Patna High Court
D.N. Jatia vs The State Of Bihar And Ors. on 4 April, 1990
Equivalent citations: 1990(38)BLJR1079
JUDGMENT
P.S. Mishra and Bhuvaneshwar Prasad, JJ.
1. Petitioner herein has invoked this Courts' writ jurisdiction under Article 226 of the Constitution of India for a writ in the nature of Certiorari to quash the order of the Additional Collector at Deoghar, district Deoghar dated 8-12-1989 (Annexure-'5'). under which he has held that the petitioner's lease-hold was valid until 1955 and since thereafter, his possession was illegally, the property accordingly stood reverted to the State, Zamabandi in the name of the petitioner was illegal and accordingly the same was ordered to be cancelled and Dy. Collector Land Reforms, Deoghar was directed to take possession of the property in question from the petitioner.
2. A Ghatwali Estate known as Rohini Estate was under Court of Wards, when on 3-2-1906 the Commissioner, Bhagalpur Division on behalf of Court of wards of the said Estate executed a lease for a period of 50 years in favour of one Sri Yogendra Nath Bose. The Law governing the rights and interests of Ghatwalis in the lands held by them at the relevant time was the Bengal Ghatwal Act, 1959. Section 1 of the said Act recognised the right of the Ghatwals of Birbhum (as the area was then known) of granting leases of any period which they deemed conductive to the improvement of their tenures as was allowed by law to the proprieties of other lands, provided that no lease of Ghatwali lands for any period extending beyond the life time or incumbency of the grant of the lease was valid and binding on the successors of the grantor unless the same was granted for the working of mines or for the clearing of jungle or for the irrection of dwelling houses or manufacturers or for tanks, Canals or for similar works and approved by the Commissioner of the Division, such approval being certified by an endorsement of the lease under the signature of the Commissioner. Ssction-2 recognised the same rights in the court of wards and revenue authorities stating that, if any of the said Ghatwali lands be at any time under the superintendence of the court of wards or otherwise subject to the direct control of the Officers of the Government, it shall be lawful for the Court or the Commissioner to grant lease for any such purposes as aforesaid. Further the lease so granted shall be valid and binding on all future of the said lands anything in the existing law to the contrary notwithstanding."
3. The said lease thus, granted by the Commissioner, Bhagalpur Division., was acted upon and the Estate of Neelratan Bose, who was the father of the settlee, Yogendra Nath Bose, came in possession thereof. Neelratan Bose's estate was later partitioned amongst the brothers of Yogendra Nath Bose and according to the petitioner the lease hold property in question fell in the share of one Eikkarinath Bose. Ekkarinath Bose having so acquired exclusive title, executed registered sale deed No. 3221 in favour of Onkarmal Jatia who was the lather of the petitioner. According to the petitioner Onkarmal Jatia developed the lands, constructed a house, a well and orchard and a garden and named the property as 'Hill View'. Ever since his family members enjoyed peaceful possession of the property and their manager, servants and gardeners looked after the maintenance of the house, orchard, garden etc. Their peaceful possession resulted in recording of their name in the revenue records and Jamabandi Nos. 51/3 and 51/4. During the survey settlement in or about the year 1930. Their peaceful possession, however, received a jolt when they were served with a notice dated 3-8-1989 issued by the Dy. Commissioner, Deoghar in the name of Onkarmal Jatia, stating therein, that to moot the problem of accommodation of important visitors in the town of Deoghar, it had been resolved in the public interest that Hill view be taken on rent for six. months and accordingly, he was called upon to appear and give his terms and conditions. Onkarmal Jatia, however, had since died and succeeded by the petitioner and other heirs. They appeared and replied to the notice that the premises known as 'Hill View' which was situated upon the Basati Land bearing plot Nos. 530 and 523 having Jamabandi Nos. 51/3 and 51/4 and had bean so recorded in the last Gantar's settlement was meant for personal use and occupation of their family members. That the same had never been let out to anybody, that no one had been allowed to stay at the premises without being satisfied about his personal habits and that they and no intention to give the premises on rent to anybody including the State of Bihar. Petitioner has alleged that his lawyer Sri Vijoy Krishna Pd. was unwell on 3-12-1989. A petition for time was filed on his behalf before the Additional Collector, Sri R.B. Pandey who had since received the records of the case. The said application, however, was rejected and the impugned order passed.
