Patna High Court
Thakur Amleshwar Dayal Sinha vs The State Of Bihar And Ors. on 20 December, 1972
Equivalent citations: AIR 1974 PATNA 203
Author: N.L. Untwalia
Bench: N.L. Untwalia
JUDGMENT Untwalia, C.J.
1. The petitioner is an outgoing intermediary within the meaning of the Bihar Land Reforms Act, 1950, hereinafter called the Act. and the Bihar Land Reforms Rules, 1951, hereinafter called the Rules. He was a proprietor of the estate known as Lokeya-Narayanpur, consisting of several tauzies including tauzi No. 89 of village Pathara in the district of Palamau. The petitioner's estate vested in the State of Bihar under the Act in the vear 1955. In village Pathara alias Narsinghpore, tauzi No. 89, a Hat is being held on every Sunday on plot No. 1090 of Khata No. 191 and plot No. 1220 of Khata No. 147. Petitioner's grievance is that no notice was sent to him in the matter of settlement of the Hat by the State of Bihar giving him the first option of taking settlement in accordance with the Act and the Rules. After having waited for sometime he filed an application before the Circle Officer, Chainpore. respondent No. 5. on 1-11-1968 requesting him to settle the said Hat with the petitioner. A copy of this application is Annexure 1 to the writ application, wherein he stated that the petitioner was ready to forgo compensation and execute a lease in Form P (3), appended to the Rules, for a period of fifteen years or for such period as may be considered proper. In spite of the application filed by the petitioner, the Additional Collector, Palamau, respondent, No. 3. proposed to settle the Hat by public auction on 22-1-1969. Thereupon the petitioner filed an application on 16-1-1969, a copy of which is Annexure 2 and the original of which application is Annexure 3, before respondent No. 3 insisting for giving preference in the matter of settlement of the Hat to the petitioner in accordance with the Act and the Rules. But respondent No. 3 insisted on holding the public auction on 22-1-1969 and did not accept the petitioner's application (Annexure 3). Respondent No. 3 actually held auction and settled the Hat with one Baijnath Sah for Rs. 5,300/-. Against the order of the Additional Collector the petitioner filed an appeal before the Deputy Commissioner. Palamau. respondent No. 2, requesting him to settle the Hat with him. The Deputy Commissioner allowed the appeal by his order dated 29-7-1969, set aside the settlement made by public auction and remanded the case to the Additional Collector for resettling the Hat with the petitioner in the first instance. Thereupon respondent No. 3 ordered settlement of the Hat with the petitioner for a term of three years only on the reserve iama of Rs. 5,900/- per year, ignoring the offer of the petitioner under Rule 7-P of the Rules to forgo his compensation. The petitioner was ordered to deposit Rs. 800/- in addition to Rs. 5,100/- which would be the total amount of compensation available to the petitioner for the Hat. For the first year of the settlement the petitioner was required to deposit Rs. 800/-, the balance of Rs. 5,900/- after adjustment of the compensation amount of Rs. 5100/- but he was to be required to deposit the sum of Rs. 5,900/- each year for the other two settlement years as per order dated 28-4-1970, a copy of which is Annexure 4 to the writ application. Against the order dated 28-4-1970 of the Additional Collector, the petitioner again filed an appeal before the Deputy Commissioner who, by his order dated 16-6-1970 (Annexure 5). dismissed the appeal, taking the view that the petitioner was liable to pay at the rate of the reserve jama fixed earlier by order dated 6-2-1970 and whatever amount was payable by the petitioner after adiustment of the compensation had to be paid. The petitioner's stand is that he is not liable to pay any further amount for the settlement made with him for three years, i. e., 1970-71. 1971-72 and 1972-73. He further claims that the period of three years has been arbitrarily fixed in his case and it ought to have been further extended by a reasonable period UP to the maximum of fifteen years.
2. Mr. Jaleshw_ar Prasad. learned Counsel for the petitioner, pressed the following points in support of this writ application--
(i) That the reserve jama fixed at Rs, 5,900/- was arbitrarily fixed; it Is not fit to be sustained.
(ii) That the petitioner is not liable to pay any sum on account of rent for settlement of the Hat with him, whatever may be the period of settlement.
(in) That the period of three years fixed in his case is arbitrary and without any basis; it should be revised.
3. No counter has been filed on behalf of the State. Learned Government Advocate appeared to oppose this application and combated the submissions made on behalf of the petitioner. I need not detain myself long on the first point urged by learned Counsel for the petitioner. The second and the third points, however, presented some difficulty and they will be dealt with together in this judgment.
