Rama Prasad Singh v. State of Bihar — 1989 DIGILAW 138 (PAT)

Judgment U.P. Singh, J. In this application the petitioners have challenged the validity of the order passed by the Addl. Collector, Deputy Commissioner annulling the settlement made in favour of the petitioners in exercise of the power under Section 4H of the Bihar Land Reforms Act. 2. The basis question which arises for consideration is whether the proceeding under Section 4H of the Act, could be initiated in respect of lands settled after 1st January, 1946. The settlement in question is of the year 1945 and, therefore, obviously beyond the scope of Section 4H of the Act. 3. The land in question is plot no. 3218 appertaining to Kata no. 136 of village Hiranpur measuing about 27 bighas which was ‘gair-adad malik land’ of the earst while landlord, Raja if Jharia named Siva Prasad Singh. In the year 1945 the said Raja of Jharia made permanent raiyat settlement for an area of 15 bighas of land out of he said plot no. 3218 in favour of his youngest son, in lieu of his maintenance, who is petitioner no.1. After the death of said Raja Sheo Prasad singh, his eldest son Kali Prasad Singh inherited the estate in accordance with the rule of primo geniture prevalent in the said estate. Since petitioner no. 1 was minor at the time when the aforesaid maintenance was grantee, the aforesaid brother Sri Kali Prasad Singh acknowledged and accepted the said grant he succeeded to the said estate. After vesting of the said Jharia estate in the State of Bihar, petitioner no. 1 become the raiyat in respect of the aforesaid land bearing plot no. 3218. On about March, 1951 the said Kali Prasad Singh, the eldest brother of petitioner no. 1 sold and transferred a petition of 10 bighas of the aforesaid land to the Income-tax Department by means of a registered sale deed after a thorough enquiry made by the then Deputy Commissioner, Dhanbad. By ano her deed of lease in September, 1951 he made a permanent settlement of 2 bighas of land out of the aforesaid plot in favour of one Sri A.B. Guha. After the said purchase he came in possession of the land but since in the survey entry the aforesaid plot no. 3218 was recorded as ‘gair abad’ land, a proceeding under Section 4H of the Act, was started against Sri Guha. In the said annulment case no. After the said purchase he came in possession of the land but since in the survey entry the aforesaid plot no. 3218 was recorded as ‘gair abad’ land, a proceeding under Section 4H of the Act, was started against Sri Guha. In the said annulment case no. 10 of 1960-61 it was found that the vender if Sri Guha, namely, the said Kali Prasad Singh had got title and in the result the said proceeding under Section 4H of the Act, was dropped. The order dated 20.7.1961 is contained in Annexure 1. 4. In pursuance of the settlement, petitioner no. 1 filed an application for mutation of his name as raiyat. In the said Mutation Case No. 141 (II) THN of 1959-60 the name of the petitioner was allowed to be mutated in respect of an area of 15 bighas of land appertaining to the said plot no. 3218. Since then petitioner no. 1 stated paying rent to the State of Bihar and continued in peaceful possession. Subsequently, by means of registered deed executed by means of a registered deed executed by petitioner nos. 2 & 3 purchased 6 Kathas and 10 Chhataks of land out of the aforesaid plot no. 3218. Their names were also mutated as raiyats in Mutation Case 58 (II) of 1974-75. In their names, the Jamabandi Khata no. 1048 was also opened since then petitioner nos. 2 & 3 have been paying rent to the State of Bihar and have been granted rent receipts. Likewise, petitioner no. 4 also purchased an area of 4 Katha from petitioner no. 1 and the name was mutated in the Revenue records by an order passed in Mutation case no. 42 (II) of 1977-78. A Jamabandi Khata was opened in the name of petitioner no. 4. 5. It appears that the Deputy Commissioner, Dhanbad had set up an enquiry and asked respondent no. 5, the Deputy Collector and incharge Land reforms, Dhanbad to submit a report in respect of the said plot no. 3218. In the said report the Land reforms Deputy Collector, on consideration of all aspects of the matted respected that aforesaid plot no. 3218 has connection what so-ever with the alleged Gold ground and the said plot of land did not vest to the State of Bihar under the Act. 3218. In the said report the Land reforms Deputy Collector, on consideration of all aspects of the matted respected that aforesaid plot no. 3218 has connection what so-ever with the alleged Gold ground and the said plot of land did not vest to the State of Bihar under the Act. It was further found by the Land Reforms Deputy Collector that in the year 1945 the first petitioner had taken the settlement of 15 bighas of land from the then Raja of Jharia and his name was lawfully recorded and mutated in the Revenue records and the rent are being paid for which rent receipt are being granted by granted by the State of Bihar. It was also found during course of the said enquiry that petitioner nos. 2 to 4 are the settles and on settlement of petition of the land out of the said plot by petitioner no. 1 their names have also been recorded and mutated in the Revenue records who are paying rent to the State of Bihar and the receipts have been granted in their favour. It was categorically found that before in their favour. It was categorically found that before vesting of the estate in the State of Bihar the settlement made by the earst while Raja of Jharia was accepted. The rents were accepted as also Khata were opened and for these reasons the settlement of the land made be accepted as having vested in the State of Bihar. The said report is of February 1977 contained in Annexure 2. 