4. According to the petitioner, the proceeding as such, for which notice had been issued, was for deciding as to whether the building could be taken on rent or not, but the Additional Collector got a report from the Circle Officer, Deoghar as also records of a so called proceeding started by the Circle Officer, Deoghar, purportedly, on the ground that petitioner's lease had expired and without any opportunity afforded to the petitioner to show-cause and being heard as also without any authority under any law to do so, he held that since petitioner's lease had expired in the year 1955 and the erstwhile ghatwali estate known as Rohini estate had vested in the State of Bihar, the property ought to have been delivered to the State or acquired by the State in the year 1956. The petitioner had managed to get entry of the name of Onkarmal Jatia in the revenue records and Jamabandi. He accordingly ordered on 8-12-1989 to cancel the jamabandi and directed Dy. Collector Land Reforms to take possession of the property.
5. Respondents have not contested the petitioner's case that the lease held by the petitioner belonged to Rohini Estate which has under court of Wards and the Commissioner Bhagalpur Division 0n 3-2-1906 executed a lease in favour of Yogendra Nath Bose who was a member of the Estate of Neelratan Bose, oil his father, that Ekkarinath. Bose executed a registered sale deed in favour of Onkarmal Jatia on 24-7-1918, that Oukarmal Jatia accordingly came in possession thereof and that his name was recorded in the survey record and Jamabandi stood in his name. Their case, until the impugned order, was that the original lease executed by the Commissioner, Bhagalpur Division 00 3-2-1906 was for a period of 50 years and the sale in favour of Onkarmal Jatit by Ekkarinath Bose on 24-7-1918 was for the remaining period of the lease which came to an end on the expiry of the 50 years in the year 1955. Since in the meanwhile Land Reforms Act had intervened and ail interests of intermediates had vested in the State of Bihar, the intermediary interest of Rohini Estate also vested, the State of Bihar became the owner of the land and the property thereon and, thus, became entitled to take possession thereof. They have alleged that there was really no basis for opening the jamabandi in the name of Onkarmal Jatia and have alleged that the same had been obtained by misrepresentation and fraud.
6. Allegations of the petitioner that after the transfer of the property by Ekkarinath Hose to Onkarinal Jatia his estate constructed a house and established orchard, garden, well, etc. however, has been disputed by the respondents They have said that "the statements made in paragraph Nos. 6 are vague and purposely the time of construction over the lease bold property has not been mentioned. It appears from the lease that the construction was there from before the transfer to Jatia".
7. 'Tenure' which means the interest of the tenure-holder or under tenure-holders has been defined to include a Ghatwali tenure also in Section 2(q) of the Bihar Land Reforms Act, 1950. Section 3 of the Act states:
Notification vesting an estate or tenure in the State:
(1) The State Government may, from time to time, by notification declare that the estates or tenures of a proprietor or tenure-holder, specified in the notification, have passed to and become vested in the State.
(2) The notification referred to in Sub-section (1) shall be published in the Sub-section (1) shall be published in the official Gazette. A copy of such notification shall be sent by registered post, with acknowledgement due, to the proprietor of the estate recorded in the general register of revenue-paying or revenue-free lands maintained under the Land Registration Act, 1876 or in case where the estate is not entered in any such registers and in the case of tenure-holders to the proprietor of the estate or to the tenure-holder of the tenure if the Collector is in possession of a list of such proprietors of tenure-holders together with their address, and such posting shall be deemed to be sufficient service of the notification on such proprietor or, where such notification is sent by post to the tenure-holder on such tenure-holder for the purposes of this Act.
(3) The publication of such notification in the official Gazette shall be conclusive evidence of the notice of the declaration to such proprietors or tenure-holder whose interests are affected by the notification.
8. A substantial amendment was made by Act 20 of 1954 introducing Sections 3, 3-A and 3-B into the body of the Act, providing for publication of a proclamation in the official Gazette not less than three months from the date on which it was proposed to issue a notification under Sub-section (1) of Section 3-A under which the State Government was empowered to declare that the intermediary interests of all intermediaries in the whole of the State had passed too and become vested in the State. Section 4 of the Act, which was also amended in some parts, however, provided for con-sequences of the vesting of a estate or tenure in the State, the consequences being:
Such estate or tenure including the interests of the proprietor or tenure-holder in any building or part of building comprised in such estate or tenure and used primarily as office or cutchery for the collection of rent of such estate or tenure, and his interests in trees, forests, fisheries, jalkars, hate, bazars, (mela) and ferries and all other sairati interests, as also his interest in all sub-soil including any rights in mines and minerals whether discovered or undiscovered or whether been worked or not, inclusive of such rights of a lessee of mines and minerals, comprised in such estate or tenure) other than the interests of raiyats or under-raiyats) shall with effect from the date of vesting, vest absolutely in the State free from all incumbrances and such proprietor or tenure-holder shall cease to have any interests in such estate or other than the interests expressly saved by or under the provisions of this Act.
