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2014 DIGILAW 1128 (PAT)

Rina Devi v. State Of Bihar

2014-11-13

RAVI RANJAN

body2014
ORDER: 1. I have heard the parties and have perused the records of this case. 2. The petitioners have qustioned the authority and jurisdiction of the respondent no. 3 under the Bihar Land Disputes Resolution Act, 2009 (hereinafter referred to as “the Act”) in entertaining B.L.D.R. Case No. 10 of 2011-12 and passing the order dated 27.07.2011, as contained in Annexure 5, by which he has decided the case in favour of the respondent no. 5 and has directed the petitioners to hand over the vacant possession of the land and house in dispute in his favour. He has directed the Circle Officer, Buxar and the Officer-in-charge, Buxar Mufassil to ensure such delivery of possession in favour of the respondent no. 5. 3. Short facts which would be necessary for consideration of the issue concerned stand enumerated as under:- 4. The dispute relates to the land and house standing over plot nos. 3673 and 3674 appertaining to khata no. 233 of an area of 1380 sq. feet situated at Buxar Killa, Ward No. 34, town and District Buxar. The aforesaid land originally belonged to Mitralok Grih Nirman Samiti Limited (hereinafter referred to as “Housing Society”), a society registered under the Bihar and Orissa Cooperative Societies Act, 1935. In the year 1999 one of the members of the Housing Society, namely, Dashrath Sharma, acquired the aforesaid land by allotment and registered sale deed executed in his favour by the Housing Society with a condition that if the purchaser does not construct his house within the fixed time period then the vendor would be entitled to cancel the allotment and the sale. In support thereof, a copy of the sale deed dated 22.10.1999 executed by the Housing Society in favour of one Dashrath Sharma has been appended as Annexure 6 to the counter affidavit filed by the petitioners in response to the I.A. No. 1196 of 2013. Further case of petitioners is that aforesaid Dashrath Sharma could not construct his house within the stipulated period and, thus, he had surrendered the land to the Society and taken back the consideration amount. Thereafter, the Housing Society transferred the land in favour of the petitioners through a registered sale deed dated 20.04.2010. Delivery of possession was accordingly made in favour of the petitioners. However, the aforesaid Dashrath Sharma illegally executed a sale deed in favour of the respondent no. Thereafter, the Housing Society transferred the land in favour of the petitioners through a registered sale deed dated 20.04.2010. Delivery of possession was accordingly made in favour of the petitioners. However, the aforesaid Dashrath Sharma illegally executed a sale deed in favour of the respondent no. 5 on 30.06.2010 which is the genesis of dispute between the parties. 5. It has also been stated that the petitioners had already filed Title Suit No. 193 of 2011 in the court of the Civil Judge, Senior Division I, Buxar, for declaration that the sale deed dated 20.04.2010 executed in favour of respondent no. 5 is null and void and has not created any right and title in his favour. A copy of the plaint has been brought on record as Annexure 4 to the writ petition. 6. Respondent no. 5 filed a case before the Deputy Collector Land Reforms, Buxar (hereinafter referred as “DCLR”) vide B.L.D.R. Case No. 10 of 2011-12 under the provisions of the Act. A copy of the petition has been appended as Annexure 2. It is a short petition in which it has been stated that the respondent no. 5 has purchased the land from the allottee and transferee of the Housing Society, namely, Dashrath Sharma through a registered sale deed dated 30.06.2010 and, thereafter, came in possession of the same. Land was mutated in the name of the respondent no. 5 who started paying rent to the State of Bihar and Nagar Parishad concerned. Electricity connection was also given in the name of the respondent no. 5. However, when the respondent no. 5 went to his village for attending marriage ceremony and also for his personal work, the petitioners, taking advantage of his absence, broke open the lock and entered into the premises. When he came back from his village, the petitioners threatened him with dire consequences, thus, he filed the aforesaid case making a prayer for passing order for dispossessing the opposite parties-petitioners and reverting back the possession of the land and house in his favour. 7. The petitioners received notices in the aforesaid case issued by the DCLR regarding the claim of the respondent no. 5. The petitioners appeared and filed their written statement taking their stand that the Society has transferred the land in their favour much earlier and was also delivered in their favour. 8. 7. The petitioners received notices in the aforesaid case issued by the DCLR regarding the claim of the respondent no. 5. The petitioners appeared and filed their written statement taking their stand that the Society has transferred the land in their favour much earlier and was also delivered in their favour. 