Patna High Court
Bijoy Kumar Choudhary And Ors. Etc. vs Member, Board Of Revenue And Ors. Etc. on 27 February, 1998
Equivalent citations: 1999(3)BLJR1800
Author: Prasun Kumar Deb
Bench: Prasun Kumar Deb
JUDGMENT Prasun Kumar Deb, J.
1. Both these cases have been heard analogously as the points involved are almost same and similar although the facts and circumstances are a bit different. Let me first of all state the facts of both the cases separately.
2. In C.W.J.C. No. 2641 of 1988(R), prayer has been made for issuance of an appropriate writ in the nature of certiorari for quashing the order dated 3-11-88 passed by the Member, Board of Revenue (respondent No. 1) in Lohardaga Revenue Revision Case No. 268 of 1987 (Annexure-9) and the order dated 7-9-87 passed by the Commissioner, South Chotanagpur Division, Ranchi, in Lohardaga Revenue Revision No. 251 of 1987 (Annexure-8) and the order dated 2-6-87 passed by the Deputy Commissioner, Lohardaga, in case No. 2/87-88 (Annexure-7) and the order dated 15-1-86 passed by the Circle Officer, Lohardaga (respondent No. 4) in Misc. Case No. 5/85-86 with the approval of the respondent No. 2 vide letter No. 46 dated 7-1-87 (Annexure-6) and the demand notice issued by the respondent No. 4 in case No. 5/85-86 vide letter No. 58 dated 9-3-87 (Annexure-5) by which a sum of Rs. 5,18,000/- has been demanded from the petitioner as salami and commercial rent for the lands appertaining to an area of 90 decimals within plot No. 525 under Khata No. 18 situated at Lohardaga within the district of Lohardaga. The Admitted position is that the lands appertaining to plot No. 525 under Khata No. 18 of Mouza Lohardaga was recorded in the record of rights in the name of three-brothers, namely, Indranath Mahto; Surajnath Mahto and Badrinath Mahto, all sons of Nema Mahto. The abovenamed raiyats made transfer of the disputed land in favour of one Sheolochan Choudhury, the predecessor-in-interest of the present petitioners (the original writ petitioner Jagdewan Choudhury s/o late Sheolochan Choudhury died during the pendency of this writ petition) by a registered deed of sale-dated 10-2-47 and the said purchaser Sheolochan Choudhury came to possess the same. Since the purchase, not only the purchaser but his successors also remained in continuous possession and as per Sections 21 and 22 of the Chota Nagpur Tenancy Act, 1908, (hereinafter referred to as 'C.N.T. Act"), they acquired occupancy right in respect of the lands. After coming into force of Bihar Land Reforms Act 1950 (hereinafter referred to as 'Act'), all lands of ex-zamindars vested in the State of Bihar and the father of the petitioners remained in possession and his name was entered in Register II and he paid rent to the State. For the purpose of trade of his family, the original petitioner, i.e., Sheolochan Choudhury made an application for sanction of plan for construction of cinema hall and the Chairman, Lohardaga Municipality sanctioned the said plan on 24-7-69 and in compliance of such plan, the cinema hall was constructed over an area of 16 decimals in R.S. Plot No. 525 of Mouza Lohardaga and the said cinema hall is running till today in the name and style of Alka Cinema. The business of exhibition of films through cinema hall started in the year 1971 after the licence was granted to the petitioner under the Bihar Cinema Regulations Act, 1954. After the construction of the cinema hall, as required under the law, all rents, fees, etc. including holding tax are being paid to the different authorities of the State of Bihar including Lohardaga Municipality. The petitioner was served with a notice dated 9-3-87 from the office of the Circle Officer, Lohardaga, demanding tikuri salami to the tune of Rs. 2,70,000/- arid commercial rent to the tune of Rs. 2,43,0007- making a total of Rs. 5,13,000/- vide Annexure-5. On query, the petitioner could learn that the Circle Officer on the basis of an audit report had initiated a proceeding for determination of salami and commercial rent. In that proceeding, a report was called for from the Circle Inspector and then the demand notice was sent and the case was registered as Misc. Case No. 5/85-86. The Circle Officer by his order dated 15-1-86 fixed salami at Rs. 3,000/- per decimal and commercial rent at Rs, 13.500/- annually and demanded the same from the petitioner with effect from the year 1967-68. According to the petitioner, such notices were never served on the petitioner although it could be found afterwards that the notice was accepted to be served on refusal by the petitioner and validity of the service was made under Order V Rule, 19, C.P.C. The records were forwarded to the Additional Collector, Lohardaga, who in turn, placed the file before the Commissioner and vide memo No. 46 dated 7-1-87, the Commissioner had approved the demand notice of Salami and commercial rent as per Rule 9(3) of the Khas Mahal Manual (hereinafter referred to as "Manual") and returned the file to the Circle Officer. The notice was issued on 20-2-87 for deposit of the salami and commercial rent. According to the petitioner, all those processes were conducted behind the back of the petitioner without service of notice on him. According to the petitioner, he being the occupancy- raiyat, his rights are protected under Section 21 of the C.N.T. Act any any enhancement in the rent can be permissible under Sections 27 to 39 of the C.N.T. Act. The petitioner being the occupancy-raiyat fully covered under the C.N.T. Act and there can be no provision of taking recourse of Manual as the property in question in no way comes within the definition of Government estate as contained in Rule 2 of the Manual and when the property does not come as Government estate then there is no scope of imposition of salami as contemplated under Rule 9(3) of the Manual. After the receipt of the notice, the petitioner moved before the respondent No. 2 in revision being Revenue Revision Case No. 251 of 1987 but without considering the contention of the petitioner, the Revision petition was rejected at the admission stage itself. Finding no other alternative, the petitioner moved before the Member, Board of Revenue, Bihar, Patna, in Lohardaga Revenue Revision No. 268 of 1987, who also by his order dated 3-11-88 dismissed the revenue revision case without appreciating the legal aspect of the matter in question. Hence, this writ petition has been filed.
