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1981 DIGILAW 31 (PAT)

Abdul Hussain Pramanik v. State of Bihar

1981-02-02

K.B.N.SINGH, P.S.SAHAY

body1981
JUDGMENT : P.S. Sahay, J. 1. The petitioners have moved this court for quashing the ORDER :of the Land Reforms Deputy Collector dated 23.10.1978, as contained in Annexure-2, and also of the Additional Collector dated 16.7.1979, as contained in Annexure-6, passed under the provisions of the Bihar Land Reforms Act (hereinafter referred to as the Act). I will briefly state the facts in ORDER :to appreciate the points which have been raised in this application. The ancestors of the petitioners, late Haji Abdul Aziz Pramanik, obtained fishery rights from the then landlord Shiva Banarsi Prasad by means of a registered document for Tauzi no. 431 between the two high banks of river Kosi extending in mauza Dadpur, Tetri, Jamunia, Kharik Police Station Naugachia in the district of Bhagalpur commonly known as Sahaja Jalkar in mauza Dadpur. The case of the petitioners, further is that the predecessors of the petitioners from time to time settled this fishery right with different persons. One of the jalkars was settled with one Wahid Ali and there was a dispute relating to the jalkar between Wahid Ali, on the one hand, and the Revenue Authority, on the other, which was decided in favour of Wahid Ali. Thereafter, another proceeding under Section 144 of the Code of Criminal Procedure was started against Wahid Ali and it was decided against him. As against the aforesaid ORDER :Wahid Ali moved this court in Criminal Revision 1354 of 1974 which was allowed on 27.6.1979 and the proceeding was quashed. The petitioners have further stated that though the petitioners and their ancestors had been coming in peaceful possession of those Jalkars since 1923 the heirs of Shiva Banarsi Prasad surrendered lands of khata no. 110 khesra no. 382 having an area of 16.12 acres of land as surplus under the provisions of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1950 without the knowledge of the petitioners and without any notice to them by the authorities concerned though they were the proprietors and they were mentioned as such in the register 'D'. In 1978 the agent of the petitioners learnt about the surrender of the fishery rights by the landlords of Parbatta from whom the petitioners' ancestors had taken settlement and it also came to their knowledge that the Circle Officer had settled the Jalkar for the year 1976-77 and 1977-78 with respondent no. In 1978 the agent of the petitioners learnt about the surrender of the fishery rights by the landlords of Parbatta from whom the petitioners' ancestors had taken settlement and it also came to their knowledge that the Circle Officer had settled the Jalkar for the year 1976-77 and 1977-78 with respondent no. 6. The petitioners lodged a protest before the Land Reforms Deputy Collector by means of petition on 7.8.1978 a copy of the same has been filed and marked Annexure-1. The Land Reforms Deputy Collector rejected the claim of the petitioners by his ORDER :dated 23.10.1978 a copy of the ORDER :has been filed as Annexure-2. The petitioners, thereafter, filed a revision before the Additional Collector, Bhagalpur who called for a report from the Circle Officer, Naugachia, copies of his ORDER :s are Annexure--3 and 4 to this petition. The Circle Officer, Naugachia, submitted his report on 19.5.1979 that the petitioners had fishery rights in the said Tauzi and had no concern with the lands which have vested, copy of the report of the Circle Officer, is Annexure--5. The Additional Collector, by his ORDER :dated 26.7.1970 rejected the application of the petitioners mainly on the ground that the fishery rights had been settled in the year 1976-77 and 1977-78 and no objection was raised on behalf of the petitioners, a copy of the ORDER :has been filed and marked Annexure-6. The petitioners' further case is that the sons and heirs of late Mosharraf Hussain Pramanik, who were petitioners in M.J.C. 713 of 1961 claimed fishery rights in Jalkar Chanan and Gangapanth and that case was decided in favour of the father of the petitioners in which it was held that the fishery rights were not encumbrance and do not vest in the State of Bihar under the provisions of the Act. That decision of (1) Sree Thakur Basudeo Rai and others Vs. State of Bihar and others is reported in 1965 Bihar Law Journal Reports 150. Counter-affidavit has been filed on behalf of the State in which it is stated that the fishery right in the present case was different from the fishery right in the case reported in 1965. That decision of (1) Sree Thakur Basudeo Rai and others Vs. State of Bihar and others is reported in 1965 Bihar Law Journal Reports 150. Counter-affidavit has been filed on behalf of the State in which it is stated that the fishery right in the present case was different from the fishery right in the case reported in 1965. B.L.J.R. Further it has been stated on behalf of the State that the petitioners were not coming in possession of the land which was actually in possession of the ex-landlords and Ramadhin Sahu had surrendered the same in the proceeding under the Ceiling Act and the petitioners cannot object