Research › Search › Judgment

Patna High Court · body

2005 DIGILAW 401 (PAT)

Sogra Khatoon v. State Of Bihar

2005-04-07

MRIDULA MISHRA

body2005
Judgment Mridula Mishra, J. 1. Heard counsel for the petitioners and counsel appearing for the State. 2. Petitioners, in this writ application, are bataidars of the lands of mauza Mahauda Domra appertaining to khata No. 16, Plot No. 100/52 having an area of 8 katha and 2 dhur, khata No. 14, Plot No. 59, having an area of 1 bigha 2 khata and 1 dhur, Plot No. 15, khata No. 50/18 having an area of 1 bigha 10 katha and 3 dhur. So far the claim of the petitioners that they are the bataidars and in cultivating possession of land is concerned, there is no dispute. The petitioners filed an application before the Deputy Collector, Land Reforms, West Champaran, Bettiah, on 23.6.1988 u/s. 48-D of the Bihar Tenency Act which was registered as Batai Case No. 25 of 1998-1999. Petitioners claimed that initially the husband of Sogra Khatoon was bataidar of the land. After his death they were inducted and bataidars, since then they are cultivating the lands and sharing crops with the land holder. The original land holder subsequently, transferred the land to the present land holder and under them also they are cultivating the land. Petitioners prayer was that they should be declared as occupancy raiyats of these lands and considering their occupancy right they should be declared as kaimidar of the land. The Deputy Collector, Land Reforms, West Champaran, Bettiah, by this order, dated 23.8.1988, rejected the claim of the petitioners, against which an appeal was preferred before the Additional Collector, Bettiah vide Case No. 205 of 1988-1989/86 of 1992-1993. This appeal was decided in favour of the petitioners by order, dated 20.7.1994, and the petitioners were declared as occupancy raiyat of the land in question. This order was challenged by the respondents in CWJC No. 4644 of 1995 and by order, dated 18.2.1998. That writ application was disposed of and the matter was remitted to the Circle Officer for deciding the case afresh under the amended rules of Bihar Tenancy (Amendment) Rules, 1992, by this petitioners were directed to file a fresh application, claiming their occupancy right as earlier there was no such averment in the petition filed by the petitioners. On remand petitioners filed a fresh application and the case was registered as Case No. 2 of 1997-1998. On remand petitioners filed a fresh application and the case was registered as Case No. 2 of 1997-1998. The Circle Officer, by his order, dated 23.5.1998, allowed the claim of the petitioners holding that the petitioners are occupancy raiyat of the land in question. This order was challenged by the respondents by filing an appeal which was numbered as Appeal No. 25 of 1998-1999. By order dated 19.3.1999, the Subdivisional Officer, Narkatiaganj, West Champaran, Bettiah set aside the order passed by the Circle Officer and again remanded the case to the Circle Officer for holding an enquiry whether Sogra Khatoon is in possession of excess land that allotted to be retained as ceiling unit. The Circle Officer again by order, dated 18.4.2001, allowed the claim of the petitioner, holding that petitioners are in possession of land less than ceiling unit. Respondents filed an appeal before the Subdivisional Officer, Narkatiaganj, West Champaran, Bettiah, who by an order, dated 22.8.2002, set aside the order of the Circle Officer and the appeal preferred by the respondents was allowed with a finding that the petitioner, Sogra Khatoon, had transferred several plots and lands prior to institution of a Ceiling Case No. 101 of 1975-1976 against her, as such, she possessed excess land than the ceiling unit application filed by her under sec. 48-D of the B.T. Act in this circular was no maintainable. 3. Ceiling Case No. 101 of 1975-1976 was initiated against Sogra Khatoon in respect to 34.44 acres of land, which was held by Sogra Khatoon and others. Finally the proceeding was dropped as after enquiry it was found that all those members in the family who were major on 9.9.1970 and who were land holders not in possession of the land excess than ceiling unit. This order was passed on 30.7.1984. Against this order the State did not prefer any appeal. The order became final. When the proceeding u/s. 48-D of the B.T. Act was going on both the respondents/land holders preferred filed an application under Sec. 45-B of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act challenging the order by which ceiling proceeding was dropped for reopening the Ceiling Case No. 101 of 1975-1976. The order became final. When the proceeding u/s. 48-D of the B.T. Act was going on both the respondents/land holders preferred filed an application under Sec. 45-B of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act challenging the order by which ceiling proceeding was dropped for reopening the Ceiling Case No. 101 of 1975-1976. This application filed by the respondents was dismissed by order, dated 13.7.2000, consequently the finding recorded by the ceiling authority, dated 30.7.1984, that Sogra Khatoon and others who are land holders, do not possess land beyond the ceiling unit, became final. 