4. The mode of fixing reserve lama is prescribed in Rule 7-U of the Rules. Here the figure which was available to the authorities was for one year and the highest bid of Rs. 5,300/- for the following year was not accepted by them as they thought that the jama of the Hat cannot be less than Rs. 5,900. In my opinion, therefore, on the facts and in the circumstances of this case the authorities were justified in fixing the reserve jama at Rs, 5,900/- in accordance with clause (ii) of Rule 7-U. It may also be added that the Deputy Commissioner in his impugned order (Annexure 5) has rightly taken the view that the Additional Collector had fixed the reserve iama at Rs. 5,900/-. by his order dated 6-2-1970. No appeal was preferred from that order. In the appeal preferred from the order dated 28-4-1970 the question of reserve jama could not be gone into as in that regard the order dated 28-4-1970 (Annexure 4) was merely refusing to review the order dated 6-2-1970 and was not appealable.
5. To determine points (ii) and (iii) urged on behalf of the petitioner, it is necessary to read some, relevant provisions of the Act and the Rules and the forms appended thereto. Sections 7-A, 7-B and 7-C were introduced in the Act by Bihar Act 16 of 1959 in the year 1960. Under the former two sections land on which Hat or Bazar was held is not to be deemed to be settled with the intermediary and the right to hold Mela vests in the State. Then Section 7-C reads as follows :--
"(1) Where it is intended to settle, at any time after the first day of January, 1960, any hat, bazar or mela held on any land before the date of vesting and referred to in Section 7-A or Sec-
tion 7-B, the Collector or the prescribed authority shall, subject to the rules made in this behalf in the first instance, invite applications for the purpose of settling such hat, bazar or mela. as the case may be, from the outgoing intermediary of such land or his heir whose name is registered in this behalf in the prescribed manner with the Collector or the prescribed authority and shall, on receipt of such application, settle the hat, bazar or mela with the applicant in such manner and on such terms and conditions as may be prescribed.
Explanation.-- If there are two or more such intermediaries or heirs, the Collector or the prescribed authority may settle the hat, bazar or mela, as the case may be with such of them as, in his or its opinion, appear to be most suitable.
(2) If no application is received under sub-section (11, or if the applicant fails to take the settlement in accordance with the terms and conditions offered to him under the said sub-section, the Collector or the prescribed authority may settle the hat. bazar or mela as the case may be, with any person.
Explanation.-- In this sub-section the word 'person' shall include a Society registered under the Bihar and Orissa Co-operative Societies Act, 1935 (B. & O. Act VI of 19351 and a Gram Panchayat established under the Bihar Panchavat Rai Act. 1947 (Bihar Act VII of 19481.
(31 Sections 7-A and 7-B shall be deemed always to have been inserted." Under this section, subiect to the rules and in accordance with them, in the first instance, applications have sot to be invited from the outgoing intermediaries. On receipt of such applications, settlement of the Hat with the applicant is to be made in such manner and on such terms and conditions as may be prescribed by the Rules. On the failure of the outgoing intermediary to take the settlement when first oreference is given to him. the Hat can be settled with any other person as provided in sub-sec. (21-The facts stated by the petitioner have not been controverted by filing any counter-affidavit in this case on behalf of the State. It has therefore, got to be assumed in his favour that he was an intermediary to whom the provisions of R. 7-P applied. Rule 7-P reads as follows--
"(1) The Collector or the prescribed authority shall, in the first instance, cause to be issued individual notices in Form P (21 by registered post with acknowledgment due to the outgoing intermediaries and their heirs recorded in respect of such hat. bazar or mela enquiring whether an outgoing intermediary is prepared to forego compensation and to execute a lease in the form prescribed in Form P (31 for a specified period which shall not be less than three years and not more than fifteen years in respect of such hat, bazar or mela for which settlement will be made in the event of agreeing to forego compensation, and also inviting sealed tenders in Form T by an appointed date and time for settlement of such hat, bazar or mela. as the case may be. The lease Form P (3) should be registered.
