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1987 DIGILAW 201 (PAT)

Depta Tewari v. State of Bihar

1987-07-03

S.B.SINHA

body1987
Judgment S.B. Mnha, J: In this writ petition the petitioners Challenge the orders as contained in Annexures-12 and 13 to the writ petition passed by the respondent nos. 3 and 2 respectively. 2. The aforementioned respondents by the said orders held that rent receipts should be issued in respect of the lands in question in the names of respondent nos. 4 to 7 and directed that the rent which was being accepted from the petitioners be not so done. 3. Mr. Debi Prasad, learned counsel appearing on behalf of the petitioners, has raised three questions. He firstly submitted that from the application tiled on behalf of respondents as contained in Annexure-10 to the writ petition it would appear that the same was filed before the land Reforms Deputy Collector, Sadar Daltonganj He therefore submitted that L.R.D.C., Daltonganj had no jurisdiction to initiate the aforementioned proceeding at all. 4. The learned counsel appearing on behalf of the State ha3 drawn my attention to the statements made in the said annexure itself where in it has been stated that the said respondents approached the Circle Officer but the Circle Officer directed that the respondents to file the application in question before the L.R.D.C In this view of the matter the first contention of Mr Debi Prasad has no merit. 5. Mr. Debi Prasad then submitted that the Appellate Court in its order has merely relied upon the report of the Karamchari and the Inspector. He further has drawn my attention to the fact that from a perusal of the order dt.6.4.77 as contained in Annexure 12 to the writ petition it would appear that the private respondents did not file any document to prove their title, whereas the two sets of objectors who appeared before the respondent no. 3 tiled various documents which have been mentioned in the said order itself. 6. From a perusal of the impugned order it appears that the respondent nos 2 and 3 have rightly decided the case of the respective parties on the basis of the possession. It is not disputed nor can it be in law, that an order with regard to mutation has to be passed on the basis of possession only inasmuch as the authorities concerned cannot decide in such a case a disputed and complicated question of title. It is not disputed nor can it be in law, that an order with regard to mutation has to be passed on the basis of possession only inasmuch as the authorities concerned cannot decide in such a case a disputed and complicated question of title. The findings of fact by aforementioned respondents having been arrived after taking into consideration all relevant fact and as such I am not in a position to interfere therewith. 7 It has not been suggested that the said findings ate based on no evidence, nor has it been suggested that the said orders are vitiated in law as the same are based on irrelevant matters or on extraneous consideration It has also not been suggested that the orders suffer from the vice of a total non-application of mind or are otherewise malafide. Reference in this connection may be made to the recent Full Bench decisions reported in Mahanth Dhansukh Giri-Versus- The State of Bihar1 and Mandori Labour Co-operative Societies Ltd -Vs The State of Bihar 2 8. Mr. Debi Prasad submitted that the report of the Karamchari and the Circle Inspector could not have been relied upon without examining them as witnesses. 9. In my view the Officers passing the orders on mutation matter do not exercise any judicial or quasi judicial function. They arrive at a decision of possession on the basis of the evidence placed before them including the reports of the officers concerned. Respondent nos. 2 and 3, in my opinion, cannot be said to be a Court within the meaning of section 3 of the Evidence Act, and as such it was not necessary for them to follow the procedure laid down under the Evidence Act, for the purpose of proving any docuwei1t or otherwise. 10. Mr. Prasad thereafter submitted that the lands were previously mutated in the name of the petitioners and a jamabandi was opened in their names. He therefore submitted that if the respondents or their predecessors in office or any other persons ware adversely affected by such orders, it was obligatory on their part to prefer an appeal within the prescribed period. 11. Prasad thereafter submitted that the lands were previously mutated in the name of the petitioners and a jamabandi was opened in their names. He therefore submitted that if the respondents or their predecessors in office or any other persons ware adversely affected by such orders, it was obligatory on their part to prefer an appeal within the prescribed period. 11. From a perusal of the orders dated 6.4.77 contained in Annexure 12 to the writ petition it appears that the name Munshi Tewari and Giri Tewari have been entered in respect of some lands in question in the demand register, but the basis for correction slip could not be traced out. 12. So far as the case of Ambika Singh is concerned, it has clearly been found in the order of the concerned respondents that no Am Istehar was issued and the purported application for mutation was allowed in favour of Ambika Singh only on the basis of report of the Sarpanch. In the order as contained in Annexure 12 it has rightly been held that had the Am Istehar been issued, the position might have been different and the aggrieved parties in that event could have got an opportunity of putting forward their case. In this view of the matter I find no substance in the contention of Mr. Debi Prasad. 