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2010 DIGILAW 382 (JHR)

Gopal Chandra Pandey v. State of Jharkhand

2010-03-27

D.G.R.PATNAIK

body2010
Order It appears from the office report that notice issued to the Respondent No. 4 has been served upon him though he has not appeared either in person or through lawyer today. 2. The petitioner in this writ application has prayed for a direction upon the concerned authorities of the respondents to cancel the settlement of Pathardin Tank appertaining to Plot Nos. 211 and 212 under Khata No. 54 measuring an area of 4.17 acres which was made in favour of the Respondent No. 4 and to settle the same in favour of the petitioner. A further prayer has been made for quashing the demand notice dated 5.11.2003 (Annexure-4) issued by the Respondent No.3, by which the petitioner has been demanded to make payment of Rs. 2,650/-. 3. The petitioner's main contention in this writ application is that the water of the tank under reference is used basically for cultivation of agricultural products in the lands belonging to the petitioner and his co-sharer. Such lands are located on the embankment of the tank and therefore the tank is deemed to be Raiyati in nature as per the observations contained in the Division Bench judgments of the Patna High Court reported in AIR 1982 (Patna) page 216 and in AIR 1979 (Patna) Page 106. Since after coming into force the Bihar Land Reforms Act and in view of the provisions of Sections 4, 5 and 6 of the Act, the tank has been shown as having vested in the State of Bihar. The Anchal Adhikari of the concerned area used to settle the land in favour of the ancestors of the petitioner and vide Settlement No. 21/92-93, the tank was settled in favour of the petitioner also and pursuant to the order of settlement, the petitioner had been paying rent and royalty in respect of the tank. The last such settlement was made in favour of the petitioner for a period of ten years commencing from 1994 up to March, 2003. The petitioner was therefore entitled to a renewal/fresh settlement in his favour for further period. 4. The grievance of the petitioner is that despite the fact that the petitioner is an old settlee and a local resident, the respondent authorities have arbitrarily settled the tank in favour of the Respondent No.4 although the Respondent No.4 being not a local resident, was not eligible for settlement as per the Government policy. 4. The grievance of the petitioner is that despite the fact that the petitioner is an old settlee and a local resident, the respondent authorities have arbitrarily settled the tank in favour of the Respondent No.4 although the Respondent No.4 being not a local resident, was not eligible for settlement as per the Government policy. The petitioner's further grievance is that before making the settlement with Respondent No.4, the petitioner was neither informed nor given an opportunity to advance his specific claim for settlement of the tank. The petitioner's further grievance is that in respect of the earlier settlement made in his favour, the petitioner had been regularly and consistently depositing the amount of rent and according to his own assessment and calculation, there was no arrears whatsoever. Yet, by the impugned demand notice, the respondent authorities have arbitrarily raised the demand for Rs. 2,650/- under the threat of certificate proceeding although the petitioner is legally liable to pay any such amount. 5. In the counter affidavit, the respondents have taken a stand that the settlement of the tank in favour of the Respondent No.4 has been made in consonance with the Government policy in as much as, the original settlement was made with one Gour Dhibar of whom the petitioner was a partner and the Respondent No. 4 being a Harijan by caste and also being the highest bidder, he was given priority as per the Government policy. 6. The petitioner, on the other hand, lays emphasis on the fact that the tank has to be deemed as Raiyati tank as the petitioner used to cultivate agricultural products on the embankment drawing water from the tank and the right to obtain settlement is claimed on the basis of the ratio decided by the Division Bench of the Patna High Court on the identical issue in the cases referred to above. 7. 7. Considering the controversy raised by the petitioner, the matte~ is remitted back to the Deputy Commissioner, Dhanbad to consider the petitioner's claim for settlement of the tank in his favour in the light of the ratio decided by the Division Bench of the Patna High Court and also on the basis of all relevant circulars of the Government in respect of settlement of tanks and to take an appropriate decision on the same after giving an opportunity to the petitioner as also to the Respondent No. 4 of being heard. It is expected that the decision in this regard in terms of the directions contained above shall be taken by the Deputy Commissioner within a period of six weeks from the date of receipt/production of a copy of this order and the decision taken be effectively communicated to the petitioner as also to the Respondent No.4. With these observations, this writ application is disposed of. Let a copy of this order be given to the counsel for the respondent State.