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1992 DIGILAW 162 (PAT)

Sundari Devi v. State Of Bihar

1992-04-27

S.B.SINHA

body1992
Judgment S. B. Sinha, J. 1. -in this application the petitioner has prayed for issuance of a writ of certiorari for quashing the order dated 21-5-1978 passed by the respondent No.5 as contained in Anncxure-2 ; order dated 11-4-1981 passed by respondent No.3 and as contained in Annexure-4 as also the order dated 16-8-1983 passed by the respondent No.2 and as contained in Anncxure-5 to the writ application. 2. The fact of the matter lies in a very narrow campus. The petitioner is a purchaser of the land in question from respondent No.11 (Smt- Baba Dai ). The geneological table of the family of the petitioner is as follows :- According to the petitioner, Khublal Sah and Bhola Sah were separate. The petitioner has stated that the respondent No.11 had sold the land in question by a registered sale deed dated 20-1-1976 and put in possession thereof. According to the petitioner, she sold O.46 decimels of land out of khesra No.1021 in favour of one Nathan Sah by a registered deed of sale dated 5-7-1976, 3 The petitioner, thereafter, through her husband filed an application for mutation before the respondent No.5. The said application was dismissed by the respondent No.4 by an order dated 21-5-1978 (Annexure-2)upon obtaining a report from the Karamchari. The Karamchari, inter alia, reported (Annexure-1) that the entire land belonging to the family measuring 7.73 acres had already been sold and lands in question had already been entered in Register II in the names of the said purchasers. 4. The petitioner preferred an appeal against such order dated 21-5-1978 passed by respondent No.4. It was allowed by an order dated 15-11-1978. 5. The respondent Nos.6 to 10 thereafter preferred a revision application before the respondent No.3 which by reason of the impunged order dated 14-4-1981 (Annexure-4) was allowed. The learned Add1. Collector, inter alia, held that several disputes in respect of the land in question have arisen for consideration, including the question of the title of vendor of the petitioner and, thus, the parties should file a suit in an appropriate Civil Court. A revision application was filed by the petitioner which was also dismissed by an order dated 16-8-1983 as contained in Annexure-5 to the writ application. 6. Sri A. B. Mathur, the learned Counsel appearing on behalf of the petitioner has principally raised two contentions in support of this application. A revision application was filed by the petitioner which was also dismissed by an order dated 16-8-1983 as contained in Annexure-5 to the writ application. 6. Sri A. B. Mathur, the learned Counsel appearing on behalf of the petitioner has principally raised two contentions in support of this application. The learned Counsel has submitted that the respondent No.2 had no jurisdiction to entertain the revision application. The learned Counsel next contanded that respondent No.5, prior to passing of impugned order, did not follow the procedures laid down under the Bihar Mutation Manual, i. e. the circulars issued by the State of Bihar relating to mutation of the names of persons in Register II nor followed the procedure laid down under the Bihar Tenants Holding (Maintenance of Records) Act, 1973 (Bihar Act 28 of 1975 ). The learned counsel, in this connection, has relied on the provision of Sec.14 (2)of the aforementioned Act and Rule 34 of the Bihar Tenants Holding (Maintenance of Records) Rules. My attention was further drawn to the instructions of the State of Bihar dated 12-7-1961. 7. It is not in dispute that the provisions of the aforementioned Act had been made applicable in the area in question, namely, Banmankhi by a notification bearing SO 683 dated 11-5-1978 with effect from 1-6-1978. The petitioner filed the application for mutation much prior to coming into force of the aforementioned Act. The procedure laid down under the aforementioned Act therefor could not be made applicable in the instant case, Particularly, in view of the fact that even the impugned order as contained in Annexure-2 to the writ application was also passed by the respondent No.5 on 21-5-1978, i. e. prior to coming into force of the said Act. 8. Mr. Mathur has, however, drawn my attention to the following instructions issued by the State of Bihar :- "5. Mutation arising out of transfer by gift, sale etc. These cases are governed by the relevant provision in Sec.26 A of the bihar Tenancy Act and 23 A of the Chotanagpur Tenancy Act. The landlords notices are received by the Collector and these notices have to be sent to the Anchal Adhikaris. If a part holding is transferred, the question of apportionment of rent will also arise. These notices should form the basis of mutation. The landlords notices are received by the Collector and these notices have to be sent to the Anchal Adhikaris. If a part holding is transferred, the question of apportionment of rent will also arise. These notices should form the basis of mutation. The Anchal Adhikari will institute cases and forward the record to the Sarpanch of the Gram Panchayat concerned. The Sarpanch will issue notice to the parties and publish a a general notice in the village informing them of the date on which the enquiry will be held. He will hear the parties and then give his recommendation as to the manner in which the mutation proceedings should be disposed of. Full reason for the recommendation should be available to enable the Anchal adhikari to confirm the recommendation. If the Anchal Adhikari does not agree with recommendation, he shall consult the sarpanch and hear the parties concerned and pass the requisite orders. These order will be appealable to the Land Reforms deputy Collector ". 9. In this case, a counter-affidavit has been filed wherein it has been stated that all the procedures were followed at in accordance with law, as it appears from the statement made in para 17 of the counter affidavit. There is no doubt that the order as contained in Annexure-5 is illegal as the respondent No.2 had no jurisdiction to entertain revision application in terms of Clause 10 of the mutation manual but for that the petitioner is to blame herself inasmuch as she filed the revision application before the respondent No.2 against the order dated 14-4-1981 passed by the respondent No.3. 10. It may be true that the procedures required to be followed for mutating the names of the purchasers might not have been strictly complied with by the respondent No.5 but even in relation thereto the petitioner cannot take advantage inasmuch as the petitioner herself filed the aforementioned application for mutation and the private respondents appeared and contested the said application. It was further stated in the counter affidavit that the Sarpanch is a relation of the petitioner. The respondent No.5, therefore, rightly decided the matter himself. It was further stated in the counter affidavit that the Sarpanch is a relation of the petitioner. The respondent No.5, therefore, rightly decided the matter himself. It has been found as of fact by the respondent no.3 that there has been serious disputes with regard to the title and possession in respect of the properties in question and, particularly, in view of the fact that the names of the respondent No.6 to 10 have already been mutated in the office of the State of Bihar. The petitioner knew that she had purchased an undivided interest of a co-sharer and, thus, she merely acquired a right to sue for partition. 11. In my opinion, the petitioner therefore should file a suit for partition and for other reliefs as she may be advised in this regard so that all the contentions raised on behalf of the petitioner can be agitated in a properly constituted civil suit. 12. This Court, in my opinion, should not thus exercise its extraordinary jurisdiction under Article 227 of the Constitution of India. 13. Instructions issued by the State of Bihar are administrative in nature. They do not have the force of statute. References, in this connection, will be made to a decision of a Division Bench of this Court in Gobri singh V/s. The State of Bihar and others reported in AIR 1978 NOC 88 (PAT ). For the reasons aforementioned, in my opinion, the remedy of the petitioner is to file a civil suit for obtaining appropriate relief before a competent civil court. However, there can not be any doubt that any observations made by the respondent Nos.5, 3 and 2 in their orders as contained in Annexures-2, 4 and 5 respectively shall not be binding upon the civil court and, thus, it would be open to the petitioner to contend that she had been put in possession by her vender in respect of the properties in question. In this view of the fact, this application is dismissed but without any order as to costs. Writ application dismissed.