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2010 DIGILAW 269 (JHR)

Yubraj Tiwary v. State of Jharkhand

2010-02-19

DABBIRU GANESHRAO PATNAIK

body2010
JUDGMENT : D.G.R. Patnaik, J. Heard counsel for the parties. 2. Challenge in this writ application is to the order dated 25.06.2006 passed by the Additional Collector, Palamau in Revenue Appeal No. XV73/1992-93 whereby the petitioner's appeal against the order of the subordinate authority cancelling the running Jamabandi of the petitioner, was dismissed. Challenge also is to the order dated 21.07.2003 passed by the Commissioner, Palamau Division, Daltonganj in revenue Revision No. 83/96 whereby the revision application filed by the petitioner against the impugned order dated 27.05.1996 of the Additional Collector in Revenue Revision No. XV115/1992-93, was dismissed. 3. The private respondent Nos. 6 to 8 have offered contest in this writ application by filing their counter affidavit. Despite repeated opportunities, no counter affidavit has been filed on behalf of the respondent State. 4. The case of the petitioner is as follows:- The land measuring 1.6 acres under Khata No. 10, Plot No. 1319 in village Ornar within P.S. Chainpur district Palamau, was recorded in favour of one Nakchhadi Chamar, son of Jitan Chamar as Kayami. The original raiyat of the land was one Kailash Tiwari, son of Basudeo Tiwari who was the original landlord and ancesstor of the present petitioner. The khatiyan pertaining to the land would confirm that Nakchhadi Chamar was not in continuous possession of the land and used to pay rent only when he used to cultivate the land. Subsequently, Nakchhadi Chamar abandoned the land and left the village and consequently the land reverted to original landlord who came in exclusive possession over the land treating the land as "Bakast". Upon the abolition of Jamindari and vesting of Jamindari interest, the landlord filed returns accordingly under the Bihar Land Reforms Act. Thereafter the land was recorded in the revenue records as "Uttakar". After the death of the original landlord Basudeo Tiwari, his four sons namely Jadunandan Tiwari, Ram Bilash Tiwari, Raghyunandan Tiwari and Kailash Tiwari inherited the property and as per family arrangement and partition between them, the land measuring 1.20 acres was allotted to Ram Bilash Tiwari while the remaining 0.40 acres was allotted to the share of Kailash Tiwari. After the death of the original landlord Basudeo Tiwari, his four sons namely Jadunandan Tiwari, Ram Bilash Tiwari, Raghyunandan Tiwari and Kailash Tiwari inherited the property and as per family arrangement and partition between them, the land measuring 1.20 acres was allotted to Ram Bilash Tiwari while the remaining 0.40 acres was allotted to the share of Kailash Tiwari. After the allotment of the partitioned lands, they being the intermediaries were allowed to retain the possession of the land and became the raiyat of and land in question by paying rent and exercising occupancy rights, under the provisions of Section 6 of the Bihar Land Reforms Act. The rent as payable by the aforesaid intermediaries was assessed under the provisions of Sections 4, 5 and 6 of the Bihar Land Reforms Act in A.R. Case No. 806, 808 and 809 of the year 1955-56. The orders passed in the Rent Fixation Case became final in absence of any objections or appeal filed by any person whatsoever. 5. After about 40 years, the Respondent No. 5 to 7, claiming themselves to be the descendants of Nakchhadi Chamar, filed a petition before the Circle Officer for cancelling the Jamabandi which was running in favour of the present petitioner. The Circle Officer forwarded the petition along with his recommendation for cancellation of the Jamabandi to the Land Reforms Deputy Collector, Sadar, Palamau on the basis of which Case No. 26 of 1990-9 1 was initiated. However, after hearing the parties, the L.R.D.C., by passing a reasoned and speaking order, rejected the proposal for cancellation of Jamabandi which was running in the name of the petitioner. 6. Against the order of the L.R.D.C., the private respondent Nos. 5 to 7 preferred a revision application vide Revenue Revision No. 71 of 1992-93. The revisional authority, by his order dated 27.05.1996, allowed the revision application of the private respondents on the ground that there was no proper enquiry conducted at the time of making the rent assessment in favour of the petitioner. On the other ground that no documents regarding any proceeding u/s 73 of the C.N.T. Act was produced by the petitioner to show that the land was declared as "Bakast" after following the due procedure of law. 7. On the other ground that no documents regarding any proceeding u/s 73 of the C.N.T. Act was produced by the petitioner to show that the land was declared as "Bakast" after following the due procedure of law. 7. Being aggrieved by the order passed in the Revenue Revision Application, the petitioner filed a Revision Application before the Commissioner, Palamau vide Revenue Revision No. 83 of 1996. However, by the impugned order, the Commissioner, Palamau had dismissed the revision application filed by the petitioner and hence this writ application. 