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2003 DIGILAW 43 (PAT)

Ghanshyam Mandal v. State Of Bihar

2003-01-10

AFTAB ALAM

body2003
Judgment Aftab Alam, J. 1. This writ petition arises from a mutation proceeding and the lands in dispute are 2.7411 acres, appertaining to a number of plots under deferent Khatas (fully described in para 4 of the writ petition), situate in village Barajore, Tola Chamaridih (Dhobipur), PS, Jhajha in the district of Jamui. The petitioner seeks to challenge the order, dated 9-12-1999 passed by the Add!. Collector, Jamui in Mutation Revision Case No. 43 of 1997-98. By the impugned order, the revision filed by Respondent No. 6 was allowed the orders passed in favour of the petitioner by the Deputy Collector Land Reforms (the appellate authority) and the Circle Officer (the original authority) were set aside and the disputed lands were directed to be recorded in the name of Respondent No. 6. 2. At first there appeared to be more than one reasons to allow the writ petition and to set aside the impugned order. First, the revision was filed before the Addl. Collector more than ten years after the order, sought to be revised was passed by the appellate authority. Secondly, after the order was passed by the Dy. Collector Land Reforms, at the appellate stage, Respondent No. 6 had filed a suit being T.S. No. 18 of 1986 with regard to the same disputed lands which was allowed to be dismissed for default by order, dated 30-11-1990. Thirdly, in passing the impugned order the Addl. Collector had cfearly adverted to the issue of title to the disputed lands, rather, than possession which may the only consideration in a dispute of mutation. It was fourthily submitted on behalf of the petitioner that the order passed by the Addl. Collector was unauthorised and without jurisdiction because u/s. 16 of the Bihar Tenants Holdings (Maintenance of Records) Act, 1973, the revision could lie only before the Collector of the district and not before the Addl. Collector. 3. I do not think there is much substance in this last submission for the simple reason that the mutation proceedings had commenced much before the coming into force of the provisions of the aforesaid Act in Jamui where the disputed lands are situated. The mutation proceedings in the case in hand had commenced in the year, 1983-84. Collector. 3. I do not think there is much substance in this last submission for the simple reason that the mutation proceedings had commenced much before the coming into force of the provisions of the aforesaid Act in Jamui where the disputed lands are situated. The mutation proceedings in the case in hand had commenced in the year, 1983-84. At that time the provisions of the Act were made applicable only to Kharagpur Anchal of the district of Munger (of which Jamui used to be a part at that time) vide Notification No. 1049, dated 1-8-1978. To the rest of the areas of the State (including Jamui), the provisions of the Act became applicable from 18-1-1991. 4. It is, thus, evident that the mutation proceedings from which this writ petition arises was held not under the provisions of the Act but in terms of the executive instructions which were in force at that time and in that view the impugned order passed by the Addl. Collector cannot atleast be held to be completely without jurisdiction and unauthorised. 5. Nevertheless, the first three points might have been serious enough for this Court to interfere in this matter and to set aside the impugned order. But on a deeper consideration and for the reasons stated hereinafter, this Court found that the interest of justice would be best served by declining to exercise the discretionary powers under Art. 226 of the Constitution in favour of the petitioner. 6. It may be noted that the disputed lands admittedly belonged to one Nathuni Mandal who was the own brother of the petitioner and the husband of Respondent No. 6. It is an admitted position that Nathuni and Ghanshyam (the petitioner) were the sons of Fakira Mahto. Nathuni had two wives, namely, Bhikni Devi, (Respondent No. 6) and Marni Devi and one daughter, namely, Birna Devi. The petitioner claims rights over the disputed lands on the basis of Sada Panchnama and it is stated in para 4 of the writ petition that: "All these lands were gifted to the petitioner by one of the full brothers Nathuni Mandal through Panchnama deed". The Panchnama is a Sada document a copy of which is at Annexure 1. 7. It is well established that on the basis of an unregistered deed no transfer of lands could be made by Nathuni in favour of this brother, the present petitioner. 8. The Panchnama is a Sada document a copy of which is at Annexure 1. 7. It is well established that on the basis of an unregistered deed no transfer of lands could be made by Nathuni in favour of this brother, the present petitioner. 8. But on the basis of this Sada Panchnama, the petitioner made an application for mutation which was registered as Mutation Case No. 402 of 1983-84, In his application for mutation, the heirs of Nathuni Mandal were not made parties and consequently no notice was given to them. Only a general notice was issued. And in the absence of any objection to the request for mutation the petition was allowed by order, dated 20-7-1984. When Respondent No. 6 came to learn about it, she filed an appeal which was registered as Mutation Appeal No. 56 of 1985-86. The appeal was dismissed by order, dated 4-2-1986 by the Dy. Collector Land Reforms on the grounds of delay and because no objection was raised against mutation before the Circle Officer. The second ground appears to the Court to be quite surprising. It is noted above that no notice was given to her and, therefore, she had no information or knowledge with regard to the proceeding and hence, she did not get any opportunity to raise objection against the proposed mutation. In other words what was in fact an issue over which Respondent No. 6 made a legitimate grievance was used by the appellate authority against her. 9. Respondent No. 6 then filed a suit which was dismissed for want of pairvion 30-11-1990. 10. Finally after a gap of ten years she filed her revision before the Addl. Collector who condoned the delay in its filing and passed the impugned order allowing it on merits. 11. As noted above, the impugned order may not be very proper or even legally valid. But any interference with that order will lead to the revival of the orders passed by the Dy. Collector Land Reforms and the Circle Officer which if not more are at least as bad as the order passed by the Addl. Collector. Moreover, if the matter is left uninterfered with by this Court, the petitioner can atleast seek his remedies by filing a suit before a Civil Court of competent jurisdiction which remedy is no longer available to Respondent No. 6. 12. Collector. Moreover, if the matter is left uninterfered with by this Court, the petitioner can atleast seek his remedies by filing a suit before a Civil Court of competent jurisdiction which remedy is no longer available to Respondent No. 6. 12. On a consideration of all these aspects of the matter, I feel that in the special facts and circumstances of this case the proper, just and equitable course for this Court would be not to interfere in this matter at all. 13. For all these reason, this writ petition is dismissed but with no order as to costs.