(2) If the outgoing intermediaries and/or their heirs do not agree to forego compensation in respect of such hat, bazar or mela. the notice (Form P (21)) shall specify the period for which settlement will be made, and the Collector or the prescribed authority shall also invite sealed tenders from such intermediaries in Form T (1) by an appointed date and time for settlement of such hat, bazar or mela. In such cases the successful tenderer(s) shall execute a lease in Form P (41 which should be registered." If no reply in response to the notice is received from outgoing intermediaries and/or their heirs, the Collector has been authorised by Rule 7-T to settle the Hat on the reserved jama fixed with a cooperative Society or a Gram Panchayat. I shall have to read now some portions of Forms P (2). P (3) and P (4) referred to in Rule 7-P as also the Tender Forms T and T (11. the former being meant for an outgoing intermediary of the kind covered by Sub-rule (1) of Rule 7-P and the latter for an outgoing intermediary to be dealt with under Sub-rule (2). The form of the notice contained in Form P (2) invites a registered outgoing intermediary to submit a sealed tender in Form T if he be agreeable to forgo compensation in respect of the Hat. intimating to him what the reserve jama for the Hat in question is. The form of the notice to an outgoing intermediary who is not prepared to forgo compensation is to file a tender in Form T (1). The tender in Form T is to say that the outgoing intermediary is submitting his tender for taking settlement of the Hat for which the reserve jama is fixed at a particular amount, for a period of so many years to be mentioned in the tender. The terms and conditions given in Form T are to execute a lease in Form P (3) and give an undertaking that the amount due on account of the settlement including any penalty or compensation shall be recoverable from the lessee with interest at the rate of 6i per cent per annum as if it were a public demand. On the other hand, in Form T (1) the intermediary submits a tender for taking settlement of the Hat at an annual jama which has to be specified as against the fixed reserve jama. He has also to state for what period he wants the settlement. The term and condition No. 1 provides for deposit of 2 per cent of the reserve jama and filing of the receipt along with the tender and deposit of 25 per cent of the amount tendered as an advance on acceptance of his tender, whereupon he has to execute a lease in Form P (4). On reference to Form P (4) it would be found that one of the terms of the indenture of lease is--
"(1) That the lesseefs) shall pay annually to the Collector/Deputy Commissioner of ............ (hereinafter called the Collector) as tent the sum of Rs. ............ (in words ............) payable in equal quarterly instalments of Rs. .........
each on the first day of each quarter in advance. On default of such payment the lessee (s) shall be liable to pay interest on the arrears at the rate of 61/4 per centum per annum."
But such a term is conspicuously absent in Form P (3). Clause (16) of the Form P (3) and clause (18) of Form P (4) are identical. But a clause like clause (16) of Form P(4) is again absent in Form P-3. It would thus be clear that an outgoing intermediary who forgoes the amount of compensation payable to him in respect of the Sairat, e. g., the Hat, eats a settlement for a specified period which cannot be less than three years and more than fifteen years. But he is not required to pay on account of rent any additional sum over and above the amount of compensation which he has forgone to take. The period for which a settlement has to be made with an outgoing intermediary of the first class, namely, one who foregoes the compensation, is to be determined in accordance with the Government instruction-contained in letter No. E./VII-1031-60-4932-L. R. dated Patna, the 23rd June. I960 from the Deputy Secretary to Government of Bihar, Revenue Department, to all Collectors, which finds place at page 31 in Sairat Compendium, 1966 Government Edition. The instruction contained therein, in so far as it is relevant, if I may say so. is perfectly justified and correct Even an illustration has been given in paragraph 6 of the instruction. I will illustrate it by taking even a simpler example. If the compensation amount payable to an outgoing intermediary in respect of the Hat has been determined, say. at Rs. 20,000/-, the reserve jama of which has been determined, say, at Rs. 4,000/- then such an outgoing intermediary will get a settlement for five years (Rs. 20,000). And, that is the reason that Rs. 4,000 in Form P. (3) he is not required to pay any extra rent for the said five years. But after the entire amount of compensation payable in respect of the Sairat has thus been adiusted in my opinion, he cannot claim a further preference to take the settlement at the reserve jama. It is not necessary for me to say where exactly his place will be thereafter; suffice it to say that he will not be an outgoing intermediary of the kind envisaged either in Sub-rule (a) or Sub-rule (2) of R. 7-P.
6. If the compensation amount payable to an outgoing intermediary is less than three times of the reserve iama, as in this case undoubtedly it is then, in my considered judgment, the outgoing intermediary forgoing his compensation is entitled to settlement of the Hat for the minimum period of three years without paving any extra amount by way of rent. If the view taken by the Deputy Commissioner in this case were to be upheld that the outgoing intermediary will be required to pay extra amount of rent over and above the adjusted amount of compensation, it will be going against the express language of Rule 7-P (1), Tender Form T and deed of lease contained in Form P (3). In any event, it will be going against the spirit of the rule and the various statements in the various forms. It is, therefore, clear that the petitioner is not liable to pay any extra sum for the period of his lease of three years over and above the amount of compensation which he has already foregone. He is not liable to pay a sum of Rs. 800/- for the year 1970-71 or a sum of Rs. 5,900/- for each of the vears 1971-72 and 1972-73. But in the light of the observations which I have made above, he no longer remains entitled to set preference after the expiry of the period 1972-73.
