the lands in question, which gave rise to MJC No. 615 of 1963. The Patna High court by its judgment and order dated 28th February, 1966 directed the Stale to transmit all records to the Deputy Commissioner, Hazaribagh, who, in his turn, was asked to complete the Land Acquisition proceeding in accordance with law. Thereafter, the State Government sanctioned compensation amount of Rs. 6,44,892.11 paise together with interest and estimated compensation was revised to Rs. 7,92,950.25 paise by the Land Acquisition Officer. Later the State Government by its order dated 14th June, 1966 cancelled the earlier sanction and directed the Land Acquisition Officer to re-evaluate the lands afresh after deciding status and classification. Subsequently on preparation of award, the petitioner being dissatisfied, preferred Reference under Section 18 of the Act and during pendency of reference, petitioner received compensation amount under protest.
4. A writ petition bearing CWJC No. 435 of 1966 was preferred by the petitioner along with another challenging the notification dated 12th August, 1966 issued under Section 48(1) of the Act regarding partial withdrawal from the acquisition. It was dismissed by the Patna High Court vide its judgment dated 14th October, 1966 holding, infer alia, that on the materials produced before the Court, it was unable to find that the Govt. had taken possession of the land in question Jethmull Bhojraj v. State of Bihar, AIR 1967 Pat. 287.
The aforesaid judgment was affirmed by the Supreme Court in the case of Jethmull Bhojraj v. State of Bihar, reported in AIR 1972 SC 1363. The Supreme Court observed that even in cases of urgency the Government may think it necessary to take immediate possession for good reasons.
5. During pendency of the appeals before the Supreme court, two notifications both dated 18th February, 1968 were issued under Section 48(1) of the Act, withdrawing entire properly in question from acquisition. The petitioner again challenged those two notifications before Patna High Court in CWJC Nos. 252 and 253 of 1968. Both the aforesaid cases Jethmull Bhojraj and Anr. v. State of Bihar, were dismissed by the Patna High Courl vide judgment, reported in 1975 BLJR page 162. The Court held that the notifications under Section 48(1) of the Act were valid, legal and within the jurisdiction and there was no cause to interfere with them.
In the said case, the Court also made the following observations:
"Learned counsel for the petitioners conceded that there is no document on the record showing that possession had been taken over by the State Government in pursuance of the alleged order under Section 17(1) ot the Act."
6. The petitioner again moved before the Supreme Court against the judgment aforesaid which was also dismissed by the Supreme Court in Jethmull Bhojraj v. State of Bihar. (1995) Suppl. (4) SCC 255. After the aforesaid judgment passed by the Patna High Court, as affirmed by the Supreme Court, merely on the basis of the observations made by the Court, as quoted above the petitioner preferred the present writ petition for creation of Jamabandi in its favour in respect to the lands in question.
7. The present writ petition was initially disposed of at admission stage on 25th September, 1995 without giving opportunity to the State to file counter affidavit, wherein, the Court issued writ of mandamus on respondents to enter the name of the petitioner in the Jamabandi records of rights.
The State of Bihar and others preferred Civil Review No. 28 of 1996(R) against the aforesaid order dated 25th September, 1995 as was passed in the present case. It took plea that it was not given proper opportunity and placed certain facts and made averments, as quoted hereunder:
"That the claim of respondent M/s. Jethmull Bhojraj is absolutely false, fictitious, baseless and fraudulent, because from the perusal of the Register 'D' pertaining to Tauji No. 28 relating to the land measuring about 2424,80 Acres of Mauja Tilaiya, Revenue Thana No. 244. P.S: Koderma shows the name of original intermediary landlord at the time of survey. Mr. W.O. Macgregor as Manager for proprietor Raj Kumar Laxmi Narain Singh son of Raja Ram Narain Singh of Hazaribagh for the entire 16 Annas share of the Tauzi and thereafter the name of A.M. Walter as Manager for proprietor Raj Kumar Laxmi Narain Singh son of Ram Narain Singh of Hazaribagh over the entire 16 annas share, was entered in 1918-19 by Case No. 30 of 1919 by order dated 8.9.1919 of the then D.C. It is further submitted the name of Mr. A.M. Walter for Kumar Kamakhya Narain Singh son of Kumar Laxmi Narain Singh of Hazaribagh as Manager for Proprietor for the year 1919-20 vide case No, 193/1938 and there after for the year, 1937-38 the name of Babu Kamakhya Narain Singh son of Babu Laxmi Narain Singh of Village Padma thana Barhi as proprietor for Tauzi No. 28 vide Case No. 85 of 1937-38.
