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2010 DIGILAW 678 (PAT)

Maharaja Kamal Singh v. State Of Bihar

2010-04-08

CHANDRA MOHAN PRASAD, SHIVA KIRTI SINGH

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JUDGEMENT Shiva Kirti Singh and C. M. Prasad, JJ. 1. Both these appeals are directed against a common Judgment and order passed by a learned Single Judge of this Court dated 13th of December, 1996 whereby writ petitions preferred by the appellants bearing CWJC Nos.4126 and 2964 of 1985 respectively were dismissed. 2. These appeals were earlier decided against the appellants by judgment and order dated 3rd November, 2006 against which the appellants moved the Supreme Court through Civil Appeal No.5220 of 2009 which was allowed on 06.08.2009. The Apex Court set aside the order of the Division Bench passed in these appeals and allowed an application which had been rejected by the Division Bench, for bringing legal representatives of 4th Respondent on record and remanded the matter to this Court with a request to hear and dispose of the matter afresh after due notice to the legal representatives of the 4th Respondent. 3. On 05.10.2009 notices were issued to the newly added respondents which appear to have been validly served but they have chosen not to appear and contest these appeals. 4. The essential facts relevant for deciding these appeals may be noted briefly. The property in dispute pertains to Khata No.1138, Plot No.795 which is recorded in the cadastral survey as Ghair Majarua Malguzar and the name of the Maharaja Dumraon was recorded as under tenure-holder of Khewat No.22. In column-5 of the record of rights the entry was- Makan Maisahan. In 1960 treating the house on the land in question as homestead of the ex-intermediary but under rent, Rent fixation case No.1198/1960-61 was instituted leading to fixation of rent by Collector under the Bihar Land Reforms Act (hereinafter referred to as the Act? ). That order dated 15.12.1960 is available on records as Annexure-3 to the writ petition. On 07.08.1971 one of the appellants, Sheo Narain Beriya purchased the property in dispute through a registered sale deed dated 07.08.1971 from the appellant of other appeal. In that property the then Respondent No.4, Ram Chandra Singh was a tenant. After purchasing the house Mr. Beriya filed an eviction Suit bearing No.25 of 1972 which was finally decreed against Sri Ram Chandra Singh (since deceased ). That decree dated 12.09.1986 is Annexure-4 to the writ petition. In that property the then Respondent No.4, Ram Chandra Singh was a tenant. After purchasing the house Mr. Beriya filed an eviction Suit bearing No.25 of 1972 which was finally decreed against Sri Ram Chandra Singh (since deceased ). That decree dated 12.09.1986 is Annexure-4 to the writ petition. In the meanwhile in 1979, Ram Chandra Singh (erstwhile Respondent No.4) filed an application before the Collector, Bhojpur seeking two reliefs, (i) a declaration that sale deed in favour of Sheo Narain Beriya is void and (ii) the property be settled in his favour treating the same to be a property of State. This application was transferred by the Collector to the Additional Collector for disposal and the entire dispute has arisen on account of this application which was decided finally by the Additional Collector, Bhojpur through order dated 10.05.1979 which is Annexure-2 to the writ petition. 5. By the impugned order appended as Annexure-2 to the writ petition the Additional Collector dismissed the claim of Respondent No.4 and did not declare the sale deed to be void nor ordered for settlement of the property in favour of Respondent No.4 but gave a finding that the land in dispute, according to him had building which was being used as shop and therefore the property had vested in the State. He further held that fixation of rent by the Collector under the Act in the year 1960 was bad in law. Against this order the appellants preferred appeal before the Collector of the District, Bhojpur but the Collector noticed the fact that the application had been initially received by him and under his orders the Additional Collector had decided the same and therefore, he held that he had no power to entertain the appeal. He observed that if the appellants were aggrieved by the findings of the Additional Collector, they could approach this Court for relief. This order of the Collector dated 25.03.1985 passed in Miscellaneous Appeal No.27 of 1979-80 has been appended as Annexure-1 to the writ petition. 6. As noticed earlier, the writ petitions filed by the appellants primarily against findings of the Additional Collector contained in Annexure-2 were dismissed by a common order. This order of the Collector dated 25.03.1985 passed in Miscellaneous Appeal No.27 of 1979-80 has been appended as Annexure-1 to the writ petition. 