Research › Browse › Judgment

Patna High Court · body

1999 DIGILAW 836 (PAT)

Shambhu Nath Jha v. State Of Bihar

1999-08-31

P.K.DEB

body1999
Judgment P.K.Deb, J. 1. This writ petition has been preferred against the order passed by the State Government on 9/15 the February, 1990 as contained in Annexure-9 whereby it was held that two plots as claimed by the petitioner to be sairati had been vested in the State as per provision under Section 4(h) of the Bihar Land Reforms Act. 2. The disputed plots are plot no.1252 having area of 2 bighas 5 khattas 7 dhoors and plot no. 769 having area of 2 bighas 16 khattas 12 dhoors although the lands and plots are tanks. According to the petitioner, the aforesaid two plots along with others have been settled with the grand-father of the petitioner as back as in the year 1329 (sic1929?) by the ex-landlord late Baba Harakhpati Singh of Pachahi State. According to the petitioner, after settlement was made the petitioners grand-father took possession over the same and continued so on payment of rent to the ex-landlord and were granted rent receipts in discharge of payment of rents. After coming into force of Bihar Land Reforms Act the property in question was never vested in the State of Bihar and the petitioners ancestors raiyati was recognized by the State of Bihar and rents were accepted from them on valid discharge of receipts by the State of Bihar. An attempt was made in the year 1971 by the State Government with regard to the settlement of the tank in question considering the same to be Jalkar. Then the petitioners father Dina Nath Jha filed an application objecting to the attempt of the Revenue Authority. Such objection was raised before the Collector of Darbhanga with the contention that the tanks in question are within the tenancy and raiyati lands of the petitioners predecessor Dina Nath Jha on payment of required rent to the State of Bihar and as such, he should not be con- strued as Sairati The Collector, Darbhan- ga, referred the matter for enquiry to L.R.D.C. The LR.D.C. made a local en- quiry and submitted his report on 11.3,1970. A detailed discussion was made in the report that the petitioner had obtained settlement and continued po^- session over the tanks in questioners contained in Annexure-1 to the writ peti- tion. A detailed discussion was made in the report that the petitioner had obtained settlement and continued po^- session over the tanks in questioners contained in Annexure-1 to the writ peti- tion. The history was described in details in the report itself as to how the tanks in question came in the tenancy of the petitioners predecessors Dina Nath Jha. On consideration of the report of the L.R.D.C. the Additional Collector by the order dated 12,1.1971 held that there was no scope of holding that the tanks in question have even been vested to the State Government. Thus the records of case no.1 of 1970-71 was placed before the State Government vide order of the Additional Collector as contained in Annexure-2. The said order of the Additional Collector came in consideration of the State Government and the Commissioner, Darbhanga, by its memo no. 1101 dated 1.7.1973 opined that on taking legal opinion it was considered by the State Government that there was no justification in taking action under Section 4(h) of the Act in respect of the tanks situated over plot nos. 769 and 1252. The decision of the State Government was communicated to the petitioners father Dina Nath Jha vide Annexure-3 dated 28.11.73. But ignoring that decision of the State Government again Circle Officer in the year 1986-87 proceeded to settle the tank situated over plot nos. 769 and 1252 in favour of the private- respondent and Sairat case nos. 335 and 336 of 1986-87 were accrued thereof. Settlement was made in favour of the private-respondent and the records were sent by the Circle Officer to the Sub-divisional Officer for approval but again the petitioners predecessor Dina Nath Jha filed an application objecting to such attempt of settlement considering his raiyati lands to be sairati land. The circle officer in his report has mentioned about the State Governments decision that no action was needed under Section 4(h) of Act as already stated above and it was also mentioned that the petitioners father Dina Nath Jha was in peaceful possession over the sairati plot. On receipt of such report of the circle officer the L.R.D.C. had decided that as it was already decided by the State Government the plots in question should be deleted from the sairati and should not open for settlement. On receipt of such report of the circle officer the L.R.D.C. had decided that as it was already decided by the State Government the plots in question should be deleted from the sairati and should not open for settlement. When the settlement made by the circle officer was not approved by the L.R.D.C. and the Subdivisional officer then the private-respondent filed an application before the Additional Collector, Madhubani, which again led to institution of Misc. Sairat case no. 28 of 1986. It was clear that although the settlement was made and the said settlement was not being approved by the L.R.D.C. and Sub-divisional officer then parwana was not issued in favour of the private respondent but he insisted of getting parwana in his favour on the basis of the settlement being made by the circle officer. He has even challenged to the effect that the letter of the State Government by which it was earlier decided that no action could be taken in respect of the disputed plots under Section 4(h) of the Bihar Land Reforms Act was a forged one and he could manage to get order as contained in Annexure-9 by the State Government. Although notices were issued after granting stay in respect of implemention of Annexure-9, neither the private-respondent for (sicnor ?) the State Government filed any counter-affidavit in the case but the State Government has been represented at the time of hearing of the writ petition by the counsel for the State. 3. It is a settled principle of law that once it has been decided by the State Government that no action is available under Section 4(h) of the Act in respect of any lands or tanks, whatever might be the position, there was no scope to take action under Section 4(g) of the Act because the first and foremost requirement for implementation or application of Section 4(g) of the Act there should be a vesting of the land to the State Government. When vesting was not there and it was decided by the State Government not demand any action under Section 4(h) of the Act then there remains no scope of application under Section 4(g) of the Act as was done in the present case is illegal on the face of it. When vesting was not there and it was decided by the State Government not demand any action under Section 4(h) of the Act then there remains no scope of application under Section 4(g) of the Act as was done in the present case is illegal on the face of it. Moreover, even if any action is to be taken under Section 4(g) of the Act because of any further change in the physical features of the lands in question then there must be given an opportunity of hearing to the party in favour of whom there is already an order under Section 4(h) of the Act, otherwise there will be denial of natural justice. Thus the order contained in Annexure-9 is not only bad in the eye of law but without jurisdiction. Perhaps, both the private- respondent and the State Government got shy of in coming now to support their action which is illegal on the face of it. 4. In the facts and circumstances as mentioned above the writ petition is hereby allowed and the order passed regarding the plot nos, 769 and 1252 considering the same to be sairati as per Annexure-9 is hereby quashed.