3. In C.W.J.C. No. 2436 of 19^2 (R), the petitioner No. 1 is the owner of registered partnership concern doing business in the name and style of Kashmir Vastralaya and the petitioner No. 2 is the managing partner of the same business. In this writ petition, prayer has been made for issuance of a writ in the nature of certiorari for quashing the order dated 22-7-92 (Annexure-12) passed by the Deputy Commissioner, Ranchi (respondent No. 4) in case No. 42 R-28/9U92 and the order dated 19-3-91 alleged to have been passed by the Sub-Divisional Officer (respondent No. 5) and the notice dated 7-9-91 (Annexure-8) issued under the signature of the Circle Officer (respondent No. 6) thereby and whereunder Salami of Rs. 31,25,OOO/- and commercial rent of Rs. 1,56,250/- per annum is sought to be charged from the petitioners on the the allegation that the petitioners have been using the properties comprised within M.S. plot No. 267 measuring an area of 15 Kathas, 10 Chattaks for commercial purposes. The case of petitioners is that Municipal Plot Nos. 266 and 267 under Municipal Khata Nos. 285 and 283 situated at Main Road, Ranchi, comprised within Ward No. V of the then Ranchi Municipality were originally owned, held and possessed by one John Theophilus and the same was duly recorded in the Municipal Khatians copy of which have been annexed as Annexure-2 and 2/a to this writ petition. The Municipal Khatian which was published on 25-9-29 revealed that a pucca house was existing thereon and there was nothing in the Khatian that the land was ever used for any agricultural purpose whatsoever. The original owner John Theophilous during his lifetime executed a Will in favour of his wife Mrs. Theophilus. Upon the death of the said John Theophilus, his widow Mrs. Theophilous applied for grant of probate in respect of the said Will which was registered as Probate Case Nix 4 of 1946 in the Court of Judicial Commissioner, Ranchi, and was Ultimately allowed by issuance of probate with the copy of the Will annexed thereto. After becoming sole and exclusive owner Mrs. Theophilus got her name mutated in all Government official records. Then, Mrs. Theophilus gifted the suit property by virtue of a registered deed of gift dated 26-1-1947 in favour of her eldest son Alfred Theophilus Bajpai (copy of which has been annexed as Annexure-3) who accepted the gift and became the sole and exclusive owner and possessor. The donee Alfred Theophilus Bajpai also got his name mutated in respect of all Government and official records. On the death of Alfred Theophilus Bajpai, the properties were inherited by his legal heirs and successors and they, in turn, sold and transferred the land with properties thereon in favour of the petitioner No. 1 by terms of a registered deed of sale-dated 18-5-1978 (copy of which has been annexed as Annexure-4 to this writ application). After becoming the sole and exclusive owner, the petitioner Nos. 1 and 2 started paying Chapparbandi rent with respect of the properties receiving rent receipts (copy of which has been annexed as Annexure-5). The name of the petitioner No. 1 was also entered into the Municipal records and as per allotment holding Nos. 670 and 671 were allotted in favour of the petitioners and holding tax with all other taxes are being paid to the Municipality. The land was never used or recorded at any time as agricultural land for last 70-75 years. The land was the urban land having never been used for agricultural purposes. The petitioner after purchase desired to construct shopping-cum-hotel complex and as such submitted a building plan before the Ranchi Regional Development Authority and B.C. Case No. 503/83 by terms of the letter No. 105 dated 14-3-1984, the petitioner No. 2 was communicated with the grant of sanction of the building plant by the Vice-Chairman, Ranchi Regional Development Authority. As per the plan, construction was made for the purpose of shopping-cum-hotel complex on 29-5-89 and then the petitioner started running the said shop-cum-hotel complex in their own right, title and interest as raiyats under the State of Bihar on payment of Chapparbandi rent. The petitioners were served with a notice dated 7-9-91 demanding salami of Rs. 31,25,000/- and commercial rent of Rs, 1,56,250/- regarding the said properties as per the Government Decision and was further called upon to submit the documents in respect of title to the said properties. According to the petitioners, no notices were served on the petitioners while asking such sort of illegal salami and commercial rent. According to the petitioners, such semand notices were wholly illegal without jurisdiction and the police decision of the Government, if any, is ultra vires as there cannot be any application of Khas Mahal Manual regarding the properties in question when the said properties were never the Government Estates