Lakshmi Bhagat v. State of Bihar — 1997 DIGILAW 704 (PAT)

JUDGMENT B.N. Agrawal, J. This writ application and Civil Writ Jurisdiction Case No. 642 of 1996 are being disposed of by one order as common questions are involved therein and both arise out of one land ceiling proceeding. 2. These two writ applications have been filed for quashing final publication made under Section 11 (1) and gazette notification issued under Section 15(1) of the Bihar Land Reforms(Fixation of Ceiling Area and Acquisition of Surplus Land Act, 1961 (hereinafter to be referred to as 'Act') in relation to Land Ceiling Case No. 63 of 1973-74/12 of 1993-94 started against respondents nos. 5 to 8, namely, Mossomat Sudama Devi, Gobind Jha Raghunandan Jha and Narayan Jha. 3. The petitioners of these two writ applications claim to be purchasers of the lands, which had been acquired in the aforesaid ceiling proceeding and details of their claims have been mentioned in paragraph 6 of their respective writ applications: Paragraph 6 of Civil Writ Jurisdiction Case No. 807 of 1996 runs as follows :- "6. The petitioner no. 1 had purchased the land of mauja Gorrah Bisanpur, appertaining to Khata no. 275, Khesra no. 717/0.46, 718/0.88, 720/0.71, 723/082, 797/1.00, 715/0.4, totally an area of 3.71 acres, from the respondents no. 6 and 7 and father of the respondent no. 8 on 26th of April, 1959, through a registered deed of kewala and came in peaceful possession of the land. The petitioner mutated his name in the sirista of the State and zamabandi no. 432 had been opened in the name of the petitioner with respect to the land and rent receipts have been issued after the payment of rent was made to the State. The petitioner no. 2 had purchased the land of mauja Gorraha Bisanpur appertaning to khata no. 275, khesra no. 704/0.15, 705/0.14 and 715/0.2, totalling an area of 0.31 acre of land only from Mahadeo Bhagat and Bishwanath Bhagat through registered deed of kewala dated 8th of January, 1972, in the name of his wife Mandodari Devi (now deceased) and came in possession of the land. The petitioner mutated her name in the sirista of the State and Jamabandi no. 576 had been opened with respect to the land in her name, she paid rent to the State and got rent receipt issued therefrom. The petitioner mutated her name in the sirista of the State and Jamabandi no. 576 had been opened with respect to the land in her name, she paid rent to the State and got rent receipt issued therefrom. It is desirable to state that the vendor of the petitioner Bishwanath Prasad Bhagat had purchased land of mauja Gorraha Bisanpur appertaining to khata no. 275, khesra no. 704/0.15, 705/0.19 and khesra no. 715/0.9 acres of land on 24th of April, 1959, through a registered deed of kewala from the respondents no. 6, 7 and the father of the respondent no. 8. He got his name mutated in the sirista of the State, paid rent and got rent receipt issued therefrom and since then he came in peaceful possession of the land. It is further stated that the wife of the petitioner no. 2, late Mandodari Devi has since died and the petitioner no. 2 has become the sole owner of the property. Petitioners no. 3, 4 and 5, after the death of their father Raghu Mandal, have become the owners of the property as being the only heirs left behind by the father. The father of the petitioners no. 3, 4 and 5 had purchased the land of mauja Garraha Bisanpur, appertaining to khata no. 275, khesra no. 797/2.65, 826/1.42 and khesra no. 715/0.36 acres, totalling an area of 4.43 acres of land through a registered kewala dated 9th of February, 1960 from the respondents no. 6, 7 and father of the respondent no. 8, and came in peaceful possession, paid rent to the State and got rent receipt issued therefrom. The zamabandi no. 451 has been opened in the name of their father Raghu Mandal Petitioners no. 6, 7 and 8, after the death of their father Muratlal Yadav, inherited the estate left behind him as being the heirs. The father of the petitioners no. 6, 7 and 8 had purchased land of mauja Gorraha Bisanpur, appertaining to khata no. 275, khesra no. 539/1.8 and khesra no. 598/4.54, totaling an area of 7.36 acres of land through a registered kewala dated 17th November, 1960 from the respondents no. 6 and 7 and the father of the respondent no. 8 and came in peaceful possession of the land. 275, khesra no. 539/1.8 and khesra no. 598/4.54, totaling an area of 7.36 acres of land through a registered kewala dated 17th November, 1960 from the respondents no. 6 and 7 and the father of the respondent no. 8 and came in peaceful possession of the land. The father of the petitioners mutated his name in the sirista of the State, paid rent and got rent receipt therefrom and consequently