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2007 DIGILAW 1199 (PAT)

Anil Kumar Tiwari v. State Of Bihar

2007-07-24

RAMESH KUMAR DATTA

body2007
Judgment 1. Heard learned counsel for the parties. 2. The petitioner seeks quashing of the order dated 28.8.2006 passed by the Collector, Buxar (Respondent No. 2) in Mutation Revision No. 148 of 2004/324 of 2006 (Annexure-1.) 3. The short facts of this case are that the land in question in the instant case, namely, Khata No. 275, Plot Nos. 681, 597/1368 and 597/1366 having total area of 0.67 acres situated in villageParasia admittedly belonged to Most. Kawali Kuer. By a registered deed dated 15.7.1986, Most. Kawali Kuer gifted 1.63 1/2 acres of land, which she had received from her Naihar and also the lands purchased by her deceased husband, in favour of Respondent No. 5, Ramakant Chaubey. Admittedly, the said deed of gift specifically mentioned khata number and plot numbers and also individual area of the gifted lands, which came to a total area of 1.63 1/2 Acres. The said deed of gift admittedly did not contain the three plot numbers involved in the instant case. 4. Subsequently, it is the case of Respondent No. 5 that the said Kawali Kuer swore an affidavit before the Notary stating that she had gifted these plots also but due to mistake of the Deed Writer the same have not been mentioned in the deed of gift whereas she had gifted those lands also to Respondent No. 5. In the year 2001, Respondent No. 5 filed an application for mutation of his name and the same was allowed in Civil Dakhil Kharij Case No. 522 of 2000-01 by holding a Camp Court. The reason assigned was that the lands have been transferred to Respondent No. 5 on the basis of deed of gift dated 15.7.1986 and on enquiry from the persons present, it was found that Respondent No. 5 was in possession over the same and no person expressed any objection to the mutation. Accordingly, the mutation was allowed, including that of the aforesaid three plots of land which were not in the deed of gift. By registered sale deed dated 23.7.2002, the aforesaid three plots of land were sold by the said Most. Kawali Kuer to the petitioner and the petitioner claims to have come in possession over the same after payment of consideration money. By registered sale deed dated 23.7.2002, the aforesaid three plots of land were sold by the said Most. Kawali Kuer to the petitioner and the petitioner claims to have come in possession over the same after payment of consideration money. In November, 2003 the petitioner filed an application before the Anchal Adhikari for mutation of the disputed land in his name on the basis of the said registered sale deed vide Mutation Case No. 1419 of 2003-04. The Circle Officer and the Revenue Karamchari reported that there was dispute pending between the parties and on the basis of the said report, the application was dismissed by the Circle Officer by order dated 9.1.2004 on the ground that the disputed land has already been mutated in the name of Respondent No. 5 vide Mutation Case No. 952 of 2001 by the order dated 10.1.2001. Against the said order, the petitioner filed Mutation Appeal No. 25 of 2004-05 before the Deputy Collector, Land Reforms, Buxar in which he challenged the validity of the order of the Circle Officer, Buxar dated 10.1.2001 passed in Mutation Case No. 952 of 2001 as well as the subsequent order dated 9.1.2004. On notice Respondent No. 5 appeared and filed his rejoinder. By order dated 30.11.2004 the D.C.L.R. allowed the appeal holding that Respondent No. 5 had not filed any proof in support of his claims and a direction was issued to the Circle Officer to mutate the name of the petitioner and issue rent receipts in his favour. Against the said order dated 30.11.2004, Respondent No. 5 filed Mutation Revision No. 148/ .4/324/06 before the District Collector, Buxar. In the said revision petition the claim of the respondent was based on the affidavit sworn on 31.12.1986 by Most. Kawali Kuer. On the basis of the same it was claimed that the mutation had rightly been granted earlier. The Collector, Buxar by his order dated 28.8.2006 allowed the revision application holding that the respondent was in possession over the land in question, which is clear from the Mutation Case No. 952 of 2000-01, by which his name has been mutated, as also from the other documents, land possession certificate and irrigation Parcha. Accordingly, the order of the D.C.L.R. was set aside holding that the petitioner was free to approach the competent Civil Court. 5. Accordingly, the order of the D.C.L.R. was set aside holding that the petitioner was free to approach the competent Civil Court. 5. Learned counsel for the petitioner submits that the title to any land can be passed only on the basis of registered deed of gift specifically stating the same. In the present matter, the deed of gift had specifically mentioned the various plots of lands which had been gifted by Most. Kawali Kuer to Respondent No. 5 and had also mentioned the individual area and total area of land involved and the said total area duly tallied with the same. It cannot be said that the three plots of land in question were not mentioned due to inadvertence. In any case, it is submitted that unless the same is rectified either by a registered rectification deed or fresh registered deed of gift, there can be no tion of title to Respondent No. 5 over the plots of land. 6. In the said circumstances, the Circle Officer could not have mutated the name of Respondent No. 5. It is submitted that the mutation has been made on the basis of the deed of gift and since the present plots of land were not mentioned in the deed of gift, the order of mutation passed by the Circle Officer clearly shows non-application of mind and the same has rightly been set aside by the D.C.L.R. Learned counsel also points