Patna High Court - Orders
Madneshwar Goswami & Anr vs The State Of Bihar & Ors on 18 July, 2013
Author: Navin Sinha
Bench: Navin Sinha, Vikash Jain
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.201 of 2013
In
Civil Writ Jurisdiction Case No. 1695 of 2002
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1. Madneshwar Goswami Son Of Late Puniya Nand Goswami Resident Of
Village - Majhua, P.S. Palasi, Araria
2. Nand Mohan Goswami Son Of Late Puniya Nand Goswami Resident Of
Village - Majhua, P.S. Palasi, Araria
.... .... Appellant/s
Versus
1. The State Of Bihar
2. Additional Collector, Araria
3. The Land Reforms Deputy Collector, Araria
4. Circle Officer, Palasi, Araria
5. Jubin Devi Wife Of Late Turai Mandal Resident Of Village - Majhua,
P.S. Palasi, Araria
6. Shankar Mandal Son Of Late Turai Mandal Resident Of Village -
Majhua, P.S. Palasi, Araria
7. Shashi Devi Daughter Of Late Turai Mandal Resident Of Village -
Majhua, P.S. Palasi, Araria
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Y.V.Giri, Sr. Advocate, with
M/s Vikas Ratan Bharti , Nikhil Agrawal &
Asish Giri, .Raju Giri
For the Respondent/s : M/s Uday Bhan Roy & Sanjay Kumar Sharma
For the State : Ms. Sunita Kumari, AC to GP 15
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CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA
and
HONOURABLE MR. JUSTICE VIKASH JAIN
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE NAVIN SINHA)
7 18-07-2013I.A. 1280 of 2013 has been filed for condoning delay of approximately 36 days in filing of the Appeal.
Having heard Counsel for the parties and considered the explanation for the delay we condone the same in the interest of Justice and proceed to consider the Appeal on merits.
The present Appeal arises from order dated 4.10.2012 allowing C.W.J.C. No. 1695 of 2002. It sets aside the order dated Patna High Court LPA No.201 of 2013 (7) dt.18-07-2013 2 21.8.1999 passed by the Additional Collector, Araria, which allowed Miscellaneous case No. 1/1995- 96 filed by the Appellant. The Additional Collector had set aside the red card granted to Turai Mandal, for the lands in question, and simultaneously granted green card to the Appellants for the same. Turai Mandal was deceased during the pendency of the writ application and was substituted by his legal heirs, the respondent 2nd set.
Land Ceiling Case no. 43 of 1976-77 was initiated against one Maheshwara Nand Thakur. It is the case of the respondent 2nd set that after final publication of the lands to be acquired under Section 11 of the Bihar Land Reforms [fixation of ceiling area and acquisition of surplus land] Act, 1961 (hereinafter the preferred to has „the Act‟ ) red card was issued to Turai Mandal as an under-raiyat, bearing number 85/1976 - 77. Parwana was also issued to him on 1.4.1976. Turai Mandal claimed continuous possession as occupancy raiyat. One Punyanand Goswami filed an application under Section 22(1) of the Act on 5.5.1995 before the Additional Collector to be declared an occupancy Raiyat, registered as Miscellaneous case No.1/1995-96. The Appellants are the legal heirs. The Additional Collector called for reports from the Anchal Adhikari and by order dated 21.8.1999 cancelled the red card issued to Turai Mandal and granted green card in favour of the Appellants.
The Learned Single Judge held that indisputably the lands which were the subject matter of the controversy were acquired in Land Ceiling case no. 43/76 - 77. The grant of a red card to Turai Mandal long years ago raised a presumption that it was Patna High Court LPA No.201 of 2013 (7) dt.18-07-2013 3 done in accordance with law. Rule 25 framed under the Act required such application to be filed within 3 months from the date that the lands were declared surplus. The application by the appellants was submitted nearly two decades later. The Additional Collector could not have entertained it. The objection on behalf of the Appellants with regard to an alternative statutory remedy of Appeal available under Section 30 of the Act against order dated 21.8.1999 was rejected holding that in the facts and circumstances the Additional Collector exceeded jurisdiction. No reasons had been considered for extending the period of three months provided under Rule 25. If the order was ex-facie bad the jurisdiction under Article 226 was not barred on grounds of an alternative remedy.
