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2012 DIGILAW 407 (JHR)

Shubhan Ansari v. State of Jharkhand

2012-03-20

POONAM SRIVASTAV

body2012
Order Heard Sri P.K. Prasad, Sr. Advocate assisted by Sri Rajeev Ranjan Tiwary and Sri Saket Upadhyay appearing on behalf of the petitioners and Mr. Rajiv Ranjan, Additional Advocate General appearing on behalf of the State-respondents. 2. Order challenged in the instant writ petition is dated 3.2.2011 passed by the Circle Officer, Ranchi, rejecting the petitioners' application for accepting the cess and rent and for issuing rent receipts in lieu thereof, on the ground that the Deputy Commissioner has stayed issuance of rent receipt in respect of Khata No. 383, plot no. 443 having an area of 8.85 acres (hereinafter referred to as the disputed land). 3. The submission on behaff of the petitioners is that the disputed landis is recorded as Gairmazarua Khas in the record of rights in the name of ex-landlord Sara Lal Kandarp Nath Shahdeo, son of Naval Kishore Nath Shahdeo, Maharaja, Palkotgarh, It is asserted that an area of 1.50 acres of the disputed land was set-tied in the name of the father of the petitioner, namely, Sheikh Jumman by the ex-landlord by virtue of a registered Kabuliyat executed on 30.4.1942; copy of the said document is Annexure-1 to the writ petition. The ex-landlord accepted the said Kabuliyat and issued Hukumnama settling 1.50 acres of land in favour of the petitioners on. 11.8.1944 vide Annexure-2 to the writ petition. Subsequent to it, their father came in peaceful cultivatory possession and paid rent to the ex-landlord, who issued rent receipts in his favour. On advent of the Bihar Land Reforms Act, 1950 and vesting of the Jamindari the ex-landlord submitted M-Form and Rent Fixation Case No. 6/R8/1955-56 was instituted before the Additional Collector for fixation of fair rent vide Annexure-4 series to the writ petition, Rent was fixed, which was duly deposited on behalf of the petitioners and rent receipts were issued in the name of their father till the year 1969-70, but suddenly the respondents stopped accepting the rent with effect from the year 1970, An application, vide Annexure-5 to the writ application, was preferred before the Anchal Adhikari, Ratu Anchal, Ranchi, which has been rejected by means of the impugned order. 4. Learned counsel has brought to my notice that after the aforesaid application was preferred, the matter was investigated by Halka Karamchari and Circle Inspector and a report was submitted. 4. Learned counsel has brought to my notice that after the aforesaid application was preferred, the matter was investigated by Halka Karamchari and Circle Inspector and a report was submitted. Consequent thereof issuance of rent receipt was stopped and the application was rejected vide Annexure-7 to the writ application dated 3.2.2011. 5. It is also brought to my notice that identical controversy had aris9n on a number of previous occasions, which was decided by this Court in W.P.(C) No. 2496 of 2002 with a clear direction to the Circle Officer, Ratu Anchal, Ranchi to accept cess and rent and issue rent receipt in respect of khata no. 383. Another writ petition [W.P.(C) No. 1119 of 2006] for identical relief was preferred which was decided by this Court vide judgment and order dated 9.8.2006, Annexure-8 to the writ petition, once again pertaining to the same khata no. 383. The order refusing to issue rent receipts was quashed and direction was issued to the effect that the petitioner is entitled to get rent receipt on payment of rent until the Jamabandi in his name is held to be illegal or cancelled by the procedure established by law and by a Court of competent jurisdiction. Another order Annexure-8/1 , passed in W.P.(C) No. 4895 of 2007 dated 31.3.2008, is once again identical direction holding that long running Jamabandi cannot be cancelled unless and until fraud and misrepresentation is established in opening Jamabandi. The order of the learned Commissioner was set at naught. 6. The State Counsel has countered the arguments of the petitioners and laid emphasis on the assertion made in paragraph 11 of his counter affidavit filed on 15.2.2012. Paragraph 11of the counter affidavit is quoted below:- Paragraph-11 of the counter affidavit:-"That in reply to para 9 it is stated that the petitioners have stated that the rent of the land in question has been fixed vide Rent Fixation Case No. 6/R8/1955-56 but it appears from the Annexure-4 of the writ petition that the reference of compensation case no. 6/R8/1955-56 has been mentioned in the said document. The said document has not been signed by the competent Revenue Officials. It is further submitted that the petitioners have claimed that the land in question has been settled with his father by the ex-landlord. 6/R8/1955-56 has been mentioned in the said document. The said document has not been signed by the competent Revenue Officials. It is further submitted that the petitioners have claimed that the land in question has been settled with his father by the ex-landlord. In case the lands of Gairmazurwa Khata have been settled prior to the vesting of Jamindari then the ex-land lord would have submitted the return of the land to the State Government in which the name of the settle would have been recorded as raiyat in respect of the land and after vesting of jamindari, the State Govt. would have entered the name of the said raiyat and the name of the raiyat would have been recorded in the tenants khatian and tenants ledger register prepared according to Section 3 of the Bihar Tenants Holding (Maintenance of Rent) Act which is not in this case." 7. Thus, objection of the State apparently is on presumption that if Gairmazarua land would have been settled prior to the date of vesting then ex-landlord would have submitted return to the State Government showing the name of the petitioners as raiyat and thereon the names of the petitioners would have necessarily been recorded. The assertion on behalf of respondents in their affidavit is on certain presumption alone. Besides, Section 4 of the Bihar Land Reforms Act deals with consequences of the vesting of an estate or tenure in the State. 