Jharkhand High Court
Anju Saraff vs State Of Jharkhand & Others on 12 April, 2022
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Writ Jurisdiction)
W.P. (C) No. 4701 of 2019
........
Anju Saraff, daughter of Jagmohan Rajgaria, wife of Suresh Kumar Saraff, resident of Sital Malik Road, P.O. + P.S. and District - Deoghar.
.... ..... Petitioner
Versus
State of Jharkhand & Others .... ..... Respondents
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO ............
For the Petitioner : Mr. Arvind Kr. Choudhary, Advocate. For the Respondents/State : Mr. P.C. Roy, S.C. (L&C)-I. ........
07/12.04.2022.
Heard, learned counsel for the petitioner, Mr. Arvind Kumar Choudhary and learned counsel for the respondents / State, Mr. P.C. Roy, S.C. (L&C)-I. Learned counsel for the petitioner has submitted, that pursuant to order dated 30.03.2022, counter affidavit has not been filed by the competent officer after seeking approval from the Additional Chief Secretary, Department of Revenue, Registration and Land Reforms, Government of Jharkhand.
Learned counsel for the petitioner has further submitted, that this issue with regard to nature of land acquired under Section 25(A) of Regulation (II) of 1886 and Section 53 of the Santhal Pargana Tenancy (Supplementary Provisions) Act, 1949 is transferable or not, has already been decided by the Division Bench of Hon'ble High Court of Judicature at Patna in the case of Sri Boddhinath Mishra & 7 Others Vs. The State of Bihar & 7 Others reported in 1969 PLJR 373 relying upon the recording made at Para-30 of the Final Report on the Revisional Survey and Settlement Operation in the district of Santhal Parganas, 1922-35, commonly known as Gantzer's Settlement.
Para-30 of the said settlement may profitably be quoted hereunder:-
"30. Basauri tenancies in Zamindari estates :- Basouri tenancies are separately recorded as such in the Khatian of village in which they lie but the are not treated as raiyati holdings in the published record, i.e. in the Abstract - Khatian - Jamabandi, where they are lumped together -2- against one 'basauri" entry with the total area and rent noted in the appropriate columns. The rent for such tenancies has not been assessed by the Settlement department but the rent actually paid at the time has been recorded.
Basauri tenancies may be created in two ways:-
(a) by settlement of waste land under Clause 3 of the record-of- rights and duties and
(b) by acquisition under the provisions of Section 25A of Regulation II of 1886.
According to custom and practice all basauri holdings are transferable and no distinction is ordinarily made in the incidents of such a holding whether obtained by settlement under clause 3 of the record-of-rights or by acquisition under Section 25A of the Regulation II. From a perusal of the correspondence leading up to the framing of Santhal Parganas Rent (Amendment) Regulation, 1907, by which section 25A was added to Regulation II of 1886, it appears that this section was introduced as a substitute for section 84 of the Bengal Tenancy Act (1885) which had been in force in the Santhal Parganas since 1897 and which was the only law under which a landlord could acquire land for building and other purposes. The necessity for framing section 25A became urgent in 1906 on account of a ruling of the Calcutta High Court whereby the term "landlord" in section 84 of the Bengal Tenancy Act was declared to be applicable only to the village headman in a pradhani village and to exclude the actual proprietor. As a consequence of this ruling the proprietor could not make even basauri settlements under clause 3 of the record-of-rights except in his khas villages. The correspondence on the subject is printed on pages 540 to 561 of Volume III of Sections from Santhal Parganas Settlement Papers (1910) and the statement of objections and reasons for this section reads as follows:-
"Under the peculiar land system of the Sontal Parganas, the Zamindar cannot interfere with the lands of settled villages, and the headman is unable to settle waste or abandoned lands except for agricultural purposes; while the raiyat is debarred from effecting transfers in any form. This has stood in the way of obtaining lands for purposes of improvements, building sites, etc. The draft regulation provides for the acquisition by the proprietors, with the permission of the Deputy Commissioner of lands required for such purposes."
In the revision settlement, basauri holdings which had originally been created as such under clause 3 of the record-of-rights and which -3- were found to have been abandoned have been recorded as village waste land. On the other hand land acquired under caluse 25A and not in the possession of tenants, has been recorded as Khas Malik.
In village Kamtara a large number of Basauri holdings in the bazar area were recorded with the status "Bazar Jamabandi" in the settlement. In the revision settlement the tenants of these claimed a Raiyati Jamabandi status. I disposed of the claims in Appeal No. 535 of 1933. According to my finding all such tenancies have been recorded as Basauri."
