Uma Prasad Singh v. State of Bihar — 1974 DIGILAW 232 (PAT)

JUDGMENT Uday Sinha, J. This is an application under Articles 226 and 227 of the Constitution of India for quashing the order of the Additional Collector, Santhal Parganas at Dumka dated 19.11. 1970, which is Annexure 5 to this application and, the notice dated 24. 8. 1971 issued by Anchal Adhikari, Karon (Annexure 6), in the district of Santhal Parganas on the following averments. The petitioners are the ex-proprietors of Karon State bearing tauzi No. 888 in the Durnka Collector ate. The intermediary interest of the petitioners vested in the State of Bihar and, consequent upon the vesting of zamindari in the State of Bihar, the said tauzi containing plot No. 1638 which is a tank having an area of 8 acres and odd stands recorded as 'Raja Pokhar' in the record of rights also vested in the State of Bihar. It is also recorded in the record of rights, in regard to this tank, that no one except the proprietor gets water for irrigation. The tank is described as 'Khas' tank of the proprietor. South of this tank are to be found plot Nos, 1645, 1646, 1653, 1654 and 1657 which arc courtyard, orchard and residential portion of the house of the petitioners, all in one compound. The northern boundary wall of the compound of the petitioners stands on the 'Bhinda' of the tank of plot No. 1638. The tank is claimed by the petitioners as their 'Khas' property appurtenant to the dwelling house of the petitioners and, thus homestead of the petitioners. It appears that with the vesting of the proprietary Estate in the State of Bihar, Government took this tank also as having vested in the State of Bihar and consequent]y took steps for settlement of the tank by public auction. An objection was raised by the petitioners which seems to have been rejected by the Additional Collector, Santhal Parganas. The petitioners then moved the Commissioner, Bhaga1pur, which was numbered as Santhal Parganas Miscellaneous Appeal No. 12 of 1962/63 In that appeal the Commissioner by his order dated 19.6.1962 stayed the order for settlement of the tank passed by the relevant authorities. The petitioners then moved the Commissioner, Bhaga1pur, which was numbered as Santhal Parganas Miscellaneous Appeal No. 12 of 1962/63 In that appeal the Commissioner by his order dated 19.6.1962 stayed the order for settlement of the tank passed by the relevant authorities. Upon an interpretation of the entry in the of record of rights that "no one gets water for irrigation", the Commissioner set aside the order for settlement and directed an inquiry to be made to find out if a fresh custom contrary to the entry in the record of rights had come into effect. The Commissioner held that if a fresh custom had come into effect, then the case would be governed by Government's instructions in their letter No. 681/LR dated 24.1.1959 of the Deputy Secretary, Revenue Department. The Additional Commissioner of Santhal Parganas was accordingly directed to look into and dispose off the matter in the light of the Commissioner's directions. A copy of the Commissioner's order dated 19.6.1962 has been annexed and marked as Annexure 2 to this application. After the order of the Commissioner, the revenue authorities held an enquiry into the validity of the entry in the record of rights in regard to plot No. 1638. The Deputy Collector, In-charge of Land Reforms held an enquiry on 15. 12. 1962 and submitted his report dated 18. 12. 1962. A copy of the report has been annexed and marked as Annexure 1 to this application. At this stage it will be relevant to mention that the petitioner's stand was that the tank in question was the homestead as defined under section 2 (J) of the Bihar Land Reforms Act, and that in terms of section 5 of the said Act, the petitioners were entitled to retain the tank along with the building as tenant of the State free of rent. The controversy seemed to have lingered for several years and the contention of the petitioners was ultimately rejected in 1961. The B. D. O. had been directed by the S. D. O. by letter No. l859 dated 25. 10. 1961 to take steps for settlement of this tank. This very order was the subject matter of appeal before the Commissioner which was remanded for fresh consideration by the Additional Collector. The enquiry report of the Land Reforms Deputy Collector dated. 18. 12. 1962 is a comprehensive report. 10. 1961 to take steps for settlement of this tank. This very order was the subject matter of appeal before the Commissioner which was remanded for fresh consideration by the Additional Collector. The enquiry report of the Land Reforms Deputy Collector dated. 