8. Section 4(h) of the Bihar Land Reforms Act empowers the Collector 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 Kutchery for the collection of rent of such estate or tenure or part thereof. On arriving at a satisfaction that such transfer was made with the object of defeating any provisions of this Act or causing loss to the State, the Collector may, after giving reasonable notice to the parties concerned to appear and be heard, annul such transfer, dispossess the person claiming under it and take possession of such property on any such terms as may appear to the Collector to be fair and equitable. 9. 9. Counsel appearing on behalf of the petitioners has emphatically argued that the land in question is a khas land and does not belong to public. Besides, the deeds of settlement pertaining to the year 1942 followed by Hukumnama of 1944 is ample proof of the fact that the land was settled in favour of the petitioners by the ex-landlord. The record of rights vide Annexures-3 series and 4 to the writ petition also shows khata no. 383 in the name of Sheikh Jumman on payment of compensation to ex-landlord. These documents were closely analyzed in the previous writ petition and the Court was of the view that unless and until a detailed inquiry after affording an opportunity of hearing is made to the respondents, the rent is liable to be accepted and the rent receipt to be issued in lieu thereof. Those orders of this Court have attained finality. There is no challenge and therefore, submission of the learned counsel appears to be justified. Besides, reliance has also been placed on a decision of the Division Bench of Patna High Court in Mohammad Ahsan vs. State of Bihar, 1970 PLJR page 7, in which it has been held that the plaintiff by virtue of deed of settlement, got the rights of a raiyat in the land, which cannot be affected. Right to settle even Gairmazarua land was taken into consideration and the Division Bench further was of the view that any person who remains in possession over the land for 12 years, he is entitled to acquire the occupancy raiyati right. Similarly in the case of Laxman Sahni and Others vs. The State of Bihar and Others, 1990(1) PLJR 170 followed and relied upon a catena of decisions of the Patna High Court, held that State can take recourse only when the authorities are of the view that the settlement in question was made for defeating any provisions of the Act and thereafter authorities would initiate proceeding under Section 4(h) for annulling transfer made by the ex-landlord. Para-10 of the said decision is quoted below:- 'Para-10: From a bare perusal of Section 4(g) of the Act aforementioned it is clear that recourse under the same can be taken only when any estate or tenure or any part thereof vests in the State and that under Section 4(h) of the Act, the Collector has been clothed with a jurisdiction to make enquiries in respect of any transfer including the one in hand made In favour of the petitioners, made any time after 1st January, 1946 with an object of defeating any provisions of this Act or causing loss to the estate or obtaining higher compensation and to annul that transfer/settlement and dispossess the person claiming under that transfer and take possession of that property on such terms as the Collector may deem fair and equitable but that order could be effective order after its confirmation by the State Government." 10. In view of the settled principles of law, I am not able to accept the argument of the learned counsel and the assertions made in paragraph-11 of the counter affidavit quoted hereinabove. The averments in the affidavit are presumptive, a definite stand on behalf of the respondents is necessary. On the contrary the authority has completely given a good bye to the procedure laid down by law as well as the directions of this Court in various writ petitions. The documentary proof regarding the settlement of land brought on record has completely been overlooked. The impugned order Annexure-7 to the writ petition only mentions that direction has been received for staying the issuance of receipt in respect of khata no. 383. Evidently no inquiry has been conducted, not even the petitioners have been afforded any opportunity of hearing as well as there is no order of the State Government to substantiate that any valid order from a competent authority is on record. On the contrary authorities have passed a short and cryptic order without applying their mind on the basis that the land in question is Gairmazarua Khas. Obvious y it is not a case that the land is Gairmazarua Aam and belong to the public or used for any public purpose. 11. On the contrary authorities have passed a short and cryptic order without applying their mind on the basis that the land in question is Gairmazarua Khas. Obvious y it is not a case that the land is Gairmazarua Aam and belong to the public or used for any public purpose. 11. In view of what has been stated above, the impugned order passed by the Anchal Adhikari, Ratu Anchal, Ranchi dated 3.2.2011 on some direction of the Deputy Commissioner staying issuance of rent receipt has no leg to stand and is liable to be quashed in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India. 12. The writ petition is allowed. The respondents are directed to accept rent from the petitioners and issue rent receipt till an inquiry or investigation is validly made by the competent authority after granting opportunity of hearing to the petitioners in accordance with law. 13. The writ petition stands allowed.