a jamabandi no. 436 had been opened in the name of their father, The father of the petitioner no. 6, 7 and 8 had also further purchased land of the same mauja appertaining to khata no. 275, old khesra no. 204M/new khesra no. 679/0.55 and old khesra no. 204M/new khesra no. 688/0.42 totally an area of 0.97 acre through a registered deed of kewala dated 11th of February, 1958 from the respondent no. 6 and 7 and the father of the respondent no. 8 and came in possession. His name has been mutated and he got rent receipts therefor on payment of rent. The petitioner no. 9 had purchased land of mauja Gorraha Bisanpur appertaining to khata no. 275, khesra no. 539/0.91 and khesra no. 698/2.77, totalling an area of 3.68 acres from Muratlal Yadav through a registered deed of kewala dated 10th of January, 1967 and came in possession of the aforesaid land. He has also through the same kewala dated 10th of January, 1967 purchased land of mauja Gorraha Bisanpur appertaining to khata no. 310, khesra no. 614/0.23 and khesra no. 615/0.93, totalling an area of 0.35 acre of land and came in possession over there. He mutated his name in the sirista of the State, paid rent and got rent receipt and jamabandi no. 483 has been opened in his name. The petitioner no. 10 had purchased land of mauja Gorraha Bisanpur appertaining to khata no. 275, khesra no. 679/0.55 and khesra no. 688/0.42, totalling an area of 0.97 acre of land through a registered kewala dated 10th of January, 1967 from Muratlal Yadav and came in possession whereof. He has mutated his name in the sirista of the State, paid rent and got rent receipt issued therefrom and jamabandi no. 436 has been opened in his name. The petitioner no. 688/0.42, totalling an area of 0.97 acre of land through a registered kewala dated 10th of January, 1967 from Muratlal Yadav and came in possession whereof. He has mutated his name in the sirista of the State, paid rent and got rent receipt issued therefrom and jamabandi no. 436 has been opened in his name. The petitioner no. 11 is the only daughter of Dhyani Sharma and after his death she has inherited the entire estate of her father and consequently has become the sole owner of the property left behind her father. Her father had purchased land of mauja Gorraha Bisanpur appertaining to khata no. 275, khesra no. 558/1.18 and khesra no. 559/0.7 totalling an area of 1.25 acres through a registered kewala dated 9th February, 1960 from the respondents no. 6 and 7 and the father of the respondent no. 8 and came in possession of the land. He got his name mutated in the sirista of the State, paid rent to the State and got rent receipt therefrom. Jamabandi no. 455 has been opened in his name. The petitioner no. 12 had purchased land of mauja Gorraha Bisanpur appertaining to khata no. 45M, old khesra no. 143/New Khesra no. 539/0.37 acres of land through registered deed of kewala dated 17th of January, 1957 from the respondents no. 6, 7 and the father of the respondent no. 8 and came in possession of the land. He got his name mutated in the sirista of the State of Bihar, paid rent and got rent receipts issued from the State. It is stated in conflagration, the entire documents, original with rent receipts burnt in the year 1993 and hence no receipt is being produced before this Hon'ble Court." 4. It is well settled that with regard to the transfer made prior to 22.10.1959 under registered sale deed a ceiling authority has no jurisdiction to make any sort of enquiry and it is bound to exclude such lands from the ceiling proceeding. 5. It is also well settled that if any transfer is made after 22.10.1959 and prior to 9.9.1970 a ceiling authority has jurisdiction to make enquiry under Section 5(1) (iii) of the Act after giving opportunity of hearing and adducing evidence to the transferee, land holder and the State. If such transfers are found to be genuine, those lands are required to be excluded from the ceiling proceeding. If such transfers are found to be genuine, those lands are required to be excluded from the ceiling proceeding. In case, such transfers are annulled the authority should consider whether in terms of Section 9 of the Act such lands can be included in the lands to be retained by the land holder. 