Qadir Mian v. State of Bihar — 1994 DIGILAW 330 (PAT)

JUDGMENT Radha Maohan Prasad, J. In this petition the petitioner prays for quashing of the order dated 3.2.1984 passed in Land Ceiling Case No. 43/74.75 by the Additional Collector, Incharge Land Revenue, Gaya, a photo copy where of has been annexed as Annexure 1, whereby the alleged land of the petitioner has been declared to; be of one Sri Anzar Husnain. In short, the facts of the case are case are that there was a draft publication of the lands made under section 10 (2) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to; ;as 'the Act'). The petitioner appeared and filed objection claiming 21.20 acres of land by virtue of settlement made by ex-landlord by Hukumnama dated 5th Asarah, 1351 Fasli and 16th Jeth 1357 Fasli. The petitioner also claimed that he was put in possession and was granted rent receipts also by the ex-landlord. In support of that rent receipt has also been filed as Annexure 2. After the vesting of the estate in the State of Bihar under the Act, the petitioner claims to have filed petition for mutation of his name and opening of a separate demand before the Anchal Adhikari, Gurua. Which was registered as Case No. 213 of 1960 61, it is alleged that Anchal Adhikari, Gurua rejected the petition of the petitioner whereupon he filed a title suit No. 133 of 1965 imploding the State of Bihar, Anchal Aedhikari and Syed Mohammad Anzar Husuain as defendants. 3. On 30.1.1970 the suit was decreed in favour of the petitioner and the lands in question wee declared to be his raiyati kast lands. A photo copy of the judgment and decree of the title suit has been annexed as Annexure 3 series. It is stated that Certificate case No 200 of 1969-70 was started in respect of the said land against Anzar Husuain in which he had given in writing that he had no concern with the land and the petitioner claimed that the lands were held by him as settle, and was ready to deposit the certificate due which was allowed by the Court and the petitioner claims to have deposited the certificate dues, where upon the Court ordered that the dues are fully satisfied and, accordingly, entry was made in the register. Copies of the order passed in the certificate case and the Challan showing deposit have been annexed as Annexure 4 and 4(a) respectively. 4. It is alleged that in the recent survey proceeding the name of the petitioner as well as the names of his transferee were also recorded to whom some of the lands were transferred under various sale deeds. It is claim that the Anchal Adhikari was directed to make enquiries and the reports submitted by him show that the petitioner is not the Farzider of Anzar Husnain and is in possession of the lands claimed by him in his own right. Photo copy of the certified copy of the said report has been annexed as Annexure 6. Thereafter the impugned order has been passed in which it has been held that the lands in question are of land-holder Anzar Husnain and that the title suit was filed only with an object to retain the land by the land-holder. 5. A counter affidavit has been filed on behalf of the respondents in which it is stated that the land had rightly been declared the land of the lead holder Anzar Husnain as the petitioner is his Farsidar. It is alleged that the land in question was settled through antedated Sada Hukumaname by the son of the land-holder although the name of the ex - landlord has not been mentioned in the writ petition. Further, it is stated that from the letters dated 31. 5.1976 of the Anchal Adhikari, Guroa it would appear that the demand in respect of the land stands in the name of Shri Anzar Husnain and that the Anchal Adhikari, Guroa further reported, Vide his letter no. 11 dated 7.1.1984 that the demand was opened vide Rent Fixation Case No, 234/60-61 bearing Demand No 13 in the name of Shri Anzar Husnain, the landholder. As regard the aforementioned title suit it is stated that as the petitioner that is Farzidar of the land-holder, he did not contest the same and so far as the suit at that item, the decree was passed party which cannot influence the ceiling proceeding. In paragraph 10 of the counter affidavit it is stated that on receipt of the enquiry report of the Anchal Adhikari, Guroa and the fact circumstances available on the record, the Additional collector. In paragraph 10 of the counter affidavit it is stated that on receipt of the enquiry report of the Anchal Adhikari, Guroa and the fact circumstances available on the record, the Additional collector. Gaya considered proper to personally hold enquiry and verify the possession on the spot during his tour when several local person informed him that the land in question is in possession of the land-holder Sri Anzar Husnain and that the produces of the said land are used by him. 6. A supplementary affidavit has been filed on behalf of the petitioner in which it has been reiterated that by virtue of the aforementioned settlement by the ex-landlord, through Hukumnamas, referred to above, and the decree passed in the title suit petitioner became the land-holder in his own right within the meaning of the Act prior to the proceeding initiated against the ex-landlord Anzar Husnain in the year 1974-75. It is also stated that the prayer of the petitioner for opening of the demand in his name and fixation of rent was also allowed order dated 5.12.1988, photo copy whereof has been annexed as Annexure G. Further rent receipt has been annexed as Annexure 7. It is also stated that the petitioner did not possess and in excess of the coiling. 