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Jharkhand High Court · body

2008 DIGILAW 431 (JHR)

Kalpana Pandey v. State of Jharkhand

2008-04-07

N.N.TIWARI

body2008
ORDER Narendra Nath Tiwari, J. 1. The petitioner, who is the raiyat in respect of the land of jamabandi No. 622. Mouza-Pakur, Thana No. 128, is the widow of late Anand Mohan Pandey whose name was recorded in the revenue register and jamabandi was created, according to the petitioner, before vesting of the estate as far back as in the year, 1948. The nature of the land was Gair Mouzra Malick land. The said land was settled with the petitioner's husband by virtue of Amalnama followed by grant of rent receipts and delivery of possession. 2. After vesting of the estate in the then State of Bihar under the provisions of Bihar Land Reforms Act, 1950 (hereinafter referred to as the 'Act, 1950'), enquiry was made regarding the said jamabandi created by the landlord and the same was maintained and the Jamabandi was opened and continued in the name of the petitioner's husband by the Revenue Officer. Since thereafter her husband had been paying rent to the State and was coming in peaceful possession over the major portion of the land used for cultivation, a house was also constructed, tank was dug for the purpose of irrigation etc. The petitioner's husband also construct a sacred place for worship during his lifetime and he enjoyed ownership and possession thereof without any objection. In the year 1982, however, after lapse of more than 30 years, the petitioner's husband got a notice under Section 4(h) of the Act, 1950 from Circle Officer, Pakur being Misc. Case No. 9/1982-83. He appeared and placed all the particulars supported by the documents. The Circle Officer, having satisfied with the claim of his legal right and title to the land, dropped the said proceeding of Section 4(h) of the Act, 1950 by the order date 9.11.1982. After the death of her husband, the petitioner has been peacefully enjoying the said land and property. She had been paying rent and jamabandi has been running in the name of her husband. 3. Suddenly, in the year 1995, a notice under Section 4(h) of the Act, 1950 has been issued to the petitioner from the Court of Sub-Divisional Officer, Pakur in RHC Case No. 1/1973-74. The petitioner filed her reply stating all the facts. She had been paying rent and jamabandi has been running in the name of her husband. 3. Suddenly, in the year 1995, a notice under Section 4(h) of the Act, 1950 has been issued to the petitioner from the Court of Sub-Divisional Officer, Pakur in RHC Case No. 1/1973-74. The petitioner filed her reply stating all the facts. She also informed that the settlement in favour of the petitioner's husband has already been examined under Section 4(h) of the Act, 1950 and a proceeding initiated under Section 4(h) was dropped in the year 1982. After the death of her husband, she has been coming in peaceful possession of the land and property. The petitioner stated that the proceeding under Section 4(h) of the Act, 1950 is not at all maintainable and the same is liable to be dropped. 4. Learned SDO brushed aside all the grounds and ignoring the continuous long running jamabandi of the land in favour of the petitioner's husband, not only cancelled the jamabandi but also directed the property to be included in the Sairat. 5. The petitioner then preferred appeal before the Deputy Commissioner, Pakur. She brought the entire facts to the notice of the Deputy Commissioner and took the ground that the SDO had no authority to cancel the long running jamabandi and that too under the provision of Section 4(h) of the Act, 1950. The case does not fall within the ambit of the said provision. She also brought to the notice of the Deputy Commissioner that similar proceeding under Section 4(h) was initiated in respect of the said land concerning amalnama against her late husband, which was dropped, as the case was not found within the ambit of the said provision of law. 6. The Deputy Commissioner by the impugned order dismissed the appeal observing that only because the petitioner's name is running in the jamabandi, that does not give her any right, interest and title or any right of possession of the land in question. Without applying his mind to the provisions of Section 4(h) of the Act, 1950 and Section 36 of the Santhal Parganas Tenancy Act (hereinafter referred to as 'SPT Act'), the Deputy Commissioner upheld the finding. of the SDO and reiterated the same and cancelled the petitioner's jamabandi. 7. Without applying his mind to the provisions of Section 4(h) of the Act, 1950 and Section 36 of the Santhal Parganas Tenancy Act (hereinafter referred to as 'SPT Act'), the Deputy Commissioner upheld the finding. of the SDO and reiterated the same and cancelled the petitioner's jamabandi. 