Research › Browse › Judgment

Patna High Court · body

1977 DIGILAW 204 (PAT)

Ramchandra Thakur v. State of Bihar

1977-11-09

K.B.N.SINGH, UDAY SINHA

body1977
JUDGMENT K. B. N. Singh, C. J, The points involved in these two writ petition being common, they have been heard together and are being disposed of by this common order. 2. In both the writ petitions the petitioners have prayed for quashing the notice issued by the Deputy Collector Incharge Land Reforms, Sitamarhi (East), respondent No. 2, dated the 24th of September 1975, directing the petitioners to appear with documents on the 10th October, 1975, in an inquiry under Section 4 (h) of the Bihar Land Reforms Act. A copy of the notice has been filed as Annexure 1' in each of the writ petition. 3. The petitioners case in the first writ petition is that on the 23rd December, 1950, they purchased a piece of land bearing plot No. 786 in Sonbarsa Bazar by a registered sale deed from Krishnakant Jha, who had taken settlement of the same from Sri C.P.N. Singh, the ex-intermediary of Sursand Estate. The petitioners after purchase claimed to have constructed their house over the said land and are residing there peacefully. Petitioner No. 1 in the second writ petition also claimed to have taken settlement of 8 decimals of land bearing plot No. 786 from the same ex-landlord of Sursand Estate under a patta dated the 26th September, 1947, and thereafter constructed a house thereon and is residing there. 4. The impugned notices have been issued in pursuance of proceedings started under section 4 (h) of the Bihar Land Reforms Act, (hereinafter referred to as 'the Act' ) to show cause why the settlements made by the ex-intermediaries in their favour with a view to defeat the provisions of the Act, be not set aside. 5. The petitioners grievance is that no such proceedings could be started nor such notices issued after the proceeding for consolidation of holdings was notified under section 3 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as “the Consolidation Act”) in view of the bar contained in section 4 of the Consolidation Act. It is alleged that a notification under section 3 of the Consolidation Act, was published by the State Government declaring its intention to make a scheme for consolidation of holdings in Sonbersa Bazar area on the 26th November, 1970, and objections filed under section 10 (2) of the Consolidation Act, are now being heard. It is alleged that a notification under section 3 of the Consolidation Act, was published by the State Government declaring its intention to make a scheme for consolidation of holdings in Sonbersa Bazar area on the 26th November, 1970, and objections filed under section 10 (2) of the Consolidation Act, are now being heard. His stated in first writ petition that thereafter on the 22nd August, 1975 respondent No. 2 exercising the powers of the Collector under the Act, has initiated a proceeding under section 4 (h) of the Act. A copy of the order dated 22.8.75 has been filed as Annexure 2' to the first writ petition and a copy of the order dated 24.9.75 has been filed as Annexure "2" to the second writ petition. It may be stated here and now that these notices do not indicate as to when the proceeding in either case was started. A counter-affidavit has been filed on behalf of the State of Bihar in both the cases. It is contended therein that a proceeding under section 4 (11) of the Act, does net involve the question of transfer rather it aims at annulment of certain transfer made, by the ex intermediaries with a view to defeat the provisions of the Act. The proceeding has been initiated with a view to make an inquiry into the genuineness or otherwise of the alleged settlements. To such proceedings the tar under section 4 of the Consolidation Act, was not applicable. The land in question is a part of the market area and not used for agricultural purposes and there is no legal bar to initiation of proceedings in respect of such land. 6. The main question for consideration before us, as urged by Mr. Agrawal, is as to whether proceedings under section 4 (h) of the Act, can be initiated after issue of notification under section 3 of the Consolidation Act, and whether such proceedings are barred in view of section 4 of the Consolidation Act. 7. The main object of the Consolidation Act, is to provide for the consolidation of holdings and prevention of fragmentation for the benefit of agriculturists and development of agriculture in the Country. Section 3 (1) of the Consolidation Act, which is relevant for our consideration reads as follows : “3. 