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2007 DIGILAW 1306 (PAT)

Lakshman Singh v. State Of Bihar

2007-08-08

J.N.BHATT

body2007
Judgment J.N.BHATT, J. 1. The short question which has emerged for consideration in this writ application under Arts. 226 and 227 of the Constitution of India, has been whether the order, dated 11.8.1969, passed by respondent no. 2 and affirmed by respondent no. 3, by order dated 11.7.1988, reversing the order of the respondent no. 2, recorded on 10.3.1969 could be said to be legal, valid and justified? 2. With a view to appreciating the merits of the appeal, let there be at the outset, skeleton projection of material and relevant facts. The petitioner had submitted an application for fixation of rent in terms of sub-sec. (2) of Sec. 10 of the Bihar Land Reforms Act, 1950 ("Act") in respect of the disputed land which is described elaborately in Annexure 6 to the petition. It will be expedient to refer to the same as under:- Tauzi No. Khata No. Khesra No. Acre Decimal 7310 497 5057 1 86 499 5058 166 5056 -52 4658 -58 4660 157 4661 193 498 5059 128 8317 500 1108 5060 4641 17. 73. 79. 88. -70 -94 73. 21. 30. 24. 3. Following facts are unquestionably borne out from the records:- (i) On making an application for the fixation of rent claiming to be in "Khas possession" of the disputed land, to the respondent no. 3 in terms of the provisions of Section 6(2) of the Act, upon consideration of the facts and circumstances and after holding an inquiry, the respondent no. 2 held in favour of the petitioner and fixed the rent by order dated 10.3.1969 and the application of respondent nos. 4 to 13 came to be rejected. The said order is placed on record as Annexure 3. Somehow or the other, respondent no. 2 called for the record and took up the matter in suo motu revision, and reversed the order passed by his counterpart on 10.3.1969 by passing an order on 11.8.1969, inter alia, holding that no rent can be fixed in title dispute. It is contended on behalf of the petitioners that this order is illegal on two counts; viz. (i) it suffers from the vice of the principles of natural justice as opportunity of hearing was not given to the petitioners and secondly, there is no such power of suo motu revision under the Act. It is contended on behalf of the petitioners that this order is illegal on two counts; viz. (i) it suffers from the vice of the principles of natural justice as opportunity of hearing was not given to the petitioners and secondly, there is no such power of suo motu revision under the Act. Needless to mention that the order passed in so called suo motu revision by the respondent no. 2, copy whereof is produced at Annexure 4, was questioned by the petitioner by filing an appeal which came to be dismissed affirming the order of respondent no. 2. 4. Relevant provision are in Section 6 of the Act. Let it be reproduced for understanding the provisions and interpretation thereof. It reads hereunder:- "6. Certain other lands in khas possession of intermediaries to be retained by them on payment of rent as raiyats having occupancy rights.- (1) On and from the date of vesting all lands used for agricultural or horticultural purposes, which were in khas possession of an intermediary on the date of such vesting, including (a) (i) proprietors private land let out under a lease for a term of years or under a lease from year to year, referred to in Section 116 of the Bihar Tenancy Act, 1885 (8 of 1885). (ii) landlords privileged lands let out under a registered lease for a term exceeding one year or under a lease, written or oral for a period of one year or less; referred to in Section 43 of the Chota Nagpur Tenancy Act, 1908 (Ben. Act 6 of 1908). (ii) landlords privileged lands let out under a registered lease for a term exceeding one year or under a lease, written or oral for a period of one year or less; referred to in Section 43 of the Chota Nagpur Tenancy Act, 1908 (Ben. Act 6 of 1908). (b) lands used for agricultural or horticultural purposes and held in the direct possession of a temporary lessee of an estate or tenure and cultivated by himself with his own stock or by his own servants or by hired labour or with hired stock, and (c) lands used for agricultural or horticultural purposes forming the subject matter of a subsisting mortgage on the redemption of which the intermediary is entitled to recover khas possession thereof; shall subject to the provisions of Sections, 7-A and 7-B be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold them as a raiyat under the State having occupancy rights in respect of such lands subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner: Provided that nothing contained in this sub-section shall entitle an intermediary to retain possession of any naukarana land or any land recorded as chaukidari chakran or goraiti jagir or mafigoraiti in the record of right has already accrued to a raiyat before the date of vesting. Explanation.-For the purposes of this sub-section, naukarana land means land as a grant burdened with service in lieu of rent or held simply in lieu of wages for services to be rendered. (2) If the claim of an intermediary as to khas possession over the lands referred to in sub-section (1) or as to the extent of such lands is disputed by any person prior to the determination of rent of such lands under the said sub-section the Collector shall, on application, make such inquiry into the matter as he deems fit and pass such order as may appear to be just and proper: Provided that the Collector in making such inquiry shall give due weight to the circumstances under which the area in which such lands were situated to be a disturbed area under the Police Act, 1861 (8 of 1861), after the first day of November, 1946." 5. The petitioner has also claimed fixation of rent mainly on the basis of possession and "khas possession". It is argued that "khas possession" means actual possession. The definitin of "khas possession is made statutorily in the Act and Sec. 2(k) refers to "Khas possession" which reads here as under- "(k) "Khas possession" used with reference to the possession of a proprietor or tenure-holder of any land used for agricultural or horticultural purposes means the possession of such proprietor or tenure-holder by cultivating such land or carrying on horticultural operations thereon himself with his own stock or by his own servants or by hired labour or with hired stock." 6. Section 6 of the Act makes statutory provisions for lands in "Khas possession" of intermediary to be retained by them on payment of rent as raiyat having occupancy rights. If a person is eligible in terms of the provisions of Sec. 6, he has to make an application in terms of Sec. 6(2) for fixation of the rent to the Collector. It is noticed from the record that the dispute between the parties is very old and in course of such fight for the land there had been proceedings in terms of the provisions of Sec. 145 of the Code of Criminal Procedure, 1973. It has been held that in those proceedings the petitioner was found in possession. No doubt, this Court is conscious of the fact that recording of finding of possession under Section 145 of the Code of Criminal Procedure has limited purpose. But this is one of the circumstances to show as to whether the petitioner was in possession at the relevant point of time or not, more so, in the wake of the plea of "Khas possession". 7. Private respondents have not filed any counter affidavit in this petition. There is no any other material on record which would dislodge the actual possession of the petitioner in respect of the disputed land as prima facie could be seen from the record. It is in these context and in absence of any provisions for suo motu revision, the impugned order of respondent no.3 confirming the non est order of respondent no. 2 reversing the legal order passed by respondent no. 2 for fixation of the rent in respect of the disputed land on 10.3.1969 is fit to be quashed. It is in these context and in absence of any provisions for suo motu revision, the impugned order of respondent no.3 confirming the non est order of respondent no. 2 reversing the legal order passed by respondent no. 2 for fixation of the rent in respect of the disputed land on 10.3.1969 is fit to be quashed. As a necessary corollary and as a legal consequence thereof, the impugned order of respondent no. 2, dated 11.8.1969, and affirmed by respondent no. 3 by passing the order in Appeal while dismissing it on 11.7.1988 shall stand quashed being without jurisdiction and illegal, and the order passed by respondent no. 2 on 10.3.1969 in terms of the provisions of Sec. 6(2) of the Act shall stand restored. 8. This application, accordingly, shall stand allowed leaving the parties to bear their own cost.