Patna High Court
The Deity Baba Babhut Nath Of vs The State Of Bihar & Ors on 2 May, 2011
Author: Samarendra Pratap Singh
Bench: Sudhir Kumar Katriar, Samarendra Pratap Singh
Letters Patent Appeal No.1188 OF 1998
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1. The Deity Baba Babhut Nath Of Bakrowr Math, village Bakrowr,
Police Station Bodh Gaya, Distt Gaya.
2. The Deity Baba Achal Nath of Bakrowr Math, both the Deity, through
Mahanth Jagdisha Nand Giri, president of Religious Trust Committee
of Bakrowr Math, village Bakrowr, Police Station Bodh Gaya, Distt
Gaya
3. Mahanth Jagdisha Nand Giri, President of Religious Trust Committee
of Bakrowr Math, village Bakrow Math, Police Station Bodh Gaya,
Distt Gaya.
----------------(Appellants)
Versus
1. The State Of Bihar
2. Member Board of Revenue, Bihar, Patna
3. The Collector, Gaya
4. the Additional Collectior, Gaya
5. Goswami Ramautar Giri, Chela of Mahanth Harihar Giri, resident of
village Manjhauli Police Station Amas Distt Gaya &
6. Chitarajan Kumar ----------
-------------(Respondents)
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For the appellants:-Mr.K.N.Choubey, Sr.Advocate & Mr Gopal jee
For the State:- Mr.Shashi B.Kumar, SC 7
For the intervenor:- Mr. Vivek Prasad.
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P r e s e n t.
Hon'ble Mr Justice Sudhir Kumar Katriar
Hon'ble Mr Justice Samarendra Pratap Singh
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S.P.Singh,J. The appellants have challenged order dated
15.9.1998, passed by a learned Single judge of this Court in C.W.J.C.No. 139 of 1989, by which the writ petition filed by 2 them against the orders of ceiling authorities declaring 56.60 acres of their land as surplus land of Both Gaya Math, has been dismissed.
2) The relevant facts may be noticed. According to the appellants, Bakrour Math was founded by Mahanth Bhabut Nath. From time to time, lands were acquired for the Math by him as well as by his successors. Their names were also registered in the Collector‟s records. In course of time, Bakrour Math acquired lands in three villages, namely, Bakrour, & Hariharpur(Awana) in Bodh Gaya Police Station, and Brahmamoria in Sherghatty Police Station of Gaya district. In the year 1912, Krishna Dayal Giri, Mahanth of the then Bodh Gaya Math, filed Title suit no. 329 of 1912, against Mahanth of Bakrour Math, namely, Goswami Laldhari Giri for his removal from the Bakrour Math on the ground of mismanagement of Math. The title suit was dismissed on 9.8.1914 by Subordinate Judge, Gaya, holding that as Bodh Gaya Math and its Mahanth had no concern with the properties of Bakraur Math, he had no right to interfere with its management. Thereafter T.A. No.432 of 1914 preferred by Mahanth of Bodh Gaya Math was also dismissed on 15.5.1917. In the year 1950, one Harihar Giri, Mahanth of Bodh Gaya 3 Math, filed Title Suit No.23 of 1950 in the court of Sub-Judge, Gaya, against State of Bihar for declaration that the properties described in the schedule of the plaint was his personal property. The suit was transferred to this Court for trial and was registered as Title Suit No.129 of 1953. This court rejected the claim of the plaintiff and dismissed the suit. The plaintiff carried an appeal to the Hon‟ble Apex Court giving rise to the Civil Appeal No.484 of 1957. In the appeal before the Hon‟ble Apex Court, a compromise was arrived at between the Mahanth and the State of Bihar and a compromise petition was duly filed by the two parties on 24.4.1957. The Hon‟ble Apex Court decreed the appeal in terms of compromise arrived between the Mahanth and the State of Bihar. The relevant extract of compromise petition mentioned in paragraphs (i), (ii) and (iv) are quoted herein below:
"(i) The properties described in Schedule 1 of the petition are endowed properties of Math Bodh Gaya of which the Appellant is the Mahanth and are burdened with a Trust of Religious and Charitable nature
(ii) The properties described in Schedule II of this petition which form part of the compromise petition will be considered as personal property of the Appellant Mahanth
(iii) The Defendants-Respondents will not interfere with the management of Schedule II properties which are the personal properties 4 of the plaintiff-appellant. The respondents will have no concern with Schedule II properties".
