Research › Search › Judgment

Patna High Court · body

2003 DIGILAW 164 (PAT)

Dilip Goswami And Another v. .

2003-02-10

P.N.YADAV, SACHCHIDANAND JHA

body2003
Judgment Sachchidanand Jha, J. 1. A common question of law has been raised for consideration in these two cases and, as such, they have been heard together and are disposed of by this common judgment. The question is whether without adjudication of the status and rights of an under-raiyat u/s. 48-E of the Bihar Tenancy Act (in short the Act), application by him u/s. 48-D of the Act is maintainable. In view of the conflicting opinion on the point a learned Single Judge referred these cases to Division Bench for an authoritative pronouncement and that is how the cases have come before this Bench. 2. Though the result of the cases would ultimately depend on their facts, we consider it appropriate to first decide the question of law. The relevant provisions of the Act may be noticed at one place as under:- - "48-C. Acquisition of right of occupancy by under-raiyats.--Every person who, for a period of twelve years, whether wholly or partly before or after the commencement of the Bihar Tenancy (Amendment) Act, 1938 (Bihar Act 11 of 1938), has continuously held land as an under-raiyat in any village, whether under a lease or otherwise, shall be deemed to have acquired, on the expiration of that period, a right of occupancy in the land which he has so held for the said period; Provided that... ... ... xxx xxx xxx 48-D. Acquisition of raiyati right by occupancy under raiyat.--(1) An occupancy under raiyat shall if he makes an application in this behalf in the prescribed manner, be entitled to acquire the right of a raiyat subject to the payment to be made as may be prescribed by the State Government and the right of the landholder in such land shall extinguish: Provided that the land on which he acquires such right along with other land held by him anywhere in the State does not exceed the area he may hold under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (Bihar Act XII of 1962). (2) The remaining area, if any, in which the under raiyat does not acquire the right of a raiyat shall continue to be held by the raiyat under whom the under raiyat held the land. (3) The land owner in respect of whose land the under raiyat acquires the right of a raiyat under Sub-sec. (2) The remaining area, if any, in which the under raiyat does not acquire the right of a raiyat shall continue to be held by the raiyat under whom the under raiyat held the land. (3) The land owner in respect of whose land the under raiyat acquires the right of a raiyat under Sub-sec. (1) shall be paid as compensation an amount equivalent to twenty-four times the rent of the holding in the manner prescribed in this behalf." xxx xxx xxx 48-E. Prevention of threatened ejectment of under raiyat and restoration to possession of under raiyat unlawfully ejected--(1) If an under raiyat is threatened with unlawful ejectment from his tenancy or any portion thereof by his landlord or if there is a dispute between them over the possession of land, crop or produce thereof either on the ground of non-existence of relationship of landlord and tenant between them or otherwise or if an under raiyat is or has been ejected from his tenancy or any portion thereof within twelve years before the commencement of proceedings under this section in contravention of the provisions of sec. 89 the Collector may, of his own motion or on application made in this behalf by the under raiyat, initiate a proceeding for preventing the landlord from ejecting the under raiyat or for settlement of the said dispute or for restoration of possession under raiyat unlawfully ejected from his tenancy or portion thereof." Explanation ... ... ... (2)... ...... 3. A bare perusal of the above would reveal the distinction between the provisions of Secs. 48-C and 48-D on the one hand and sec. 48-E on the other. sec. 48-C as the heading would suggest, deals with acquisition of occupancy right by an under-raiyat. It lays down that every person in continuous possession for about 12 years of land as an under-raiyat- whether under lease or otherwise - shall be deemed to have acquired on the expiration of the period a right of occupancy in the land which he had so held. The right is hedged in by certain exceptions as mentioned in the proviso, such as where the area of land held by the landlord under his cultivation does not exceed 5 acres of irrigated or 10 acres of unirrigated land. sec. The right is hedged in by certain exceptions as mentioned in the proviso, such as where the area of land held by the landlord under his cultivation does not exceed 5 acres of irrigated or 10 acres of unirrigated land. sec. 48-D entitles such under-raiyat who has acquired occupancy right to make an application for declaration of his status and rights as raiyat. This provision too is hedged in by exception contained in the proviso to the effect that the total land held by such under-raiyat should not exceed the permissible area under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961. These are the broad features of these two sections. 