Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 700 (PAT)

Shiv Kumar Gupta v. State of Bihar

2012-04-30

RAVI RANJAN

body2012
ORDER The petitioners seek quashing of the letter no. 1015 dated 27.09.2006 issued by the Collector to the District Sub Registrar, Aurangabad as well as memo no. 1016 dated 27.09.2006 to the Anchal Adhikari, Aurangabad and the notice issued in Demand Cancellation Case No. 3/06-07, as contained in Annexures 6 series. The petitioners also challenge the order dated 27.02.2007 passed in Miscellaneous Case No. 158/2006 by the Collector, Aurangabad whereby the application filed by the original petitioner(since deceased) against the aforesaid notice issued regarding cancellation of Jamabandi has been dismissed and the Collector has refused to pass any order for modification of the aforesaid direction as well as recall of the notice issued in the Demand Cancellation Jamabandi case saying that if the petitioner is aggrieved it would be open for her to move before the Commissioner of the Division. 2. It is relevant to state here that the original petitioner Mostt. Madhuri Devi alias Kuer had died during the pendency of this application and, vide order dated 23.04.2012 passed in I.A. No. 8003 of 2011, her name was expunged and in her place her heirs and legal representatives have already been substituted. 3. It would be necessary to discuss the factual matrix of the case in brief. The original petitioner claimed that the grand father of her husband, late Rameshwar Prasad Gupta, had acquired 3.3 acres of land of plot no. 354 appertaining to khata no. 192 situated by the side of G.T. Road in the town of Aurangabad in auction sale. The land was transferred through a registered deed dated 07.09.1936 by Gait High School in favour of the original petitioner(since deceased), a copy of which has been appended as Annexure 1. Upon complaint made by of some private persons an encroachment proceeding was initiated against the grand father of the husband of the original petitioner which was numbered as Case No. 4/77-78. However, the same was dropped by the then Collector, Aurangabad vide order dated 08.02.1978 as contained in Annexure 2. While passing such order the Collector, Aurangabad has observed that the concerned auction sale was held after the matter was considered by the Managing Committee of the school and the petitioner has remained in possession of the land concerned for about last 40 years and, thus, his possession can only be held to be in accordance with law. While passing such order the Collector, Aurangabad has observed that the concerned auction sale was held after the matter was considered by the Managing Committee of the school and the petitioner has remained in possession of the land concerned for about last 40 years and, thus, his possession can only be held to be in accordance with law. The aforesaid order passed by the Collector was not challenged by the State authorities, however, some private person challenged that order by preferring an appeal before the Commissioner of Patna Division. The Commissioner held that, since the validity of such sale deed executed in favour of the petitioner had not been considered while taking the decision, the matter was required to be remitted back to the Collector for fresh consideration. The aforesaid order of the Commissioner dated 29.06.1979 was challenged in C.W.J.C. No. 1774 of 1979. The aforesaid writ petition was allowed, and the impugned order was set aside. However, it was observed that if the Government, either the State or the Central, feels aggrieved by the order passed by the authorities then the proper remedy would be to go before a civil court of competent jurisdiction and not to agitate the same in a summary proceeding. The State authorities again did not prefer any appeal against the aforesaid order passed by the learned Single Judge of this Court, however, some of the private respondents preferred L.P.A. No. 51 of 1981 which was also dismissed on 20th of April, 1984 holding that it could not be demonstrated either by the State authorities or by the appellant that the land in question, recorded in the cadastral survey record of rights as “Kaisare Hind” land, however, despite the execution of sale deed and possession of petitioners, retained the character of public land. Subsequently the names of the petitioner’s husband and others were entered in the municipal record of Aurangabad Nagarplika. In support of such contention, the original petitioner had brought on record a copy of continuous khatian finally published under section 10(1) of the Bihar & Orissa Municipal Act, 1885 on 16th of February, 2002. However, suddenly after about 20-22 years of the order dated 20.04.1984 passed in L.P.A. No. 51 of 1981, the original petitioner had received a notice dated 16.10.2006 purported to have been issued in Demand Cancellation Case No. 3/06-07 with respect to one acre of land of plot no. However, suddenly after about 20-22 years of the order dated 20.04.1984 passed in L.P.A. No. 51 of 1981, the original petitioner had received a notice dated 16.10.2006 purported to have been issued in Demand Cancellation Case No. 3/06-07 with respect to one acre of land of plot no. 354 appertaining to khata no. 192. The notice refers to a letter dated 1015 dated 27.09.2006 issued by the respondent no. 2, the Collector, Aurangabad, directing him not to pass order for mutation of the land measuring 3.3 acres of plot no. 354 appertaining to khata no. 192 as the same has been described in the record of rights as “Kaisare Hind” and further, if the land has already been mutated in favour of somebody then action should be taken for cancellation of such demand. He has also directed for sending the name of the concerned Anchal Nirikshak as well as Anchal Adhikari who had in past passed an order of mutation in the names of the petitioners so that some action could be taken against them. The original petitioner filed an application before the Collector against such action. However, the Collector had held that the concerned direction given by him and the notice issued by the Anchal Adhikari does not seem to be erroneous, therefore, no order is required to be passed. The petitioners, if aggrieved, would be at liberty to approach the Commissioner of the Division challenging the aforesaid orders. 