Jamaluddin Ahmad v. S. D. O. Khagaria — 1979 DIGILAW 137 (PAT)

JUDGMENT P. S. Sahay, J. The petitioner has moved this Court under Article 226 of the Constitution of India for quashing the orders passed by the Land Reforms Deputy Collector (respondent 2) as contained in Annexure 5, cancelling the Jamabandi no. 342 of the petitioner. 2. In order to appreciate the points it will be necessary to state some facts. Khata No. 250; Khesra No. 1007 of Tauzi No. 7368 of village Balha belonged to the then landlord Rai Bahadur Dilip Narain Singh. In the year 1938 Fasli the said plot of land was settled with Doe Mohiuddin by means of receipt. He was a settled raiyat of the village and he acquired the status of an occupancy raiyat. He also paid rent and the petitioner has filed a copy of the rent receipt, marked as Annexure 7. On 10.7.67, the petitioner purchased from Mohiuddin 14 bighas 7 kathas of land out of the total area of 17 big has 8 kathas and 19 dburs of Khata no. 259; 10 kathas was settled with one Charitar Paswan and the remaining area was settled with other persons. The petitioner was in cultivating possession of the land: and he filed a petition on 17.10.70 for mutation before the Anchal Adhikari. Chautham. A copy of the aforesaid petition has been filed along with this application marked as Annexure 6. On receipt of the petition a genera notice was issued Inviting objections by the Sarpanch of the Gram Panchayat on 15.12.70. A copy of the notice has been filed along with this application marked as Annexure 6 (i). The matter was taken up on 26.12.70. No objections was filed and recommendation was made by the Sarpanch of the Gram Panchayat that the land was coming in peaceful possession of the petitioner and, therefore, it should be mutated in his favour. On the same day the Anchal Adhikari passed orders for mutation and for issuance of correction slip. Correction slip was issued and a new Jamabandi no. 342 of Register II was created in favour of the petitioner. A copy of the aforesaid orders has been filed marked all Annexure-6 (ii). Receipts were also granted from time to time by the State of Bihar. Correction slip was issued and a new Jamabandi no. 342 of Register II was created in favour of the petitioner. A copy of the aforesaid orders has been filed marked all Annexure-6 (ii). Receipts were also granted from time to time by the State of Bihar. A portion of the land was slopy and rain water used to accumulate there, and the petitioner started rearing fishes and also excavated earth from the portion of the laud, and the remaining plot was used for the purpose of cultivation, for growing paddy. 3. On 21.6.76 notice under section 10 (2) of the Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1976. regarding these 14 bighas and odd was served on the petitioner and subsequently the land was released in favour of the petitioner. The petitioner was surprised to learn that the pond belonging to him had been settled with one Raghunandan Rai for the year 1977-78 for a sum of Rs. 161/-by the State (vide order sheet dated 23.8.77 Annexure 1), though it was his exclusive property, and without notice to the petitioner. The petitioner obtained certified copy of orders of the Anchal Adhikari and the Sub-divisional Officer, Khagaria, relating to the settlement. Copy of the same have been filed along with this application marked as Annexure 2. Against the aforesaid settlement the petitioner moved this court in C.W.J.C. 1983 of 1978. The order of settlement has been stayed and the writ is still pending for final hearing. The Anchal Adhikari cum Block. Development Officer wrote to the Sub-divisional Officer, Khagaria that the petitioner had been trying to interfere with the possession of the person who had taken the pond on bid and therefore, necessary help may be given to him. Copies of the letters have been filed along with this application, marked as Anncxure-3 and 4.On 19.9.78 a copy of the order dated 15.7.78 of respondent 2 along with the order of the Sub-divisional Officer, Khagaria was served on the lawyer of the petitioner, and then he was surprised to learn that the Jamabandi for his land had been cancelled. Soon thereafter an application was made for certified copy of the order-sheet, and after it was obtained the petitioner was surprised to learn that that Jamabandi had been cancelled by respondent 2 by his orders dated 15.7.78 and 24.7.78. though no notice was sent to him. Soon thereafter an application was made for certified copy of the order-sheet, and after it was obtained the petitioner was surprised to learn that that Jamabandi had been cancelled by respondent 2 by his orders dated 15.7.78 and 24.7.78. though no notice was sent to him. Being aggrieved by the aforesaid order, the petitioner has moved this court- for quashing of Annexure 5. 