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2007 DIGILAW 897 (PAT)

Abul Hasan v. State Of Bihar

2007-05-07

AFTAB ALAM

body2007
Judgment AFTAB ALAM, J. 1. Heard Mr. Birendra Prasad Verma. Sr. Advocate appearing for the petitioners and Mr. Lalit Kishore. A.A.G. 3 representing the State. 2. This writ petition arises from a proceeding under sec. 4(h) of the Bihar Land Reforms Act, 1950. The subject matter of the proceeding is a piece of land 2 bighas in area being part of plot no. 1687 with a total area of 4.23 acres equal to 4 Bighas 16 Kathas and 18 dhurs) under khata No. 644. situate at Village-Hariata P.S. Bahera in the district of Darbhanga. 3. Before the D.C.L.R. the case of the petitioners was that their father namely Md. Salim had taken the disputed land in settlement in the year 1943 from the erstwhile land lord. It was stated that the settlement was made by grant of receipt and in support of the averments a receipt of the year 1350 Fasli issued by the erstwhile Zamindar was also produced under which rent was accepted from the settlee in respect of an area of 2 bighas from the North West in the plot in question. It was further the case of the petitioners that in the return filed by the erstwhile land lord the settlement of the disputed land in favour of the petitioners father was also accepted and he was shown as the settlee: 4. It may be stated here that in the cadestral survey/record of rights plot no. 1687 was recorded as Gairmazarua Khas and the disputed land was a part of a larger water tank (Pokhra). The proceeding was apparently initiated on the basis of complaints received from the villagers who asserted that it was a common Pokhra which was used by every one for washing and bathing purposes but the petitioners were trying to exercise their private right over it. 5. On the basis of the materials produced before him the D.C.L.R. accepted the petitioners case that the disputed land was settled in favour of their father by the erstwhile Zamindar. He further found and held that the settlement was made in the year 1943 (corresponding to 1350 Fasli) and hence. it was beyond the purview of section 4(h) of the Act. 6. On the aforesaid findings he dropped the proceeding in favour of the petitioners by order dated 29.12.1981 in Case No. 71/72-73. He further found and held that the settlement was made in the year 1943 (corresponding to 1350 Fasli) and hence. it was beyond the purview of section 4(h) of the Act. 6. On the aforesaid findings he dropped the proceeding in favour of the petitioners by order dated 29.12.1981 in Case No. 71/72-73. The State took the matter in appeal before the Collector of the district in Case No. 16 of 1982-83. The Collector by his order dated 21.4.1984 allowed the appeal set aside the order of the D.C.L.R. and held that the disputed land had vested in the State in terms of section 4(h) of the Act. In revision the Commissioner by order dated 25.5.1989 in Case No. R-528/84 affirmed the order of the Collector and rejected the petitioners revision. 7. This writ petition has been filed challenging the orders of the Commissioner and the Collector of the district. 8. Mr. Verma submitted that the Collector had disbelieved the case of the pe- titioners that the disputed land was settled in 1943 by the erstwhile Zamindar on the ground that in 1943 the age of petitioner no.1 was only one year. The Commissioner rejected the revision referring only to that finding arrived at by the Collector. Both the Collector and the Commissioner seem to have taken the view that no settlement was possible in favour of an infant aged one year and therefore the entire story was unbelievable. 9. Annexure-1 is the photo stat copy of the first receipt granted by the erstwhile Zamindar in respect of the disputed land. Its original was also produced by Mr. Verma in course of hearing of the case. In the rent receipt the name of Md. Salim (the deceased father of the petitioners) as well as the names of the petitioners are mentioned. The Collector in his order has argued that in the year 1977 in his deposition before the D.C.L.R., petitioner no.1 gave his age as 38 years. Calculating back he pointed out that in 1943 the petitioners would be only one year old (the calculation appears to be incorrect and the age on that basis would be 4 years but that is of no consequence). Having thus determined the age of petitioner no.1 in 1943 the Collector observed that no settlement was possible in favour of a one year old child. 10. Having thus determined the age of petitioner no.1 in 1943 the Collector observed that no settlement was possible in favour of a one year old child. 10. Now, I find it difficult to follow the reasoning of the Collector. In modern times when the mode of investment has changed, every day one comes across announcements of investment schemes for the benefit of newly born child. Insurance Companies, Mutual funds and others come out with schemes for investment in favour of the newly born child with provisions that the proceeds would be used for the educational, marriage or other expenses of the child or it would be received by the child on attaining majority. 11. In earlier times when the economy was agrarian and the dominant mode of investment was in agricultural land it was common and naturalfor a parent to take settlement of a piece of land in favour of his newly born child. This court is not aware of any law prohibiting settlement of a piece of land in favour of a young boy or girl nor was any such provision of law brought to the notice of the court. Mr. Verma is therefore right in his submission that the order of the Collector, later affirmed by the Commissioner suffers from a serious error. 12. Mr. A.A.G 3 on the other hand contended that the age of the settlee was only one of the factors and there were other materials on record in light of which the story of settlement appeared to be false and untrue. He referred to the report of the Anchal Adhikari according to which there were interpolations and cutting in the revenue records particularly in Register II. He also referred to the depositions of some of the villagers before the D.C.L.R. that stated that the Pokhra was used by everyone for washing cloths and having baths etc. 13. The order of the Collector though refers to those materials unfortunately it is mainly based on the age of the settlee. Therefore, there is no escape from the conclusion that the Collector allowed the appeal and held that the land had vested in the State for a reason that is completely untenable. 14. 13. The order of the Collector though refers to those materials unfortunately it is mainly based on the age of the settlee. Therefore, there is no escape from the conclusion that the Collector allowed the appeal and held that the land had vested in the State for a reason that is completely untenable. 14. The orders passed by the authorities under the Act are accordingly set aside and the matter is remitted to the D.C.L.R. for holding a fresh enquiry and to pass appropriate orders in the matter in accordance with law. 15. In the result thus writ petition is allowed to the extent indicated above but with no order as to costs.