8. Assailing the impugned orders, Sri A.K. Das, learned Counsel for the petitioner submits that it is a settled principle of law that if a Jamabandi is running in the name of a particular person since several years, a presumption follows that the Jamabandi has been created in accordance with law unless the contrary is proved. In order to prove that the Jamabandi which was admittedly running in the name of the petitioner was not properly created, the onus was entirely upon the private respondent No. 5 to 8 which they had not discharged at all. Learned Counsel adds that the only provision under which a long standing Jamabandi can be cancelled is under the provisions of Section 4(h) of the Bihar Land Reforms Act and in absence of any of the grounds as specified in Section 4(h) of the Act, no order could have been passed for cancellation of the Jamabandi or running demand. Learned Counsel explains further that the order of assessment of rent which was passed in favour of the petitioner under Sections 5, 6 and 7 of the Bihar Land Reforms Act was an appellable order u/s 8 of the Act. Since no appeal was preferred by any party against the order, the same remained unchallenged and had attained finality and as such, after lapse of several decades, the same could not have been cancelled upon the frivolous claim of the private respondents that too, without offering any supportive evidence. Furthermore, a demand running in the name of a particular person since several decades cannot be cancelled in a summary proceeding by the executive authority. The executive office of the State, particularly of the Revenue Department, has no authority for cancelling the long standing Jamabandi. 9. Furthermore, a demand running in the name of a particular person since several decades cannot be cancelled in a summary proceeding by the executive authority. The executive office of the State, particularly of the Revenue Department, has no authority for cancelling the long standing Jamabandi. 9. Per contra, the stand taken by the respondent No. 5 to 8 is that the land in question was originally recorded in the name of the respondents' ancestor Nakchhadi Chamar. In 1990, Deoki Chamar, one of the present respondents, filed a representation before the Anchal Adhikari against the realization of rent from the petitioner. Upon the matter being referred to the D.C.L.R., Sadar, Palamau (Respondent No. 4), the objection was rejected by the order dated 28.08.1992 by the D.C.L.R. However, the appeal filed by the private respondents before the Respondent No. 3 was allowed setting aside the order of the D.C.L.R. and thus, the name of the respondent Nos. 5 to 8 was mutated creating Jamabandi in their favour entitling them to seek assessment of rent in terms of the provisions of Bihar Land Reforms Act. 10. Sri A.K. Sahani, learned Counsel for the respondents would argue that the Jamabandi which was created in the name of the petitioner was not in accordance with law in as much as, the mandatory procedures which were required under the law before creation of Jamabandi was not complied with. Learned Counsel explains further that at no stage of any of the previous proceedings or even in this writ application has the petitioner filed any copy of Form K (return), Form L (General Notice) and Form M, as required to be filed under Rule 7(B) of the Bihar Land Reforms Act, after vesting of the Jamindari, to confirm that the originally recorded raiyat namely Nakchhadi Chamar had abandoned the land and upon such abandonment, the petitioner's ancestors had come in possession of the land. On the other hand, the Respondent No. 5 to 8 came in possession over the lands and their names have also been entered in the records of rights. Learned Counsel adds further that unless the petitioner is able to establish that the Jamabandi was created by competent authority validly and legally, the petitioner cannot challenge the cancellation of the Jamabandi. Learned Counsel adds further that mere assessment of rent cannot be presumed to have been done upon creation of a valid Jamabandi. 11. Learned Counsel adds further that unless the petitioner is able to establish that the Jamabandi was created by competent authority validly and legally, the petitioner cannot challenge the cancellation of the Jamabandi. Learned Counsel adds further that mere assessment of rent cannot be presumed to have been done upon creation of a valid Jamabandi. 