Patna High Court
Smt. Ram Kumari Devi And Ors. vs State Of Bihar And Ors. on 10 May, 1956
Equivalent citations: AIR 1957 PATNA 94
JUDGMENT Choudhary, J.
1. This is an application, under Article 226 of the constitution of India.
2. One Babu Ajodhya Prasad Singh of village.
Nava Kothi, P. S. Bakhari, district Monghyr, was possessed of a large property consisting of about 4000 acres of agricultural lands in his possession and an income of about Rs. 9000/- per year as cash rental receivable from tenants. The average yearly income from the agricultural lands was nearly Rs. 150,000/-. These lands lie in several villages one of which is village Kusmaut. In this village he had about 2,500 bighas of cultivable lands yielding an approximate income of Rs. 1,00,000/-. The tenants who pay cash rental live in different villages lying under different police stations. In village Kusmaut, accoding to the petitioners, there is only one tenant who pays about Rs. 5/- as rent per year, while, according to the opposite party, there are two tenants who pay Rs. 29/7/- as rent per year.
In this village there is a fairly big pucca build-Ing which is recorded in the survey record-of-rights as being a pucca building o£ the said Babu Ajodhya Prasad Singh. In April, 1945, he created a trust of his entire properties and the petitioners are the trustees thereof. The estate held by these petitioners as trustees vested in the State of Bihar under the provisions of the Bihar Land Reforms Act in pursuance of a notification dated 22-5-1953. On 28-9-1954, a notice was issued by the Collector of Monghyr to the petitioners for making over vacant possession of this building to the Anchal-Adhikari of Begusarai by 15-10-1954, as, according to him, it was a kutchery building.
On 13-10-1954, an application was filed on behalf of the trustees before the Collector stating that the building in question was not a kutchery and, as such, they should not be asked to make over possession of the same to the Anchal Adhikari. This application was disposed of by the Additional District Magistrate in the capacity of a Revenue Collector who passed an order on 15-10-1954 direct-Ing the Sub-divisional Officer of Begusarai to make an enquiry into the matter. On 28-10-1954, the Circle inspector asked the petitioner No. 7 to give vacant possession of the said building and on the next day an application was made on behalf of the trustees before the Anchal Adhikari requesting him not to interfere with their possession over the building till the final disposal of the matter pending before the Revenue Collector.
Again on 30-10-1954, the same Circle Inspector asked him to make over possession of the building In question and he further stated that orders in writing were received in his office for taking possession of the building by force. Thereafter the present application was made in this Court on 1-11-1954, and the members of the opposite party were restrained from taking possession of the building till the hearing of this application.
3. It appears that some time after the present application was filed in this Court, Mr. R. Prasad, the Additional Sub-divisional Officer, submitted his report with regard to the enquiry which was di-
rected to be made by the Revenue Collector. , According to the petitioners, they had no knowledge whatsoever of any enquiry having been made by the Additional Sub-divisional Officer or about the report that he submitted. On 12-5-1955, a show cause petition was filed on behalf of the State of Bihar, but nothing about the enquiry and the report was stated though the petitioners in their writ application had clearly stated that to their knowledge the enquiry had been made.
The case was listed for hearing and it was actually heard on 6-3-1956 and 8-3-1956. On second day of the hearing the learned Government Pleader appearing for the opposite party brought to our notice that the Additional sub-divisional officer had made the enquiry and submitted his report and a copy of the said report was produced before us. At our direction a copy of that report was given to the learned counsel for the petitioners. He thereafter prayed for an adjournment of the case Eor filing a supplementary affidavit specially in view : of the report submitted by the Additional Sub-divisional Officer.
The case was accordingly adjourned. On 17-3-1956, a supplementary affidavit described as reply to counter-affidavit was filed on behalf of the petitioners and on 4-4-1956, a reply to that affidavit described as affidavit on behalf Of the opposite party was filed on behalf of the State. The case was then placed for further hearing on 5-4-1956.
4. In the supplementary affidavit filed on 17-3-1956, it was stated on behalf of the petitioners that the enquiry, if any, made by the Additional Sub-divisional Officer, was made without giving any information to them and this statement has not been controverted in the affidavit given in reply on behalf of the State on 4-4-1956. It is manifest, therefore, that the enquiry was made behind the, back of the petitioners without giving any notice to them and there has thus been a violation of natural justice.
5. The learned counsel for the petitioners has argued that, in view of the facts of this case as well as the materials available on the record, the Collector had jurisdiction to demand a vacant possession of the building in question and the notice demanding such possession should be quashed as being altogether without jurisdiction. Before dealing with this argument, I would like to dispose of another matter which has arisen in this case.
