Patna High Court - Orders
Kumar Nawlesh @ Kumar Nawlesh Roy vs The State Of Bihar on 28 February, 2024
Author: Rajiv Roy
Bench: Rajiv Roy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.3336 of 2024
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1. Kumar Nawlesh @ Kumar Nawlesh Roy Son of Late Ganga Prasad Yadav
Resident of Village-Durdih, Post Office-Parsama, Circle and Police Station-
Ramgarh Chowk, District-Lakhisarai.
2. Rajeev Ranjan Son fo Late Ganga Prasad Yadav Resident of Village-Durdih,
Post Office-Parsama, Circle and Police Station-Ramgarh Chowk, District-
Lakhisarai.
3. Kumar Pankaj Son of Late Ganga Prasad Yadav Resident of Village-Durdih,
Post Office-Parsama, Circle and Police Station-Ramgarh Chowk, District-
Lakhisarai.
4. Rajan Ranjan Son of Late Ganga Prasad Yadav Resident of Village-Durdih,
Post Office-Parsama, Circle and Police Station-Ramgarh Chowk, District-
Lakhisarai.
... ... Petitioner/s
Versus
1. The State of Bihar through the Collector, Lakhisarai.
2. The Additional Collector, Lakhisarai.
3. The Anchal Adhikari, Ramgarh Chowk, Lakhisarai.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Jitendra Kishore Verma, Advocate
Mr. Prashant Kumar, Advocate
For the Respondent/s : Mr. Government Advocate-(5)
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CORAM: HONOURABLE MR. JUSTICE RAJIV ROY
ORAL ORDER
2 28-02-2024Heard Mr. Jitendra Kishore Verma, learned counsel appearing for the petitioners as also Mr. Ajay, learned GA-5.
2. The present writ application has been preferred for the following relief:
"(i) For issuance of an appropriate writ(s) in the nature of Certiorari to quash the initiation of Jamabandi cancellation proceeding which has been registered as Jamabandi Cancellation Case No. Patna High Court CWJC No.3336 of 2024(2) dt.28-02-2024 2/9 140/2023-24 without assigning any reason in the notice dated 12.01.2024 and further to quash the notice dated 12.01.2024 issued to the petitioners by the Respondent No. 2 i.e. Additional Collector, Lakhisarai, as the notice itself is bad and beyond the jurisdiction since the notice does not disclose the reason which is mandatory requirement as contemplated under Section 9 of the Bihar Land Mutation Act, 2011 (hereinafter referred to as the Act').
(ii) For a direction to stay the further proceeding of Jamabandi Cancellation Case No. 140/2023-24 pending before Respondent No. 2 i.e. Additional Collector, Lakhisarai, else it will cause serious prejudice to the petitioners.
(iii) For grant of any other relief/reliefs to which the petitioners are found entitled or to pass any other order(s) / direction(s) which your Lordships may deem fit and proper in the facts and circumstances of the case."
3. Learned counsel appearing on behalf of the petitioners submits that a bare perusal of the notice dated 12.01.2024, issued by the Additional Collector, Lakhisarai would show that no details of the land is/are mentioned in it and Patna High Court CWJC No.3336 of 2024(2) dt.28-02-2024 3/9 only it has been informed that Jamabandi Cancellation Case No. 140 of 2023-24 has been instituted.
4. Mr. Verma, learned counsel for the petitioners has taken this Court to Rule 13 of the Bihar Land Mutation Rules, 2012 (modified rules 2017) which read as follows:
"13(1) Any person having interest in a land or a part thereof may file a petition for the cancellation of jamabandi before the Additional Collector of the district in whose jurisdiction the land or a part thereof is situated, in Form-XV.
(2) Authorized representative of any Department of the Government having its interest in a land or a part thereof may, for the cancellation of a jamabandi, make a reference to the Additional Collector under whose jurisdiction the land or a part thereof is situated.
(3) The Additional Collector on receipt of a petition in Form-XV for the cancellation of jamabandi or on reference from an authorised representative of the Government Department having an interest in the land or a part thereof or suo motu, if he is satisfied that there is sufficient evidence that the jamabandi has been created in violation of any law or in contravention of an executive instruction, Patna High Court CWJC No.3336 of 2024(2) dt.28-02-2024 4/9 shall initiate proceeding for the cancellation of the jamabandi by issuing general notice in Form-XVI inviting objections from the public of the locality and specific notices in Form-XVII to persons having interest in the land and the part thereof including inter alia the persons having jamabandi of the land in question."
5. He submits that it describes about Form 17, which is mandatory requirement for the issuance of notice which is missing in the present notice.
6. Learned G.A.-5, Mr. Ajay acknowledges that the notice is bereft of the details of the land and as such, is an incomplete notice (Annexure-P/1).