18. 12. 1962 is a comprehensive report. The salient findings of the Deputy Collector, In-charge of Land Reforms were as follows: 1. The northern compound wall of the Raj Bari (dwelling house of the petitioners) had been erected on the southern ring of the tank. 2. There is no opening in the eastern boundary wall of the 'Raj Bari' erected on the tank. There are houses of Jamuna Prasad Singh, Krishna Prasad Singh and others on the eastern boundary, but they had no concern with the ex-landlords. 3. There is a door close to the southern side of the tank on which the compound wall of the 'Raj Bad' stands. This is very old door and inescapable proof of the fact that the inmates of the 'Raj Bari' must have been using this tank for their personal use. 4. The 'Pind' of the tank is so high from all sides that the question of irrigation has altogether to be excluded, The height would be some 15' to 20'. There is hardly any field which can be irrigated from the water of this tank except some land close to the catchment area. 5. In the Village enquiry paper at serial 34, the tank of Plot no. 1638 has been shown in 'Khas' repaired by Jamindar and not burdened with irrigation. 2. The Deputy Collector, In-charge Land Reforms further observed in his report as follows: "The entry in the village enquiry paper in respect of plot No. 1638 as a 'Pokhar' namely” no one gets water for irrigation "was, therefore, correct and must be allowed to prevail against that contention to the contrary. 2. The Deputy Collector, In-charge Land Reforms further observed in his report as follows: "The entry in the village enquiry paper in respect of plot No. 1638 as a 'Pokhar' namely” no one gets water for irrigation "was, therefore, correct and must be allowed to prevail against that contention to the contrary. On the other hand, my local inspection leaves no doubt in my mind that this tank had never been used for irrigation purpose, which position holds good, even right up to the date of my enquiry." The report of the Deputy Collector, In-charge of Land Reforms found favour with the Sub-divisional Officer, Deoghar and in accordance with the recommendation of the former, the Additional Collector, Santhal Parganas by his order dated 4.3.1963 directed the Sub-Divisional Officer, Deoghar to settle the tank with the ex-landlords (Petitioners) on raiyati terms on payment of Rs. 50/- as annual jama. The petitioners have averred that in accordance with the order of the Additional Collector dated 4.3.1963 which has been annexed and marked as Annexure 3 to this application, the rent for the tank was settled at Rs. 50/- per year. For some years the matter ill controversy laid at rest, but it was revived again in 1967 when the Block Development Officer, Karon issued notice to the petitioners for enhancing the annual rent of the tank bearing\plot No. 1638 from Rs. 50/per year to Rs. 300/- per year and, as natural, the petitioners objected to the enhancement of the rent on the ground that the matter had been decided and settled earlier and, therefore, annual rent should not be enhanced without any justification. The objection of the petitioners was treated as Miscellaneous Case No. 17 of 1967/68. By order dated 19.11.1970 the Additional Collector, San thai Parganas at Dumka, rejected the objection of the petitioners and held that the ex-intermediary (Petitioners) should be offered to take settlement on the enhanced Jama of Rs. 300/ and in case they failed to do so, it should be settled by public auction with a third party. The order of the Additional Collector dated 19.11.1970 has been annexed and marked as Annexure 5 to this application. In 1971 a notice was issued for enhancing the Jama for the year 1971-72 to Rs.600/- from Rs.300/-. This notice from the Anchal Adhikari, Karon dated 24.8.1971 has been annexed and marked as Annexure 6 to this writ application. The order of the Additional Collector dated 19.11.1970 has been annexed and marked as Annexure 5 to this application. In 1971 a notice was issued for enhancing the Jama for the year 1971-72 to Rs.600/- from Rs.300/-. This notice from the Anchal Adhikari, Karon dated 24.8.1971 has been annexed and marked as Annexure 6 to this writ application. Aggrieved by the orders contained in Annexure 5 and the notice Annexure 6 the petitioners have moved this Court for issuance of a writ of certiorari for quashing Annexure's 5 and 6. 