(b) All rents, cesses and royalties accruing in respect of lands comprised in such estate or tenure on or after the date of vesting shall be Payable to the State and not to the outgoing;-proprietor or tenure-holder and any payment made in contravention of this clause shall not be binding on the State Government.
9. It is not in dispute before us that shatwa1i interest of the earstwhile intermediary Rohini estate vested in the State of Bihar although there is no pleading before us to when did it happen. It is also admitted that the Hill view which belonged to the Rohini Estate was in the tenancy of the petitioner's family before the vesting and under his possession. As a consequences of the vesting of interests of Rohini Estate in became the interests of the State of Bihar except the interests of raiyats or under raiyats A "Raiyats" has not been defined in the land Reforms Act but the Tenancv Acts of the State describe raiyats as class of tenants holding at fixed rates, or having a right of occupancy of without occupancy rights but always having a servant right under the tenure-holders. When occasion to acquire surplus land in the hands of raiyat arose and the Bihar Land Reforms (Fixation of Celling Area and Acquisition of Surplus Land) Act, 1961 was introduced, a ' raiyat" was defined to mean primarily a person who has a right to acquire land for the purpose of cultivating it by himself or by members of his family or by hired servants or with aid of partners, and included also the successor-in-interest or persons who had acquired such a right including a village headman in respect of his private land, if any in the district of Santhal Parganas, but not a village head-man in the areas to which the Chotanagpur Tenancy Act, applies. This is more or less same as the definition of "Raiyats" in the Santal Parganas Tenancy (Supplementary Provisions) Act, 1949 which has defined a "raiyat" to mean "a person not being a landlord, who has acquired a right to hold land for the purpose of cultivation by himself or by members of his family or by hired servants ; and includes the successor-in-interest of person who has acquired such a right:" that such a right of raiyat did not vest and that any intermediary's right in a building in or land upon which a tenant lived did not vest is made more clear and specific by the provisions in Section 5 and 6 of the Bihar Land Reforms Act. Section 5 states;
(1) With effect from the date of vesting, all homesteads comprised in an estate or tenure and being in the possession of (an intermediary) on the date of such vesting shall (subject to the provisions of Section 7-A and 7-B) be deemed to be settled by the State with such (intermediary and he shall be entitled to retain possession of the land comprised in such homesteads and to hold it as a tenant under the State free of rent:
Provided that such homesteads as are used by the (intermediary) for purposes letting out on rent shall be subject to the payment of such fair and equitable ground rent as may be determined by the Collector in the prescribed manner.
(2) If the claim of (an intermediary) as to his possession over such homestead or as to the extent of such homesteads in disputed by any person within three months from the date of such vesting, the Collector shall, on application, make such inquiry into the matter as he deems fit and pass such order as may appear to him to be just and proper.
Section 6 states ;-
Certain other lands in khas possession of intermediaries to be retained by them on payment of rent as raiyats having occupancy rights- (1) 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, including-
(i) 'Proprietors' private land let out under a lease for a term of years or under a lease, from year to year, referred to in Section 116 of the Bihar Tenancy Act, 1885.
(ii) landlords' privileged lands let out under a registered lease for a term exceeding one year or under a lease, written or oral, for a period of one year or less, referred to in Section 43 of the Chota Nagpur Tenancy Act, 1908.
(b) lands used for agricultural or horticultural purposes and held in the direct possession of a temporary lessee of an estate or tenure and cultivated by himself with his own stock or by his own servants or by hired labour or with hired stock, and
(c) lands used for agricultural or horticultural purposes forming the subject-matter of a subsisting mortgage on the redemption of which the intermediary is entitled to recover khas possession thereof;
shall, (subject to the provisions of Section 7-A and 7-B) 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 raiyat under the State having occupancy rights in respect of such lands subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner:
(Provided that nothing contained in this Sub-section shall entitled an intermediary to retain possession of any naukarana land or any land recorded as chaukidari chakran or goraiti jagir or mafigoraiti in the record of right has already accrued to a raiyat before the date vesting.