7. Ms. Dhrub Nanyan, learned counsel for the petitioner has challenged the correctness of the findings of the Additional Collector in the Impugned order whereby the claim of the petitioner has been rejected it has been contended that the Additional Collector has not considered the material, referred to above, which was also filed before him and based his conclusion only on the alleged enquiry held by him behind the back of the petitioner and/or on some kind of information without putting it to the party, namely the petitioner against whom the said information have without putting it to the party, namely the petitioners against whom the said information been used and thereby the petitioner has been deprived of a fair opportunity to explain the same. Thus, it is contended that the impugned order in so far as it relates to the land in question of the petitioner is fit to be quashed on the aforesaid ground alone. Thus, it is contended that the impugned order in so far as it relates to the land in question of the petitioner is fit to be quashed on the aforesaid ground alone. In support of this learned counsel has pleased reliance on the decision of the supreme court in the case of Mysore and other V. Shivabasappa Shrvappa Malapru ( AIR 1963 S.C. 375 - Para 3). Learned counsel for the State in support of the impugned order contended that under section 5(1) (iii) of the Act the Collector has been vested with power to enquiry in respect of such transfer and is such the Collector after holding enquiry has rightly passed the impugned order. 8. It is no doubt that under clause (iii) of sub-section (1) of section 5 of the Act the Collector has been vested with the power to make enquiries in respect of any transfer of land by land holder whether by a registered instroment or otherwise notwithstanding any thing to the contrary contained in any judgment, decree or order of any court or authority. Further, If the Collector is satisfied that such transfer was made with the object of defeating, or in contravention of the provisions of the Act or for retaining, benami or farzi land in excess of the ceiling area, he after giving reasonable notice' to the parties concerned to be heard, can annual such transfer and thereupon the land shall be deemed to be held by the transfer for the purposes of determining the ceiling area he may hold under the provisions of the Act. 9. However, I find from the impugned order that the Collector has held the land in question to be of he land of the land holder Anzar Husnain and, further, held that the title suit was only for the purpose of retaining the land by the land-holder. The said finding, however, in has on the information received by the collector during his personal enquiry. The collector has not even mentioned as to from whom he received such information. However, he has not even put it to the parties, including the petitioner against whom the same is being used. Thus, in my opinion, the petitioner has been deprived of the fair opportunity to explain the said alleged information received by the Collector. The collector has not even mentioned as to from whom he received such information. However, he has not even put it to the parties, including the petitioner against whom the same is being used. Thus, in my opinion, the petitioner has been deprived of the fair opportunity to explain the said alleged information received by the Collector. The supreme Court in the case of State of Mysore V. Shivabasappa (supra) has held as follows:- . “3......For a correct appreciation of the position, it is necessary to report what the position, it is necessary to report what has often been said that tribunals exercising quash-judicial functions are not Courts and that therefore they are not bound to follow the procedure prescribed for trial of actions in Courts nor are they bound by strict roles of evidence. They can, unlike Courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by ruses and procedure which govern proceedings in Court The only obligation which the low casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case but where such an opportunity had been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in Courts," 10. Thus, for the reasons aforementioned, the impugned order, in so far as it concerns the land in question, cannot be sustained and, accordingly, it is set aside and the matter is remitted back to the Additional Collector, Revenue and Land, Ceiling Gaya for holding fresh enquiry, if considered by him necessary, in accordance with law. 11. In the result, the writ application is allowed but without costs. Application allowed.