Patna High Court
Md. Sagir @ Sagir Mistry vs The State Of Bihar & Ors on 14 July, 2016
Author: Birendra Prasad Verma
Bench: Birendra Prasad Verma
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2498 of 2014
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Md. Sagir @ Sagir Mistry S/O Late Bahar Ali, resident of Village - Balua Jagir,
P.S. and Anchal - Terhagachh, District - Kishanganj .... .... Petitioner/s
Versus
1. The State of Bihar through the Collector-cum- District Magistrate, Kishanganj
2. The Deputy Collector, Land Reforms ( LRDC ), Kishanganj
3. The Circle Officer, Terhagachh, District - Kishanganj
4. Ashok Kumar Agrawal S/O Keshav Chandra Agrawal, resident of Village -
Balua Jagir, P.S. and Anchal - Terhagachh, District - Kishanganj
5. Pawan Kumar Agrawal S/O Late Lal Chandra Agrawal, resident of Kaliaganj,
District - Kishanganj
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Satish Kumar Sinha, Advocate
For the Respondent Nos.1 to 3 : Mr. Ashok Kumar Keshri, AAG XI
Mr.Ujjwal Kumar Sinha, AC to AAG XII
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CORAM: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA
ORAL JUDGMENT
Date: 14-07-2016 Heard the learned counsel appearing on behalf of the petitioner and the learned AC to AAG XI appearing on behalf of the respondent no.1 to 3. However, none appears on behalf of the respondent nos. 4 and 5 despite issuance of notice to them by order dated 18.02.2014.
2. The petitioner is aggrieved by order dated 25.01.2012 passed in Jamabandi Cancellation Case No. 05 of 2011-2012 by the respondent DCLR, Kisahanganj, as contained in Annexure-5 to the writ petition, whereby on the recommendation made by the Circle Officer, Terhagachh, Distt.- Kishanganj, Jamabandi No. 1794 standing in the name of the petitioner with respect to the lands in question, fully detailed in paragraph 5 of the writ petition, has been cancelled.
3. The learned counsel appearing on behalf of the petitioner, while assailing the validity and correctness of the impugned order dated 25.01.2012 (Annexure-5), has raised the Patna High Court CWJC No.2498 of 2014 dt.14-07-2016 2/4 question of lack of jurisdiction/power vested in respondent DCLR for cancellation of Jamabandi. According to him, under the provisions of The Bihar Land Mutation Act, 2011 (in short, "the Act, 2011"), the power of cancellation of Jamabandi is vested in the Additional Collector of the district, and no Officer, below the rank of Additional Collector, including the DCLR has been vested with such power of cancellation of jamabandi. Therefore, it is pleaded that, apart from the merits of the claims of the petitioner with respect to lands in question, the impugned order dated 25.01.2012 (Annexure-5) is fit to be quashed and set aside on the ground of being wholly without jurisdiction, as the same has been passed by an Officer i.e. the DCLR, Kisahanganj, who is/was not authorized under the law to pass such an order.
4. The learned AC to AAG XI appearing on behalf of the official respondents has tried to justify the impugned order on the ground that the recommendation for cancellation of Jamabandi was made by the respondent Anchal Adhikari, Terhagachh, whereafter the impugned order was passed by the respondent DCLR, Kishanganj accepting the aforesaid recommendation. Therefore, according to him, aforesaid Jamabandi cancellation case may be treated to be an appeal before the DCLR, Kishanganj.
5. The submissions made by the learned State counsel are completely misconceived and have to be rejected. Under the provisions of the Act, 2011, neither the Anchal Adhikari nor the DCLR has been vested with the power(s) either to initiate a proceeding for cancellation of jamabandi or to pass final order in such matter or to sit in appeal against such order.
6. For better appreciation relevant portion of, Section 9 of Act 2011 and Rule 13 of The Bihar Land Mutation Rules, 2012 are re- produced hereinbelow:
"Section 9. Cancellation of Jamabandi.-(1) The Patna High Court CWJC No.2498 of 2014 dt.14-07-2016 3/4 additional Collector, either suo motu or on an application, shall have the power to make inquiries in respect of any Jamabandi, which has been created in violation of any law for the time being in force or in contravention of any executive instruction issued in this behalf. The Additional Collector, in whose jurisdiction the land is situated, may, after giving reasonable opportunity to the parties concerned to appear, adduce evidence and be heard, cancel such Jamabandi, dispossess the person claiming under it and deliver the possession to the legitimate owner/custodian, on such terms as may appear to the Additional Collector to be fair and equitable...................................................... ................................................................"
"Rule 13- Cancellation of Jamabandi.- (1) Any person having interest in a land or a part thereof may file a petition for the cancellation of jamabandi before the Additional Collector of the district in whose jurisdiction the land or a part thereof is situated, in Form-XV.
(2) Authorized representative of any Department of the Government having its interest in a land or a part thereof may, for the cancellation of a jamabandi make a reference to the Additional Collector under whose jurisdiction the land or a part thereof is situated. (3) The Additional Collector on receipt of a petition in Form-XV for the cancellation of jamabandi or on reference from an authorized representative of the Government Department having an interest in the land or a part thereof or suo motu, if he is satisfied that there is sufficient evidence that the jamabandi has been created in violation of any law or in contravention of an executive instruction, shall initiate proceeding for the cancellation of the jamabandi by issuing general notice in Form-XVI inviting objections from the public of the locality and specific notices in Form-XVII to persons having interest in the land and the part thereof including inter alia the persons having jamabandi of the land in question......................................................
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7. From plain reading of the provisions of Section 9 of the Act, 2011 read with Rule 13 of the Bihar Land Mutation Rules, 2012 Patna High Court CWJC No.2498 of 2014 dt.14-07-2016 4/4 it is abundantly clear that a petition for cancellation of jamabandi can be entertained only by the Additional Collector of the district, and not by any other Officer of the district below his rank. In the administrative hierarchy, the DCLR happens to be subordinate to the Additional Collector of the district. Above being the undisputed position, there is no difficulty in holding that the DCLR is not legally authorized to exercise the powers of cancellation of jamabandi standing in the name of any private individual. However, he can hear an appeal, if there is an order of mutation passed by the Circle Officer of the area in question, but that is not the case here in the present proceeding.
8. For the reasons recorded above, this Court is left with no option, but to set aside the impugned order dated 25.01.2012 passed in Jamabandi Cancellation Case No. 05 of 2011-2012 by the respondent no.2, as contained in Annexure-5. Accordingly, the impugned order is quashed and set aside. The writ petition is allowed to the extent indicated above.
9. However, this order shall not preclude the private respondents from filing a fresh petition before the prescribed authority for cancellation of Jamabandi standing in the name of the petitioner with respect to the lands in question or for approaching the civil court of competent jurisdiction for grant of any other appropriate relief(s) with respect to lands in question.
(Birendra Prasad Verma, J) Tahir/-
AFR/NAFR AFR CAV DATE Uploading Date 19.07.2016 Transmission Date