11. From the rival submissions, the fact which emerge are as follows: By virtue of the proceeding under Sections 4, 5 and 6 of the Bihar Land Reforms Act vide A.R. Case No. 806, 808 and 809 of 1955-56, the name of the petitioner was mutated in the revenue records in respect of the lands in question and ever since after the assessment of rent, the petitioner had been paying rent to the State. The orders passed in the assessment proceeding though appellable, but no appeal having been filed or any objections raised by any person, the same had attained finality. After more than 35 years, the private respondents had sought for cancellation of running Jamabandi in the name of the petitioner. The objections raised by the respondents against the running Jamabandi, was considered by the D.C.L.R., who on the basis of the documents produced before him and after acknowledging the petitioner's submissions that after the abolition of the Jamindari, the petitioner being an intermediary, had become the raiyat and that the assessment of rent was made way back in the year 1955-56, had observed that by implication, the assessment having remained unchallenged, have become final. It was also observed that the Circle Officer on enquiry had found the petitioner to be in possession of the land. Upon such observations, the D.C.L.R. had dismissed the objections raised by the private respondents. The order passed by the D.C.L.R. was set aside in appeal filed by the private respondents. By the order of the appellate authority, the running Jamabandi in the name of the petitioner was sought to be cancelled and a fresh Jamabandi was sought to be created in favour of the private respondents. As it appears from the order of the D.C.L.R., upon considering the documents produced by the petitioner and the private respondents, the D.C.L.R. had acknowledged that the settlement of the lands in question was made in favour of the petitioner and that the assessment of rent payable by the settlee was legally and validly made in the assessment proceeding way back in 1955-56. Undisputedly, the mutation of the petitioner's name in respect of the lands in question was made way back in the year 1955-56 and for about more than 35 years, the petitioner's name was running in the revenue records and he has been paying rent and taxes to the State Government all along. 12. There is a presumption in law that a Jamabandi, running in the name of any person for several years, it was created in accordance with law unless the contrary is proved. The onus lies upon the person who challenges the propriety of the order by which the Jamabandi was created. A running Jamabandi can be cancelled only under the provisions of Section 4(h) of the Bihar Land Reforms Act under specific circumstances mentioned therein. 13. In the present case, as it appears from the impugned orders of the revisional authorities, the only ground on which the running Jamabandi of the petitioner was sought to be cancelled, is that in the light of the claim made by the private respondents that they were continuously living in the village, no proper enquiry was conducted to ascertain this fact at the time when the proceeding for mutation of the lands was initiated on the petitioner's application. The further ground on which the running Jamabandi was cancelled is that the petitioner did not produce any document pertaining to any proceeding u/s 73 of the C.N.T. Act. 14. Apparently the observations made in the impugned order of the revisional authority that the mutation of the lands made in favour of the petitioner was intended to defeat the provisions and object of the Land Reforms Act and that the officer who had allowed the mutation of the petitioner's name, did not have authority under the law, is based merely on conjectures and surmises. 15. As per the facts pleaded by the private respondents, it appears that they have laid their claim over the lands by contending that they have been coming in continuous possession thereof. However, the report of the Circle Officer, as submitted before the D.C.L.R. even in the year 1990-91, confirms that the petitioner was found to be in actual possession of the land. 16. The facts amply demonstrate that both parties have been advancing their rival claims of title and possession over the land, for which the appropriate remedy was before the Civil Court of competent jurisdiction. 17. 16. The facts amply demonstrate that both parties have been advancing their rival claims of title and possession over the land, for which the appropriate remedy was before the Civil Court of competent jurisdiction. 17. It is a settled law that a Jamabandi once created cannot be cancelled by the revenue authorities unless there is established ground of fraud or misrepresentation or that the Jamabandi is found to have been created by an order passed without jurisdiction and assailed within a reasonable period. Though a Jamabandi may not be a document of right, title, interest and possession, but once created, it does establish the relationship of landlord and the tenant and creates a valuable tenancy right under the provisions of law. 18. In the light of the above discussions, I hold that the impugned orders are unsustainable in law and the same are accordingly hereby quashed. The private respondents shall however be at liberty to approach the civil court of competent jurisdiction for appropriate relief in respect of any grievance, they may have. This writ application is accordingly allowed, but in the circumstances without costs.