6. One of the questions involved in this case is whether the building sought to be taken by the State has seven rooms and a courtyard as alleged by the petitioners, or, only three rooms without any courtyard as alleged by the opposite party. According to the allegation made in the applies tion for writ, the building in question was seven bed rooms, a zenana courtyard, a bath room and a kitchen besides several out-houses. According to the report of the Additional Sub-divisional Officer (Mr. K. Prasad) there are only three rooms in this building and there is no inner apartment.
In the show cause petition on behalf of the State it has been stated on affidavit sworn by one Harihar Prasad Singh, a servant of the State, that the building in question consists of three rooms, one latrine, a shed for kitchen and other shed for keeping ponies. The existence of the Zenana apartment averred in the writ application has not been controverted in this show cause petition. The petitioners along with their supplementary affidavit filed on 17-3-1956, attached as Annexure A, a map of the building in question, prepared by a survey -passed pleader of Begusarai.
This map shows that the building in question has seven rooms including a hall with a courtyard and verandahs on both the sides. In the affidavit that was filed on behalf of the State on 4-4-1956, therefore, it has been admitted that the building in question has six rooms besides a hall. It is thus manifest that the affidavit sworn by Harihar Prasad Singh on 12-5-1955, stating that the building in question consisted of three rooms is palpably false. In the affidavit he has said that the statements made therein were true to his knowledge.
Therefore, it must be presumed that he made the above false statement knowing it to be false. It is unfortunate and regrettable that State Officials should behave like private litigants and come with all sorts of baseless and false allegations in support of its claim. In all fairness it is desirable that stern attitude should be taken against those officials and they must be discouraged from making any attempt to grasp the property of its subjects under the coyer of an enactment by placing before the authority or the Court something which is absolutely baseless and false.
In this connection I must also observe that there could be no Justification for Mr. R. Prasad, the Additional Sub-divisional Officer, to submit a report stating that the building in question has three rooms. This statement is clearly wrong as admittedly it consists of seven rooms. The learned Additional Sub-divisional Officer does not say as to how he made the enquiry. It is not clear from his report whether he made any local inspection. Therefore, the wrong report that he submitted may be either due to the fact that he did not go to the spot and made a report without making proper enquiry, or due to the fact that he purposely submitted a wrong report. In either case his con'duct is condemnable.
7. Now I proceed to deal with the merit of the case. The Collector has directed the petitioners to give vacant possession of the building, in question to the Anchal Adblkari, Begusarai, in exercise of the powers conferred upon him under Section 4(g) of the Bihar Land Reforms Act. According to him the said building has always been used as a Tahsil Kutchery of the estate and, as such, it vested in the State of Bihar as a result of the petitioners' estate having vested in it under that Act, According to Section 4 (a) of the said Act, the interest of the petitioners in any building or part of a building comprised in their estate and used primarily as office or Kutchery for the collection of rent of such estate vested in the State. On behalf of the petitioners it has been urged that the said building was never used primarily as office or kutchery for collection of rent and, as such, it did not vest in the State.
The question that falls to be decided, therefore, is whether, on the materials on the record of this case, the building in question can be held to have been used primarily as office or kutchery for collection of rent so as to vest in the State. The learned Government pleader, however, contends that the above question is a pure question of fact, and this Court should not go into it in a writ application. Under the Land Reforms Act the Collector gets Jurisdiction to take possession of a building on existence of the fact that it was primarily used for collection of rent. If it is not used primarily for the purpose, he does not get Jurisdiction to take possession of it even though rent may have been casually collected therein.
It has been held by a Bench of this Court in Chandreshwari Prasad Narain Deo v. state of Bihar, 1956 BLJR 24 : (AIR 1956 Pat 104) (A) that the determination of such question is not an issue of pure fact taut an issue of jurisdictional fact and that where the jurisdiction of an administrative authority depends upon a preliminary finding of fact the High Court is entitled in a proceeding for taking possession of the building In question under Section 4(g) of the Act.
8. Under the terms of Section 4(a) of the said Act a building or a part of it vests in the State only if it is primarily used for collection of rent. The use of the word 'primarily' by the legislature is very significant and makes it perfectly intelligible that though rents may have been collected by a proprietor in a building or a part of it casually, it cannot vest in the State as "being a kutchery unless it is established that it was primarily used for the purpose of collection of rent. It has, therefore, to be seen whether a case has been made out by the state on the materials on the record that the building in question was primarily used for collection of rent.
9. According to the affidavit of the petitioners, the amount of rent which is payable by the tenant of village Kusmaut is only about Rs. 5 per yet and the real income derived by the petitioners, from this village is from the agricultural produce from lands under their khas cultivation, the approximate yearly value of which comes to about a lac of rupees. The statement of the petitioners that they are possessed of about 2500 bighas of agricultural land in this village which yield an income of about a lac of rupees per year has not been controverted on behalf of the State.