as per Rule 2 of the Khas Mahal Manual. According to the petitioners, such sort of illegal demands were made to various persons and those persons had no other alternative but to knock the doors of the High Court and ultimately, this Court in various cases had decided that such demand by the State Government fixing commercial rent and Salami as per Rule 9(3) of the Khas Mahal Manual was invalid in the eye of law. The petitioners moved before the Deputy Commissioner, Ranchi, against such demand notice and the same was registered as Misc. Case No. 42 R-28/91-92 and the Deputy Commissioner held that the Salami and commercial rent shall be applicable under Section 13 of the Act and Rule 9(3) of the Khas Mahal Manual. As per the order of the Deputy Commissioner, after the lands have been vested in the State of Bihar under the Act, the Government is entitled to fix such rent and Salami on settlement to the petitioners. The Deputy Commissioner has further referred to a letter of the State Government regarding its policy decision as maintained in letter No. 1451 issued from the Department of Revenue and Land Reforms on 21-5-83. According to the petitioners, such provisions on writ, the Deputy Commissioner has relied on regarding Bihar Land Reforms Act and application Khas Mahal Manual are totally illegal and inoperative and any policy decision taken to that effect as per the letter referred to was nothing but colourable exercise of power having no legal basis and hence, the same cannot be acted upon.
4. In the counter-affidavits filed in both the cases, same and similar stands have been taken and reliance has been put on the letter dated 21-5-83 of the State Government.
5. Mr. N.K. Prasad, and Mr. Debi Prasad, Sr. Advocates, appearing for and on behalf of the petitioners have vehemently argued that the while procedure adopted by the respondents were unknown in the existing laws and even the provisions on which reliance have been put if given maximum streching elasticity then also the disputed lands do not cover the decision taken by the State Government. In C.W.J.C. No. 2641 of 1988(R), the land is a raiyati land and the petitioners had acquired right of occupancy long back and they have been admitted so even after the vesting by the State Government under the Act and when they have acquired the right of occupancy- raiyat then the proceeding under the Khas Mahal Manual does not arise when their rights and liabilities are protected under the C.N.T. Act. There is procedure for enhancement of rent under the C.N.T. Act as contemplated under Section 27 of the Act. Right of raiyats in respect of lands have been enumerated under Section 21 of the C.N.T. Act, Sub-section (2)(c) of Section 21 gives right to the occupancy- raiyat for the erection of buildings for the domestic or agricultural purposes or for the purposes of trade or cottage industries of the raiyat and his family. In the present case, the petitioner had constructed a cinema hall for the purpose of trade after taking proper sanction from the Lohardaga Municipality and the said trade is running for last several years without any interruption as the petitioners were regular in paying all rents and taxes required for running the trade in the land held by them as occupancy raiyat and in that view of the matter, their rights are protected unless there is eviction in due course of law. We are not concerned with the protection as granted under Section 22 of the C.N.T. Act in the present case. There is also provision under Section 27 of the Act for the landlord for enhancement if rent by the landlord. Such enhancement can be made by a procedure as contemplated under the said section and Section 29 of the C.N.T. Act by the Deputy Commissioner. There is no provision of Salami or commercial rent within the purview of C.N.T. Act. When the petitioner's property is governed by the C.N.T. Act then question of application of Khas Mahal Manual cannot come in. Rules 1 and 2 of the Khas Mahal Manual gives definition and the nature of the properties which are to be construed as Govt. Estates. The Government Estates means the estate which is under the direct management of the Government and the properties which are acquired by the Government may be construed as Government Estate. Mode of acquisitions are given in Rule 2 which may be reproduced here:
2. Government estates-How acquired-Estates may be acquired by the Government in following ways:
(i) Purchase at revenue sale.
(ii) Purchase by private contract.
(iii) Escheat in default of legal heirs.
(iv) Forfeiture to Government for certain offences against the State,
(v) Resumption of island chars.
(vi) Acquisition for public purposes.
(vii) Accretion to estates, the property of Government.
(viii) Resumption of lands hitherto held by zamindars for the performance of police duties when they are relieved of those duties.