6. The Addl. Collector however started a fresh proceeding under section 4H of the Act, or annulment of the statement made in favour of the petitioners and directed the petitioners to show cause. The petitioners appeared and contended that the proceeding under section 4H of the Act, was misconceived since the settlement made in favour of the petitioners was of the year 1945. His name was duly mutated in the Revenue records and he acquired subsisting title over the land in question the subsequent settlement made by the first petitioner in favour of the petitioner nos. 2 to 4 was also confirmed by the Land Reforms Deputy Collector and their names were also duly mutated. His name was duly mutated in the Revenue records and he acquired subsisting title over the land in question the subsequent settlement made by the first petitioner in favour of the petitioner nos. 2 to 4 was also confirmed by the Land Reforms Deputy Collector and their names were also duly mutated. Thus, it was contended that the same can not be reopened after 20 years, particularly when the State of Bihar did not prefer any appeal against the orders passed by the authorities in the mutation proceeding. 7. It appears that the Addl. Collector without considering these various aspects of the matter in its right prospective recommended for annulment of the settlement of the land. On appear, the Deputy Commissioner confirmed the order of the Addl. Collector and the revision preferred before the Commissioner also remained unsuccessful. On perusal of the orders it appears that without consideration of any material it was hold on mere assumption that since the registered deed of transfer in favour of petitioner nos. 2 to 4 was executed in the year 1952 therefore the alleged settlement of year 19545 in favour of petitioner no. 1 is an after thought. Neither the Addl. Collector nor the Deputy Commissioner nor the Commissioner had before them any substantial evidence to dislodge the settlement made in favour of the petitioner made in the year 1945 the learned Commissioner again proceeded on mere assumption to hold that the Raja of Jharia made settlement to his brother by registered deed which implies that the settlement was within the family to deprive the Government of the valuable land. The finding is mere presumptive. In accordance with the rule of primogeniture prevalent in the family of the earst brother while case of Raja of Jharia, the oldest brother was given the land for his maintenance and therefore the settlement had to be made which of course undisputedly made in the year 1945 and therefore, the proceeding under section 4H of the Act, must be held to be incomplete and misconceived. The proceeding under section 4H of the Act, could be initiated only in respect of the land settled after 1945. The proceeding under section 4H of the Act, could be initiated only in respect of the land settled after 1945. It was confirmed in the mutation case and the name of the first petitioner was mutated as raiyat in the revenue records of the State of Bihar and vide latter dated 27.3.1976 of the Land Reforms Deputy Collector this was confirmed and approved by the then deputy Commissioner. When the State of Bihar was aggrieved it ought to have preferred statutory appeal which was not so done. In respect of a part of the settlement made also in the year 1950 by the first petitioner in favour of Income Tax authority out of the same plot of land in question, no proceeding whatsoever was stated for the annulment of the said settlement. Once the said settlement is accepted as also the settlement is accepted as also the settlement in favour of Sri A.B. Guha, the said plot of land lost its character of ‘Gairabad mali’ and the plot of land acquired a raiyati character before the Land Reforms Act, 1950 come into operation. Therefore, the proceeding under Section 4H of the Act, was untenable. 8. In CWJC No. 134/80(R) it was held that before exercising the jurisdiction under Section 4H of the Act, the LRDC had himself to be satisfied and arrive at his own conclusion that the transfer was made with the object of defeating any provision of the Act, of causing less to the State or obtaining higher compensation thereunder. On a plain reading of the provisions contained under section 4H of the Act, it is obvious that the Collector while exercising his power to make inquiries in respect of any transfer must be satisfied that such transfer was made at any time after 1st January 1946. No such finding appears to have been recorded in the present case. The LRDC is an adjudicatory body and, therefore he could not recommend for such annulment which is so obvious from his order. The court also filed to consider the fact that the State had accepted rent from the petitioners and did not prefer any appeal against the order of mutation made in his favour. As already held the LRDC cannot be the recommending authority. The court also filed to consider the fact that the State had accepted rent from the petitioners and did not prefer any appeal against the order of mutation made in his favour. As already held the LRDC cannot be the recommending authority. He was an adjudicatory body and to arrive at his own conclusion in terms of arrive at his own conclusion in terms of Section 4H of the Act. In the present case, there is no evidence worth the name to hold that the settlements were made after 1.1.1946. 9. Considering these facts and circumstances of the case, I have no opinion but to hold that the impugned orders are wholly illegal and are accordingly quashed. The application is accordingly allowed. But in the circumstances, however there will be no order as to costs. Application allowed.