Patna High Court - Orders
Ashok Mandal vs The State Of Bihar And Ors on 27 February, 2019
Author: Chakradhari Sharan Singh
Bench: Chakradhari Sharan Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2721 of 2019
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Ashok Mandal S/o Late Kamleshwari Mandal @ Jageshwar Mandal Vill.-
Brahm Gyani, P.s.-Bhawanipur, Distt.-Purnea
... ... Petitioner
Versus
1. The State Of Bihar and Ors through the Principal Secretary, Department of
Revenue and Land Reforms, Govt. of Bihar, Patna
2. The District Collector Purnea
3. The Deputy Collector Land Reforms Dhamdaha, Distt.-Purnea
4. The Anchal Adhikari Bhawanipur, Ps.-Bhawanipur, Distt.-Purnea
5. Hemant Kumar Singh @ Hemant Kumar Sinha S/o Narendra Kumar Singh
Vill.-Kapsauna, P.s.-Sabour, Distt.-Bhagalpur, at present resident of Vill.-
Brahm Gyani, P.s.- Bhawanipur, Distt.-Purnea
... ... Respondents
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Appearance :
For the Petitioner : Mr. Yogendra Kumar, Advocate
For the Respondent State: Mr .Sajid Salim Khan, SC-25
For the Respondent No.5 : Mr. Arun Prasad Ambastha, Advocate
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CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
ORAL ORDER
5 27-02-2019Heard learned counsel for the parties.
2. The petitioner in the present writ application has put to challenge an order dated 06.04.2018 passed in B.L.T. Case No.481 of 2017 by the learned Member (Administrative), Bihar Land Tribunal, Patna, whereby an application filed on behalf of private respondent No.5 has been allowed and consequently the order dated 08.02.2009 passed by the Collector, Purnia, in Revenue Appeal No. 109 of 2005 has been set aside, whereby the Collector, Purnia, had affirmed an order passed by the Deputy Collector, Land Reforms, Dhamdaha dated 28.04.2005 declaring the petitioner as an under raiyat of Patna High Court CWJC No.2721 of 2019(5) dt.27-02-2019 2/11 the disputed land in Case No.23 of 2003 under Section 48E of the Bihar Tenancy Act, 1885 (hereinafter referred to as 'the Act').
3. The disputed land appertains to Khata No.226, Plot No.46, situate at Mauza Supouli Diara, Thana Bhawanipore, District-Purnia.
4. There are certain facts, which need to be taken note of at the very outset, which are not in dispute. One Jugeshwar Mandal had filed an application under Section 48E of the Act in respect of the same land giving rise to Case No.35 of 1993 claiming himself to be an under raiyat of the landlord (respondent No.5), to prevent his threatened ejectment from the land in question. The said proceeding was dropped and no step was taken to question the order in the said Bataidari Case No.35 of 1993. The petitioner filed a case under Section 48E of the Act, ten years thereafter, giving rise to Case No.23 of 2003 describing himself to be the son of Late Kamaleshwari Mandal, before the Land Reforms Deputy Collector, Dhamdaha, Purnia. He asserted in his application that his grandfather, Late Bigan Mandal, had taken the said land on bataidari in the year 1963 and after his death, petitioner's father became a bataidar. He also asserted that the petitioner also engaged himself in Patna High Court CWJC No.2721 of 2019(5) dt.27-02-2019 3/11 agriculture with his father as bataidar in respect of the said land since 1980, till his father died on 04.01.2002. He further asserted that till 04.01.2002, he shared the crops grown over the land with the landlord. He alleged threat of ejectment from the landlord and sought protection under Section 48E of the Act after declaring him as bataidar.
5. It is noteworthy that in his application under Section 48E of the Act, he did not disclose any fact that in respect of the same piece of land one Jugeshwar Mandal had filed a case under the same provisions, which was dropped. This is not in dispute as on date that the petitioner is son of same Jugeshwar Mandal, whose application under Section 48E of the Act was dropped. It is now the case of the petitioner that Jugeshwar Mandal is alias name of his father Kamaleshwari Mandal. It is, thus, admitted fact that in respect of the same land, a proceeding under Section 48E of the Act initiated at the instance of father of the petitioner was dropped. The Deputy Collector Land Reforms, by his order dated 28.04.2005, based on local inspection, recorded that the petitioner was able to establish that he was a bataidar of the landlord (respondent No.5) with effect from 26.04.2003. It is noteworthy that the petitioner's father died on 04.01.2002, as per his own case. Patna High Court CWJC No.2721 of 2019(5) dt.27-02-2019 4/11
6. It is noticeable from the said order that no finding has been recorded by the Deputy Collector Land Reforms that the petitioner's father was also a bataidar and the petitioner succeeded as bataidar after the death of his father. After having held the petitioner to be a bataidar, the Deputy Collector Land Reforms restrained the landlord from any attempt to eject the petitioner. Respondent No. 5, thereafter filed an appeal before the Collector, Purnia, against the order of the Deputy Collector Land Reforms, which gave rise to Revenue Appeal No.109 of 2005.