4. sec. 48-E of the Act, on the other hand, provides protection to an under-raiyat who apprehends ejectment at the hands of the landlord irrespective of the duration of his occupation of the land as under raiyat. In other words, for application under 48-C it is not necessary that he should remain in possession of the land for twelve years or any particular period. This is clear from a plain reading of the provisions. The notion that only an under-raiyat having occupancy right, that is to say, only such under-raiyat who is in possession of the land for period of 12 years is entitled to seek protection under sec. 48-E has no basis. Nevertheless, a learned Single Judge of this Court in Kusumlal Mallah V/s. The State of Bihar and Ors., 1996 (2) PLJR 339 , took the view that in order to determine the rights of the parties u/s. 48-D of the Act, one should first get his rights determined u/s. 48-E and the order passed u/s. 48-E should be the basis for declaration of occupancy right u/s. 48-D of the Act. The case had arisen from an order passed u/s. 48-D of the Act and the claim of the under-raiyat claiming acquisition of occupancy right and raiyats status on the basis survey record of right was negatived on the ground that there was no determination of his under-raiyati rights u/s. 48-E. 5. The case had arisen from an order passed u/s. 48-D of the Act and the claim of the under-raiyat claiming acquisition of occupancy right and raiyats status on the basis survey record of right was negatived on the ground that there was no determination of his under-raiyati rights u/s. 48-E. 5. It may be clarified here that in any proceeding u/s. 48-D where any objection is raised by the landlord as to the under-raiyats status of the claimant the authority under the Act is obliged to make inquiry not only in respect of the question as to whether he was in possession of the land for a period of 12 years and acquired occupancy right but also the question as to whether his whether his claim of being under-raiyat is true. But he cannot be relegated to any proceeding u/s. 48-E which contemplates an altogether different situation - applicable not only to under-raiyat who has professedly acquired occupancy rights by remaining in continuous possession of the land but also such under-raiyat who has not acquired such right, that is, who has been in possession for less than 12 years. As a matter of fact, for the purpose of proceeding u/s. 48-E, the period is not relevant at all. 6. From a combined reading of Secs. 48-C and 48-D of the Act it would appeat that on acquisition of occupancy right in terms of sec. 48-C the under-raiyat acquires rights of a raiyat u/s. 48-D, and he has only to make an application for declaration of that right and status under that section. Therefore, the view taken by the learned Single Judge in the case of Kusum Lal Mallah (supra) that without any adjudication of the under-raiyats status under Sec. 48-E, application u/s. 48-D will not be maintainable cannot be said to be the correct law on the point. The decision in Kusumlal Mallahs case was followed subsequently in two cases, namely, Dina Nath Singh V/s. The State of Bihar and Ors., 1999(3) PLJR 594; and Mohan Lal Jamadar and Anr. V/s. The State of Bihar and Ors., 2000(2) PLJR 387. For the reasons aforestated, they deserve to be over-ruled. 7. The contrary view was expressed, first, in Upendra Mandal and Ors. V/s. The State of Bihar and Ors., 1989 PLJR 333. After referring to the provisions of Sections 48-C and 48-E, the learned Judge concluded. V/s. The State of Bihar and Ors., 2000(2) PLJR 387. For the reasons aforestated, they deserve to be over-ruled. 7. The contrary view was expressed, first, in Upendra Mandal and Ors. V/s. The State of Bihar and Ors., 1989 PLJR 333. After referring to the provisions of Sections 48-C and 48-E, the learned Judge concluded. "Plainly enough an application in terms of sec. 48-E is also maintainable by an under-raiyat irrespective of the fact as to whether he has acquired a right of occupancy or not." In Awadh Rai V/s. The State of Bihar and Ors., 1990 (2) PLJR 323, another learned Judge held that the provisions of sec. 48-C are irrelevant for judging the maintainability of the application filed u/s. 48-E. That case had arisen from a proceeding u/s. 48-E and an argument was made that without acquisition of occupancy right u/s. 48-C the claim of the under-raiyat was not maintainable. Again, in Mukhlal Ram V/s. The State of Bihar and Ors., 1997(1) PLJR 487 , which was a decision rendered by a Division Bench, it was observed that the extent of the area of land held by a landlord is relevant only u/s. 48-C of the Act in terms of which a person having held land as an under-raiyat for a period of 12 years or more may raise a claim of acquisition of occupancy rights. In a proceeding u/s. 48-E of the Act, the extent of land held by the landlord has absolutely no relevance. In Noor Mohammad Mia V/s. State of Bihar and Ors., 1997(1) PLJR 602, a learned Single Judge of this Court held that there is no bar u/s. 48-C in the mater of determination of a claim of an under-raiyat in terms of sec. 48-E. The proceeding can be initiated u/s. 48-E of the Act by an under-raiyat who has not acquired any occupancy rights u/s. 48-C. In Suryabans Upadhyay v. Awadhesh Choudhary and Ors., 1999 (2) PLJR 173, which is a decision rendered by one of us (S.N. Jha, J.), it was observed. "From a combined reading of Secs. 48-C and 48-D it is clear that a person by efflux of time on expiry of period of twelve years acquires occupancy right as well as raiyats rights, subject to declaration as such by the prescribed authority u/s. 48-D. It is noteworthy that sec. 48-C does not contemplate any proceeding. "From a combined reading