Learned Senior Counsel for the Appellants submitted no sooner that Punyanand Goswami came to know of the red card issued to Turai Mandal he moved the Additional Collector in the prescribed Form L C 19 under Section 22 [1] of the Act in his capacity of under-raiyat seeking to be declared as occupancy raiyat. Under Rule 25 such application was required to be made within three months from date the lands were declared surplus or such further period as may be allowed by the Collector. Since he was in possession, it could not be said that there had been unreasonable delay in preferring the same. The Additional Collector was satisfied to entertain it. The Anchal Adhikari reported on 28.9.1996 that the lands were in possession of the Appellants and red card holder Turai Mandal never came in possession. Two more reports by him were to the same effect. The Additional Collector by order dated 21.8.1999 Patna High Court LPA No.201 of 2013 (7) dt.18-07-2013 4 after hearing and consideration of the report cancelled the red card granted Turai Mandal and gave green card for the lands to the Appellants. There is no material on record to suggest that any application was filed by Turai Mandal under Section 22 [1] of the Act as an under-raiyat within the period of 3 months provided under Rule 25 to be declared as occupancy raiyat. Turai Mandal never asserted that he had deposited the compensation amount under Section 21[2][i] of the Act.
The Appellants were in possession of the lands as under- raiyat and automatically acquired the status of an occupancy-raiyat under Section 21[1] of the Act after expiry of the time for the land holder to file an application under Section 13 of the Act for retaining the lands. The deposit of compensation amount for payment to the land holder was a formality and did not militate against their acquisition of substantive status as occupancy raiyat. The Appellants have since deposited the compensation amount of Rs.216/- in the year 2009-10 and have been issued Parwana in their names and mutation also done.
The Learned Single Judge grossly erred in entertaining the writ application as the respondent 2 nd set had an alternative statutory remedy of Appeal under Section 30 of the Act. In the facts of the case, setting aside the order of the Additional Collector shall revive an illegal order for grant of red card to the respondent 2nd set. It has not been properly appreciated that the Appellant were in possession of the lands. It was erroneously held that the Additional Collector had no jurisdiction in the law. If for any reason, the Learned Patna High Court LPA No.201 of 2013 (7) dt.18-07-2013 5 Single Judge was dissatisfied with the order of the Additional Collector, it should appropriately have been remanded after setting aside the order for fresh adjudication.
Learned Counsel for the respondent 2nd set submitted that the red card was granted to them in accordance with the statutory provisions as occupancy raiyat. They were in possession of the lands as under raiyat. The Learned Single Judge rightly held that a presumption would arise for a valid issuance of red card to them. The Appellants had never submitted any application within three months under Section 22 (1) of the Act read with Rule 25 claiming as under-raiyat for acquisition of status as occupancy raiyat. The Appellants filed such an application nearly two decades later on 5.5.1995 without any explanation for the same. If they were in possession of the lands as claimed, surely they would have made an application for grant of red card no sooner that final publication was made under section 11 of the Act. No reason has been assigned by the Additional Collector why he was satisfied to entertain the application two decades later. If the order of the Additional Collector on the face of it was without jurisdiction or in excess of the law, the availability of an alternative remedy was no bar to the exercise of discretionary powers under Article 226.
We have considered the submissions on behalf of the parties. It shall be necessary to notice the statutory provisions of Sections 21, 22 of the Act with Rule 25 for better appreciation of the controversy.