7. The main object of the Consolidation Act, is to provide for the consolidation of holdings and prevention of fragmentation for the benefit of agriculturists and development of agriculture in the Country. Section 3 (1) of the Consolidation Act, which is relevant for our consideration reads as follows : “3. Declaration by State Government of its intention to make scheme for consolidation of holdings: (1) With the object of effecting consolidation of holdings for the purpose of better cultivation of lands in any area, that State Government may, after such enquiries as it may deem fit, by notification in the Official Gazette declare its intention to make a scheme for consolidation of holdings in that area.” The effect and consequences of publication of the notification under subsection (1) of section 3 are provided in section 4 of the Consolidation Act. Under clause (a) of section 4 the responsibility of preparing and maintaining the record-of rights and the village map in respect of the area to which the notification for consolidation relates is of the Director of Consolidation. Clauses (b) and (c) may usefully be quoted: “(b) no suit or other legal proceedings in respect of any land in such areas shall be entertained in any court and in calculating period of limitation applicable to such suits and proceedings such period shall not be counted; provided that nothing in this clause shall apply to any proceeding under section 48 (E) of the Bihar Tenancy Act, 1885 (Act. 8, 1885) and to the proceedings relating to the recording of the titles of Bataidars. 8, 1885) and to the proceedings relating to the recording of the titles of Bataidars. (c) every proceeding for the correction of records and every suit and proceedings in respect of declaration of rights or interest in any land lying in the area or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any court or authority whether of the first instance or of appeal, reference or revision shall, on an order being passed in that behalf by the court or authority before whom such suit or proceeding is pending stand abated: Provided that if the State Government empowers any officer appointed under this Act, to dispose of any proceeding relating to survey settlement operations under the provisions of Chapter X of the Bihar Tenancy Act, 1885 (Bihar Act, VIII of 1885), or Chapter 12 of the Chotanagpur Tenancy Act, 1908 (Bengal Act, 6. 1908) or Santhal Parganas Settlement Manual, 1872 (Manual, 3, 1872) and transfer such proceeding to such officer for disposal then the proceeding shall not abate or shall not be considered to have been abated ; Provided that no such order shall be passed without giving to the parties notice by post or in any other manner that may be convenient and after giving them an opportunity of being heard ; Provided further that such abatement shall be without prejudice to the rights of the persons affected to agitate the right or interest in dispute in the said suits or proceedings before the appropriate consolidation authorities under and in accordance with the provisions of this Act, and the rules made there under: Provided that the State Government may by notification in the Official Gazette exempt any such proceeding appeal, reference or revision, or any class of them, if in its opinion their abatement is not in public interest, and is not necessary for the purposes of this Act: Provided further that nothing in this section shall apply to any proceedings under Chapters XI and XII of the Code of Criminal Procedure, 1898 (Act V of 1898), section 48 E of the Bihar Tenancy Act, (Act VIII of 1885) and the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (Act XII of 1962). Mr. Mr. Agrawal has submitted that the expression ‘no suit or other legal proceeding’ occurring in section 4 (b) is wide enough to include a proceeding under section 4 (h) of the Bihar Land Reforms Act, and in view of that the Collector has no power to initiate proceedings under section 4 (h) of that Act, after the issuance of notification for consolidation under section 3 of the Consolidation Act. From a reference to the notice in either of the writ petitions it appears that on the first writ petition the case number mentioned in the notice (Annexure 1) is 4/68-69(h). Annexure 2 the order-sheet, does not mention case number at all. In the other writ petition also the case number is mentioned as 6/68-69-4 (h). It is 9/75-76 likely that these proceedings were started in 1968-69 before the notification, although notices might have been issued subsequent thereto. If the proceedings were initiated earlier, obviously section 4 (b) of the Consolidation Act, will not be attracted; or, if at all, It may come under the mischief of section 4(c) of the Consolidation Act, which provides for abatement of suit or proceeding. Section 3 of the Bihar Land Reforms Act, provides for vesting of the estate of an intermediary in the State of Bihar on issuance of notification under that section and section 4 days down the consequences of such vesting. The relevant portion of section 4 with which we are concerned reads as follows :- “4. Consequence of the vesting of an estate or tenure in the State. The relevant portion of section 4 with which we are concerned reads as follows :- “4. Consequence of the vesting of an estate or tenure in the State. Notwithstanding anything contained in any other law for the time being in force or in any contract, on the publication of the notification under sub section (1) of section 3, or sub-section (1) or (2) of sections 3-A the following consequences shall ensue, namely; * * * (h) The Collector shall have power to make inquiries in respect of any transfer including the settlement or lease of any land comprised in such estate or tenure or the transfer including the settlement or lease of any kind of interest in any building used primarily as office or 'cutchery' for the collection of rent of such estate or tenure or part thereof and if he is satisfied that such transfer was made at any time after the first day of January 1946, with the object of defeating any