Explanation-For the purposes of this Sub-section, 'naukarana land' means land as a grant burdened with service in lieu of rent or held simply in lieu of wages for services to be recorded.
(2) If the claim of (an intermediary) as to khas possession over the lands referred to in Sub-section (1)ct as to the extent of such lands is disputed by any person prior to the determination of rent of such lands under the said Sub-section the Collector shall, on application, make such inquiry into the matter as he deems fit and pass such order as may appear to be just and proper;
Provided that the Collector in making such inquiry shall rive due weight to the circumstances under which the area in which such lands were situated to be a disturbed area under the Police Act, 1861 (8 of 1861), after the first day of November, 1946.
10. I have quoted the aforementioned two Sections 5 and 6 of the Act in extenso for the reason, inter alia, that if the case of the petitioner is accepted, the land which was leased by the Commissioner, Baghalpur Division as a estate or court of wards in favour of Yogendra Nath Base, from whom petitioner's family obtained it by sale was a homested covered by Section 5 of the Act, leased to a tenant and was so on the date of vesting. If the case of the respondents is accepted, in which they have alleged that it was agricultural land which was settled by the Commissioner Bhagalpur Division in favour of Yogendra Nath Base whose interest was transferred to the petitioner's family, it was land covered by Section 6 of the Act.
11. Section 5 of the Land Reforms Act has not qualified "homestead" either by khas possession or actual possession. An intermediary's constructive possession has also been recognised for the purposes of excluding a 'homestead' upon which a tenant lived or which a tenant occupied. I had then occassion to deal with a case of a Kothi belonging to Darbhanga Raj and after considering the various provisions of the Land Reforms Act stated the law on the subject in the State of Bihar v. Pandit Shree Lakshmi Kant Jha 1986 PLJR 881:
One cannot fail to notice that according to Section 2(j), homestead means building as well as the site or land on which it stood at any time before the date of vesting. Section 5 of the Act has not qualified homestead either by Khas possession or actual possession. It only says "being in possession of an intermediary on the date of vesting.
12. The above view taken by me is supported by a judgment of the Supreme Court in Brij Kishore Prasad and Ors. v. Jaleshwar Prasad Singh and Ors. in which it has been held that an intermediary who permits a tenant to be in physical possession of homestead property under a Hukumnama is in constructive possession of such property. In Smt. Sabitri Devi Thirani v. Satya Naraln Mandal the Supreme Court has said:
Under Section 5 it is only the "homestead" which is in the possession of an intermediary on the date of vesting of which the intermediary is entitled to retain in possession. Although the respondent did not have any legal title and has been found to be a trespasser but the entire estate of the appellant including the disputed land had vested in the State under the Act and therefore the suit for possession was not maintainable unless the appellant could take advantage of Section 5 read with Section 2(j) of the Act.
while deciding this case the Supreme Court was considering a point raised on behalf of the respondent that the interest of the appellant in the suit land was that of an intermediary and it had vested in the State under the Act. It was proved in the said case that the defendant-appellant dispossessed the plaintiff with the year 1953 and built a house upon it. The land was put by the defendant in use as a building but it could not be proved that it was a dwelling house used by a proprietor or tenure holder either for the purposes of his own residence or for purposes of letting out on rent to tenants within the meaning of definition clause. In Shankar Prasad Singh and Ors. v. Ganga Prasad and Ors. 1984 PLJR 391 I had yet another opportunity to consider as to whether a homestead land belonging to the intermediary let out on rent to a tenant and in his possession on the date of vesting would be saved or not. In the said case I have said, if a tenant is in possession, that is to say if a homestead belonging to the intermediary is let out on rent to a tenant, there shall be an obligation upon the intermediary to pay fair and equitable ground rent as determined by the Collector in the prescribed manner. It follows from the scheme of the law that a settlement of permanent nature is not protected from vesting. It is only a house given on rent in which the constructive possession of the intermediary can still be taken to be la existence which can be said to have been protected from vesting, in Brij Kishore Prasad case Supreme Court took the view that the plea that the tenant land which had been settled under a hukumnama with the tenant which land was homestead had vested in the State was untenable in view of the definition of a homestead and the express language of Section 5 of the Bihar Land Reforms Act. That being the position in law, whether a building with its out-building and homestead covered by garden, orchard, well, etc. which had been settled by the Commissioner, Bhagalpur Division on behalf of the Court of wards for Rohini Estate will be squad or not is a very relevant question to be decided. Before any view is taken as to whether the intermediary would be deemed to be in possession constructively through the tenant (lessee) or not a decision must be taken both on facts and law as to the nature of tenancy and possession thereof.