7. Learned counsel for the petitioner has taken this Court to an order of the coordinate Bench in CWJC No. 19368 of 2021 (Rina Devi vs The State of Bihar and others) decided on 11.01.2024 (Annexure-P/3 to the writ petition), in which, in similar situated matter, the coordinate Bench interfered and this Court would like to incorporate paragraph 7 onwards of the said order, which read as follows:
"7. Heard learned counsel for the parties and perused the materials available on record. I have also carefully examined Patna High Court CWJC No.3336 of 2024(2) dt.28-02-2024 5/9 the impugned notice dated 13.07.2021 (Annexure 1 to the writ petition), issued by the Additional Collector. In the said notice, he has simply indicated the date, which has been fixed for hearing in this regard. On the said date, petitioner has been directed to appear alongwith necessary documents.
8. Section 9 of the Act, 2011 contemplates that the Additional Collector, either suo motu or on an application, shall have the power to make inquiries in respect of any jamabandi, which has been created in violation of any law for the time being in force or in contravention of any executive instruction issued in this behalf. It would be better to quote Section 9(1) of the Bihar Land Mutation Act, 2011, which is as follows:-
"9. Cancellation of jamabandi (1) The Additional Collector, either suo motu or on an application, shall have the power to make inquiries in respect of any jamabandi, which has been created in violation of any law for the time being in force or in contravention of any executive instruction issued in this behalf. The Additional Collector, in whose jurisdiction the land is situated, may, after giving reasonable opportunity to the parties concerned to appear, adduce evidence and be heard, Patna High Court CWJC No.3336 of 2024(2) dt.28-02-2024 6/9 cancel such jamabandi, dispossess the person claiming under it and deliver the possession to the legitimate owner/custodian, on such terms as may appear to the Additional Collector to be fair and equitable."
9. In the show-cause notice, which is under-challenge, no ground has been assigned. The notice dated 13.07.2021 is quoted here-in-below:-
"जापांक 408/m. 13/7/21 नयायालय अपर समाहरार, पटना जमाबं दी रद वाद सं खया :-
25/2021-22 रं जना दे वी बनाम सु रेनद्र प्रसाद ससनहा एवं अनय नोसटस बनाम
5. रीना दे वी, पसर - सु धीर प्र साद बजसरये नोसटस सूसचर सकया जारा है सक उकर वाद मे सु नवाई की सरसथ 02.09.2021/2/9/21 सनधारसरर की गई है ।
अरः उकर वाद मे सनधारसरर सरसथ को अदोहसराकरी के नयायालय मे उपससथर हो कर पै रवी करे , अनयथा एक पकीय सु नवाई कर आदे श पासरर कर सदया जाएगा।
इसे रासकद जाने ।
अपर समाहरार, पटना"
10. From bare perusal of impugned notice, it is apparent that no ground has been mentioned as to why jamabandi cancellation proceeding has been initiated against the petitioner. It is settled law that the existence of an alternative remedy is not Patna High Court CWJC No.3336 of 2024(2) dt.28-02-2024 7/9 a bar for this Court to entertain a writ application. If an order is absolutely beyond jurisdiction, this Court must interfere with at the stage of issuance of notice itself, else it will cause serious prejudice. In this regard, reference can be made to a Supreme Court decision, reported in (1998) 8 S.C.C. 1 (Whirlpool Corporation vs. Registrar of Trade Marks Mumbai and Others).
11. In the opinion of this Court, a notice under Section 9 of the Act, 2011 for cancellation of jamabandi must disclose specific prima facie opinion of the Additional Collector that the jamabandi created in favour of a person is in violation of any law or is in contravention of any executive instruction. The notice apparently does not indicate as to which law has been violated and which instruction has been contravened while creating jamabandi in favour of the petitioner. The notice is completely vague, cryptic and does not disclose the ground, on which proceeding for cancellation of jamabandi has been initiated against the petitioner. It cannot be said to have issued in conformity with the provision contained in Section 9(1) of the Bihar Land Mutation Act, 2011 and as such, the same deserves to be set aside and is, accordingly, set aside.
Patna High Court CWJC No.3336 of 2024(2) dt.28-02-2024 8/9
12. In the facts and circumstances of the case, the Additional Collector, Patna is directed to issue a fresh show cause notice to the petitioner, disclosing the materials, which are the basis for him to form an opinion that jamabandi created in the name of the petitioner deserves to be cancelled. Such a notice must be issued within two months from today. The Additional Collector, Patna shall proceed in the matter in accordance with law.
13. The writ petition is allowed with the aforesaid observation and direction."
8. In view of the said cryptic notice issued by the Additional Collector, Lakhisarai which is bereft of the details of the land, a fact even acknowledged by the State counsel, this Court also follows the same route as decided in the case of Reena Devi (supra).
9. The notice issued in Jamabandi Cancellation No. 140/2023-24, issued by the Additional Collector, Lakhisarai, dated 12.01.2024 (Annexure-P/1 to the writ petition) stands quashed.
10. The Additional Collector is free to issue fresh notice incorporating all the details of the land that it wants Patna High Court CWJC No.3336 of 2024(2) dt.28-02-2024 9/9 from the petitioners.
11. The writ petition stands disposed of with aforesaid observation.
(Rajiv Roy, J) Adnan/-
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