7. Section 4(h) of the Act, 1950 runs as follows: (h) The Collector shall have power to make inquiries in respect of any transfer including the settlement or lease of any land comprised in such estate or tenure or the transfer of any kind of interest in any building used primarily as office or cutchery for the collection of rent of such estate or tenure or part thereof, and if he is satisfied that such transfer was made at any time after the first day of January, 1946, with the object of defeating any provisions of this Act or causing loss to the State or obtaining higher compensation thereunder, the Collector may. after giving reasonable notice to the parties concerned to appear and be heard annual such transfer, dispossess the person claiming it and take possession of such property on such terms as may appear to the Collector to be fair and equitable. Provided that an appeal against and order of the Collector under this clause if preferred within sixty days of such order, shall lie to the prescribed authority not below the rank of the Collector of a district who shall dispose of the same according to the prescribed procedure; Provided further that no order annulling a transfer shall take effect nor shall possession be taken in pursuance of it unless such an order has been confirmed by the State Government. 8. On perusal of the order of the SDO as also the order of the Deputy Commissioner, it is apparent that none of the provisions mentioned therein has been dealt with by the said authorities. There is no finding that the settlement made in favour of the petitioner's husband in 1948 was intended to defeat the provisions and the object of the Act, 1950. Learned Deputy Commissioner observed that besides violation of Section 4(h), there is also violation of Section 36 of the SPT Act. There is no finding that the settlement made in favour of the petitioner's husband in 1948 was intended to defeat the provisions and the object of the Act, 1950. Learned Deputy Commissioner observed that besides violation of Section 4(h), there is also violation of Section 36 of the SPT Act. Section 36 of SPT Act is re-produced herein below: Rivulets or nalas on the boundaries of villages, burning and burial grounds, camping grounds, boundary marks, roads, paths and places of worship not to be settled.--Rivulets or nalas on the boundaries of village, burning and burial grounds, camping grounds, land bearing boundary marks, public roads, village paths, jaherthan and other places of worship shall not be reclaimed or cultivated or converted to any other purpose by any raiyat. No proprietor, landlord, village headmen mulryaiyat shall appropriate these to their own use, nor shall they settle these with any raiyat. 9. From the plain reading of the afore said two sections, it is evident that the fact situation of the instant case does not attract the provision of Section 36 of the SPT Act. 10. Not only that the petitioner's long running jamabandi has been cancelled, it has been also directed that the said property be included in Sairat of the Government. 11. Needless to say that the petitioner has been put to suffer unnecessary loss and harassment due to the proceeding and the order impugned since 1995, which has absolutely got no legal basis. 12. It has been repeatedly held by this Court that jamabandi once created cannot be cancelled by the revenue authority unless there is established ground of fraud, misrepresentation or the jamabandi is found created by an order passed without jurisdiction and assailed within a reasonable period. 13. Jamabandi as such may not be a document of right, title, interest and possession but jamabandi once created does establish the relationship of landlord and the tenant and creates a valuable tenancy right under the provision of law. Section 13 of the SPT Act, enumerates the rights of raiyat in respect of use of land and provides that a raiyat may use the land of his holding in any manner of local usage or custom or irrespective of any local usage or custom, in any manner which does not materially impair the value of the land or render it unit for the purpose of cultivation. 14. 14. A tenant cannot be ejected on any other ground than as provided under Section 39 of the SPT Act. The raiyat has got right of excavation of tanks, etc. Any tank excavated by the raiyat thus cannot be declared as Sairat only because the same is water reservoir or tank, as has been arbitrarily held by the Deputy Commissioner. 15. The raiyat also cannot be ejected from his holding. Section 14 of the said SPT Act mandates that raiyat's shall not be ejected by the landlord from his holding on the ground that he has used his land in a manner not authorized by Section 13 except in execution of an order of ejectment passed by the Deputy Commissioner. 16. In the instant case, there is no proceeding under Section 14 of the SPT Act and no order has been passed for ejectment of the said raiyat under the said provision. 17. The State having accepted the petitioner as raiyat, cannot eject her except on the ground, mentioned in the aforesaid provision of law. 18. Cancellation of jamabandi in the instant case and direction to take over the land and the tank as Government Sairat is a hostile act and amounts to illegal confiscation of the property of a citizen, in violation of Article 300-A of the Constitution of India. 19. Mr. Manjul Prasad, learned SC (LC) tried to defend the order, but in view of the clear facts, could not show any provision of law to justify the impugned orders. 20. In view of the above discussion, the said orders, contained in Annexures-12, 13 and 14 cannot sustain and the same are hereby quashed. 21. This writ petition is allowed, with cost of Rs. 10,000/- (ten thousand) to be paid to the petitioner within a period of two weeks from the date of receipt/production of a copy of this order. Let a copy of this order be handed over to the learned Counsel for the State. Petition allowed.