14. The petitioners' case, however, can not be disposed of only on recording a finding that it was not a homestead at the time of the execution of the lease and transfer of the property by the Commissioner, Bhagalpur Division to the lessee Yogendra Nath Boss and further that as a transferee from the lessee petitioner's family acquired only such rights which the lessee had ; since it was not a homestead it did not vested in the State. Section 6 aforementioned has clearly and categorically said that the proprietors' private land let out under a lease for a term of years or under a lease from year to year, referred to in Section 116 of the Bihar Tenancy Act. or landlords' privileged lands let out under registered lease for a term exceeding one year or under a lease, written or oral, for a period of one year or less, referred to in Section 43 of the Chota Nagpur Tenancy Act, 1908 shall not vest, ft has extended further protection saying that the lands used for agricultural or horticultural purposes and held in the direct possession of a temporary lessee of an estate or tenure and cultivated by himself with his own stock or by his own servants or with hired labour or with hired stock shall not vest, meaning thereby that even if the land is not found to be a homestead it may not still vesting the State unless exceptions enumerated in Section 6 of the Act are also found non existent,
15. Indeed once again one has to take notice of the Jaw under which the interests which an ex-intermediary had vested in the State. The ex-intermediary had the ghatwali interest under which the Jesses Yogendra Nath Bose and through him the petitioner was a tenant. Vesting of the intermediary interests, thus, could not ipso-facto destroy the tenancy which existed in favour of the transferee (losses). Land Reforms Act is silent about the consequences of a piece of land being in possession of a tenant as a lessee for a fixed period of time.
16. Learned counsel for the petitioner has seriously contended before us that the lease for a period of SO years was in effect, a lease in perpetuity learned Addl. Advocate General has contended with equal vehement that on the expiry of the lease since intermediaries interest had vested in the State, the State became entitled to reclaim possession from the lessee, who on the expiry of the period of the lease was a trespasser.
17. I do not propose to finally decide the question as to whether the petitioner had a lease in perpetuity or not. Nontheless I feel it necessary to take notice of the provisions of the Transfer of Property Act under which a lease for a duration of period has been specifically dealt with. Section 105 of the Transfer of Property Act has defined a lease, it states:
A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service of any other thing of value to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
Section 116 states effect of holding over:
If Lessee or under Lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee of under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month according to the purpose for which the property is leased, as specified in Section 106.
Section 106 of the Transfer of Property Act is a prescription with respect to duration of certain lease in accordance with practice and local user.
18. Nothing has been brought to our notice to show that there was any agreement that on the expiry of the lease, there shall be no claim for any renewal by the lessee or that lessor shall became entitled to assume possession of the property on the expiry of the period of lease.
19. In fact the whole approach has been so confused and misleading at the level of the respondents that even such contentions which we have entertained and are considering appear to be irrelevant. It is, however, possible on the facts of this case to suggest with some force on behalf of the petitioner that even assuming that the period of lease had expired, he at best was a lessee who was holding over after determination of the lease, he could be subjected to a proceeding for ejectment, where he could raise his plea as to tile and possession. It is on the record that the State of Bihar recognised the petitioner as a tenant. It received ground rent from him and granted receipts. It had opened jamabandi in the name of the petitioner. It is, thus, a case in which t here can be sufficient force, if facts are proved, in the claim of the petitioner that he has been a lessee under the State of Bihar.