13. Mr. Debi Prasad submitted that it is not a case of mutation but it is a case of cancellation of zamabandi and in support of this submission he relied upon a Division Bench decision of this Court in (Jamaluddin Ahmad Versus-S.D.O., & Ors) and Khiru Gope and others Vs. L. R. D. C., Jamui & Ors 14. It appears that the attention of the Division Bench of those cases was not drawn to an earlier Division Bench judgment of this Court in C.W.J.C. No. 215 of 1976 (R) Gubri Singh Vs State of Bihar & Ors derided on. 21st July, 1977 reported in AIR 1978 NOC 88. In the aforementioned decision of Gobri Singh it has clearly been held that the orders with regards to the fixation of rent are not judicial orders but merely administrative ones. It has further been held in the Said case that while passing such orders the provision of B. L. R. Act, does not come into picture at all. 15. In the aforementioned decision of Gobri Singh it has clearly been held that the orders with regards to the fixation of rent are not judicial orders but merely administrative ones. It has further been held in the Said case that while passing such orders the provision of B. L. R. Act, does not come into picture at all. 15. In that judgment it was further held that in view of the disputed question of fact with regard to possession it is better if such disputed question of possession be decided by the Civil Courts in properly framed civil suit. 16. In the instant case like Gobari Singh's case the petitioners V is a-vis the private respondents are claiming possession in or over the land in question The respondent nos. 2 and 3 while passing the impugned orders in this writ petition as contained in Annexures 12 and 13 thereto have found possession of the respondent nos. 4 to 7 in the lands in dispute. The petitioners in this petition cannot challenge the said finding as this Court, is not a proper forum where such disputed question of possession can be decided. 17. So far as the submission of Mr. Prasad with regard to the question as to whether the impugned orders are in relation to mutation matters or for cancellation of zamabandi, in my opinion, does not make much difference in the facts and circumstances of the case. In the instant case it has been held that so far as the zamabandi opened in the name of Ambika Singh is concerned, the same has been done without publication of the Am Istehar. In the case of the petitioner it has been held that the basis upon which the correction slip was issued was not traceable, which was allegedly done only On the basis of the report of the Sarpanch In such a situation it can not be said that proper procedures raid down for opening up of zamabandi were followed and in that view of the matter :is there was no legal order for opening of a zamabandi, an application filed by respondent nos. 4 to 7 for opening of a zamabandi in their names was maintainable. 18. In my opinion, the decisions cited by Mr Prasad cannot be said to have any application whatsoever in the facts and circumstance of this case. 4 to 7 for opening of a zamabandi in their names was maintainable. 18. In my opinion, the decisions cited by Mr Prasad cannot be said to have any application whatsoever in the facts and circumstance of this case. In Jamaluddin Ahmads case this Court interfered with the order of cancellation of zamabandi which was opened after following the procedures laid down therein. In such a situation it was held that respondent of that case who had the knowledge of the fact that the zamabandi was opened in the year 1970 in the name of the petitioners thereof and which position continued till 1978 could not have come forward with an application for cancellation of zamabandi as they did riot prefer an appeal within the stipulated time, which they were bound to do. 19 In the case of Khiru Gope & Ors the person who obtained a settlement from the ex-intermediary filed an application for fixation. of rent before the Dy Collector which was allowed after the due scrutiny. The State of Bihar had been accepting the rent from the said person for a number of years but later on an application filed by it before the L. R. D. C. who cancelled the zamabandi In the aforementioned judgment it was held, following the judgment of Jamaluddin Ahmad and also the judgment of Harihar Singh Versu State of Bihar6 that is such a situation The L. R. D. C. had no jurisdiction or power to cancel the zamabandi and remove the name of the petitioner nos. 1 and 2 from the tenant's register, the effect whereof was to cancel the settlement by the ex-intermediary in favour of the petitioner nos. 1 and 2. 20. In the instant case, therefore, the situation is entirely different. Here the parties are fighting amongst themselves as to in whose name the demand register should be opened in respect of the land in question. 21. Further as found hereinbefore in the instant case it appears that the names of the petitioners were entered into the demand register in a hush hush manner and there are materials on record to show that proper procedures laid down for opening a zamabandi were not followed. 22. It is now well settled that a case is an authority for which it has been decided and not what can logically follows there-from. 22. It is now well settled that a case is an authority for which it has been decided and not what can logically follows there-from. Reference in this connection maybe made to a decision of Quinn-Vs.-Leathem in Lord Halsbuy held as follows:- "The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all." 23. After having given my anxious consideration I am of the view that the Division Bench decisions of this Court in Gobri Singh's case apply in all fours to the facts and circumstance of the case. Even assuming that there is some conflict, although I do not find any, between the case of Gobri Singh and other decisions cited by Mr. Prasad namely, Jamaluddin Ahmad case and Khiru's case, the decision of the earlier Division Bench shall have to be followed by this Court. In any view of the matter the questions which were posed for determination in this case viz as to whether the orders of mutation are judicial orders or not were not posed either in Jamaluddin Ahmad's case or in Khiru's case. 24. I, therefore, do not find any merit in this writ petition which is hereby dismissed but in the facts and circumstance of the case there will be, however, no order as to costs. Application dismissed.