"21. Under Raiyat within the ceiling area of Raiyat to acquire the status of Raiyat :-Patna High Court LPA No.201 of 2013 (7) dt.18-07-2013 6
[1] subject to the other provisions of this Act, every under-raiyat of a raiyat, holding land in excess of the ceiling area on the date of commencement of this Act, shall, in respect of land not resumed under section 13, be deemed to have acquired the status of an occupancy raiyat if no application for resumption is made within the period specified in subsection [2] of section 13, on the expiry of the said period, and where such an application has been made, on the date the application is finally rejected and the right, title and interest of the Raiyat in such land shall be deemed to have been extinguished with effect from the date of such expiry or rejection, as the case may be:
Provided that notwithstanding the acquisition of such status, he shall not have the right to transfer the land until the entire amount of compensation payable under clause [ii] of subsection [2] has been paid.
[2] [i] the land in respect of which the under raiyat is deemed to have acquired the status of an occupancy raiyat under subsection [1] shall, for the purpose of payment of compensation to the raiyat, under whom he held it, be deemed to have been acquired by the State government under this Act. [ii) the under-raiyat shall pay to the State government on account of the acquisition of the status of an occupancy raiyat in the land under subsection [1), such amount as is specified in this behalf in the schedule.
[iii] the amount payable by the under -raiyat to the State government under clause [ii] shall be a charge on the land and shall take priority over all other claims on the land.
22. Under-raiyat on surplus land to acquire the status of raiyat.-
(1) If there is an under-raiyat on the surplus land on the date it vests in the state under the provisions of this act, such under Raiyat shall, if he makes an application in this behalf in the prescribed manner, be allowed to retain as occupancy raiyat, subject to the payment in the prescribed manner and within the prescribed period to the State government the amount specified in this behalf in the schedule, so much of the land as together with all the other lands held by him anywhere in the State does not exceed the area he may hold under Section 5.
[2] if the under-raiyat refuses or fails to make the application within the said period, he shall be liable to be ejected by the collector and where he is allowed to retain the land under sub - section [1], he shall not have any right to transfer the land until the Patna High Court LPA No.201 of 2013 (7) dt.18-07-2013 7 entire amount he is liable to pay to the State government under sub - section [1] has been paid. [3] the amount payable by the under-raiyat to the State government under sub - section [1] shall be a charge on the land and shall take priority over all other claims on the land.
Rule 25. Application by under-raiyat under sub - section 22 [1] for being allowed to retain any surplus land :-
[1] Application by and under raiyat under sub - section [1] of section 22 for being allowed to retain any surplus land in respect of which he is an under raiyat shall be filed in Form L.C. 19 before the collector within a period of 3 months with effect from the date on which the land is declared to be surplus land or within such further period as may be allowed by the collector."
The scheme postulates that after the lands are declared surplus by final publication under Section 11 of the Act, it vests in the State. The land owner has an option under Section 13 to apply within the period his choice to retain the permissible extent of lands.
Subject to the exercise of the same, an under-raiyat in possession of any area vested in the State, by a fiction of the law is declared an occupancy-raiyat. But, the declaration does not create an absolute right till he does not apply to the Collector within a period of three months to be declared an occupancy raiyat and deposits the compensation amount for payment to the landlord. That the ownership of the lands continues in the state government till such time is apparent from the compensation amount being a charge on the land recoverable from him. It naturally follows that if an under-
raiyat does not submit an application in terms of section 22 [1] of the land ceiling act within the time prescribed, the question of continuing in possession as occupancy Raiyat or depositing the compensation Patna High Court LPA No.201 of 2013 (7) dt.18-07-2013 8 does not arise. The State government in that event is free to settle the lands vested in it with another.
The lands are situated in Village Majhuwa, Khat no.6, Khesra no.335,336, Thana Palasi, district Araria, having a total area of approximately 53 decimals total.
Land Ceiling proceedings were registered as 43 of 1976 - 77.
Turai Mandal was undisputably given a red card no. 85 of 1976 - 77.
Settlement Parwana was also issued to him on 1.4.1976. He claims continued in possession of the lands as occupancy raiyat. A presumption arises in the law that the red card was given to him after due compliance with the requirements of Section 21, 22 and Rule 25 of the Act. That the state of affairs remained unsettled till the filing of Miscellaneous Case no. 1/95 - 96 by the Appellants lends further credence to his claims having been conferred in accordance with law. There shall be a presumption under Section 114 [e] of the Indian Evidence Act that official acts had been duly and regularly performed in the normal course of official business. The presumption is of course rebuttable but the onus shall lie on the Appellants who seek to rebut the presumption.