20. I have already noticed the facts of the case. The petitioner was called upon by respondent No. 2 to deliver the ho use on rent under the Bihar Building (Lease Rent and Eviction) Control Act. At that time the respondent had not visualised that they would claim the building in question as a property of the State. The Control Act has envisaged a Government servant as a tenant and also recognised the right of the District Magistrate in the matters limited to the provisions under Section 11(2) of the Act which Section 11(2)(a):
Where a servant of the Government in possession of any building as a tenant intends to vacate such building he shall give fifteen day's previous notice in writing of his intention to do so to the landlord and to the District Magistrate who shall under intimation to the landlord, within a week of the receipt of the notice, either allot She building to any other servant of the Government whom the District Magistrate thinks suitable subject to the payment of rent and the observance of the conditions of tenancy by such servant of the Government or direct that the landlord aha)! be put in possession of the building:
Provided that when no such order is passed by the District Magistrate, the landlord shall be deemed to have been put in possession of the building:
(b) Where a building is vacated by a servant of the Government any person occupying such building other than the persons referred to in Clause (a) shall be liable to be evicted by the District Magistrate in such manner as may be prescribed:
Provided that after a landlord has been or is deemed to have been put in possession of such building, he may let it to any person.
21. This has no where allowed any role of the District Magistrate or any other officers of the State requisitioning a house belonging to any person or to command such person to deliver the house for occupation by the State or any servant of the State, starting point is the data on which the Government servant in possession of any building intends to vacate such building. Unless such intention of the Government servant is delivered in writing to the District Magistrate, he gets no jurisdiction in the matter. This, however, may not mean that the State as a parson or any agent or servant of the State can not negotiate with the owner of a building and asked for a lease, The owner shall, however, have his own option. There can be no compulsion to execute a leass. It appears that when the petitioner appeared and objected to the respondent' demand to deliver the house to them on rant, they found out the story of vesting of the Rohini Estate, the determination of the lease by afflux of time and vesting of the land and the building in the State of Bihar. The petitioner was never given and notice or opportunity of being heard on this question. Moreover the respondent could not proceed with such presumption, unless jamabandi of the petitioner was cancelled. This court has, in a series of judgment quite a few of which have been noticed by me in one of my judgments, with which Uday Sinha, J. concurred, in the case of Khiru Gope and Ors. v. Land Reforms Deputy Collector 1983 BLJR (HC) 384 considered two types of cases of jamabandi. In one case it could not be established that there was any relationship of the landlord and the tenant between the State and the petitioner. In other case it was established that the relationship existed. In the case in which such relationship was not established this Court said:
This cleasly goes to show that the land claimed by the petitioner No. 3 had vested in the State of Bihar, and he could legally come in possession only upon a valid settlement by the State in his favour. There being no such settlement brought to our notice and the specific assertion on behalf of the respondents being that Petitioner No. 3 had somehow managed to occupy the said 2 acres of land and constructed upon about 10 decimals of the same some sort of a residential establishment and also succeed in getting some short of order of fixation of rent in his favour I am not inclined to accept the contention urged on behalf of the petitioner that the Petitioner No. 3 has got any claim of a valid order of settlement, opening of Jamabandi and/or fixation of rent in his favour, which shall create the occupancy right. It is also not possible to hold that in the case of Petitioner No. 3 the impugned order is an order is an order of either review and/or an order in a collateral proceeding undoing something validly done in his favour.
22. In other case in which the execution of the lease was established this Court said:
The question that arises in such a situation is as to whether there is any jurisdiction or power in the Land Reform Deputy Collector go behind the settlement by the ex-intermediary in favour of petitioner Nos. 1 and 2 or not. The other allied question which require consideration is as to whether a mere routine act of the Karamchari or the Anchal Adhikari of making entries in Register II and opening the Jamabandi and accepting rent without prejudice, will work as conclusive act of the Respondent-State and rob the Land Reforms Deputy Collector of jurisdiction to go behind such action.
A question similar to the one posed above has fallen for decision by this Court in the case of Harihar Singh v. The Additional Collector and Ors. (1) A Bench of this Court notice the contents of Letter No. 5-LR/RC-1073/693-LR, dated the 8th October, 1969, from the Secretary to the Government of Bihar in the Department of Revenue to all the Collectors, and another letter dated the 25th April, 1959, bearing No. 3354/IR FB-744/1959, to all the Divisional Commissioners, and held that till 1969, and Jamabandis, on the basis of Sada Hukumnamas and rent-receipts granted by the ex-intermediaries, were not only being opened by the approval of the Anchal Adhikari, but were being opened by the Karamcharis themselves, and, as such, it was within the competence of the Anchal Adhikari to open new Jamabandis in favour of the petitioners. Further it was noticed that the Additional Collector who had cancelled the Jamabandi, had issued a notice merely directing to produce rent receipts and other papers issued by the ex-intermediaries, and held that by issuing such a notice the learned Additional Collector was not entitled, after hearing the petitioners, to cancel the Jamabandi created in their favour. The said case also related to a claim of possession by virtue of a Sada Hukumnama in respect of Gairmazarua Malik; land. Harihar Singh's case is a direct authority for the proposition that there is no authority given to the Collector under the Bihar Land Reforms Act to cancel a Jamabandi made in favour of a settlee from the ex-intermediary, as also for the proposition that the Anchal Adhikiari and the Karamchari were competent to make necessary entries in the tenants' register and open Jamabaadi and fix rent in relation to such a settled land in favour of the settles.