In para 10 of the second supplementary affidavit, it is stated:
That it is necessary to state that for the year 1953-54 at the time of vesting of estate to the Govt. of the State of Bihar the name of State of Bihar through Additional Collector. Hazaribagh has been entered in Register 'D' as proprietor for all the 16 annas of Taujis vide Mutation Case No. 11 of 1953-54.
In para 11 of the second supplementary affidavit, it is alleged:
That with regard to another chunk of land measuring of 1000 acres of village Devipur, Revenue. Thana No. 102 appertaining to Tauji No. 14, Register-D, the Registrar of intermediary landlord duly maintained by the state of Bihar and according to the cadestral survey disclosed the entry in the name of Babu Janki Gupta Manager incumbered estate on behalf of Babu Thakur Jagat Narain Singh son of Trilok Narain Singh as proprietor of the entire 16 annas Tauji Vide mutation case No. 20 of 1914-15, and therefore the name of Babu Brijo Kumar Niyogi, Manager estate on behalf of Babu Thakur Jagat Narain Singh was entered for all the 16 annas of Tauji vide mutation case No. 70 of 1920-21 as Manager.
It is further submitted the name of Thakur Jai Narain Singh son of jagat Narain Singh of Devipur Village P.S. Koderma was entered as proprietor for the entire 16 Annas share vide mutation Case No. 54 of 1936-37 and till thereafter the name of Thakur Tulsi Narain Singh son of Thakur Jai Narain Singh of Village Devipur P.S. Koderma was entered as proprietor of the entire 16 annas of Tauji vide mutation case No. 80 of 1937-38 of inheritance.
It is further submitted that thereafter the name of Meghu Sahu son of Kokil Sahu of Demchanch. P.S. Koderma finds entry as mortgages for the entire 16 annas of Tauji vide Mutation Case No. 81 of 1938-39, and after the aforesaid period the name of the State of Bihar through the Additional Collector. Hazaribagh has been entered in Register-D as proprietor for the entire 16 annas of Tauzi vide Mutation Case No. 93 of 1953-54 on vesting with the estate to the Govt. of the State of Bihar." 8. The Civil Review application was dismissed by the Hon'ble Judge vide judgment dated 9th July, 1999, wherein, the Court observed that records of right is no evidence of title and it is always open to the party who challenges the entry to file a title suit.
9. The Stale of Bihar, thereafter, preferred LPA No. 253 of 1999(D) before Division Bench of this Court, which, taking into consideration the fact that the State was not allowed to file counter affidavit in the writ petition and the writ petition was disposed of even before the stage of filing of such counter affidavit and other facts, set aside the judgment, passed by the learned Single Judge and remitted the writ petition for fresh hearing.
10. It is a settled law that a disputed question relating to right and title or possession can not be determined by Court under Article 226 of the Constitution of India. In this context, one may refer the Supreme Court's decision in Md. Hanif v. State of Assam, (1969) 2 SCC page 782. In the said case, the disputed land was settled with one Captain S.N. Manlay by British Government who subsequently sold his right and title to M/s. Jamaiullah and sons. They constructed three houses on the land out of which the appellant Md. Hanif, who was the successor of M/s. Jamatullah and sons, was living in one and other two houses were given on rent to the Assam Government. The Government made an order of redemption, which was challenged by the appellant Md. Hanif in a writ petition before the Assam High Court, which was dismissed by the High Court, being not maintainable on the ground that the case involved disputed question of title and that the remedy was to file a suit in a Civil Court. The Supreme Court while affirming the judgment of High Court, held that the jurisdiction of the High Court under Article 226 and 227 of the Constitution of India is a supervisory jurisdiction, meant to supervise the work of public authorities and to see that they act within the limits of their respective jurisdiction. In a proceeding under Article 226 the High Court is not concerned with the determination of private rights of parties.
11. In the present case, there is no direct relief sought for declaration of right and title or possession. However, indirectly the petitioner sought for such declaration of possession for the purpose of creation of Jamabandi in its favour. In view of authoritative decisions of the Supreme Court and law laid down as referred above, it is not desirable to give any finding relating to possession of one or other party over the land in question.
12. So far as creation of Jamabandi or cancellation of the same is concerned, now it is a settled law that creation of Jamabandi case not create any right or title nur cancellation of Jamabandi extinguishes right and title of a person. In this context one may refer Division Bench's decision of the Patna High Court in Sitaram Chaubey v. State of Bihar, reported in 1993(2) PLJR 255.
13. For the reasons aforesaid, this Court is not inclined to interfere with the matter. The aggrieved persons, if so advised, may move before a Civil Court of competent Jurisdiction for appropriate relief, as permissible under the law. In such case, this order will not stand in the way of such party.
14. The writ petition is hereby dismissed with the aforesaid observations.
15. Writ dismissed.