out the fact that no notices have been issued in the said Mutation Case No. 952 of 2000-01 and the order had been passed without notices to the parties likely to be effected and without hearing them, including the real owner of the land in question, namely, Most. Kawali Kuer. For the said reasons, it is stated that having purchased the lands on the basis of valid registered deed of sale, the petitioner was entitled to have his name mutated in the revenue records and on refusal of the authorities he had rightly challenged the same before the D.C.L.R. 7. Learned counsel for Respondent No. 5, on the other hand, contends that in the matter of mutation the only relevant consideration is that the party should be in possession. Learned counsel for Respondent No. 5, on the other hand, contends that in the matter of mutation the only relevant consideration is that the party should be in possession. Once, the possession has been found in favour of Respondent No. 5 going back to the year 1986 there can be no question of the order of mutation passed on that basis to be set aside on the basis of the sale deed of the petitioner. It is further submitted that the mutation order has been passed on 10.1.2001 on which date the petitioner was not in picture and subsequently on the basis of the sale deed dated 23.7.2002, he cannot get any right to challenge the mutation that had been made previously in favour of Respondent No. 5. In support of the said stand, learned counsel relies upon the decision of a Division Bench of this court in the case of Khiru Gope and Others. vs. Land Reforms Deputy Collector, Jamui and Others : A.I.R. 1983 Patna 121 [: 1983 PLJR 727 ], in paragraph nos. 15 and 16 of which it has been held as follows: "15. A question similar to the one posed above has fallen for decision by this court in the case of Harihar Singh vs. Addl. Collector [1978 BBCJ (HC) 323]. A Bench of this Court noticed the contents of Letter No. 5-LR/RC-1073/ 693-LR. dated the 8th October, 1969 from the Secretary to the Government of Bihar in the Department of Revenue to all the Collectors, and another letter dated the 25th April, 1959, bearing No. 3354/IR FB-744/1959, to all the Divisional Commissioners, and held that till 1969, new Jamabandis, on the basis of Sada Hukumnamas and rent receipts granted by the ex-intermediaries, were not only being opened by the approval of the Anchal Adhikari, but were being opened by the Karamcharis themselves, and, as such, it was within the competence of the Anchal Adhikaries to open new Jamabandis in favour of the petitioners. Further, it was noticed that the Additional Collector, who had cancelled the Jamabandi, had issued a notice merely directing to produce rent receipts and other papers issued by the exintermediaries, and held that by issuing such a notice the learned Additional Collector was not entitled, after hearing the petitioners to cancel the Jamabandi created in their favour. Further, it was noticed that the Additional Collector, who had cancelled the Jamabandi, had issued a notice merely directing to produce rent receipts and other papers issued by the exintermediaries, and held that by issuing such a notice the learned Additional Collector was not entitled, after hearing the petitioners to cancel the Jamabandi created in their favour. The said case also related to a claim of possession by virtue of a Sada Hukumnama in respect of Gairmazarua Malik land. Harihar Singhs case is a direct authority for the proposition that there is no authority given to the Collector under the Bihar Land Reforms Act to cancel a Jamabandi made in favour of a settlee from the ex-intermediary as also for the proposition that the Anchal Adhikari and the karamchari were competent to make necessary entries in the tenants register and open Jamabandi and fix rent in relation to such a settled land in favour of the settlee. 16. The view taken in Harihar Singhs case [1978 BBCJ (HC) 323] has been reaffirmed by another Bench decision of this Court in the case of Jamaluddin Ahmed vs. Sub-Divisional Officer, Khagaria [1979 BBCJ (HC)605]. On the strength of these two Bench decisions of this Court, it is obvious that the Land Reforms Deputy Collector had no jurisdiction or power to cancel the Jamabandi and remove the names of Petitioner Nos. 1 and 2 from the tenants register, the effect whereof in a way was to cancel the settlement by the ex-intermediary in favour of the petitioners Nos. 1 and 2." 8. Relying on the aforesaid decision, learned counsel submits that the order of the Anchal Adhikari could not have been cancelled by the D.C.L.R. as he has no such jurisdiction as per the law laid down in the aforesaid case. Learned counsel also relies upon another decision of a Division Bench of this court in the case of Sitaram Choubey and Ors. vs. State of Bihar and Others: 1993(2) PLJR 255, in paragraph nos. 19, 20, 25 and 26 of which it has been held as follows: "19. The Mutation authorities while exercising their jurisdiction are normally bound by the entries made in the survey settlement records of right. 20. vs. State of Bihar and Others: 1993(2) PLJR 255, in paragraph nos. 19, 20, 25 and 26 of which it has been held as follows: "19. The Mutation authorities while exercising their jurisdiction are normally bound by the entries made in the survey settlement records of right. 20. So far as the matter relating to creation of Jamabandi or cancellation thereof is concerned, the same used to be governed by the Executive Instructions issued by the State from time to time. Creation of Jamabandi or cancellation thereof has not been done in this case under the provisions of any statute. 