The view taken in Harihar Singh's case has been reaffirmed by another Bench decision of this Court in the case of Jamaluddin Ahmad v. The Sub-divisional Officer, Khagaria (2) On the strength of these two Bench decisions of this Court, it is obvious that the Land Reforms Deputy Collector had no jurisdiction or power to cancel the Jamabandi and remove the names of petitioner Nos. I and 2 from the tenants register, the effect whereof in a way was to cancel the settlement by the ex-intermediary in favour of the petitioner Nos. 1 and 2.
23. The above statement of law by this Court is en j ugh to declare that the Additional Collector who finally disposed of the proceeding had no jurisdiction to cancel the Jamabandi could not be cancelled in the manner it was done by the Additional Collector. The order of the learned Additional Collector therefore, is bad in law and without jurisdiction for more than one reason namely ; (i) The petitioner was given no hearing whatsoever, no opportunity was afforded to him to bring on the record evidence to show that he had a valid and perpetual settlement of the land and the building in question from the ex-intermediary and that he had been validly recognised as a tenant by the State of Bihar.
(ii) The Additional Collector, Deoghar had no jurisdiction to cancel the Jamabandi.
(iii) The Additional Collector committed a serious perversion of the procedure of law by converting a proceeding for requisitioning the building in question on rent into a proceeding to determine whether the petitioner was a lessee/raiyat or not. In other words whether the petitioner was the owner of the building or not.
24. Learned Additional Advocate General has with his usual frankness acknowledged that there has been no adjudication by any competent authority of the issues aforementioned but has with his usual tenacity contended that this Court should abstain from issuing any writ in favour of the petitioner who has failed to establish any legal right to the property in question. He has relied on the principle that a person seeking certiorari and consequential mandamus must establish that he has got some legal interest which may go in jeopardize. Unless, such interest is established merely because it is shown that the impugned order without jurisdiction, this Court should not issue a writ of certiorari or mandamus. In other words, he has submitted that this Court shall avoid perpetuating illegality by quashing the legal and without jurisdiction order. The Principle of law as stated is solitary and unexceptionable. No one can dispute the wisdom behind the said principle. But can this case be said to be one in which the petitioner has not been able to establish even prima facie that he has got a legal right to re-claim possession when he has established that he has been dispossessed by the respondent under an illegal order.
25. Facts are tell-tale. They show without any ambuguity that the respondents themselves proceeded against the petitioner admitted in that he was the owner of the property. They changed their stand in course of the proceeding. They wanted the petitioner to deliver the property to the State on rent. They changed their stand in the course of the proceeding to hold that the property ha vested in the State of Bihar. To that conclusion they reached notwithstanding the fixation of rent and the Jamabandi standing in the name of the petitioner and notwithstanding the admitted execution of the lease by the Commissioner, Bhagalpur Division and subsequent transfer of the property by the lessee in favour of the petitioner's family. That they did without affording any opportunity to the petitioner to establish his claim, where as on the other hand the petitioner has clearly shown that he had a lease which respondents admitted, the lease expired no doubt but the State recognised the petitioner as the tenant, realised rent from him and allowed Jamabandi to stand in his name. The impugned order has stated at one place that the petitioner had manipulated in connivance with some persons is the revenue establishment of the district in obtaining the Jamabandi and rent fixation in his name (in the name of his grand-father). The above finding has been based on no material whatsoever.