2.1) It would appear from the consent order that the properties described in Schedule-1 would be the properties of Bodh Gaya Math, whereas the properties described in Schedule-II of the compromise petition would be considered personal property of the Mahanth. In the year 1982, an acquisition proceeding was started against Jai Ram Giri of Bodh Gaya Math, being Land Ceiling Case No. 68 of 81-92. In the ceiling proceeding, 56.60 acres of land spread over in three villages, namely, Bakrour, Hariharpur within Bodh Gaya P.S. and Brahmamoria within Sherghati P.S. were clubbed as land of Bodh Gaya Math and declared surplus. The appellants have asserted that the aforesaid lands were never the properties of Bodh Gaya Math and as such should not have been clubbed and declared as surplus land of Bodh Gaya Math.
2.2) Being aggrieved, the appellants challenged the order of the ceiling authorities in this court vide C.W.J.C.No.139 of 1998. The learned Single Judge vide his order dated 15.9.1998 dismissed the writ application primarily on two grounds; firstly in the schedule attached to the compromise petition filed before 5 the Hon‟ble Apex Court, the surplus land has been shown as land of Bodh Gaya Math secondly, the learned Single Judge observed that over the years the land of Bakrour Math merged with Bodh Gaya Math.
3. Mr. K.N. Choubey, learned Senior counsel for the appellants has assailed the impugned order on the ground that the learned Single Judge committed an error of record in observing that 56.60 acres of land spread over the three villages, namely, Bakrour, Hariharpur within Bodh Gaya P.S. and Brahmamoria within Sherghati P.S., formed part of land attached to the schedule in the compromise petition filed in the Hon‟ble Apex Court in Civil Appeal No.484 of 1957. He asserts that in fact no land pertaining to village Hariharpur and Brahmamoria have been mentioned in the schedule attached to the compromise petition. He submits that at serial no.366 only some lands of Bakrour village has been shown in the schedule attached to the compromise petition. He further submits that out of 56.60 acres of land, 20.6 acres belong to village Hariharpur, 24.08 acres of land are in village Brahmamoria within Shergahti P.S., and rest of the lands fall within village Bakrour. Thus, he submits that the learned Single Judge has committed an error of record in holding that even land pertaining to village 6 Hariharpur and Brahmamoria formed subject mater of land in the compromise petition in the Hon‟ble Apex Court. He submits that in any view of the matter, decision in terms of compromise would not be an adjudication and would not bind a third party.
3.1) Learned counsel next submits that cadastral survey Khatia and revisional survey Khatian contained in Annexure-10 series and the Zamindari rent receipts contained in Annexure- 11 series would show that 56.60 acres of land belonged to Bakrour Math. He further submits that there is no document to show that Bakrour Math ever merged with Bodh Gaya Math. The Saxena Committee which was set up by the Government no where stated that the land of Bakrour Math ever merged with Bodh Gaya Math. On the other hand, the judgment in T.S. No.329 of 1912, affirmed in T.A. No.432 of 1914 by this Court, clearly shows that Bakrour Math was not subordinate to Bodh Gaya Math, and the latter did not have authority to interfere with the functioning of the former. He next submits that the ceiling proceedings were concluded without giving notice to the appellants and thus fit to be set aside. In support of his submissions, learned counsel has relied upon decisions reported in 1970 All England Reports 713 and 1995(1) Suppl. 7 SCC 21. The ceiling proceedings were in violation of Sections 6 and 10 of the Bihar Land Reforms(Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1963 (hereafter referred to as „the Ceiling Act, 1963), as well as rule 7 of the Bihar Ceiling Rules, 1963.