In (1977) 1 SCC 133 (Narayan Govind Gavate v. State of Maharashtra) it was observed as follows :-
"22. True presumptions, whether of law or of fact, are always rebuttable. In other words, the party against which a presumption may operate can and must lead evidence to show why the presumption should not be given effect to. If, for example, the party which initiates a proceeding or comes with a case to court offers no evidence to support it, the presumption is that such evidence does not exist. And, if some evidence is shown to exist on a question in issue, but the party which has it within Patna High Court LPA No.201 of 2013 (7) dt.18-07-2013 9 its power to produce it, does not, despite notice to it to do so, produce it, the natural presumption is that it would, if produced, have gone against it. Similarly, a presumption arises from failure to discharge a special or particular onus."
Similarly in (1999) 1 SCC 338 (Krishna Kumari v. State of Haryana) it was observed :-
"23...In fact, delivery of possession being the official act of the Revenue Circle Officer as indicated in Rule 20-B, a presumption has to be raised that all antecedent formalities were duly complied with....."
The Appellants claim to have been in possession of the lands as under raiyat at the time of vesting. It is difficult to accept the submission that despite possession, they were unaware of its vesting and the requirement for them to submit an application before the Collector within three months. If they did so nearly two decades later there has to be some explanation why they did not do so earlier within time prescribed. If the Appellants claim that inquiry was held by the Anchal Adhikari on their claims, undoubtedly such inquiry must also have been held before Turai Mandal was given rights of occupancy Raiyat.
Rule 25 provides that the under raiyat desiring right of occupancy raiyat shall file such application before the Collector within three months or such further period as may be allowed by the Collector, from the date of the lands being declared surplus. No guidelines have been provided when and under what circumstances the Collector may entertain such application after the period of 3 months. If the original period prescribed is three months the Patna High Court LPA No.201 of 2013 (7) dt.18-07-2013 10 additional period permissible not specifically prescribed has to be read and understood reasonably as a maximum period of six months. It needs no emphasis that the claims need an expeditious decision so that the lands can be made available to the eligible at the earliest keeping in mind the social objective of the law.
In (1997) 6 SCC 71 (Mohd. Kavi Mohamad Amin v.
Fatmabai Ibrahim) it was observed :-
"2....This Court in connection with other statutory provisions, in the case of State of Gujarat v. Patil Raghav Natha and in the case of Ram Chand v. Union of India has impressed that where no time- limit is prescribed for exercise of a power under a statute it does not mean that it can be exercised at any time; such power has to be exercised within a reasonable time....."
The Rule vests wide discretion in the Collector to accept applications beyond three months. No guidelines have been provided for the exercise of discretion. The wider the discretion the greater is the caution required for its exercise and the stricter shall be the scrutiny for exercise of the discretionary power if it is challenged.
The manner in which discretionary power is required to be exercised was considered in (1991) 3 SCC 239 (U.P. State Road Transport Corpn. v. Mohd. Ismail) observing :-
"15...The discretion allowed by the statute to the holder of an office, as Lord Halsbury observed in Susannah Sharp v. Wakefield is intended to be exercised "according to the rules of reason and justice, not according to private opinion; ... according to law and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself". Every discretion conferred by statute on a holder of public office Patna High Court LPA No.201 of 2013 (7) dt.18-07-2013 11 must be exercised in furtherance of accomplishment of purpose of the power.....The discretion should not be exercised according to whim, caprice or ritual. The discretion should be exercised reasonably and rationally. It should be exercised faithfully and impartially. There should be proper value judgment with fairness and equity....."