26. Cases cited at the bar on behalf of the State, by the learned Additional Advocate General, which support his aforementioned contention, however, when applied to the facts of the case tell a different story. It is not necessary to refer to all the cases cited at the bar except one cited on behalf of the respondents and one on behalf of the petitioner. In the case of State of Orissa v. Ram Chandra Dev and Ors. the law has been stated in the following words:
It is difficult to see how the High Court was justified in issuing the writ in the present appeals the invilable consequence of which would be that the respondents would remain in possession of the property until the appellant files a suit against them; and that in our opinion, would not be justified unless questions of title are determined and it is held that the appellant must file a suit before the respondents can be dispossessed. It appears that in issuing the writ in favour of the respondents, the High Court failed to appreciate the legal effect of its conclusion that questions of title cannot be tried in writ proceeding. Once it is held that the question of title cannot be determined, it follows that no right can be postulated in favour of the respondents on the basis of which a writ can be issued in their favour under Article 226.
27. The Supreme Court has stated the law in a case in which a mining lease was in question. The lease was subject to a clause under which on the expiry of the lease the State was entitled to resume possession. Validity of such resumption of possession by the State was questioned by the lessee. The court took the view that before the lessee was evicted, it was necessary to determine the question of title. It was against such an interim relief that unless issue of title decided in a suit, the appellants were restrained from interfering with the possession of the respondent-lessee, the Supreme Court made the above observations. In the case of Commissioner of Commercial Taxes, Board of Revenue, Madras and Anr. v. Ramkishan Shrikishan Jhaver , the Constitution Bench of the Supreme Court, however, has stated the law in the following words:
We now proceed to consider what order should be passed in the appeals in the view we have taken about the interpretation and validity of Sub-sections (2) and (3) of Section 41 of the Act. We have already indicated that the High Court held that the warrant issued by the Magistrate for search of the residential accommodation was bad because it showed that the Magistrate had not applied his mind to the question of issuing it, inasmuch as there were portions which should have been struck out from the printed form and gaps which should have been filled in. But this was not done. That conclusion of the High Court has not been challenged before us. The High Court has further held that a proper and reasonable opportunity was not given to the parsons concerned to show that the goods seized were not properly accounted for in their account-books, though this finding is not material now for we have held that Sub-section (4) falls in its entirety. It follows therefore that anything recovered from the search of the residential accommodation on the basis of this defective warrant must be returned. It also follows that anything confiscated must also be returned, as we have held that Sub-section (4) must fall. As to the accounts etc. said to have been seized, it appears to us that the safeguards provided under Section 165 of the Code of Criminal Procedure do not appear to have been followed when the search was made for the simple reason that everybody thought that that provision was not applicable to a search under Sub-section (2). Therefore, as the safeguards provided in Section 165 of the Code of Criminal Procedure were not followed, anything recovered on a defective search of this kind must be returned. It follows therefore that the final order of the High Court allowing the writ petitions must stand, though we do not agree with the interpretation of the High Court with respect to Sub-section (2) and the finding of the High Court that Sub-sections (2) and (3) are unconstitutional on the ground of their being unreasonable restrictions on the right to hold properly and to carry on trade. The appeals therefore fail and are hereby dismissed.
28. What has appeared to be most disturbing in this case is the way in which the petitioner has been dispossessed. We have noticed the facts and the provisions of law. We have noticed the manner in which the respondents have acted. They took the law in their hands when acting upon a wholly without jurisdiction order, they dispossesed the petitioner. The order that I propose to make in this case shall be fully in tune with the order that was issued by the High Court in the case aforementioned and affirmed by the Supreme Court. As my conclusion I record that the order as contained in Annexure-5 is wholly without jurisdiction The petitioner has been dispossessed by the respondents illegally and denied right to hold aforementioned property until his right is determined in accordance with law.
29. In the result, this application is allowed. The impugned order as contained in Annexure-5 is qaushed. Let a writ in the nature of certiorari accordingly issue. Let a consequential writ in the nature of mandamus issue to deliver the possession of the house in question and all properties appertaining there to forthwith and compensate the petitioner for the loss sustained by him determined notionally at the rate of Rs. 1,000/per month from the date of dispossession of the petitioner until his possession in restored. If, however, the petitioner has not delivered possession of the properties in question within a period of two months from the date of the receipt of the orders the petitioner shall be entitled to a compensation each day at the rate of Rs. 1,000/-calculated from the date of dispossession until the delivery of possession to the petitioner. The petitioner shall be entitled to execute the mandamus as a decree. This application n allowed with costs and hearing fee Rs. 1,300/-consolidated.