Learned counsel for the petitioner has further submitted that this issue has already been dealt by the Division Bench of Hon'ble Patna High Court in the case of Sri Boddhinath Mishra & 7 Others Vs. The State of Bihar & 7 Others reported in 1969 PLJR 373. Para-24 and 25 of the aforesaid judgment may profitably be quoted hereunder:-
"24. It is admitted in this case that the rent of the land of the petitioners has been fixed under the provisions of the Bihar Land Reforms Act, and rent receipts have been also issued by the State of Bihar. Annexure-2 and 3 to the reply of the counter affidavit of the State of Bihar show that plot no. 360 of village Routara was assessed as homestead land. So far the lands of Gorhimal are concerned assessments have been made on the basis of lands being bakasht lands of the malik which is apparent from the receipts filed by the petitioners in this case. Though the lands were acquired by the proprietors of Banaili Raj under Section 25A of Regulation 2 of 1886, but in the record of rights the lands of Gorhimal were recorded as bakasht malik. The State of Bihar asserted in Paragraph-19(r) of the counter-affidavit that the status of the petitioners in respect of the lands which were acquired under Section 25A is that of a riayat under Section 6 of the Bihar Land Reforms Act after the vesting of their proprietory rights whereas the case of the petitioners is that their status in respect of the lands proposed to be acquired is that of a homestead tenant under Section 5 and 7 of the Land Reforms Act. Their alternative case is that even if their status is that of a riayat under Section 6 of the Land Reforms Act, they could not be regarded as a raiyat within the meaning of the Act and, therefore, provisions of Section 53 of the Act are not attracted and they have got every right to dispose of the property in the manner they liked, and the -4- Registration Officer had no right to refuse registration of the sale
- deed executed by them. Be that as it may, I shall proceed to decide this aspect of the case on the admitted position by the State that the status of the petitioners in respect of the land is that of a raiyat under Section 6 of the Bihar Land Reforms Act.
25. The petitioners were the landlords of villages Gorhimal and Routara. Therefore, before the vesting of the estates, they could not be raiyats in respect of the disputed lands. After the vesting of the estates of the intermediaries, the petitioners have become statutory raiyats under Section 6 of the Land Reforms Act. Section 6 of the Land Reforms Act provides that on and from the date of vesting all lands used for agricultural or horticultural purposes, which were in khas possession of an intermediary on the date of such vesting shall be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold them as a riayat under the State having occupancy rights in respect of such lands subject to the payment of such fair and acquitable rent as may be determined by the Collector in the prescribed manner. Raiyat has not been defined in the Land Reforms Act. Section 2(t) of the Bihar Land Reforms Act lays down as follows:-
"2(t) - All words and expressions used in this Act but not defined in this Act and defined in the Bihar Tenancy Act, 1885 (8 of 1885) or the Chota Nagpur Tenancy Act, 1908 (Bengal Act 6 of 1908) shall
(i) in their application to the area to which the Chota Nagpur Tenancy Act, 1908 (Bengal Act 6 of 1908) applies, have the same meanings as in that Act,
(ii) in their application to the area to which the Bihar Tenancy Act, 1885, (8 of 1885) applies, have the same meanings as in that Act; and,
(iii) in their application to any area in the Santhal Parganas have the same meanings as in the Bihar Tenancy Act, 1885 (8 of 1885)."
Therefore, even if the lands are situated in Santhal Parganas, the petitioners are raiyats of the lands which were in their khas cultivating possession within the meaning of the Bihar Tenancy Act. They will be entitled to hold the lands as raiyats with occupancy rights under the State of Bihar. It follows from this that the petitioners will have all the rights and liabilities -5- which an occupancy riayat under the Bihar Tenancy Act will have in respect of his lands. Chapter V of the Bihar Tenancy Act deals with the rights and liabilities of an occupancy raiyat. Section 23 of the Act lays down the rights of an occupancy raiyat in respect of the use of land according to which he may use the land in any manner which does not materially impair the value of the land or render it unfit for the purposes of the tenancy. Section 23A of the Act gives the occupancy raiyat a right to plant trees and bamboos on such land an cut, cut down and appropriate the trees and bamboos, appropriate the flowers, fruits and other products of any trees or bamboos standing on such land etc. Section 25 protects him from being evicted from his land except under certain circumstances. Section 26 gives an occupancy raiyat the right of inheritance, Section 26A empowers him to transfer and bequest his holdings or a portion thereof together with a right of occupancy by sale, exchange or gift and all bequests made by an occupancy raiyat, if it is made by a registered document and the landlords' registration fee is paid. Other provisions of Chapter V deals with the liabilities of an occupancy raiyat. It is not necessary to enumerate them here. If the petitioners would have been raiyats within the meaning of the Act, i.e. the Santhal Parganas Tenancy Act, 1949, they will have no power to make a transfer under Section 20 of the Act. Therefore, the Legislature has taken special care in laying down that after vesting of the estates, the outgoing intermediaries will acquire the status of a raiyat with occupancy rights within the meaning of the Bihar Tenancy Act and not of an occupancy raiyat within the meaning of the Santhal Parganas Settlement Regulation 3 of 1872 in respect of the land in his khas cultivation even though the land be situated in the district of Santhal Parganas. Section 53 contemplates the acquisition of the holding or a portion of the holding of a raiyat within the meaning of the Act. The petitioners not being raiyats under the Santhal Parganas Tenancy Act, 1949, their lands cannot be acquired under the provisions of Section 53 of the Act. In that view of the matter also the acquisition proceeding (Annexure-E) so far the lands of the petitioners are concerned, is invalid, and illegal, and, as such, it must be quashed."
Learned counsel for the petitioner has thus submitted that in view of the aforesaid the land acquired under Section 25A of the -6- Regulation (II) of 1886 and Section 53 of the Santhal Pargana Tenancy (Supplementary Provisions) Act, 1949 settled with the person is transferable in nature and the same shall be registered by the registering authority.
Learned counsel for the respondents/State has submitted, that since the order dated 30.03.2022 could not be complied with and as such, two weeks' time may be granted to file detail counter affidavit in this matter, by competent authority after seeking approval from the Additional Chief Secretary, Department of Revenue, Registration and Land Reforms, Government of Jharkhand.
Let the matter appear before this Court on 02.05.2022 under the same heading.
(Kailash Prasad Deo, J.) Sunil/-