6. As noticed earlier, the writ petitions filed by the appellants primarily against findings of the Additional Collector contained in Annexure-2 were dismissed by a common order. The reason for dismissing the writ petition appears to be the findings of the Additional Collector as well as a difficulty expressed by the writ Court in paragraph-5 of the order in the following words:- It is difficult for this Court to come to the conclusion whether the plot of land in question is Bazar or homestead land inasmuch as determination of the question involves determination of question of facts. 7 Learned counsels appearing for the appellants in both the appeals have challenged the order passed by the Additional Collector on the same premises as finds mentioned in the aforesaid opinion of the writ Court which has been extracted. It has been submitted that for deciding such disputed question of facts the Additional Collector had no jurisdiction under provisions of the Act and secondly, it was submitted that even if the Collector had necessary jurisdiction, such question of fact could not have been decided summarily without looking into the evidence and or without obtaining reports from the local authorities who may be in know of the actual facts existing at the time of vesting of the Zamindaari in 1953. 8. As noticed earlier the dispute arose on an application filed by Ram Chandra Singh, Respondent No.4 who is no more and whose tenants have not chosen to appear and contest this appeal. As a tenant, Respondent No.4 was not the best suited person to challenge the title of his landlord. As noticed above a decree for his eviction has also been passed by the Civil Court accepting the tenant and landlord relationship. As a tenant, Respondent No.4 was not the best suited person to challenge the title of his landlord. As noticed above a decree for his eviction has also been passed by the Civil Court accepting the tenant and landlord relationship. Besides that even if the controversy arising on account of disputed findings of Additional Collector is examined in the light of provisions of the Act, it has rightly been submitted by learned counsels for the appellants that the Additional Collector as Collector under the Act could not have confined himself to the allegations made in the petition of Respondent No.5 but should have got appropriate and suitable enquiries made, before forming his own opinion in the matter and thereafter if he felt satisfied, he could have proceeded to issue a show-cause to the person in possession of the property and decided the dispute fairly on the basis of materials. In support of this contention reference was made to the provision in Section-4 (g) of the Act which requires the Collector to form his own opinion and thereafter, if satisfied to issue show-cause by an order in writing, upon the person in possession of the property. The proviso of Sec.4 (g) contains a provision for an appeal to the Collector of the District in case order is passed by an officer below him in rank. It has been submitted that in the present case, the Collector of the District neither passed the order nor entertained the appeal and this also has affected valuable right of the appellants as they have been deprived of the forum of appeal prescribed under the Act. 9. Lastly, it has been submitted that basic principles of law require that any authority if it has statutory powers, must exercise such powers reasonably only on the basis of proper and sufficient materials collected fairly and from reliable sources before arriving at a finding of fact. It was pointed out that in the present case learned Additional Collector has neither referred to any reports nor to any evidence for recording the findings in Annexure-2 that the house in question had been let out to shopkeepers. As noticed by the writ Court the issue whether the house in question had been let out for residential purpose or to shopkeepers for Bazar was a disputed question of fact and could not be decided in writ jurisdiction. As noticed by the writ Court the issue whether the house in question had been let out for residential purpose or to shopkeepers for Bazar was a disputed question of fact and could not be decided in writ jurisdiction. We may further add to the aforesaid finding that such disputed question of fact could not have been decided by the Additional Collector without proper evidence and materials. However, he has decided such a disputed question of fact without there being any reference to any cogent material. 10. In the aforesaid facts and circumstances, we find that the order impugned in the writ petitions contained in Annexure-2 and passed by the learned Additional Collector, Bhojpur on 10.05.1979 in Revenue Miscellaneous Case No.17/1977-78 cannot be sustained as a legal and valid order. Hence, the same is quashed. 11. Although the impugned order passed by the Collector declining to interfere in the appeal does not decide any issue but in order to avoid any technical difficulty, the same is also set aside. 12. The writ petitions are allowed to the aforesaid extent and both the appeals are accordingly allowed but without costs. 13. It goes without saying that the Collector under the Act will always have power and jurisdiction to proceed and act in accordance with law.