8. It has been submitted on behalf of the petitioners that once Dashrath Sharma relinquished his right and title in favour of the Housing Society after taking back the entire consideration paid to the Society concerned, he could not have executed a sale deed in favour of the respondent no. 5. That apart, it is submitted that the registered sale deed executed by the Housing Society in favour of the petitioners being of an earlier date, the DCLR has erred in holding the subsequent sale deed executed by the aforesaid Dashrath Sharma to be valid and directing for reverting back possession of the house and land in favour of the respondent no. 5. However, the main emphasis of the petitioners is on the issue as to whether the DCLR is a competent authority to adjudicate the complicated issue of lis of ownership or title between the petitioners and the respondent no. 5? It has been submitted that it appears from perusal of section 4 of the Act that the competent authority under the Act shall have jurisdiction to hear and adjudicate the complaints made by any settlees or allottees of any land under any of the Statutes described in Schedule I to the Act and can order restoration of possession of such settled/allotted land in favour of legally entitled settlees/allottees or his successors/heirs if they are found to have been unauthorisedly and unlawfully dispossessed. However, the issue to be decided between the parties in the case in hand is not regarding any settlement or rights emerging out of any of the six Statutes described in Schedule I of the Act rather the issue to be decided is as to whether any title would flow in favour of the respondent no. 5 by the subsequent sale deed with respect to the land for which a sale deed was already executed by the Housing Society in favour of the petitioners? 5 by the subsequent sale deed with respect to the land for which a sale deed was already executed by the Housing Society in favour of the petitioners? Learned counsel has submitted that the DCLR has erroneously held, upon consideration of the preamble of the Act and in view of the order of mutation having already been passed by the authority concerned which would be governed by the relevant provisions of section 26 of the Bihar Tenancy Act, 1885, that he has jurisdiction to deal with the issue. 9. It is contended that the DCLR has completely misconceived the aforesaid provisions of the Bihar Tenancy Act which is with respect to devolution or occupancy right on death of a raiyat. In fact, in the present case, the title has already passed on the petitioners and not in favour of the respondent no. 5 in view of a sale made under the provisions of section 54 of the Transfer of Property Act, which is not a Statute described in Schedule I of the Act. 10. Per contra, in view of the provisions contained in section 4(1)(d) and sub-section (4) of section 4 of the Act, learned counsel for respondent no. 5 has submitted that, since the records of right are maintained under the Bihar Tenancy Act and the land has been mutated in favour of the respondent no. 5, the authorities under the Act have ample powers to adjudicate the issue. 11. That apart, it has also been submitted that the petitioners have approached this Court without availing the statutory remedy of appeal which is available to the petitioners against the order passed by the DCLR which would lie before the Commissioner. 12. However, the issue involved is no longer res integra inasmuch as a Division Bench of this Court in Maheshwar Mandal and another v. The State of Bihar and others (2014(3) Patna Law Journal Reports 281) has already considered it in detail and held that sub-section (4) of section 4 of the Act is arbitrary and ultra vires the Constitution. Accordingly, Sub-section (4) of section 4 of the Act has been quashed. Sub-section (5) of section 4 has been read as mandatory provision. That apart, Clauses (e), (g), (i) and (j) of sub-section (1) of section 4 of the Act have been read down. The relevant passages from the aforesaid decision are reproduced as under:- “19. Accordingly, Sub-section (4) of section 4 of the Act has been quashed. Sub-section (5) of section 4 has been read as mandatory provision. That apart, Clauses (e), (g), (i) and (j) of sub-section (1) of section 4 of the Act have been read down. The relevant passages from the aforesaid decision are reproduced as under:- “19. It is apparent that the Act of 2009 has been enacted with an intention to give immediate relief to the allottees and the settlees whose rights are crystallized under any of the six enactments mentioned in Schedule-1 to the Act of 2009. It is, therefore, necessary that any person approaching the Competent Authority under the Act of 2009 must have a right settled or accrued to him or her under any of the aforesaid six enactments. In other words, the plaintiff has to be the allottee or a settlee of the land under any of the aforesaid six enactments and seeks enforcement of a right crystallized in favour of the plaintiff or accrued to the plaintiff under any of the aforesaid six enactments. It is such a claim alone which can be entertained by the Competent Authority under the Act of 2009. This opinion of mine is corroborated by Section 6 of the Act which makes it mandatory that in all such cases the State Government shall be a necessary party. The preamble of the Act is clear and discloses the intention of the legislature in enacting the Act of 2009. It says, “disputes with respect to raiyati land or public land allotted in favour of different classes of allottees………..”