7. The Collector by order dated 18.02.2009 refused to interfere with the order of the Deputy Collector Land Reforms and thus dismissed the appeal. The Collector has recorded in his order that the grandfather and the father of the petitioner were found cultivating the land for long time. This finding is, however, not there in the order of the Deputy Collector Land Reforms though he has recorded in his order mere the plea of the petitioner in this regard.
8. Aggrieved by the order of the Collector, respondent No.5 filed a writ application before this Court giving rise to C.W.J.C. No. 18602 of 2011, which was disposed of by an order dated 30.08.2016, allowing him to challenge the orders passed Patna High Court CWJC No.2721 of 2019(5) dt.27-02-2019 5/11 by the Deputy Collector Land Reforms and the Collector before Bihar Land Tribunal. Accordingly, respondent No.5 filed a case challenging the orders of the Deputy Collector Land Reforms and the Collector, Purnia, which gave rise to B.L.T. Case No.481 of 2017. The Tribunal by the order impugned has set aside the order of the Deputy Collector Land Reforms and the Collector on the grounds, which have been indicated in paragraph 5 thereof.
9. It is evident from the impugned order that the Tribunal has considered dropping of bataidari case filed by the father of the petitioner by a competent authority to be constituting res judicata against claim of the petitioner as bataidar based on his assertion that he was cultivating the land with his father since 1980.
10. Further, the Tribunal determined the tentative age of the petitioner as in 1980 to be only one year on the basis of his age disclosed in the voters' list dated 01.01.2010, which was brought on record by respondent No.5 by way of Annexure-6 to the counter affidavit filed on his behalf before the Tribunal. The Tribunal also noted the age of the petitioner as disclosed in his original application as 30 years and going by that age, the Tribunal concluded that he would have been seven years in Patna High Court CWJC No.2721 of 2019(5) dt.27-02-2019 6/11 1980. This is how the Tribunal has disbelieved the claim of the petitioner that he was cultivating the land with his father since 1980 and he continued to be in cultivating possession in respect of the land even after the death of his father in 2002.
11. Mr. Yogendra Kumar, learned counsel appearing on behalf of the petitioner has vehemently argued that there is no illegality in the orders passed by the Deputy Collector Land Reforms and the Collector, Purnia, declaring the petitioner to be a bataidar, which right the petitioner inherited from his father. He has placed reliance on a Division Bench decision of this Court in case of Balbhadra Prasad Singh vs. State of Bihar, reported in 2010(3) PLJR 27, with reference to paragraph 8 thereof, to contend that a bataidari right is inheritable. He has submitted that the finding of the Tribunal to the effect that dropping of the bataidari case filed by the petitioner's father would constitute res judicata as against the petitioner's claim to establish his case under Section 48E of the Act is erroneous for the reason that the petitioner's father did not pursue the bataidari case once the threat of his ejectment had vanished by conduct of the landlord. According to him, the claim of petitioner's father as bataidar was never decided on merits. He has argued that it was well within the knowledge of the landlord Patna High Court CWJC No.2721 of 2019(5) dt.27-02-2019 7/11 that Kamaleshwari Mandal and Jageshwar Mandal are names of the same person, who was the petitioner's father. He has accordingly submitted that order of the Tribunal needs interference.
12. Mr. Arun Prasad Ambastha, learned counsel appearing on behalf of respondent No.5 on the other hand has placed reliance on this Court's decision in case of Beuni Yadav and Others Vs. Land Reforms Deputy Collector and Others, reported in (1981) BLJR 173. He has relied on decisions of this Court in case of Kartik Singh and another Versus State of Bihar and others, reported in 1987 PLJR 203, and in case of Shukdeo Pandit Versus The State of Bihar & Ors., reported in 2013(2) PLJR 625, to contend that bataidari is primarily an agreement between the raiyat and under raiyat, which subsists till the said bataidar is in cultivating possession of the land and pays to the landlord the produce-rent for the land held by him. He has also submitted that bataidari right cannot be inherited unless an under raiyat acquires the rights of an occupancy raiyat within the meaning of Section 48D of the Act.
