Daso Kewat v. State of Bihar — 1995 DIGILAW 456 (PAT)

Order The petitioners in these three writ petitions had taken settlement of sand ghats of two rivers in the District of Nawadah for the year 1994-95 (1.1.1995 to 31.12.1995). They seek to challenge a common order by which the settlements made in their favour were terminated before the expiry of their period. As common questions of law and fact are involved in these three cases, they have been heard together and are being disposed of by this order. 2. The impugned order, which is at Annexure-1 in all the three writ petitions, has been passed by the District Magistrate, Nalanda on June 29, 1995. From that order it appears that on 30.12.1994 and 18.1.1995 sand ghats of two rivers in the District of Nawadah were settled in favour of the petitioners in each of these applications in the following manner: Name Place of Settlement Date of Settlee of river settlement amount Settlement i. Phaldu Mauza- Kharant 7,000 30.12.94 Petitioner in Plot 1990, 527 CWJC No. 4476/95. ii. Phaldu. Mauza-Pakarian 3,000 18.1.95 Petitioner in CWJC No. 5306/95 iii. Panehane Parpa, 36,000 18.1.95 Petitioner in Pararia, CWJC No. Nardigani 4620/95 The impugned order further states that the State Government had taken the decision to hand over the management of the sand ghats of the aforesaid two rivers to the Bihar State Minerals Development Corporation. In was also pointed out that in Clause 2(Ch) of the auction notice it was stipulated that in case the State Government took the decision to hand over the sand ghats listed in the notice to the Corporation it would be open for the authorities to terminate the settlement even before the expiry of its period and to make proportionate refund to the settlee. Hence, the settlements made in favour of the petitioners in these cases was being terminated w.e.f. July 1, 1995 and the Corporation was being authorised to manage those sand ghats. The order went on to direct the Corporation to deposit a sum of Rs.2,30,000 for the three sand ghats for the remaining period of the year of settlement. It was also directed that the Assistant Mining Officer, Nawadah should take steps for making proportionate refund to the settlees. 3. Mr. The order went on to direct the Corporation to deposit a sum of Rs.2,30,000 for the three sand ghats for the remaining period of the year of settlement. It was also directed that the Assistant Mining Officer, Nawadah should take steps for making proportionate refund to the settlees. 3. Mr. Sudarshan Sharma, learned counsel appearing on behalf of the petitioner in C.W.J.C. No. 5306 of 1995 referred to the agreement executed by the Collector, Nawadah and the Assistant Mining Officer, Nawadah on February 17, 1995 in favour of the petitioner and on that basis submitted that it was the sand ghat of river Barari that had been settled in favour of the petitioner. He pointed out that the impugned order related to rivers Phaldu and Panchane and submitted that the action of the respondent authorities in interfering with the petitioner's settlement on the basis of the impugned order was wholly illegal, arbitrary and amounted to brazen high handedness. 4. Mr. Birendra Kumar Sinha, learned counsel for the petitioner in C.W.J.C. No. 4476/95 submitted, in similar vein, that the decision of the State Government to hand over the management of the sand ghats to the Corporation related to the rivers other than Phaldu and in the impugned order the sand ghats of river Phaldu were included erroneously and arbitrarily. 5. I am quite unimpressed by the submission advanced by the counsel in both the aforementioned cases. As regards the confusion regarding the name of the river (Sarari or Phaldu) it may be noted that the area of settlement made in favour of the petitioner is clearly identifiable by the name of the village and the plot numbers as mentioned in the deed of agreement. The agreement (in CWJC No. 5306 of 1995) mentions the area of settlement as follows :- "ALL THE TRACT OF LANDS SITUATED AT PAKARIAN PLOT NO. 971 (p) AND 972 (p)...P.O. OHRHANPUR P.S. MOFFASIL, NAWADAH, DISTT. NAWADAH IN THE RIVER BARARI UNDER THE REVENUE P.S. MOFFASIL, NAWADAH, DISTRICT NAWADAH." Thus there can be no difficulty in the identification of the area of settlement purported to have been made in the petitioners' favour. It is not uncommon that a river or different parts of a river are sometimes known by different names and hence the petitioner cannot derive any benefit on that score. 6. It is not uncommon that a river or different parts of a river are sometimes known by different names and hence the petitioner cannot derive any benefit on that score. 