The Appellants filed Miscellaneous case 1/1995 - 1996 under Section 22(1) of the Act on 5.5.1995. It does not state any reason why it was being preferred nearly two decades after status of occupancy-raiyat was given to Turai Mandal. A bald statement with no dates has been made that upon having been made aware of the facts they immediately moved the Additional Collector. The inquiry reports of the Anchal Adhikari in 1995/1996/1998 state that red card was wrongly issued to Turai Mandal in 1976 - 77. He was never in possession of the lands. The Halka Karamchari had committed a mistake in submitting such proposal. No further materials have been placed before us also in support of the same. The Appellants for reasons better known to them appear to have woken up belatedly for claiming occupancy rights seeking to raise disputed facts after long years.
The Additional Collector does not state any reason why he was satisfied to accept the application nearly two decades later. Furthermore, the order of the Additional Collector dated 21.8.1999 is not based on independent application of mind with his own discussion and conclusion but abdicates jurisdiction completely in favour of the opinion of the Government Pleader and the opinion of the DCLR. The order does not consider or deal with what may have Patna High Court LPA No.201 of 2013 (7) dt.18-07-2013 12 been urged on behalf of Tuari Mandal and why it was not acceptable. It does not meet the basic requirement of a quasi judicial adjudicatory order deciding a lis. The Learned Single Judge therefore rightly arrived at the conclusion that it suffered from lack of jurisdiction and the availability of an alternative statutory remedy of Appeal did not bar the writ petition.
The bar against entertaining a writ petition if an alternative statutory remedy is available is not a strict rule of law but more a matter for exercise of discretion by the Court concerned in the facts of a case. Normally such writ petitions should not be entertained. But it is equally well settled by judicial precedents that if the order under challenge suffers from basic violation of the principles of natural justice, the illegality is apparent on the face of it requiring no unraveling exercise, the bar of an alternative remedy cannot be an absolute prohibition to the entertainment of an application under Article 226.
We are not persuaded to entertain and allow such claims raised after an inordinately long period of time founded or disputed facts to unsettle a state of affairs which has continued from 1976 - 77 pursuant to official acts which remained unquestioned till 1995. If such claims were to be permitted, Rule 25 would be rendered meaningless and claims could be raised after any unreasonable long period like in the present case. Disapproving the opening of settled matters after an inordinately long period of time it was held in (2002) 4 SCC 188 (State of W.B. v. Karan Singh Binayak) as follows :-
Patna High Court LPA No.201 of 2013 (7) dt.18-07-2013 13
"17.....It can, thus, be seen that after the preparation of record-of-rights, not only the appellants did not take any steps and slept over the matter but various steps as above were taken by the respondents in respect of the land in question. The argument that the proceedings under the ULC Act or the preparation of record-of-rights were ultra vires and the acts without jurisdiction and, therefore, those proceedings would not operate as a bar in the appellants invoking inherent jurisdiction under Section 151 CPC by virtue of conferment of such power under Section 57-A of the Act is wholly misconceived and misplaced. The inherent powers cannot be used to reopen the settled matters. These powers cannot be resorted to when there are specific provisions in the Act to deal with the situation. It would be an abuse to allow the reopening of the settled matter after nearly four decades in the purported exercise of inherent powers. It has not even been suggested that there was any collusion or fraud on behalf of the writ petitioners or the erstwhile owners. There is no explanation, much less satisfactory explanation for total inaction on the part of the appellants for all these years."
Considering the entirety of the facts and circumstances, the presumption in favour of the respondent 2nd set, it having operated inordinately long for about two decades, the Appellants having applied under Rule 25 far beyond the period of three months, the Additional Collector having entertained it without any consideration of delay, the non -consideration of what may have been urged before him by the respondent 2 nd set and complete abdication of jurisdiction in the decision making process leaves us satisfied that the Learned Single Judge committed no error in setting aside the order of the Additional Collector.
Having given our anxious consideration to the materials on the record we do not find any reason to interfere with the order Patna High Court LPA No.201 of 2013 (7) dt.18-07-2013 14 under appeal.
The appeal is dismissed (Navin Sinha, J) (Vikash Jain, J) (Vikash Jain, J) Patna High Court The th July, 2013 Snkumar (NAFR)