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1998 DIGILAW 512 (PAT)

Ram Swarup Pandey v. State of Bihar

1998-07-23

SUDHANSU JYOTI MUKHOPADHAYA

body1998
JUDGMENT S. J. Mukhopadhaya, J. The petitioner have challenged the recommendation of Incharge Deputy Collector Land Reforms dated 21.8.1985, its order of approval dated 29.8.1985 passed by S.D.O. Hilsa as well as the appellate order dated 25.8.1986, whereby and where under tile settlement earlier made in favonr of the petitioners have been annulled under section 4 (h) of the Bihar Land Reforms Act. 1950 (in short 'the Act') and the same has been approved. 2. The land is dispute measuring 1.38 Acre of Plot No. 905 under khata No.341 is situated in Thana No. 263, Mauza Belchhi in the district of Nalanda. It was recorded as “Fairmazura Aam” In the records of rights after cadastral survey. According to petitioners the physical feature of land changed and public in general ceased right over the disputed land. It became ‘Bakast’ and ‘Khudkari Araji’ of ex-landlord who in pursuance of a registered partition is the family by dead dated 6th March, 1933 allotted the patti, including the land in dispute, in favour of Shri Shital Prasad Singh. The said Sital Prasad Singh, ex-landlord Subsequently executed a Hukumnama’ on 5 Kartik 1362 (1944-45) and settled the land in favour of petitioner no, 1. Thereafter rent receipts were issued, name of petitioners were shown while return was submitted by the ex-landlord ad and State of Bihar also accepted the petitioner as raiyat by creating Jamabandi in their favour. 3. Respondent no.5 in the year 1985 filed an application for settlement of land and application for settlement of the land in dispute in his favour which was registered as Settlement Case No.21/82 83. The petitioners were not impleaded as opposite party therein. However, said case was rejected on 25th June, 1982. 4. The petitioners name were mutated and Jamabadi was created in the name of petitioner no. 2 in pursuance of Case No. 187/12 of 1982-83. The petitioners claim to be in continuous possession over the same. It appears that the respondent no. 5 preferred an application under section 4(h) of the Act on 14th November, 1983. Thereafter, in the Appeal No.3 of 1983 84/10 of 1982 83 preferred by the petitioners, the prayer for interim relief was rejected. Ultimately after remand, the DCLR passed impugned order on 21st August, 1985 and recommended to annul the settlement. Against the said order the petitioners again preferred an Appeal No. 58/85, which remained pending. Thereafter, in the Appeal No.3 of 1983 84/10 of 1982 83 preferred by the petitioners, the prayer for interim relief was rejected. Ultimately after remand, the DCLR passed impugned order on 21st August, 1985 and recommended to annul the settlement. Against the said order the petitioners again preferred an Appeal No. 58/85, which remained pending. In the meantime, the respondent-State passed order on 19th May, 1987 after affirmed the application of settlement. 5. The counsel appearing on behalf of the petitioners made the following submissions namely; (a) The settlement having been made in favour of the petitioner no. 1 in the year 1944-45, i.e. much prior to 1.1.1946, the collector Under the Act had no jurisdiction to annul the same in the proceeding under section 4 (h) of the Act. (b) Even if it is presumed that the Collector had jurisdiction to look into the legality of settlement, he could not have annulled the some in absence of definite finding that the same was made with the object to defeat the provision of the Act or caused loss to the State or to obtain higher compensation. (c) The evidences, including the Hukumnama, rent receipts granted by e-landlord rent receipt granted by the State of Bihar, order creating Jamabandi in favour of the petitioners etc. Which were brought on record by the petitioner were neither taken into consideration nor discussed in proper manner while the impugned order was passed. 6. The counsel also placed reliance on a decision of this Court in the case of Rohini Kumar Chaterji Vrs. The State of Bihar & ors., Reported in 1986 P.L.J.R. 963 and the case of Umesh Jha V. the State of Bihar and another reported in 1956 B.L.J.R. 229 in favour of the petitioner. 