of Secs. 48-C and 48-D it is clear that a person by efflux of time on expiry of period of twelve years acquires occupancy right as well as raiyats rights, subject to declaration as such by the prescribed authority u/s. 48-D. It is noteworthy that sec. 48-C does not contemplate any proceeding. The person concerned acquires occupancy right by legal fiction by efflux of time on expiry of the prescribed period, Any enquiry in this regards as to whether he has in fact acquired occupancy rights in terms of sec. 48-C, that is to say, whether requisite conditions contemplated by that Section are satisfied or not, can be made only under sec. 48-D." 8. We have observed above that the provisions of Secs. 48-C and 48-D on the one hand and sec. 48-E on the other hand deal with different subjects. They lie in separate compartments having little nexus with each other. While Sections 48-C and 48-D deal with acquisition of occupancy right and raiyats rights by an under-raiyat. sec. 48-E provides protection to an under-raiyat at large- irrespective of whether he has acquired occupancy rights or remained in possession of the land for a particular period. Thus, for deciding the application u/s. 48-E it is not necessary that he should have remained in possession of the land as under-raiyat for more than 12 years, and similarly, for deciding the proceeding u/s. 48-D it is not necessary that there should be an adjudication of his under-raiyats status u/s. 48-E. Nevertheless, as and when such dispute is raised by the landlord, the prescribed authority is obliged not only to consider as to whether the person concerned has, in fact, acquired occupancy rights but also whether he is under-raiyat at all- in the same proceeding. The decision in Kusumial Mallah and other two cases, following that, has been held to be not in accordance with law. In this view of the matter, the contention put forward on behalf of the petitioners that without adjudication of the private respondents status and right as under-raiyat u/s. 48-E their claim as occupancy under-raiyat and raiyat under sec. 48-D cannot be considered, must be rejected. 9. In this view of the matter, the contention put forward on behalf of the petitioners that without adjudication of the private respondents status and right as under-raiyat u/s. 48-E their claim as occupancy under-raiyat and raiyat under sec. 48-D cannot be considered, must be rejected. 9. Now coming to individual cases, in CWJC No. 5043/2002, it was submitted on behalf of the petitioners that the proceeding was decided without any notice, on the basis of report submitted by local revenue officials and, therefore, in any view of the matter, the impugned orders are fit to be set aside on the ground of violation of rules of natural justice. We find substance in the contention. It is to be noted that in terms of sec. 48-D (1) upon declaration that the applicant has acquired the right of raiyat in the land in question, the right of landholder in the land gets extinguished. Whereas the under-raiyat holds land under a raiyat upon declaration of his right and status u/s. 48-D, he becomes a raiyat under the State in his own right subject to provisions relating to payment of rent to the State. It is, therefore, of vital importance for the landlord that he is given a proper opportunity to defend himself. 10. In CWJC No. 4250/2002 it was submitted that the claim of the under-raiyat has been allowed on the ground that the name of his grand father was recorded as Sikmidar in the Cadastral Survey record of right of 1907, but as held by this Court in Md. Yusuf V/s. Narayan Ghosh and Ors., AIR 1954 Patna 308 and Johan Uraon and Anr. V/s. Sitaram Sao (Bhagat) and Ors., AIR 1964 Patna 31, the Sikmi rights are not heritable and, therefore, on the ground that the name of his grand father Was recorded in the Cadastral survey records the claim of the private respondents could not be allowed. It was stated that at the stage of revisional survey, the claimants filed application for recording his name which was rejected on 15-11-1968. 11. We do not express any opinion on the aforesaid contention raised on behalf of the petitioner. None has appeared on behalf of the private respondents and we have considered it not advisable to go into the merit of the claim. 12. In the result, the writ petitions are allowed. 11. We do not express any opinion on the aforesaid contention raised on behalf of the petitioner. None has appeared on behalf of the private respondents and we have considered it not advisable to go into the merit of the claim. 12. In the result, the writ petitions are allowed. The impugned orders contained in Annexures-2 and 3 in CWJC No. 4250/2002 and Annexures 3 and 7 in CWJC No. 5043/2002 are quashed. The Anchal Adhikari, the prescribed authority under Sec. 48-D of Act, is directed to decide the proceedings afresh after giving opportunity of hearing to the parties in accordance with law. Any observation made in this order will not cause prejudice to the claim of the private respondents on remand. There will be no order as to costs. 13. It is unfortunate that though pursuant to notice by this Court the private respondents entered appearance through Counsel, none appeared to defend their claim or to assist this Court. The Government Pleader also chose not to appear and assist on the question of law. His junior Counsel hardly opened the mouth. In the circumstances, the petitions were heard virtually ex-parte.