4. Petitioner has challenged the order, dated 22.8.2002, passed by the Subdivisional Officer, Narkatiaganj, on the ground that the petitioners right as bataidar has become final and it can not be questioned. Petitioners bataidari right was admitted by the respondents even in the earlier writ application, which is evident from the order passed in CWJC No. 4644 of 1995. In paragraph 3 of the judgment it has been observed that "the contesting respondents are under raiyat with respect to the land in question of which the petitioners are the land holders". Petitioners case is that once they are under tenant of the land in question and they have remained in possession of land, continuously for twelve years, in such case the finding recorded by the appellate authority in the impugned order is erroneous, without jurisdiction and against the material on record has recorded their finding. The appellate authority that the petitioners application u/s. 48-D of the B.T. Act is not maintainable because they are in possession of the excess land than the ceiling unit, and prior to institution of the ceiling proceeding she had transferred more then 25 acres of land. This finding is against the material on record and can not be a ground for rejecting petitioners application under Sec. 48-D of the B.T. Act. The date on which the petitioners filed their application u/s. 48-D of the B.T. Act, i.e. the relevant date and on that date they should not possess land beyond ceiling unit. It was already held by the ceiling authority that by order, dated 30.7.1984, in Ceiling Case No. 101 of 1975-1976 that land holder Sogra Khatoon is not in possession of excess land than the ceiling unit and on consideration of this fact the ceiling proceeding was dropped. It was already held by the ceiling authority that by order, dated 30.7.1984, in Ceiling Case No. 101 of 1975-1976 that land holder Sogra Khatoon is not in possession of excess land than the ceiling unit and on consideration of this fact the ceiling proceeding was dropped. The finding which has been recorded by ceiling authority that can not be questioned by the appellate authority in a proceeding u/s. 48-D of the B.T. Act and any finding recorded by the appellate authority under Sec. 48-D of the B.T. Act, against the finding recorded in the ceiling case is beyond jurisdiction as well as against the material on record. The appellate authority has passed the order on presumption that the petitioners held land beyond the ceiling limit as she had transferred lands prior to initiation of ceiling proceeding. Simply because petitioner Sogra Khatoon has transferred some lands, prior to initiation of ceiling proceeding, can not be a ground for rejecting of petitioners case u/s. 48-D of the B.T. Act, if after proper enquiry during the ceiling proceeding, it has been held that the petitioners do not possess land beyond the ceiling unit. 5. Counsel appearing for respondents 4, 5 and 6, the land holders, submits that the appellate authority in the impugned order has discussed in detail giving description of the sale deeds, though which lands were transferred by Sogra Khatoon prior to institution of the ceiling proceeding. After these transfers Sogra Khatoon projected herself to be a land holder, not possessing land in excess of the ceiling unit. The ceiling authorities did not conduct proper enquiry and, thus, came to a finding that Sogra Khatoon is not in possession of excess land. The finding was recorded on presumption a national partition in the family, which is not permissible under the law. 6. Argument advanced by the respondents can not be accepted. Once the ceiling authority, after holding enquiry has passed the final order, which became final, that order can not be questioned, unless set aside by the Court of competent jurisdiction. Respondents have filed an application u/s. 45-B of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act for reopening of ceiling case, which was dismissed. Once the ceiling authority, after holding enquiry has passed the final order, which became final, that order can not be questioned, unless set aside by the Court of competent jurisdiction. Respondents have filed an application u/s. 45-B of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act for reopening of ceiling case, which was dismissed. Now respondents are not free to say that petitioners possessed land in excess of ceiling unit, and on this count petitioners application u/s. 48-D of the B.T. Act should not have rejected. 