6. Thus, it has nowhere been included include in the modes of acquisition coming with the provision of Government Estates the lands which have been vested under the Bihar Land Reforms Act and the Bihar Land Reforms Act provides the procedure of regarding the person who had acquired occupancy raiyati right after vesting. In that view of the matter, the lands of C.W.J.C. No. 2641 of 1988(R) can never come within the purview of Govt. estates and when it is not a Government Estate then the question of imposition of Salami as contemplated under Rule 9 of Khas Mahal Manual has got no application. Similarly, Section 13 of the Bihar Land Reforms Act, 1950, can have no applicable in the present circumstances of the case. Section 13 relates to settlement by the Government after the estates vested under the Act. In the present case, there is no settlement by the Government after vesting as per procedure of the Bihar Land Reforms Act. The occupancy raiyat on his application after vesting got the land registered in his name in Register No, II. When there is no settlement by the Govt. after vesting then the question of application of Section 13 of the Bihar Land Reforms Act does not arise at all.
7. In respect of the land in C.W.J.C. No. 2436 of 1992 (R), the same was never an agricultural land. It was always an urban land for last 75 years and the same was dealt with accordingly for last 75 years. It was a municipal holding right from 1929 and the municipal Khatiyan revealed the land to be non-agricultural having houses thereon. So, the question of construing this land under the Bihar Land Reforms Act or under the Khas Mahal Manual does not arise at all. The petitioner had constructed building and started doing business after taking proper permission from the proper authorities long back. The question of application of Khas Mahal Manual does not arise as the land was not the Govt. estate in the nature and circumstances of the case as already discussed. When Khas Mahal Manual has got no application then the imposition of Salami, etc. becomes foreign to it. The question of application of Bihar Land Reforms Act with its Section 13 has got no application as there was no settlement by the Govt. to the petitioner.
8. The basis in both the cases for imposition of Salami and commercial rent is the letter dated 21-5-83 as mentioned above. The Revenue and Land Reforms Department's letter in question came up for scrutiny before this Court on various occasions. In that letter, directions were given to proceed for imposition of Salami and commercial rent where the agricultural land have been transformed to commercial land on application of Khas Mahal Manual after the enactment of Bihar Land Reforms Act. A Division Bench of this Court-in the case of L.T.C. Ltd. v. The State of Bihar and Ors. 1994 (1) BLJR page 88, had considered this letter. In that case also, in the course of determination of fair and equitable rent as contemplated under Sections 5, 7, 13, 22 and 23 of Bihar Land Reforms Act, the aid of this letter was taken by the Revenue authorities. In the course of argument, the Advocate-General conceded that the said circular/letter is illegal. The observation of the Division Bench in para 23 of that judgment is important for the purpose which may be reproduced as follows:
23. It has been conceded by the learned Advocate-General that fair and equitable rent has to be determined in terms of the provisions of the Bihar Land Reforms Act and not in terms of the directives issued by the State of Bihar from time to time under the Khas Mahal Manual. In this view of the matter, there cannot be any doubt that the impugned order which is primarily based on the circular letter dated 21-5-1983 (Annexure-7/A) must be held to be vitiated in law as the same applies to the management of Khas Mahal Estate.
Before the Patna Bench of this Court, several Cinema Hall-owners and business organisations having been imposed of Salami and commercial rent as like of the present cases had agitated the legality of the same and a Division Bench of this Court held that the circular No. 1452 dated 21-5-83 is only an executive instruction and such executive instruction is in no way can raise fiscal liability and, as such, demand notices and show cause notices were quashed by the High Court, the reference may be made to 1997 The Bihar Revenue and Labour Journal, page 65.
9. The Government also realised afterwards that such instructions are not legally tenable and, as such, has virtually withdrawn the circular of 1983 by another circular No. 8/Kha. Ma. Ankechak 2/90-611 RA-dated 7-3-91 which has been annexed as Annexure-13 to the supplementary affidavit filed in C.R.W.J.C. No. 2436 of 1992(R). On the advice of the Advocate-General, the letter of 1988 was practically withdrawn by this letter wherein it was specifically mentioned that if any raiyat transforms the agricultural land into a commercial one making it unfit for agriculture then the raiyat concerned may be vacated by taking recourse of the Civil Proceedings but there cannot be any imposition of Salami or commercial rent by the use of Khas Mahal Manual. Thus, practically, by the letter of 1991, as mentioned above, the very basis by which Salami and commercial rent had been fixed on the petitioner of both the with petitions have been waived and, as such, the orders impugned and the demand notices sent to the petitioners in both the cases are hereby quashed and all the proceedings in respect of the land in question on application of Khas Mahal Manual are hereby quashed.
10. The writ petitions are thus allowed but no order as to costs considering the facts and circumstance of the case.