Patna High Court - Orders
Mahmad Mahmud Sah vs The State Of Bihar & Ors on 27 September, 2012
Bench: Chief Justice, Ahsanuddin Amanullah
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.425 of 2011
In
Civil Writ Jurisdiction Case No. 1841 of 2011
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Mahmad Mahmud Sah, son of Shah Abib @ Md. Habib Sah, resident of
village -Milki, P.O. and P.S.Bihpur in the district of Bhagalpur.
.... .... Petitioner/Appellant
Versus
1. The State Of Bihar
2. Commissioner, Bhagalpur Division, Bhagalpur.
3. District Magistrate, Bhagalpur.
4. D.C.L.R. Naugachia (Bhagalpur).
5. Circle Officer, Bihpur Block in the district of Bhagalpur.
6. Sah Habib @ Md. Habib Sah son of late Sah Mungari
7. Md. Ahmad Sah
8. Md. Tahmad Sah
Both sons of Sah Habib @ Md. Habib Sah
All resident of village -Milki, P.O. & P.S.Bihpur, District-Bhagalpur.
.... .... Respondents
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Appearance :
For the Appellant : Mr. Abdul Mannan Khan,
Mr. Anamul Haque
Mr. Binay Kumar, Advocates.
For the Respondent Nos. 6-8: Ms. Fauzia Shakil
Mr. Ram Sumiran Rai, Advocates.
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH
ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
6 27-09-2012Feeling aggrieved by the order dated 2nd February 2011 made by the learned single Judge in CWJC No. 1841 of 2011, the writ petitioner has preferred this Appeal under Clause 10 of the Letters Patent.
The matter at dispute is the revenue entry made in favour of the appellant in respect of the land Khata No. 380 Khesra No. 3857 admeasuring 10 decimal situated at village- Bihpur, District-Bhagalpur.
It appears that pursuant to the mutation application 2 Patna High Court LPA No.425 of 2011 (6) dt.27-09-2012 2/4 made by the appellant, the Circle Officer, under his order dated 18th February 2006 made in Mutation Case No. 252 of 2005-06, directed that the said land be mutated in the name of the appellant. The said order was passed on a photocopy of the Hibbanama (deed of gift) executed by the grand-mother of the appellant on 12th March 1975.
Pursuant to the said order, a revenue entry was made in favour of the appellant. The respondent nos. 6, 7 & 8, the father and the brothers of the appellant, challenged the said revenue entry before the Deputy Collector Land Reforms in Case No. 5/2008-09. The said appeal was allowed. The revenue entry made in favour of the appellant was ordered to be set aside. The said order was confirmed by the Divisional Commissioner, Bhagalpur in Revision Application No. 4 of 2010-11 on 25th August 2010.
The challenge to the said order dated 25th August 2010 before this Court in CWJC No. 1841 of 2011 has failed. The learned single Judge has held that mutation was made on the basis of a sale document. The sale document was found to be fake and forged. Therefore, this Appeal.
Learned Advocate Mr. Abdul Mannan Khan has appeared for the appellant. He has submitted that the learned single Judge has committed error in believing that the mutation was made on the strength of a fake or forged sale document. He has submitted that the appellant did not claim the title to the land on the basis of a sale document but on the basis of Hibbanama (deed of gift). He has submitted that the grand-mother of the appellant had, as early as in 1975, made an oral gift of the said land to the appellant. Pursuant to the said gift, the land was mutated in the name of the appellant as recorded hereinabove. The 3 Patna High Court LPA No.425 of 2011 (6) dt.27-09-2012 3/4 father of the appellant too had consented to such mutation. He has submitted that in absence of any challenge to the mutation order, the challenge to the revenue entry (Jamabandi) was not sustainable. The Deputy Collector Land Reforms had no jurisdiction to entertain appeal against the revenue entry made in favour of the appellant. He has submitted that Section 15 of the Bihar Tenants' Holdings (Maintenance of Records) Act, 1973 (hereinafter referred to as 'the Act') provides that an appeal lies to the Collector against mutation order made by the Circle Officer, but the revenue entry is not liable to be challenged. The Deputy Collector Land Reforms had, thus, acted without jurisdiction in entertaining the appeal preferred by the respondents.
Section 14 of the Act provides for requisition and disposal of mutation case. Sub section (2) thereof provides for a notice to be given to the parties.
In the present case, it is apparent that the mutation order in favour of the appellant was made by the Circle Officer for asking. Although, the father of the appellant was the legitimate successor under the law of succession. In the mutation case no notice was given to him. The mutation order was thus made ex parte against the father of the appellant, the respondent no. 6. Besides, neither before the authorities below nor before us the appellant has produced the Hibbanama (deed of gift) on which he relies. The mutation order was made on the basis of a photocopy of the Hibbanama. In our opinion, no mutation order could have been made by the Circle Officer on such sketchy material that too nearly 30 years after the alleged oral gift. Evidently, at the relevant time the appellant was a toddler, around five years of age; he cannot have a personal knowledge of the said gift.
4 Patna High Court LPA No.425 of 2011 (6) dt.27-09-2012 4/4In our opinion it was not safe for the Circle Officer to rely upon a photocopy of a Hibbanama purportedly executed 30 years ago without issuing notice to the other claimants.
In our opinion, the mutation order made by the Circle Officer was not legal and sustainable; so is the consequent revenue entry (Jamabandi). The extra ordinary power of judicial review conferred by Article 226 of the Constitution may not be invoked which has the effect of upholding the order made in contravention of the statutory provisions and of principles of natural justice.
For the aforesaid reason, Appeal is dismissed in limine.
(R.M. Doshit, CJ)
Sujit/- (Ahsanuddin Amanullah, J)