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2009 DIGILAW 680 (JHR)

Jasoda Rani Sharma v. State of Bihar

2009-05-01

AJIT KUMAR SINHA

body2009
Order The present writ petition has been preferred for issuance of an appropriate writ in the nature of mandamus commanding upon the respondents specially respondent nos. 5 & 6 to denotify the lands from the acquisition and to issue rent receipt in favour of the petitioners. 2. The facts, in brief, are set out as under:- In the instant case there are several petitioners' and the details thereof are given in the following chart giving the names of the petitioners, date of sale deed, area, Khata No., Plot No., Mutation Case No. etc. vide which the land was mutated in their names: Petitioner name Sale deed Area Khata Plot Mutation Dated No. No. Case No. Smt. Jasoda Rani Sharma 228/82-83 6.8.81 0.10 acres 25 1249 Smt. Shiv Kumari Devi 27.8.81 0.16 acres 25 Smt. Sudeshwari Devi 0.10 acres 25 1249 231/82-82 Smt. Shanty Ghosh 7.8.81 8 acres 25 1249 229/82-83 Smt. Manorma Devi 0.20 acres 25 1249 272/82-83 Smt. Madhu Malti Bharti 7.8.81 0.12 acres 25 1249 284/82-82 Sri. Ajit Mandal 13.4.83 01. acres And and 10.2.95 016 acres 3. Sri V. Shivnath, learned Senior Counsel appearing for the petitioners submits that all the petitioners are in peaceful possession over the respective lands purchased as aforesaid and are paying rent to the State of Bihar upon mutation in the Seristha of State of Bihar. It has further been submitted that the lands in question of Khata No. 25 was originally' recorded in the name of one Ghanshyam Pandey S/o Sagpat Pandey during cadestral survey. The said Khata consist of several plots including plot no. 1249 having total area of 2.74 acres of larids. On his demise the heirs of Ghanshyam Pandey, recorded tenant came into possession and sold some portion of the Raiyati land of plot no. 1249 to different persons including the petitioners herein. The respondent no. 6 all of a sudden stopped granting rent receipt for the lands in question on the ground that the same was notified for acquisition for the purpose of construction of a stadium on the said lands as the same was shown as surplus land in the notification of C.M.I. Company under the provision of Land Ceiling Act. 4. 6 all of a sudden stopped granting rent receipt for the lands in question on the ground that the same was notified for acquisition for the purpose of construction of a stadium on the said lands as the same was shown as surplus land in the notification of C.M.I. Company under the provision of Land Ceiling Act. 4. The petitioners filed representation stating the real facts and also clarified that the land does not belong to C.M.I. Company rather it was Raiyati land of late Ghanshyam Pandey and after his demise his grandsons were enjoying the aforesaid property which the petitioners have purchased. It appears that the respondent no. 5 cancelled the zamabandi opened in their favour on the recommendation of respondent no. 6 vide order dated 16.8.1991. Thereafter the petitioners preferred an appeal challenging the order dated 16.8.1991 before respondent no. 4, i.e. Additional Collector, Hazaribagh but after thorough examination of the record of entire Khata and other relevant documents and after hearing the parties by order dated 12.7.1994 allowed the appeal of the petitioners and set aside the order dated 16.8.1991 passed by respondent no. 5 whereby the zamabandi of the petitioners were cancelled. 5. It has further been contended on behalf of the petitioners that in spite of the order of the appellate authority, the respondent no. 6 did not comply with the order no granted rent receipt in favour of the petitioners on the ground that the lands in question was not denotified by the competent authority. The petitioners being constrained preferred an application before respondent no. 3 on 12.8.1994 which was registered as Case No. 1/94-95 by giving the details of Khata No. 25 as Raiyati land. It was prayed to denotify the lands and to maintain the zamabandi which was earlier in their names. 6. The respondent no. 3 after hearing the parties came to a definite finding that the lands of Khata No. 25 was actually recorded in the name of Ghanshyam Pandey, the ancestor of vendor of the petitioners and the petitioners were purchaser from the descendant of Ghanshyam Pandey, who were actually in peaceful possession over the same. 6. The respondent no. 3 after hearing the parties came to a definite finding that the lands of Khata No. 25 was actually recorded in the name of Ghanshyam Pandey, the ancestor of vendor of the petitioners and the petitioners were purchaser from the descendant of Ghanshyam Pandey, who were actually in peaceful possession over the same. It also held that the land of Khata No. 25 was erroneously notified as surplus land in C.M.I Company, Domchanch and came to a definite finding that this land of Khata No. 25 was never transferred to C.M.I. Company and ultimately allowed the application of the petitioners herein, vide its order dated 8.6.1995 and further ordered to denotify the land of Khata No. 25, Plot No.1249 total area 2.74 acres and also directed to maintain the zamabandi earlier opened in favour of the petitioners. 7. It is further submitted that in spite of the orders in favour of petitioners, the respondents are not complying with the order and sitting tight over the matter which led to filing of a fresh application by the petitioners on 11.12.1995 before the respondent no. 2 stating all the facts and annexing both the orders as contained in Annexures1 and 2 and made a specific prayer to direct the concerned respondent to comply with the orders. Even the maps were duly sanctioned by the Jhumri Tillaiya Municipality but due to refusal to denotify the lands in question from the surplus land nothing happened. Being constrained the present writ petition has been preferred to denotify the finds in question from the acquisition. 