3. The case of the State on the other hand is that with the vesting of the zamindari in the state of Bihar this tank also vested and thereafter the state had the right to settle the tank in accordance with law and accordingly the revenue authorities rightly took action for settling the tank. The learned Government Advocate appearing for the State has contested the claim of the petitioners that plot No. 1638 was a homestead. It was also contended that the petitioners having taken settlement of the tank in 1963 they were estopped from contending that the tank was homestead property and the petitioners were entitled to retain it free of rent. 4. The crucial point in this case is whether plot No. 1638 which is a tank known as 'Raja Pokhar' was homestead of the petitioners within the meaning of 'homestead' in section 2 (j) of the Bihar Land Reforms Act. Homestead has been defined in the Bihar Land Reforms Act, as follows : "(j) '"Homestead" means a dwelling house used by the proprietor or tenure holder, for the purpose of his own residence or for the purpose of letting out on rent together with any court yard, compound attached gal den, orchard, and out buildings and includes any out buildings used for purposes connected with agriculture, horticulture and any tank, library and place of work-ship appertaining to any such dwelling house. Explanation-In this clause the expression "dwelling house", or out building "shall include any land on which there stood such dwelling house or out building at any time before vesting." The definition of 'homestead' thus includes any tank appertaining to any dwelling house. Explanation-In this clause the expression "dwelling house", or out building "shall include any land on which there stood such dwelling house or out building at any time before vesting." The definition of 'homestead' thus includes any tank appertaining to any dwelling house. The word 'appertain', according to the Shorter Oxford English Dictionary means "to belong as parts to the whole." Thus' in order to constitute any tank as part of the homestead, the tank belonging to the dwelling house as constituting one unit, the tank and the building must be inextricably linked. In this background it must be considered in the present case to find out whether the tank can be said to belong to the house as a whole. It is not enough for a tank to constitute a homestead that the tank should have been in the domestic exclusive use of the ex-landlord. The guiding principles should always be deduced from the expression "appertaining" occurring in subsection 2 (j) of the Bihar Land Reforms Act, (hereinafter referred to as 'the Act'), If the tank in question on plot No. 1638 appertained to the dwelling house on plot Nos. 1645, 1646, 1651, 1653, 1654 and 1657, it must be deemed to be settled by the State with the intermediary and the petitioner would be entitled to retain possession of the tank comprised in such homestead as a tenant under the State free of rent. 5. Applying the above test to the facts of the present case, I find that the tank was in exclusive possession of the petitioners. No one had the right to take water for irrigation purposes. Nay, there is no material to show that any body other than the petitioners had any right in regard to the tank. It is entered in the Village Inquiry paper as 'Khas' of the proprietors. On a visual inspection the Land Reforms Deputy Collector found that the wall of the 'Raj Bari' had been constructed on the 'Bhinda' (ring) of the tank. The Deputy Collector found a door close to the southern side of the tank in which the compound wall of the 'Raj Bari' stands and was an inescapable indication of the fact that the inmates of the 'Raj Bali' must have been using this tank for their personal use. The Deputy Collector found a door close to the southern side of the tank in which the compound wall of the 'Raj Bari' stands and was an inescapable indication of the fact that the inmates of the 'Raj Bali' must have been using this tank for their personal use. These circumstances point unmistakably to the fact that the tank is appurtenant to the 'Raj Bari' which is the residence of the petitioners. The dictionary meaning of the word "Homestead" has been extended by using the expression "includes" in section 2 (j) of the Act. Viewed in that back ground the tank undoubtedly appertained to plot Nos. 1645, 1646, 1651, 1653, 1651 and which were the residence of the proprietor (landlord). 6. For the reasons, stated above, the application is allowed. Annexures 5 and 6 are hereby quashed. The respondents shall forbear from settling the tank to anyone, as it is homestead of the petitioners. There will be no order for costs. K.B.N. Singh, J. I agree. Application allowed.