to the same. 2. Mr. B.C. Ghose, learned counsel appearing for the petitioners, has contended that the right of fishery purchased by the petitioners in Kosi and other rivers are tidal rivers and they are not part of the land and, thus, they do not come within the purview of the Bihar Land Reforms Act and was not an encumbrance and will not vest in the State. The State has, therefore, no right to settle the same. Learned Government Pleader has not challenged the correctness of the decision reported in 1965 B.L.J.R. 150 but has submitted that in that case on a consideration of the various documents it was held that the petitioners (including the father of the petitioners) were given exclusive right of fishery severed from sub soil and was not an encumbrance on the land forming part of the estate of the ex-landlord. He has, further, urged that the position is quite different in this case and the interest of the petitioners had come to an end after the ex-landlords had surrendered the land under the Ceiling Act and the State having come in possession of the same had every right to settle the same, and petitioners had no right to challenge those settlements. Before considering the submissions made at the Bar I may refer to the decision of 1965 B.L.J.R. page 150 (Supra) where a similar point came up for consideration and after referring to various case laws, both of England and India, their Lordships held as follow: It would thus be noticed by a comparison of the Indian and English law in regard to fishery right in a public navigable and/or a tidal river that not only the public right of fishery in such a river in India has been encroached upon by conceding to the Crown the authority to grant a several fishery right but the grantee from the Imperial Severing Authority was allowed to disregard the proprietary right of the owner to the Soil when the river suddenly changed its course and encroached upon his land. The personality of the river and the navigable water of the great stream were held to be a separate entity and the several right of fishery granted to the grantee was treated as a right to fish in the water and not a right upon the land. It is at par with the right of navigation which obviously, it has been held both in England and in India could not be interrupted by the owner of the soil. The argument, put forward, on behalf of the State that there was nothing to indicate that the soil in the bed of the river was not granted to the grantee at the time of the original grant, and, therefore, the presumption in law that the soil was also granted and the petitioners could not claim several fishery rights in the waters of the rivers only, severed from the soil was negatived. In view of the aforesaid decision the only point for consideration will be whether the right of the petitioners and their ancestors came to an end after the vesting of the estate and surrender of some lands by the ex-landlords as urged on behalf of the State. This point was not specifically pleaded in the counter affidavit but in ORDER :to satisfy our conscience direction was given to the petitioners to produce the original document of settlement and copy of the same has also been produced before us. This point was not specifically pleaded in the counter affidavit but in ORDER :to satisfy our conscience direction was given to the petitioners to produce the original document of settlement and copy of the same has also been produced before us. On a perusal of that document it is clear that the absolute right was sold in the jalkar in question; details of which have been given in the item no. 3 of the vended property. It is also clear that ex-landlord had sold their entire interest in Tauzi no. 431 relating to the jalkar in question. The petitioners have also filed a copy of the register 'D' relating to mauza Puran Das Jalkar, Tauzi no. 431 standing in the name of the father of the petitioners as proprietor. The names of the jalkars have also been mentioned in the remarks column and it is stated that these being jalkars area could not be given. From these two documents it is clear that the father of the petitioners was the proprietor of the tauzi and was coming in peaceful possession of the jalkars in question and these jalkars were not encumbrance because they had interest only in the water and not in the land. In my opinion, therefore, the case is completely cavered by the decision of this Court in 1965 B.L.J.R. page 150 (Supra) and cannot be distinguished in any way. The petitioners have, therefore, made out a case for interference by this Court. The application is allowed. Let a writ of certiorari issue quashing the ORDER :of the Land Reforms Deputy Collector as contained in Annexure-2 and also the Additional Collector as contained in Annexure-6 and the petitioners are entitled to a declaration that their right in jalkar Puranda or Sahaja have not been affected by the surrender of lands by the ex-landlords in the proceeding under the Ceiling Act and the respondents are commanded not to interfere with the rights of the petitioners to lease out the Jalkars in question or to deal in any manner which they think fit and proper. There shall be no ORDER :as to costs. K.B.N. Singh, C.J. I agree.