8. The respondents in their counter affidavit have mainly contended that under Section 45-8 of Bihar Land Refohns (Fixation of Ceiling Area and Acquisiti6n of Surplus Land) Act, 1961 and vide Circular No. 1492-R dated 15.5.89 the power Of the Dy. Commissioner has been taken away to reopen the land ceiling case under the abovementioned Act and in view of the aforesaid circular it was only State Government which can take the necessary decision for reopening of any case and or denotification and thus, respondent nos. 3 & 4 are not empowered to denotify the land acquired earlier. It has also been contended that the respondent nos. 3 & 4 are not empowered to denotify the land acquired earlier. It has also been contended that the respondent nos. 3 & 4 exceeded their jurisdiction in hearing the case relating to land ceiling for which they were not even empowered and order passed by the authority is illegal and arbitrary and could not be enforced in a court of law. It has further been contended that the lands in question was already acquired in the Ceiling Case No. 258/73 in the year 1976 itself by the Government vide its notification No. 3303 dated 30.6.1976 and thus, any .sale and purchase of the acquired land subsequently was illegal. It has also been submitted that the alleged purchase is of 1981-82 and it is denied that they were in peaceful possession since the land has already been acquired in the year 1976 itself. It has further been submitted that once it came to the notice and knowledge of the Circle Officer, 1e recommended for cancellation of the zamabandi to the D.C.L.R., Koderma and accordingly he issued an order in the year 1991 cancelling the zamabandi. 9. I have considered the rival submissions and pleadings. Section 45-B of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 pursuant to amendment is quoted as under:- "45-B. State Government to call for and examine records.-The State Government may, at any time, call for and examine any record of any proceeding disposed of by a Collector under the Act and may, if it thinks fit, direct that the case be reopened and disposed of afresh in accordance with the provisions of the Act." On a bare reading of the same, it is clear that the provisions of Section 45-B can be invoked by the State Government against the proceeding which has been disposed of by the Collector under the Act meaning thereby it acts as an appellate authority but it nowhere prohibits or restrains' the power of the Collector to denotify. Section 45-B empowers the State Government to certainly reopen and dispose of afresh any proceeding disposed of by the Collector. The word 'any' will certainly mean and include any order passed by the Collector which will include the power to denotify. 10. A similar issue came up for consideration reported in 1992(1) PLJR pg. Section 45-B empowers the State Government to certainly reopen and dispose of afresh any proceeding disposed of by the Collector. The word 'any' will certainly mean and include any order passed by the Collector which will include the power to denotify. 10. A similar issue came up for consideration reported in 1992(1) PLJR pg. 103 wherein a Division Bench held that Section 45-B authorizes State Government as well as Collector of a District to direct for reopening of the case where any material irregularities have been found and thus it was held that the Collector of the District has the jurisdiction to grant proper relief. 11. Apart from the aforesaid, it is also relevant to refer the inclusive definition of Collector under Section 2(b) of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, which is quoted as under:-- "Collector" includes an Additional t Collector or any other officer not below the rank of Sub-Deputy Collector, appointed by the State Government to discharge all or any of the functions of a Collector under this Act." Thus the power exercised even by Additional Collector will mean that the power has been exercised by the Collector as per the definition. 12. In the instant case there has been no final publication as required under Section 11 of the Act. The fact remains that the petitioners are' bona fide purchaser of the lands in question which was recorded in the name of late Ghanshyam Pandey and were granted rent receipt and even zamabandi was in their favour. There is nothing on record to show and prove that the land in question of Khata NO.25 Plot N6.1249 for a total area of 2.74 acres was transferred to C.M.I. Company. No final publication under Section 15 under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 has been published and the ancestors were settled Raiyat and after passing of the Bihar Land Reforms Act. The Raiyat interest was never be changed and the same was also recorded in cadestral survey itself and thus the purchase from the descendant of settled Raiyat late Ghanshyam Pandey appears to be bona fide and genuine more so when there is nothing on record to show that in the Khatiyan or in the cadestral survey land was ever acquired or was in the name of C.M.I. Company. Even, the authorities below have given reasoned order upholding me contention of the petitioners which has neither been challenged nor set aside instead a technical plea has been raised with regard to power of Collector which also is devoid of any merit. 13. Considering the aforesaid facts and Circumstances of the case, this writ petition is; allowed without any order as to costs and respondents are accordingly directed to denotify the lands in question in accordance with law.