13. What is clearly evident from the order of the Deputy Collector Land Reforms dated 28.04.20015 that he has not held the petitioner to be bataidar on the ground of his having Patna High Court CWJC No.2721 of 2019(5) dt.27-02-2019 8/11 inherited any such right consequent upon the death of his father. There is no finding by either the Deputy Collector Land Reforms or the Collector that the petitioner's father acquired raiyati rights under Section 48D of the Act. The submission on behalf of the petitioner that the petitioner inherited any right from his father after his death as bataidar in 2002 cannot be entertained at all. Reliance has been placed by learned counsel for the petitioner on Division Bench decision in case of Balbhadra Prasad Singh (supra). In case of Balbhadra Prasad Singh (supra), the Division Bench has observed in paragraph 8 that 'rights of occupancy under raiyat shall be inheritable on account of the words succession to, which occurred in Section 48D of the Act as it stood prior to its amendment. There is no finding by any competent authority that the petitioner's father or his grandfather had acquired right of occupancy within the meaning of Section 48D of the Act. Paragraph 8 of the said decision in case of Balbhadra Prasad Singh(supra) is relevant and is being reproduced hereinbelow :
"8. There are judgments of this Court which have considered the effect of aforesaid legal provisions and have come to the conclusion that the rights of occupancy under- raiyat shall be inheritable but 'not transferable'. This is on account of the words 'succession to' which occurred in section 48D of the Act as it stood prior to its amendment. By way of illustration, we may refer to the judgment in the case Patna High Court CWJC No.2721 of 2019(5) dt.27-02-2019 9/11 of Padarath Chaudhary v. Mostt. Jogtia (1987 BLJ 636. in which reliance was placed upon a Division Bench Judgment of this Court in the case of Shrikishun v. Harihar (ILR 27 Patna 194) and the judgment of the single judge in the case of Bibi Jaloosan v. Bhulai Baitha (1981 BBCJ 466) to come to a conclusion in Para-10 of the judgments that an under- raiyat having occupancy rights by dint of his continuous possession for more than 12 years can have rights to succession etc. but cannot have the rights to transfer. A similar view has been taken in a recent judgment by a single judge of this Court in the case of Dehal Mahton v. Nathuni Ram Marwari 2006 (2) PLJR 642."
14. Similar view has been taken by another Division Bench of this Court in case of Sukhdeo Pandit (supra), paragraph 12 of which reads thus :-
"12. This is to be noted here that in order to verify the assertion that in spite of notice the private respondents did hot-appear before the Board, we had called for the original records from the Collector, Banka in order to ascertain whether the notices were served upon the private respondents or not regarding proceedings before the Board. We do not find from the records whether the notices were in fact sent or served upon the private respondents. The private respondents have pleaded that they did not have any knowledge about the proceeding before the Board."
15. In case of Sukhdeo Pandit (supra), the Division Bench has clearly held as noted above that bataidari is primarily an agreement between the raiyat and under raiyat (bataidar), Patna High Court CWJC No.2721 of 2019(5) dt.27-02-2019 10/11 which agreement subsists till the said bataidar is in cultivating possession of the said land and he pays to the landlord the produce-rent for the land held by him. In case of Kartik Singh and Another (supra) also this Court has held that in order to become an under raiyat, there must be some element of agreement or contract between the raiyat and under raiyat and no person can be held to be under raiyat if he has occupied the land without any such agreement.
16. Considering the background of the propositions of law, as noted above, for the present adjudication, I reiterate that the petitioner's case that he was in cultivating possession as an under raiyat, immediately after his father died in the year 2002, cannot be said to have been accepted by the Deputy Collector Land Reforms and the Collector, Purnia, since the petitioner has been held by them to be bataidar with effect from 26.04.2003. Even if it is accepted that the petitioner's father was a bataidar of respondent No.5 as on the date of his death, the bataidari agreement, if any, lost its force on the date of his death. There is no material indicated in the order of the Deputy Collector Land Reforms and the Collector, Purnia, to arrive at a conclusion that the petitioner entered into bataidari agreement with the landlord (respondent No.5). In addition to the above, I do not find any Patna High Court CWJC No.2721 of 2019(5) dt.27-02-2019 11/11 illegality in the reason assigned by the Tribunal that there was complete absence of attempts for conciliation, which also rendered the order passed by the Deputy Collector Land Reforms illegal.
17. Learned counsel appearing on behalf of respondent No.5, in my opinion, has rightly submitted that the petitioner failed to establish even, prima facie, his bonafide claim of being a bataidar of respondent No.5 on the basis of his assertion in the application seeking such right under Section 48E of the Act.
18. For the reasons aforesaid, no interference with the impugned decision of the Tribunal is required.
19. This application is accordingly dismissed.
(Chakradhari Sharan Singh, J) Pawan/-
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