It has, however, been stated in the show cause petition filed on its behalf with affidavit sworn by the said Harihar Prasad Singh that the Jamabandi of this village was about Rs. 4293 and that the rent payable in respect of other villages also was paid and realised in this village. From the report made by the Additional Sub-divisional Officer it appears that though there were only two tenants in this village who were paying Rs. 29/7/- as rent annually, the rent of several other villages named therein having a total collection of Rs. 2600 per year used to be collected in this village.
It is contended, therefore, that the building In question was used by the proprietor for collection of the above rent and, as such, it vested in the State. Accepting for a moment that the total income of the petitioners from the cash rental amounted to about Rs. 4000/- as stated in the affidavit filed on behalf of the State, it is absolutely significant in comparison with the annual Income that they get from agricultural produce which, according to their uncontroverted statement, comes to about a lac of rupees per year. That being so, the proprietor must be expected to have required the building more for the purpose of deriving agricultural income than for the purpose of collecting rent and if the building is mainly used for deriving such agricultural income, it cannot be said to be a building primarily used for collection of rent even though the rent may have been realised in that building.
10. Prom the statements made in the writ application as well as the map and the supplementary affidavits filed on behalf of the petitioners it appears that the building in question is facing east and contains seven rooms including one hall two verandahs on the eastern and the western sides of the said hall, one court-yard to the west of the western verandah and one kitchen with another verandah attached to it towards the west of that courtyard. At a very short distance from the kitchen towards the south there is a latrine and to the north there is a room for ponies and a granary for seeds.
To the further south of the latrine there are three rooms for tractors and towards the south-east of the building in question there are various rooms with verandahs for the purpose of granary and for keeping bhusa. To the north-east of the building there are servant quarters with verandahs and separate kitchen. The main building is admittedly a pucca house. Such a huge building with so many rooms could not, by any stretch of imagination, be said to have been made for accommodating the officers in charge of the collection of cash rental. amounting only to about Rs. 4000. The size of and the accommodation in the building in question manifestly show that it must have been made by the proprietor for, at least his temporary residential purpose as well as for the purpose of deriving the main source of his income from agricultural produce.
Undisputedly the village Kusmaut, in which the building in question lies, comprises of low lying lands and remains under deep water for about four months of the rainy season and is not approachable from any side. The proprietor, therefore must have felt the necessity of building a house which could be fit for his residential purposes to live in this village at least during the rainy season for the purpose of looking after his cultivation work. On these materials, therefore, on cannot but come to the conclusion that the building in question could not be said to have been primarily Used for collection of rent.
11. It appears that the State Officials were conscious of the difficulty that they may have in characterising such a huge building, as being one primarily used for collection of rent. It is, therefore, that an attempt was made to minimize its hugeness firstly through the enquiry report submitted by the learned Additional Sub-divisional Officer and then by the false affidavit sworn by Harihar Prasad Singh, as already observed.
12. In the supplementary affidavit dated 3-10-1955, which was filed on behalf of the petitioners it was clearly stated that collection used to be made by the patwari by actually approaching the tenants at their residential houses in the various villages and some of them used to pay the same at village phabauli which was more convenient for the tenants to reach and a Dera lying in that village situated by the side of the Tirhut Road was used for collection of rent. This statement was not controverted in the affidavit that was subsequently filed oh behalf of the State.
13. From the facts and circumstances discussed above, it is manifest that the building in question was not primarily used for collection of rent within the meaning of Section 4 (a) of the Land Reforms Act and as such, it did not vest in the State and the Collector acted without jurisdiction in directing the petitioners to give vacant possession of that building to the Anchal Adhikari, Begusarai. In that view of the matter, I am satisfied that the petitioners have made out a case for issue of a writ of certiorari quashing the notice issued as stated above.
14. It was also argued on behalf of the petitioners that the Act does not authorise the Collector to decide one way or the other if there is controversy between him and the proprietor about the building having been primarily used for collection of rent. That question, however, does not arise in the present case because the Collector has given no decision on this point and the notice directing the petitioners to give vacant possession was issued without determining any such question.
15. In the result, a writ of certiorari is issued against the opposite party quashing the notice dated 28-9-1954, issued by the Collector directing the, petitioners under Section 4(g) of the Land Reforms Act to give vacant possession of the building in question to the Anchal Adhikari, Begusarai. The petitioners are entitled to their costs. Hearing fee is assessed at Rs. 150/-.
16. Let a copy of this judgment be sent to the State Government.
Banerji, J.
17. I agree.