provisions of this Act, or causing loss to the State or obtaining higher compensation there under, the Collector may, after giving reasonable notice to the parties concerned to appear and be heard, annul such transfer, dispossess the person claiming under it and take possession of such property on such terms as may appear to the Collector to be fair and equitable: Provided that an appeal against an order of the Collector under this clause if preferred within sixty days of such order, shall lie to the prescribed authority not below the rank of the Collector of a district who shall dispose of the same according to the prescribed procedure: Provided further that no order annulling a transfer shall take effect nor shall possession be taken in pursuance of it unless such an order has been confirmed by the State Government. * * * * It is thus manifest that the power of annulling a transfer is a special power vested in the Collector under section 4 (h) of Act, and it is open to the Collector to take possession of such property on such terms as may appear to him to be fair and equitable. The order of the Collector is subject to the prescribed authority under the Act, and the order has not to take effect nor possession has to be taken unless the order is confirmed by the State Government. The order of the Collector is subject to the prescribed authority under the Act, and the order has not to take effect nor possession has to be taken unless the order is confirmed by the State Government. Consequently, it is not such a proceeding which could be decided by the Consolidation Officer. Apart from that, it is in the nature of a mere inquiry before the Collector and the decision taken therein cannot be given effect to unless approved by the State Government. Such an inquiry could not be held to be barred by section 4 of the Consolidation Act. Apart from that, the power of the Collector under section 4 (h) of the Act, is to annul the transfer made by settlement or lease, The Consolidation Officer even if he has power to adjudicate upon the conflicting claims of the parties, cannot annul the transfer as laid down by the Supreme Court in the case of Gorakh Natk Dube V. Hari Narain Singh and others, the relevant portion of which may be quoted: “We think that a distinction can be made between casts where a document is wholly or partially invalid so that it can be disregarded by any court or authority and one where it has to be actually set aside before it can cease to have legal effect. An alienation made in excess of power to transfer would be, to the extent of the excess of power invalid. An adjudication on the effect of such a purported alienation would be necessarily implied in the decision of a dispute involving conflicting claims to rights or interests in land which are the subject matter of consolidation proceedings. An alienation made in excess of power to transfer would be, to the extent of the excess of power invalid. An adjudication on the effect of such a purported alienation would be necessarily implied in the decision of a dispute involving conflicting claims to rights or interests in land which are the subject matter of consolidation proceedings. The existence and quantum of rights claimed or denied will have to be declared by the consolidation authorities which would be deemed to be invested with jurisdiction, by the necessary implication of their statutory powers to adjudicate upon such rights and interests in land, to declare such documents effective or ineffective, but where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation, it could be urged that the consolidation authorities have no power to cancel the deed, and, therefore, It must be held to be binding on them so long as it is not cancelled by a Court having the power to cancel it.” In my considered opinion, therefore, the proceedings under section 4 (b) of the Land Reforms Act, are not barred nor abates under section 4 of the Consolidation Act, on issuance of the notification under section 3 of the Consolidation Act. 8. The decisions in the case of Mst. Bibi Rabeya v. R. Singh and in the case of B. Thakur v. Smt. Tara Devi need not be discussed in detail as the former relates to a suit for declaration of title and recovery of possession and the latter to a suit for partition nor is it necessary for me to deal with the correctness of those decisions in view of the subsequent decisions of the Supreme Court, particularly the one in the case of Ram Adhar Singh v. Ramroop Singh and others which was a case under the U. P. Consolidation of Holdings Act, 1953. 9. In view of what I have held above, it is not necessary for me to express any opinion on the question whether the disputed land in both the writ petitions is subject-matter of consolidation proceedings or not. 10. In the result, there is no merit in both the writ petitions and they are accordingly dismissed. The order of stay passed on 22.12.1975 in the first writ petition and on 29.1.1976 in the second writ petition is vacated. 10. In the result, there is no merit in both the writ petitions and they are accordingly dismissed. The order of stay passed on 22.12.1975 in the first writ petition and on 29.1.1976 in the second writ petition is vacated. In the circumstances, I would make no order as to costs. Uday Sinha, J. I agree. Applications dismissed.