4) On the other hand, the learned counsel appearing for the State submits that the order of learned Single Judge is legal and valid and does not need any interference. He submits that the land of Bakrour Math over the years merged with Bodh Gaya Math. He submits that in Civil Appeal No.484 of 1957, a compromise petition was filed in the Hon‟ble Apex Court jointly by Bodh Gaya Math and the State of Bihar in which land of village Bakrour has been shown as land of Bodh Gaya Math. Learned counsel while referring to paragraph 7 of the counter affidavits states that the properties in village Bakrour in revenue records is described as Nagdi Zamindari land of Bodh Gaya Math and that was the reason the ceiling proceeding was started against Bodh Gaya Math and not against Bakrour Math. He submits that Bakrour Math has no separate entity distinct from Bodh Gaya Math.
5) Mr. Vivek Prasad, learned counsel appearing for the intervener Chitranjan Kumar, submits that the intervener is the 8 real claimant of the land of Bakrour Math, being heir of main Chela of last Mahanth. However, he submits that Bakrour Math is not a part and parcel of Bodh Gaya Math.
6) We have perused the materials on record and considered the submissions of the learned counsel for the parties. The main issue in this appeal is whether 56.60 acres of land, which has been shown as land of Bodh Gaya Math, belongs to former or to Bakrour Math. If the answer to the question is against Bodh Gaya Math, then whether the ceiling authorities erred in law in not giving notice to Bakrour Math in the ceiling proceeding.
7) Issue No.1- Whether 56.60 acres of land which is spread over in three villages belonged to Bodh Gaya Math or Bakrour Math.
In the ceiling proceedings, about 20 acres of land of village Hariharpur within Bodh Gaya P.S. and 24 acres of land of village Brahamamoria, within Sherghati P.S., and about 13- 14 acres of land of village Bakrour have been declared as surplus land of Bodh Gaya land in Land Ceiling proceeding No.68 of 1981-82. The appellants have contended that the aforesaid land belonged to Bakrour Math, and were never part and parcel of Bodh Gaya Math. These land have been acquired 9 by Bakrour Math over the years. On the other hand, the contention of the State is that over the years the properties of Bakrour Math have merged with Bodh Gaya Math. The issue in hand whether Bakrour Math is part and parcel of Bodh Gaya Math, has been rendered less contentious in view of the judgment and decree in T.S.No.329 of 1912 and affirmed in F.A. No.432 of 1914. Way back in the year 1912, in T.S. No.329 of 1912, one of the issues was whether Bakrour math is subordinate to Bodh Gaya Math and properties of Bakrour Math are part and parcel of Bodh Gaya Math. One Krishna Dayal Giri, Mahanth of Bodh Gaya Math, had filed a Title Suit for removal of Goswami Lal Dhari Giri from the helm of affairs of Bakrour Math on the ground that he was mismanaging the properties. The learned Subordiante Judge, Gaya, dismissed the Title Suit holding that Bakrour Math is not subordinate to Bodh Gaya Math, and the properties of the former is not part and parcel of the properties of the latter. An appeal preferred by Mahanth of Bodh Gaya Math too was dismissed in T.A. No.432 of 1914. A copy of both the judgments form part of record in this appeal.
8) The respondent-State have not brought anything on record to show that over the years, the properties of Bakrour 10 Math merged with Bodh Gaya math. The State has not been able to point out any material to show that the properties of Bakrour Math ever merged with Bodh Gaya Math. Further more, nothing has been shown from Saxena Committee report regarding merging of land of Bakrour Math with Bodh Gaya Math. On the other hand, we find from Annexures-10 and 11 series that cadastral survey record as well as revisional survey record, the revenue records and the rent receipts show that the land in question stood recorded in revenue records in favour Bakrour Math. The learned Single Judge in his order held that in the compromise petition the surplus land has been shown as land of Bodh Gaya Math. We respectfully disagree with the observation of learned Single Judge as the schedules attached to the compromise which forms part of record in this Court do not even refer to the land of Hariharpur and Brahmamoria which form major chunk of 56.60 acres of land which has been declared as surplus land of Bodh Gaya Math. The compromise petition merely refers to some land of village Bakrour and it does not refer to all lands of village Bakrour. Further more there is no material on record to show that the land of Bakrour Math ever merged with Bodh Gaya Math. In this view of the mater, we are not inclined to uphold the 11 reasoning assigned by the learned Single Judge in coming to the findings that the land of Bakrour Math has merged with Bodh Gaya Math.