7. According to the respondents the land in dispute being ‘Gairmazarua Aam’, the story of bringing the name under cultivation by the e-landlord or settlement of the same with the petitioner can not be accepted being false. In fact the ex-landlord never brought it into cultivation and the entire plot retained the characteristics of Gairmazaruai Aam ‘which is still there. The ex landlord filed collusive return showing the petitioner as settlee on the basis of a forget Hukumnama. The rent receipts were created for collusive purpose. The ex landlord had no right to settle the land in dispute nor be had done so in favour of the petitioners. The ex landlord filed collusive return showing the petitioner as settlee on the basis of a forget Hukumnama. The rent receipts were created for collusive purpose. The ex landlord had no right to settle the land in dispute nor be had done so in favour of the petitioners. The rent receipts obtained by the petitioners from State of Bihar by playing fraud, on mis-representation, on the basis of in-accurate return filed by the ex-landlord. 8. From the impugned order, as contained in Annexure 10, it will be evident that the petitioner took similar plea as has been taken in the present writ petition. He produced a number of documents, 14 in number, in his support including the copy of Hukumnama; Jamabandi return; copy of register II; rent receipt of the period 1352-1353 Fasli (1944-45); rent receipt granted by the State of Bihar for the period from 1956-57 to 1981-82 etc. Irrespective of production of aforesaid documents and specific stand taken by the petitioners the D.C.L.R. (Collector under the Act) failed to determine the main issue, namely, whether the settlement in question was actually made prior to 1.1.1946 to determine the question as to whether he had jurisdiction to look into the legality of such settlement or not. Without discussion of such vital issues, the D.C.L.R. held the settlement as illegal on mere presumption that the land in question had not changed its character since the year 1943 and the ex-landlord had no right to settle the same. 9. So far as other issues as to whether the settlement was executed to defeato the provision of law, or was so executed to obtain higher compensation, has not at all been dealt by the D.C.L.R. On mere presumption without any basis it has been held that the settlement was made to cause loss to the State. 10. Now it is settled law that with respect to an settlement made prior to 1.1.1946 the Collector under the Act has no jurisdiction to lock into legality of the same. Only in appropriate cases such settlement can be looked into to find out the exact period of settlement for coming to a definite conclusion that the same was in fact executed after 1.1.1946 after anti dating the document. 11. In the case of Umesh Jha, Vs. Only in appropriate cases such settlement can be looked into to find out the exact period of settlement for coming to a definite conclusion that the same was in fact executed after 1.1.1946 after anti dating the document. 11. In the case of Umesh Jha, Vs. The State of Bihar (1956 B.L.J.R 229), this court held that existence of the fact that the transfer baa been made subsequent to the first day January, 1946, only give jurisdiction to the Collector to annulit. In the case of Panda Vrs. Commissioner, Bnegalpur (1988 B.L.J.R. 511). this court held that the Collector while exercising power to make an enquiry in respect of annulment of transfer must be satisfied with that such transfer that the same was made at any time after 1.1.1946 and was so made either with the object to defeat any provision of Act or with a view to cause loss to the State or for obtaining higher compensation. In the case of Mahanth Bhagat and others Vrs. State of Bihar & others in C.W.J.C. No. 4675 of 1997 (un-reported case), this court vide its judgment dated 16th July, 1998 held that under section 4 (h) of the Act the Collector has power (a) to enquire the fact a to whether the transfer was made after 1.1.1946 or not and (b) if such transfer has made after 1.1.1946 can annul the same, if made with an object ton defeat the provision of Act or to cause loss to the State or to obtain higher compensation. 12. In the present case or the D.C.L.R. has not held that the settlement in question was actually made after 1.1.1946 and the date of Hukumnama as 1352 Fasli (some time in November, 1944 A. D. has not been disputed the said authority had no jurisdiction to look into the legality of the same or to annual such transfer under the provision of section 4 (h) of the Act. 13. Accordingly, the impugned orders, as contained in Annexure 4, 10, and 11 are set aside and the writ petition is allowed. However, on the facts and circumstances of the case there shall be no order as to costs.