25. By reason of an entry in Register II, a person merely becomes entitled to deposit rent. It is, therefore, difficult to comprehend as to how cancellation of Jamabandi would amount to cancellation of settlement, as it is well known that neither payment of rent creates title nor non-payment extinguishes any. 26. An administrative order of mutation passed by the Revenue Authorities is not and cannot be a decision on the question of title. Such a decision can only be taken by a Civil Court in a duly constituted civil suit. It is, therefore, not correct to contend that the effect of the impugned order would be cancellation of settlement by itself resulting in extinguishment of the settlement purported to have been made in favour of the petitioners by the exlandlord." 9. Relying upon the aforesaid decision, learned counsel submits that the order of the mutation authority ought not to be interfered in the writ jurisdiction since it does not create or extinguish any title of the parties in question and the proper course is for the party, against whom the order has been passed, to approach the Civil Court for the purpose of establishing his title. For the said reason, it is submitted that the Collector has rightly left it open to the petitioner to approach the competent authority for redressal of his grievances. In support of the aforesaid proposition that mutation proceeding is not a judicial proceeding and does not decide the title and is not the evidence of exclusion from the property, learned counsel relies upon the decision of the Privy Council in the case of (Thakur) Nirman Singh and Others vs. Thakur Lal Rudra Pratap Narain Singh and Others A.I.R. 1926 Privy Council 100. 10. 10. On a consideration of the aforesaid facts and circumstances, this court is of the view that the cases relied upon by the learned counsel for the respondent do not apply to the facts and circumstances of this case. In those cases, the matter related to cancellation of Jamabandi made in favour of a person by an exintermediary and it had been held that it was not open to the Addl. Collector to cancel such jamabandi nor the Deputy Collector Land Reforms had jurisdiction to cancel the jamabandi and remove the name of the petitioners of those cases, effect whereof was to cancel the settlement by the ex-intermediary. In the present case there is no settlement by ex-intermediary. So far as mutation in the present matter is concerned, it is not under Executive Instructions as in those cases but is governed by the statutory provisions contained in the Bihar Tenants Holding (Maintenance of Records) Act, 1977, which prescribes the statutory authorities for the purpose of consideration and disposal of mutation case. Under the said Act any application for mutation can be made by a party on the basis of registration of any instrument of transfer by way of sale, partition or gift. It is evident that the application of Respondent No. 5 was made under Sec. 12 of the Act and the order of the Circle Officer has been passed under Sec. 14 thereof. Evidently, the same was subject to an appeal under Sec. 15 of the Act and further revision under Section 16 thereof. Thus, learned counsel for the respondent wrongly contends that the D.C.L.R. had no jurisdiction to consider the earlier order of the Circle Officer passed on 10.1.2001 and set it aside. 11. Soldar as the stand of the present petitioner in his challenge to the said mutation order is concerned, it has to be seen that the order of mutation had been passed by the Circle Officer without issuing any notice to the recorded tenants or their heirs and successors. Merely on the basis of so-called inspection carried out on the same day at the Camp Court and enquiry from the persons present, the order of mutation has been passed, which cannot be held to be a valid exercise of power by the Circle Officer, since the owner of the land Most. Merely on the basis of so-called inspection carried out on the same day at the Camp Court and enquiry from the persons present, the order of mutation has been passed, which cannot be held to be a valid exercise of power by the Circle Officer, since the owner of the land Most. Kawali Kuer had not been noticed or heard when the mutation order had been passed on 10.1.2001. Thus, t is open to her or anyone claiming through a sale deed executed by her to challenge the said order by filing the appeal, which has been done by the petitioner in the present matter. Hence, it was open to the Deputy Collector, Land Reforms, to have heard the appeal against the said order dated 10.1.2001. 12. So far as the order dated 28.8.2006 of the District Collector is concerned, he has not looked into this aspect of the matter that there was a complete failure on the part of the Circle Officer while exercising his jurisdiction under Sec. 14 of the Act to look into the deed of gift, on the basis of which the mutation had been claimed, whether the land in dispute is mentioned in the deed of gift or not and, therefore, no mutation could have been allowed with respect to the same on the basis of any alleged possession. 13. In view of the aforesaid facts and circumstances, this court is of the view that the impugned order dated 28.8.2006 of the Collector as also the orders of the Circle Officer dated 10.1.2001 and 9.1.2004 are not in accordance with law and they are, accordingly, quashed. However, this court is also not inclined to uphold the order dated 30.11.2004 passed by the D.C.L.R. since merely on the ground that Respondent No. 5 appears not to be taking interest in the matter, the order has been passed without discussing the materials on the record. For the said reasons, the said order is also set aside. The matter is, accordingly, remanded to the Circle Officer, Rajpur, Anchal, District-Buxar to consider the application for mutation of both the petitioner and Respondent No. 5 after hearing the parties and decide the same in accordance with law and the observations made hereinabove. 14. The writ application is, accordingly, disposed of with the aforesaid observations and directions.