9) It is not in dispute that the appelants were not party in the Title Suit filed by the Harihar Giri, Mahanth of Bogh Gaya Math, against the State of Bihar which was registered as Title Suit No.129 of 1953, on being transferred from the Court of the Subordinate Judge, Gaya, to this Court. In the Hon‟ble Apex Court a Title Suit filed by the plaintiff was dismissed and even in appeal before the Hon‟ble Apex Court the appellants were not made a party. In the Hon‟ble Apex Court, a compromise was arrived at between the Mahanth of Bodh Gaya Math and the State Government in which some lands falling in village Bakrour were shown as land of Bodh Gaya Math. It is well settled that a compromise petition entered into between the parties would not bind a third party who is not privy to such compromise. As such, the respondent State even in respect of lands in village Bakrour will have to satisfy the authorities that land in village Bakrour do not belong to Bakrour Math. In this view of the mater, we hold that 56.60 acres of land has wrongly been clubbed as land of Bodh Gaya Math.
10) The claim of the intervener respondent is not tenable 12 in law as he had not challenged the ceiling proceedings in this court even in writ proceeding before a single judge. The claim that the intervener respondent would be the main Mahanth of Bakrour Math cannot be adjudicated for the first time in this appeal as it would involve question of facts. The intervener respondents, if so advised, may prefer suit for redressal of its grievance.
11) Once we have held that substantial chunk of 56.60 acres of land belongs to Bakrour Math, it was incumbent upon the ceiling authorities to notice the appellants in ceiling proceedings, as they would be the person interested in the land. Section 6 of the Ceiling Act states that there would be a public notice upon land holders to submit returns to show that they do not hold land in access of ceiling area. After considering the returns filed by the land holders, a detailed draft statement is published and a copy of such draft statement is to be served u/s 10 of the Ceiling Act in the prescribed manner on the land holder or land holders, or on the guardian or guardians, as the case may be, in the prescribed manner.
12) Rule 7 of the Bihar Land Ceiling Rules, 1963 also requires notice to be served under sub-section(1) of Section 8 on the land holder. The decree of the Courts as well as the 13 revenue records show that the appellants were land holders of the land in question and as such they ought to have been noticed in the ceiling proceeding. Notice in the ceiling proceeding is not an empty formality and has to be substantially complied with. The authorities cannot act on mere presumption while issuing notice, rather has to serve notice on all persons to be known or believed to be interested in terms of Bihar amendment of section 4 vide Land Acquisition (Bihar Amendment) Act, 1960 (11 of 1960). Such notice has also to go on the basis of revenue records. In this respect, one may gainfully refer to the decisions reported in 1990 (2) PLJR 73, particularly para 10, and 1976 BBCJ 270. On this score also ceiling proceedings stands vitiated as the appellants were not noticed, though as per the revenue records and decisions in suit and appeal, the appellants are land holders and persons interested.
13) In back drop of the herein above findings, this appeal succeeds and the impugned order dated 15.9.1998, passed by the learned Single Judge in C.W.J.C.No.139 of 1989, and the orders passed by the ceiling authorities in Land Ceiling Case No.68 of 81-82, are quashed with liberty to the State to start a fresh ceiling proceeding against the appellants in 14 accordance with law.
(Sudhir Kumar Katriar,J).
Patna High Court (Samarendra Pratap Singh, J.) Dated May 2nd, 2011.
Shashi/ KHAN NAFR