7. There may be a third type of case of an outgoing intermediary ready to forgo his compensation, as was the position in the case of Sheo Prasad Mahto v. State of Bihar, 1963 BLJR 404. If the compensation amount payable to the outgoing intermediary in respect of the sairat has not been finally determined, as in many cases it is not determined for a long time, then in such a case the outgoing intermediary will be entitled to a settlement for three years on his forgoing the compensation amount, whatever that amount may be, jn accordance with Rule 7-P (1) without payment of extra sum of rent. On determination of the final amount of compensation, if it is found that the amount of compensation was more than three times the reserve iama fixed at the time of giving him the lease then he has not completely exhausted the right of getting the first prefer-
ence; he will get a lease for the remaining period in accordance with the amount of compensation determined divided by the amount of reserve iama. This seems to be the position before the Bench which decided the case of Sheo Prasad Mahto as would appear from the observations, in paragraph 6 of the judgment at pages 407 and 408. I would do better to express myself clearly by again giving an example. The amount of compensation payable to an outgoing intermediary was not determined. He got a settlement of the Hat for three years fixing the reserve jama, say, at Rs. 5,000/- per Year. Later on. the amount of compensation payable to him is determined, say, at Rs. 25,000/-. Then the total period for which the said outgoing intermediary was entitled to settlement will be five years (Rs. 25,000/-) ______________ Rs. 5000 He got a lease for three years only. He will be entitled to get a lease for a further period of two years before he exhausts his right of getting first preference.
8. Learned Government Advocate drew our attention to clause (16) in Form P (3) and submitted that it indicates that an outgoing intermediary who forgoes compensation has got to pay amount due on account of the settlement of the Hat. But then this amount due must be found out from the other terms and conditions of Form P (31 which does not contain, as I have already said, a term to pay rent. This interpretation finds support from paragraph 11 of the Government instruction referred to above which reads as follows--
"I am further to invite your attention to clause 16 of the form of the lease prescribed in Form P (3) and to say that the words 'any amount due on account of the settlement' do not imply payment of any instalment of rent as no such rent is due from intermediaries who forego compensation but it refers to such amounts other than rent as may be found payable on account of the misuse of property settled or penalty imposed or compensation for a loss or damage according to the terms of the lease."
9. Learned Government Advocate submitted that the petitioner has executed an agreement and has undertaken to pay rent at the rate of Rs. 5,900/- per year from which the amount of Rs. 5,100/-was to be adjusted. No such counter affidavit has been filed before us nor a copy of the said agreement has been produced. Even if there be any such clause in the agreement, on the view of the law which has been expressed in this judgment, it is manifest that such a clause would be void and severable from other clauses of the deed of lease.
10. It is plain in this case that in the light of what I have said above, the petitioner was or is not entitled to the settlement of the Hat in question for a period of more than three years; that was the minimum period for which the settlement could be made with him. And, in his case that was the maximum period also, as the amount of compensation payable to him was not at all above three times the reserve jama.
11. Before I part with this judgment, I would like to point out one more thing. The difference of advantage between an outgoing intermediary of the first class envisaged in Sub-rule (11 of Rule 7-P and an outgoing intermediary of class II mentioned in Sub-rule (2) is very substantial. The former gets the lease for a specified period -- at least for three years -- without payment of any extra sum but the latter does not necessarily get it for such a period. Nor does it appear from the rules and the forms referred to above that an outgoing intermediary of class II can insist on getting the settlement on reserve jama. He may get it at the reserve jama or the amount may be more. Another advantage to class I outgoing intermediary is that by forgoing his compensation he gets the full amount of it by adjustment immediately on the settlement of the Hat otherwise he would have got that amount many many years later.
12. For the reasons stated above, this writ application is allowed to the extent and in the manner already indicated and the order dated 16-6-1970 of the Deputy Commissioner contained in Annexure 5 is set aside and it is held that the petitioner is not liable to pay any rent for any part of the period three years for which the Hat in question has been settled with him. I shall make no order as to cost.
Sarwar Ali, J.
13. I agree.