4. It may be mentioned that no counter affidavit has been filed on behalf of the respondents. Learned counsel appearing on behalf of the petitioner has contended that Jamabandi was created in favour of the petitioner of 26.12.70 after due enquiry, and correction slip was Issued; and since then the petitioner has been coming in peaceful possession of the land, and the order as contained in Annexure-5 is wholly without jurisdiction and, therefore, fit, to be set aside on behalf of the respondents the learned Government Pleader II has submitted that the Anchal Adhikari has no power to create a new Jamabandi and, therefore, the order passed by him was illegal and without jurisdiction. Respondent no. 2 having learnt about this wrong order has rightly cancelled the Jamabandi which was wrongly created in fevour of the petitioner. This brings us to the question whether the order dated 26.12.70 was a valid and legal order. Learned counsel appearing on behalf of the petitioner has relied on the order-sheet and the Circular Orders issued by the State of Bihar (Revenue Department.) relating to mutation cases. The relevant orders are dated 12th July 1961 and 3rd July 1962 issued by the Revenue Department. It bas been clearly stated in the letter dated 12th July 1961 for speedy disposal of mutation cases. Sarpanches of the Gram panchayat were given powers to make enquiry and report to the Anchal Adhikari. Formerly, the Karmcharies used to make such enquiries. After receiving the report of the Sarpanch a general notice had to be given and then the final order regarding it had to be passed by the Anchal Adhikari and necessary corrections made in Gram Panchayat registers and other papers. From a perusal of Annexur.e-6 (ii) it is clear that all these formalities had been complied with and, therefore, correction slip was issued and a new Jamabandi was opened in the name of the petitioner. From a perusal of Annexur.e-6 (ii) it is clear that all these formalities had been complied with and, therefore, correction slip was issued and a new Jamabandi was opened in the name of the petitioner. After that, no step was taken by the State, and by Annexure 5 the Jamabandi created in favour of the petitioner had been cancelled. A question was put to the learned Government Pleader under what provision the Jamabandi was cancelled and the learned Government Pleader took time to take instructions, and the case was adjourned. But even than be could net place any provisions which empowered respondent 2 to cancel the Jamabandi. But he submitter that a Jamabandi was wrongly created In facour of the petitioner on 26.12.70. and this Court should not pass any order which would amount to perpetuating a wrong and in this connection he relied on a decision of the Supreme Court In Venkata Rao V. Government of Andhra Pradesh. I am unable to accept this contention. From the letters issued by the Revenue Department from time to time, which has been discussed above, It has to be held that the new Jamabandl was created in favour of the petitioner in accordance with law. Under clause 10 of the heading "Instructions for the Disposal of Mutation Gases", there is a provision for appeal and revision which reads as follows: “Appeals-An appeal should be filed against the Older of the Anchal Adhikari within a period of 30 days from the date of the order; a revision petition will lie before the Collector or the Additional Collector within a period of 60 days from the date of the appellate order; a second revision petition may be entertained by the Divisional Commissioner within a period of 60 days from the date of the order passed by the Collector or the Additional Collector prov3ded the Commissioner is satisfied that there are adequate grounds for entertaining a second revision petition." Admittedly no action was taken by the State in the year 1970, and that position continued up to 1978. Thereafter the Jamabandi was cancelled by respondent 2 without any authority of law. Thereafter the Jamabandi was cancelled by respondent 2 without any authority of law. Learned counsel for the petitioner has relied on a decision of our own High Court in Harihar Singh V. The Additional Collector in which it has been held that a Jamabandi created on the basis of the settlement by the Karmchari new lamabandi can be opened by the Anchal Adhikari--Additional Collector cannot cancel--Settlee being a settled raiyat of the village, acquired occupancy right and can be rejected only on the ground mentioned in the section. Learned Government Pleader sought to distinguish this case on the ground that the Jamabandl in that case was created on 12.3.63 much before Government instructions were issued on 17.10.69. But reading the provisions, there is no material difference except that prior to 1969 Karmcharies were given power to make enquiries, but after 1969 this power, was given to the Sarpanch of the Gram Panchayat. This decision also fully supports the contention raised on behalf of the petitioner. 5. Thus, on a careful consideration of the points which have been raised in this case, the writ application has to be allowed. Let a writ of certiorari issue quashing the order of respondent 2 as contained in Annexure-5. But in the circumstances of the case, there will be no order as to costs. Application allowed.