6. I also find no substance in the submission made on behalf of the petitioner in C.W.J.C. No. 4476/95 that Phaldu was not among the rivers whose management was handed over to the Corporation. 7. It is further to be noted that the two writ petitions (C.W.J.C. Nos. 4476 and 5306 of 1995) are bound to fail for a more basic reason. In both these cases the settlements were purported to have been made by the Collector without any public auction and on the basis of the petitioners' application directly received in his office. 8. Mr. Sudarshan Sharma, counsel for the petitioner in C.W.J.C. No. 5306 of 1995 sought to contradict this position by referring to the deed of agreement wherein it is stated that the agreement was being made on the basis of an auction dated 3.2.1995. 9. I am unable to accept Mr. Sharma's submission. The agreement is in a printed form and the blank spaces there have been filled up in hand. The words "whereas by an auction dated" are part of the printed form and after that there is space which has been filled up in hand by the date 3.2.95. As against this the original records relating to the settlement were placed before me and a perusal of the records leaves absolutely no room for doubt that the settlement in favour of the petitioner was made on the basis of an application given by him to the Collector and not on the basis of any public auction. 10. The petitioner in C.W.J.C. No. 4476/95 does not even dispute this position. Thus the settlements purported to have been made in the aforesaid two cases are directly in teeth of the statutory provisions as contained in Rule 11A of the Minor Minerals Concession Rules which lays down that settlements must be made on the basis of a public auction. I have, therefore, no doubt in my mind that no legal right accrued to the petitioners on the basis of the purported settlements which were made, not in accordance with law, but by backdoor method. And for this reason alone the petitioners in these two cases cannot maintain a writ petition for enforcement of any right. I have, therefore, no doubt in my mind that no legal right accrued to the petitioners on the basis of the purported settlements which were made, not in accordance with law, but by backdoor method. And for this reason alone the petitioners in these two cases cannot maintain a writ petition for enforcement of any right. The aforesaid two writ petitions (C.W.J.C. Nos. 5306 and 4476 of 1995) are, therefore, held fit to be dismissed. 11. However, the position in C.W.J.C. No. 4620/95 is quite different. In this case the settlement was made admittedly on the basis of an auction notice followed by a public auction in which the petitioner was the highest bidder with the bid amount of Rs.36,000/-. The bid was accepted by the authorities and the rights and obligations of the parties were concluded and formalized in an agreement dated February 3, 1995. Thus, the question which arises in this case is whether it is open to the respondents to unilaterally terminate a concluded contract without any legal, valid or just ground? 12. Mr. Ram Balak Mahto, learned counsel appearing on behalf of the Corporation placed reliance on Clause 2(ch) of the advertisement notice dated January 7, 1995. This clause stipulated that in case the State Government took the decision to entrust the management of the sand ghats listed in the notice to the management of the Bihar State Mineral Development Corporation, then in that case the settlee would not be given the authorisation to work those sand ghats and the security money and the bid money deposited by him would be refunded in accordance with the Rules. 13. In my opinion, this clause in the auction notice can be of no help to the respondents. The clause in question did not say (as it could not say!) that a concluded and formalized settlement could also be terminated before the expiry of its period and the clause can be understood to mean only that in case the decision of the State Government came before the settlement was concluded the authorities will not proceed with the settlement, notwithstanding the holding of the auction. Moreover, there is no such stipulation in the agreement executed by the parties on February 3, 1995 and it is obvious that the rights and obligations of the parties will be governed by that agreement and not by any clause of the notice that preceded it. 14. Mr. Mahto then submitted that no right could accrue to tile petitioner on the basis of that agreement as it was not registered. Learned counsel submitted that the agreement was in the nature of a lease for a period of one year and was therefore compulsorily registerable in terms of section 17(1)(d) of the Registration Act, 1908. He also placed reliance on a Supreme Court's decision in the case of The Bihar Eastern Gangetic Fisherman Co-operative Society Ltd. vs. Sipahi Singh and others, 1977 SC 2149. 