7. Law is very clear on this point, the applicant who filed an application under Sec. 48-D of the Ceiling Act, should not possess land in excess of ceiling unit, on the date, on which he files an application for declaration of his occupancy right. Petitioners have filed their application u/s. 48-D of the B.T. Act on 23.8.1988. In the ceiling proceeding orders was passed on 30.7.1984. Admittedly, on the date of filing an application u/s. 48-D of the B.T. Act, petitioners did not possess land beyond ceiling unit. 8. In the facts and circumstances, the finding recorded by the appellate authority is illegal and against the material on record. 9. Another point which has been raised by the counsel for the respondents, is that the Circle Officer as well as the appellate authority failed to comply with the direction of this Court in CWJC No. 4644 of 2005. There was specific direction that the Court will consider the claim of the applicant as an occupancy raiyat over the disputed land. sec. 48-D of the B.T. Act was introduced by Act, 8 of 1987, and for declaration of kaimi/raiyati right. It is not essential that there should be one enquiry regarding occupancy right of the under raiyat u/s. 48-C of the B.T. Act. It is also necessary that while making enquiry u/s. 48-C of the B.T. Act the authority will examine that the under tenant has remained in cultivating possession of the land continuously for twelve years and is in possession of the same on the date of filing of the application. In the present case, no enquiry was made as to whether the land lord comes within the category of protected tenant. In the present case, no enquiry was made as to whether the land lord comes within the category of protected tenant. In case of such land holders who possess land less than 5 acres of irrigated and 10 acres of un-irregated land no application u/s. 48-D of the B.T. Act is maintainable. The Circle Officer as well as the Subdivisional Officer, Narkatiaganj, West Champaran, Bettiah, did not hold any enquiry on this point they failed to consider as to whether the land holder is a protected tenant and also that the under raiyat tenant has perfected his occupancy right under Sec. 48-C of the B.T. Act. 10. On perusal of the documents as well as the pleadings made by all the parties. I find that so far the petitioners claim of being a bataidar in cultivating possession of land under dispute for continuous 12 years for perfecting their occupancy right u/s. 48-C of the B.T. Act is concerned, there are documents annexed with the writ application as well as counter affidavit showing that the petitioners were cultivating the lands and sharing crops with the land holders. Rent suits were filed by the land holders for sharing crops in which orders were passed. These are the documents to show that the petitioners have perfected their occupancy right by remaining continuous 12 years in cultivating possession of the land. Regarding enquiry as to whether the land holders is a marginal tenant/protected tenant under Section 48-C of the B.T. Act is concerned, I find that no such objection was ever raised by the land holder at any point of time. He never claimed that he is a protected tenant and a marginal farmer having land less than 5 acres of irrigated and 10 acres of un-irrigated land. Considering the fact that no such objection has ever been raised by the land holder/respondents at any point of time, this can not be entertained at this stage. 11. On consideration of the facts and circumstances of the case, I find that this proceeding u/s. 48-D of the B.T. Act has continued its journey for a long time, journey which started in the year 1988 has not reached its destination till now. On several occasions the matter has been remitted from one Court to another Court. Now it is the time that the matter should reach its finality. On several occasions the matter has been remitted from one Court to another Court. Now it is the time that the matter should reach its finality. The Circle Officer is directed to declare petitioners kaimi right and proceed in accordance with law as provided u/s. 48-D of the B.T. Act. 12. Accordingly, the order, dated 22.3.2002, passed by the Subdivisional Officer, Narkatiaganj, in Batai Case No. 25 of 1998-1999 is quashed. This application is allowed.