6. With regard to the transfer made after 9.9.1970, it is well settled that a ceiling authority is required to consider only whether on the date of transfer the transferor was holding land in excess of ceiling area or not and in case, the answer is in the affirmative, such transfers should be ignored, but the authority should consider the matter of statutory option in terms of Section 9(2) of the Act. 7. From the aforesaid facts, it would appear that in the present case, the transfers claimed by the petitioners fell in all the three categories and according to the claim of the petitioners, all transfers have been made under registered instrument. It has been also stated that no enquiry under Section 5(1) (iii) of the Act has been made in relation to the transfers made between 22.10.1959 and prior to 9.9.1970. With regard to the transfer made after 9.9.1970 only point taken by learned counsel appearing on behalf of the petitioners is that their case for statutory option in terms of Section 9(2) of the Act has not been considered by the ceiling authority. 8. In view of the aforesaid facts, I give following directions of Additional Collector, Land Ceiling, Araria, respondent no. 3 ;- (i) If the petitioners file a petition before respondent no. 3 setting forth their aforesaid claim within a period of six weeks from today, they shall not be dispossessed from the lands claimed by them, so long the said petition is not disposed of by respondent no. 3, (ii) with regard to the transfers made prior to 22.10.1959 the petitioners should along with the petition file photo-stat copy of the sale deed from its original and produce the original sale deed if required by the authority at the time of argument or they may file certified copy of such a sale deed, in case original has been lost or not available with the petitioners. If such deeds are produced the authority shall exclude those lands from the ceiling proceeding and make suitable amendment in the final publication made under Section 11 (1) and gazette notification issued under Section 15(1) of the Act by deleting these lands therefrom. (iii) With regard to the transfers made after 22.10.1959 and before 9.9.1970 the petition filed by the petitioners referred to above, shall be treated to be a show-cause in enquiry under Section 5(1)(iii) of the Act and the petitioners should state in the petition as to why such transfers be not annulled. The authority is not required to issue notices to the petitioners in this regard, so far the land holders are concerned, the petitioners undertake to serve copy of the petition to be filed by them before respondent no. 3 upon the land holders and take receipt from them, which shall be enclosed along with an affidavit to be filed before respondent no. 3 within a period of one week from the date of filing of the petition before respondent no. 3. In case, it is not possible to effect personal service, then notice shall be served upon the land holder by publishing the same in one of the local newspaper circulated in the locality in which the landholder is residing at the cost of the petitioners, as undertaken by them. All the parties shall be allowed to adduce evidence in support of their respective cases in the said enquiry. If the authority finds that it is a case for annulment, no further action is required to be taken in relation to such lands, and in that event, the authority will consider the case of the petitioners in terms of Section 9 of the Act whether it is possible to include such lands in the category of lands to be retained by the land-holder. If such direction is given in favour of the petitioners, then the final publication and gazette notification shall be, accordingly amended. If such direction is given in favour of the petitioners, then the final publication and gazette notification shall be, accordingly amended. If, however, it is found that the transfers were genuine, then the said lands shall be excluded from the ceiling proceeding by making amendment in the final publication and gazette notification, from which these lands should be deleted, (iv) with regard to the transfer made after 9.9.1970, as prayed for on behalf of the petitioners, it is directed that the authority shall consider case of the petitioners in terms of Section 9(2) of the Act and if their claim is disallowed, no further steps should be taken, but, in case, the claim is allowed either wholly or partially by including those lands in the category of lands to be retained by the land holder, suitable amendment shall be made in the final publication and gazette notification by deleting such lands therefrom; and (v) the authority is directed to dispose of the petition filed before it within a period of four months from the date of its filing and all the parties shall cooperate the authority in disposal of the petition within the aforesaid time. Incase, the petitioners do not cooperate in disposal of the petition within the aforesaid time, the authority concerned shall record an order to that effect and from the date of recording such an order, the interim order, referred to above, shall stand automatically vacated. 9. With the aforesaid directions, these two writ applications are disposed of.