15. In my opinion, the submission is quite misconceived. Mr. Mahto's contention, based on Section 17(1)(d), overlooks section 90 of the Registration Act which provides for exemption of certain documents executed by or in favour of the Government. Section 90(1)(d) is as follows : "Nothing contained in this Act or in the Indian Registration Act, 1877 or in the Indian Registration Act, 1871, or in any Act thereby repealed, shall be deemed to require, or to have at any time required, the registration of any of the following documents or maps, namely: (a) xx xx xx (b) xx xx xx (c) xx xx xx (d) Sanads, inam title-deeds and other documents purporting to be or to evidence grants or assignments by Government of land or of any interest in land. (e) xx xx xx 16. The aforesaid provision came up for consideration before a Bench of this Court in Secretary of State for India in Council Vs. Nistarini Annie Mitter, Vol. 6 I.L.R. Patna 446 (equal to A.I.R. 1927 Patna 319). In that case Dawson Miller, C.J., held that the lease of land by Government was covered by Section 90(1)(d) and was exempt from registration. His Lordship further held that by virtue of Section 2 of the Crown Grants Act, 1895 (Now Government Grants Act, 1895) the leases granted by the Crown were outside the operation of Section 107, Transfer of Property Act, 1882 which provided that a lease of a movable property from year to year, or for any term exceeding one year or reserving a yearly rent could be made only by a registered instrument. 17. A Full Bench of the Madhya Pradesh High Court in the case of Ramnarayan Vs. State of M.P., A.I.R. 1962 M.P. 93 also held that a licence given by the Government to prospect mineral in land was not required to be registered as it was in the nature of a Government grant. 18. More recently a five judges Bench of our High Court in the case of Satrudhan Sahani & Ors. vs. State of Bihar & Others, 1990(2) PLJR 832 comprehensively reviewed the question of a lease in the absence of any concluded registered contract. The special Bench also considered Sipahi Singh's case (supra). In paragraph 13 of its judgment the Special Bench observed as follows : "In view of series of judgments of the Supreme Court, now it is not possible to dismiss a writ application filed on behalf of a person who feels that he has been discriminated by the State Government or an Authority which can be held to be a 'State' within the meaning of Article 12 of the Constitution in matters of settlement of fishery rights in tanks and Jalkars belonging to the State, only on the ground that no registered document has been executed in favour of such petitioner by the competent authority, When the Supreme Court, by the aforesaid order passed in connection with this case itself, directed that the writ application be heard on merit after setting aside the earlier order passed by this Court, in my view, the decision of the Full Bench in Chetlal Sao's case (supra) on the question of maintainability of a writ application in absence of a registered document stands overruled." 19. I am, therefore, unable to accept the contention that no right had accrued to the petitioner in C.W.J.C. No. 4620/95 for want of registration of the agreement. It consequently follows that the agreement executed by the Collector, Nawadah acting in the name of the Governor of Bihar was fully binding on the State and it was not open to it to unilaterally walk out of it. I, accordingly, find and hold that the action of the authorities in cancelling the settlement made in favour of the petitioner before the expiry of the period of the settlement was wholly illegal, unjust and arbitrary and calls for an interference by this Court. I, accordingly, find and hold that the action of the authorities in cancelling the settlement made in favour of the petitioner before the expiry of the period of the settlement was wholly illegal, unjust and arbitrary and calls for an interference by this Court. I, accordingly, quash the impugned order dated 29.6.1995 in so far as it relates to the settlement made in favour of the petitioner in C.W.J.C. No. 4620 of 1995. 20. In the result, C.W.J.C. Nos. 5306 and 4476 of 1995 are dismissed and C.W.J.C. No. 4620 of 1995 is allowed with costs quantified at Rs.550/-.