. Preamble of the Act of 2009 further refers to disputes in relation to, “the Record of Rights, partition of jamabandi, forcible dispossession of allottees/ raiyats, boundary disputes etc.” In context of the above referred six enactments, Section 3 of the Act of 2009 gives the overriding effect to the Act of 2009 in respect of the procedure prescribed in the above referred six enactments xx xx xx 21. Incongruity in legislative drafting of sub-sections (3) & (4) of Section 4 of the Act of 2009 is evident. But then, that is the way the legislature functions. Incongruity in legislative drafting of sub-sections (3) & (4) of Section 4 of the Act of 2009 is evident. But then, that is the way the legislature functions. On one hand Sub-section (3) of Section 4 of the Act of 2009 expressly debars the Competent Authority from adjudicating any fresh rights of allottee, settlee or a raiyat which is not determined or which is required to be determined in accordance with the provisions contained in any of the aforesaid six enactments. On the other hand, in stark contradiction, sub-section (4) of Section 4 of the Act of 2009 enables the Competent Authority to finally determine the rights of allottee, settlee or raiyat not yet determined. It is this sub-section (4) which is the mischief monger. Although it refers to the rights of allottee, settlee or raiyat, the broad language used by the legislature is largely misused to usurp the power not conferred by the Act of 2009 and to determine the rights claimed by the persons other than allottee, settlee or raiyat and the rights claimed outside any of the aforesaid six enactments. This wide amplitude granted under sub-section (4) calls for intervention by this Court and reading down of the sub-section (4) to bring it in consonance with the other provisions of the Act of 2009. 22. Similarly, sub-section (5) of Section 4 of the Act of 2009 also is a mischief monger. Once jurisdiction of the Competent Authority is confined to the execution of the orders made or enforcement of rights accrued under any of the aforesaid six enactments, sub-section (5) of Section 4 of the Act of 2009, by necessary implication, allows the Competent Authority to entertain matters not arising out of the aforesaid six enactments and issues invoking complex questions of adjudication of title. The complex issues of title can never be decided in a summary proceeding envisaged by the Act of 2009. The said sub-section (5) also has the tendency to convert the power of execution of orders into the power of adjudication. The said sub-section (5) also requires to be read down to bring it in consonance with the other provisions contained in the Act of 2009. xxx xxx xxx 26. The Act of 2009 is clear and explicit insofar as its scope and ambit are concerned. The said sub-section (5) also requires to be read down to bring it in consonance with the other provisions contained in the Act of 2009. xxx xxx xxx 26. The Act of 2009 is clear and explicit insofar as its scope and ambit are concerned. It is repeatedly emphasized that the Act of 2009 has been enacted for enforcement of a right conferred by or accrued under the above referred six enactments. It would not be out of place to note that all the above referred six enactments relate to land reforms and are pretty old. The said Acts are in force for more than fifty years. Most of the issues must have been settled by now. It may be only residuary matters which may still require to be adjudicated/enforced. No claim to a property or a dispute relating to a property can be entertained or decided by the Competent Aurhority under the Act of 2009 to resolve disputes other than the ones arising from the above referred six enactments. 27. In my opinion, clause (e) of sub-section (1) of Section 4 of the Act of 2009 which reads, “Partition of land” has to be read as the dispute relating to the land allotted or settled under any of the above referred enactments and the claim made by an allottee/a settlee or a Raiyat. The said clause (e) will not cover each and every issue relating to any land and the partition between the co-sharers, co-parceners, joint owners etc. of such land. Similarly, clause (g) of Sub-section (1) of Section 4 of the Act of 2009 which provides for “Declaration of the right of a person” also requires to be read down. Again the right referred to in the said clause (g) has to be a right conferred by or accrued under any of the aforesaid six enactments and none other. “A Person” would mean an allottee/ a settlee of a land or a Raiyat as defined in clause (f) of Section 2 of the Act of 2009. No person other than an allottee/ a settlee or a Raiyat can have an