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1980 DIGILAW 5 (PAT)

Radhaballav Chaturvedi v. State Of Bihar

1980-01-08

S.ALI AHMAD

body1980
Judgment 1. This is an application under Articles 226 and 227 of the Constitution of India on behalf of 23 persons; who are all residents of village Mallehpur, within Lakshmipur police station. All these persons possess lands in the village and are raiyats under the State of Bihar. Their lands are irrigated by a Nala that was constructed sometime before 1880. It is said that from the time of Raja of Kharagpur, sairabi of the land in question is being done from the said Balia Nala. It is further said that after the Raja of Banaili became the landlord of the village, regular repairs and constructions of the dams was done by him. Further according to them, the petitioners and their ancestors had been paying rent to the Raja of Banaili which included the benefit accruing to the tenants from the supply of water from the said Balia Nala. It is also said that in the year 1908 record of irrigational rights was published under Sec.103A (2) of the Bihar Tenancy Amendment Act, 3 of 1898, which amongst others provided that the custom of sairabi was coming from the time of Raja of Kharagpur and that the Raja of Banaili is responsible for maintenance and repairs of the dams. It also provided that the tenants were entitled for irrigational right and that the Raja of Banaili was responsible for making arrangements for sairabi. Another important thing mentioned was that enhanced rent is realised from the tenant on account of Balliah Nala sairabi which is maintained for providing irrigational facilities to the tenants and that the enhanced rent will be realised as long as landlords maintain this irrigational facility. A copy of the publication made under Sec.103A (2) of the Bengal Tenancy Act, 1878, has been annexed as petitioners say that they have been paying enhanced rent on account of inclusion of water rate to the Raja of Banaili and after the vesting of the zamindari of the Raja of Banaili in the year 1955 to the State of Bihar. The grievance, however, of the petitioners is that respondent No. 1 (State of Bihar) in exercise of powers under Sec.25A of the Bihar Public Irrigation and Drainage Works Act, 1947, fixed rate for supplying water from this Balliah Sakha Nahar and on the basis of which, the Sub-divisional Officer, Waterways Mallehpur, Monghyr, issued notices in general and fixed Rupees 11/- per acre for irrigation from the Balia Nala Shakha. On this basis notices were issued to the petitioners for payment of water rent. The notices have been marked as Annexure-1 series and they have been prayed to be quashed as illegal. 2. This case was admitted on 26th October, 1976, and notices were issued to the respondents fixing 30th November, 1976. According to the High Court Rules, counter-affidavit should have been filed within 14 days after 30th November, 1976, but, as usual, no step in this direction seems to have been taken by the respondents. The case was listed before me on 4-1-1980 and after the petitioners concluded their arguments Mr. Government Pleader No. 5 prayed the case to be adjourned as the State had not filed its counter-affidavit till then. As an indulgence to the State, I countered the case till Monday next. A counter-affidavit has now been filed on behalf of the respondents when the case was taken up today. Mr. Govt. Pleader No. 5 again prayed that some more time should be given to enable the State to produce the notification under Sec.3 (1) of the Bihar Public Irrigation and Drainage Works Act read with R.3 (b) of the Bihar Public Irrigation and Drainage Works Rules, 47. I had indicated on the previous day that whatever documents have to be produced should be produced on the next date and no further time will be granted. I am constrained to observe that the State which is, perhaps, the biggest litigant has developed the habit of seeking adjournments on grounds which at times becomes annoying. Perhaps, the reasons for this attitude is that the State thinks, that it should get preferential treatment from the Court. I want the State and its authorities to realise fully well that in the eye of law they are like any other litigant and it should not expect any preferential treatment even in the matter of adjournment. Perhaps, the reasons for this attitude is that the State thinks, that it should get preferential treatment from the Court. I want the State and its authorities to realise fully well that in the eye of law they are like any other litigant and it should not expect any preferential treatment even in the matter of adjournment. I had made it clear on the previous occasion that no further time will be given and I do not see any justification to give another indulgence to the State by adjourning the case again today. 3. The fact that the Nala was constructed by the then landlord and that the lands of the petitioners are irrigated from that Nala has not been denied. It has also not been denied that the enhanced rent was realised by the then landlord from the petitioner on account of irrigational facility that was available to the petitioner on account of the Nala and that the enhanced rent is being realised by the State. It has, however, been said in paragraph 8 of the counter-affidavit that "Fard-abpashi might have abolished by the State of Bihar by circular No. 8866 dated 21-4-1965 and the Bailliah Branch scheme has been constructed as under the Act." An impression was sought to be given by this statement that the Nala was constructed in the year 1965 but on question as to how could it be constructed in 1965, if the Nala itself was in existence in 1880, learned Government Pleader said that what is meant by this paragraph is that the scheme was framed under the Act which was for the maintenance of the Nala. Learned counsel also submitted that under the scheme the Nala had to be maintained and for maintenance some funds were required which had to be collected from the persons who derived benefit from this Nala by way of fee. He also urged that the irrigation charge at the rate of Rs. 11/- per acre was by way of fee. 4. As appears from the decision in the case of Sukar Das V/s. State of Bihar ( 1975 BBCJ 553 ), lands of village Barahat in the district of Monghyr were being irrigated by this very Nala. Nahar Anchal Adhikari of that area issued notices to the raiyats holding lands in village Barahat to pay Rs. 8/- per bigha as water rate for irrigating the land. Nahar Anchal Adhikari of that area issued notices to the raiyats holding lands in village Barahat to pay Rs. 8/- per bigha as water rate for irrigating the land. The raiyats of village Barahat came to this Court and this Court quashed the notices issued to the raiyats of village Barahat on the ground that on account of the entry in the Fardapashi it was the obligation of the landlord to maintain the canal and supply water to the raiyats for irrigation. It was also said that the enhanced rent was being paid by the tenant. A plea, however, was taken on behalf of the State of Bihar that on account of the notification under Sec.3 (1) of the Bihar Public Irrigation and Drainage Works Act and Rule 3 (b) of the Bihar Public Irrigation Works Rules, 1947, the State is entitled to recover additional amount. This argument was rejected mainly on the ground that no document was filed showing the notification under Sec.3 (1) of the Act read with Rule 3 (b) of the Rules. In this case also the notification has not been filed nor any statement to that effect has been made in the counter-affidavit. Therefore, the case reported in 1975 BBCJ 553 fully applies to the present case and on that basis Annexure-1 series have to be quashed. 5. Mr. Government Pleader No. 5, however, urged that probably the notification under Sec.3 (1) of the Act read with Rule 3 (b) of the Rules has been issued but the same could not be filed for paucity of time. I do not think the State can realise the amount even if that notification has been issued for the simple reason that it is mentioned in the publication under Sec.103A (2) of the Bihar Tenancy Act, 1885 that the landlord will be responsible for making arrangement for sairabi and that the enhanced rent will be realisable from the tenant on account of irrigational facility. Admittedly, the State is realising the enhanced rent. If it is realising enhanced rent, it cannot, in my view, also charge fee under other head for the same purpose. Therefore, even if notification as said by Government Pleader No. 5 has been made, it does not help the State at all. For these reasons, I allow the application and quash the notices as contained in Annexure-1 series. If it is realising enhanced rent, it cannot, in my view, also charge fee under other head for the same purpose. Therefore, even if notification as said by Government Pleader No. 5 has been made, it does not help the State at all. For these reasons, I allow the application and quash the notices as contained in Annexure-1 series. On the facts of the case, there will be no order as to costs.