4. A counter affidavit has been filed on behalf of the State. A categorical stand has been taken in paragraph 5 thereof that the concerned land stands recorded as “Kaisare Hind” and thus, was not transferable. The Secretary of the School did not have any authority to execute the concerned sale deed, therefore, the said sale deed itself would be void and it cannot be presumed that the title has passed on the basis of such void document. Further, since the petitioners and their ancestors had no right, title or possession over the land in question, thus, the order passed by the respondent no. 2 is proper and in accordance with law. Further, since the petitioners and their ancestors had no right, title or possession over the land in question, thus, the order passed by the respondent no. 2 is proper and in accordance with law. The transfer in favour of the middle school concerned by the then authority has also been questioned and it has been stated that after independence the aforesaid “Kaisare Hind” land has vested in the Union of India which is the absolute owner and, thus, the alleged transfer in favour of the school concerned is forged, bogus and void. 5. Learned counsel for the State, however, at the time of hearing has not been able to satisfy this Court regarding the correctness of the aforesaid stand taken by the State. It has also been stated that the Union of India has filed Title Suit No. 157 of 2007 in the court of the Sub Judge, Aurangabad for removal of encroachment by unauthorized persons. A stand has also been taken that in view of the fact that since the Union of India was not a party in the earlier writ application as well as L.P.A. No. 51 of 1981, the order passed therein would not be binding upon it. 6. Learned counsel for the petitioners, on the other hand, submitted that the plaint of the concerned title suit has not been brought on record. It does not appear that the orders passed by this Court in the aforesaid writ application and the Letters Patent Appeal were challenged by the Union of India. If it has filed a title suit for removal of encroachment that amounts to having been done in view of such liberty granted to it in the earlier proceeding. The State authorities, definitely being the parties to the aforesaid proceeding, that order would be undoubtedly binding upon them. 7. Upon consideration of rival submission in the opinion of this Court, this writ application is fit to be allowed. This Court in the order dated 01.10.1981 passed in C.W.J.C. No. 1774 of 1979 has held that the issue of passing of right, title and interest on execution of old registered sale deed of the year 1936 cannot be gone into in a summary proceeding. This Court in the order dated 01.10.1981 passed in C.W.J.C. No. 1774 of 1979 has held that the issue of passing of right, title and interest on execution of old registered sale deed of the year 1936 cannot be gone into in a summary proceeding. If the Government, either the State or the Central, feels aggrieved against the action of the petitioners then their proper remedy would be to go before a civil court of competent jurisdiction by filing a properly constituted suit and not to agitate the same in a summary proceeding. The order having been challenged by some private persons in L.P.A. No. 51 of 1981, the Division Bench had gone to the extent in holding that the entry in the survey records of right as “Kaisare Hind” land would be of no consequence in view of the fact that the Central Government itself has transferred the land in favour of the school and the school in its turn had transferred the same to the grand father of the petitioner. Thus, once having been done as such, the land had lost its character of a public land. As has been stated in the counter affidavit itself that the Union of India had filed a Title Suit with respect to the same set of land in view of the earlier decision, there was no occasion for the respondent no. 2, i.e., the Collector of the District, to again make a fishing inquiry in the selfsame matter in another summary proceeding and issuing notice for cancellation of Jamabandi. It is also not a case of the respondent that the action has been taken upon any request made on behalf of the Central Government. 8. In the opinion of this Court, the Collector had overstepped his jurisdiction and even though the original petitioner had reminded him regarding the earlier orders passed by this Court, he has failed to modify his earlier illegal order which was not expected from him. In above view of the matter, this Court would have no hesitation in holding that the entire action of the respondent no. 2 was unwarranted and illegal. 9. Accordingly, this writ application is allowed and the notice as contained in Annexures 6 series and the order dated 27.02.2006 passed by the respondent no. 2 in Miscellaneous Case No. 158/2006 as contained in Annexure 7 are, hereby, set aside. 10. 2 was unwarranted and illegal. 9. Accordingly, this writ application is allowed and the notice as contained in Annexures 6 series and the order dated 27.02.2006 passed by the respondent no. 2 in Miscellaneous Case No. 158/2006 as contained in Annexure 7 are, hereby, set aside. 10. However, it is made clear that if any title suit has been filed by the Union of India or its authority then the concerned court which is in seisin of the matter would consider and decide the suit on its own merit and in accordance with law expeditiously without being prejudiced by the present order.