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2004 DIGILAW 689 (JHR)

Rishi Cement Company Ltd. v. State Of Bihar

2004-07-09

AMARESHWAR SAHAY

body2004
JUDGMENT Amareshwar Sahay, J. 1. The order dated 28.1.1997 as contained in Annexure-9 to the writ application passed by the Sub-Divisional Officer, Ramgarh has been challenged in the present writ application, whereby the Sub-Divisional Officer, Ramgarh has cancelled the jamabandi standing in the name of the petitioner-Company with respect to Khata No. 241, Plot No. 202, Areas-7 acres and Plot No. 302, Area-3 acres, total Area-10 acres situated at Village-Bangabar, P.S. Mandu, District- Hazaribagh and directing the Circle Officer, Mandu to initiate a proceeding under the Land Encroachment Act against the petitioner-Company. 2. The facts in short giving rise to this application which are not in dispute are that the Plot No. 202, Area-45 acres and Plot No. 302, Area-16 acres was acquired by Hart Das Karmali from the ex-landlord by a Hukumnama, In the old Register II, the name of Hari Das Karmali was entered. The Respondent Nos. 6 to 9 who were the legal heirs of late Hari Das Karmali, after taking permission under Section 49 of the Chhotanagpur Tenancy Act from the Deputy Commissioner, Hazaribagh transferred the aforesaid 10 acres of land in favour of the petitioner-Company by Registered deeds. Thereafter in the name of the Company, mutation was allowed by the Circle Officer and correction slip was also issued in the year 1986 and the petitioner-Company was paying rent to the State regularly. 3. The case of the petitioner is that a Cement Factory has been set up over the lands in question after obtaining the licence from the Ministry of Industry, Government of India. The contention of the petitioner is that from the impugned order of the Sub-Divisional. Officer itself, it is apparent that the said order was passed at the behest of the Deputy Commissioner. 4. it is submitted that since the occupancy raiyat transferred the land in question in favour of the petitioner-Company after taking due permission of the Deputy Commissioner under the provisions of the Chhotanagpur Tenancy Act and since mutation was also allowed and the rents were being accepted and, as such the Sub-Divisional Officer or even the Deputy Commissioner had no jurisdiction at all to cancel the jamabandi standing in the name of the petitioner-Company. 5. 5. It is further submitted on behalf of the petitioner-Company that the Sub- Divisional Officer had no jurisdiction to hold, that the transfer of the land, in question, in favour of the petitioner-Company, through Registered deeds by the Respondent Nos. 6 to 9 was invalid. 6. Miss Rita Kumari, learned J.C. to G.P. II has supported the impugned order and has contended that by suppression of the facts, the permission of the Deputy Commissioner for transfer of the lands in question was taken by the petitioner- Company and that it was only a device to grab the Government land. It is further submitted that the land in question was recorded in the Survey Report as gair mazarua khas and therefore, the said land could not have been transferred by the Respondent Nos. 6 to 9 in favour of the petitioner-Company and therefore, the Deputy Commissioner rightly directed the Sub-Divisional Officer to initiate a proceeding for cancellation of jamabandi and accordingly, the Sub-Divisional Officer rightly cancelled the jamabandi standing in the name of the petitioner- Company. 7. No doubt the creation of jamabandi neither creates any right and title, nor cancellation of jamabandi extinguishes the right and title over the lands but as per the decision of this Court in the case of Dilip Kumar Mathto v. The State of Bihar and Ors., reported in 2001 (1) JLJR 75 , a jamabandi running in the name of a particular person for several years cannot be cancelled in a summary proceeding. The proper course is to move the Civil Court of competent jurisdiction for proper relief. From the impugned order, I find that the Sub- Divisional Officer has doubted the entry in the Register II in the name of Hart Das Karmali and on that basis, he has held that the sale by Registered .deeds in favour of the petitioner-Company was invalid. In my view, the said finding of the Sub-Divisional Officer is wholly without jurisdiction. 8. In view of my aforesaid findings and relying on the aforesaid decision in the case of Dilip Kumar Mahto, (supra), this application is allowed and the order as contained in Annexure-9 passed by the Sub-Divisional Officer, is hereby quashed. In the facts and circumstances of this case, there shall be no order as to cost.