access to the remedy under the Act of 2009. “A Person” would mean an allottee/ a settlee of a land or a Raiyat as defined in clause (f) of Section 2 of the Act of 2009. No person other than an allottee/ a settlee or a Raiyat can have an access to the remedy under the Act of 2009. Clause (i) of Sub-section (1) of Section 4 of the Act of 2009 which refers to “Construction of unauthorized structure” should also be read down to mean the construction of unauthorized structure on the land of a Raiyat allotted or settled under any of the above referred six enactments and no other land or structure. Clause (j) of Sub-section (1) of Section 4 of the Act of 2009 is clearly outside the purview of the any of the above referred six enactments. The principle of lis pendence transfer is necessarily applicable to a civil litigation. If at all, its reference in the Act of 2009 would necessarily mean the transfer of the land of a Raiyat or a settlee allotted or settled under any of the aforesaid six enactments pending the adjudication under the concerned Act. In our opinion, the power of the Competent Authority under the Act of 2009 cannot be read to be wide enough to enfold in its embrace all kinds of disputes relating to any land. 28. In my opinion, Sub-section (4) of Section 4 of the Act of 2009 brings a complete anachronism as it has the effect of encompassing in its folds any real or imaginary right an allottee or a settlee or a Raiyat can claim which is not conferred by any of the aforesaid six enactments. That would necessarily mean that the rights which are not conferred by or accrued under the above referred six enactments also can be adjudicated by the Competent Authority under the Act of 2009. This wide power conferred upon the Competent Authority is unbridled, unfettered and unguided. As we have seen on the facts of the present case that they are grossly abused. It is not possible to save the said Sub-section (4) of Section 4 of the Act of 2009 by employing the principle of harmonious interpretation. The said Sub-section (4) requires to be held to arbitrary and to that extent unconstitutional. 29. As we have seen on the facts of the present case that they are grossly abused. It is not possible to save the said Sub-section (4) of Section 4 of the Act of 2009 by employing the principle of harmonious interpretation. The said Sub-section (4) requires to be held to arbitrary and to that extent unconstitutional. 29. Sub-section (5) of Section 4 of the Act of 2009 empowers the Competent Authority to allow the parties to approach the Civil Court for adjudication of complex issues of title. Although the said Sub-section (5) is directory, should be read as mandatory. It shall be the duty of the Competent Authority to refer the complex issues of adjudication of title to the concerned Civil Court having jurisdiction to entertain and adjudicate such disputes. 30. For the aforesaid reasons, this Petition is allowed. Clauses (e), (g), (i) and (j) of Sub-section (1) of Section 4 of the Act of 2009 are read down to the extent indicated hereinabove. Sub-section (4) of Section 4 of the Act of 2009 is held to be arbitrary and ultra vires Article 14 of the Constitution and unconstitutional to that extent. The said Sub-section (4) of Section 4 is, therefore, quashed. Sub-section (5) of Section 4 of the Act of 2009 will be read as mandatory provision as indicated hereinabove.” 13. The Division Bench has held that no claim of title of any settlee or allottee can be entertained or decided by the competent authority under the Act to resolve such disputes other than not conferred by any of the aforesaid six enactments described in Schedule I of the Act. Sub-section (4) of section 4 of the Act has already been held to be arbitrary and ultra vires, whereas sub-section (5) of section 4 of the Act has been held to be mandatory. 14. In the case in hand, the respondent no. 5 has asserted his right under a sale deed. He is neither an allottee nor the dispute could crystallize under any of the six enactments earmarked in Schedule I of the Act. Thus, in my considered opinion, the DCLR has exceeded his jurisdiction and usurped the jurisdiction of the civil court. He ought to have referred the matter under section 4(5) of the Act to the civil court of competent jurisdiction. 15. Thus, in my considered opinion, the DCLR has exceeded his jurisdiction and usurped the jurisdiction of the civil court. He ought to have referred the matter under section 4(5) of the Act to the civil court of competent jurisdiction. 15. As a result, this writ application succeeds and the order dated 27.07.2011 passed by the DCLR in B.L.D.R. Case No. 10 of 2011-12, as contained in Annexure 5, is quashed and set aside and B.L.D.R. Case No. 10 of 2011-12 filed by the respondent no. 5 before the DCLR, Buxar is dismissed. 16. However, since this Court has noticed that the petitioners have already approached the civil court of competent jurisdiction by filing Title Suit No. 193 of 2011 in the court of the Civil Judge, Senior Division I, Buxar, for a declaration that the sale deed concerned executed in favour of the respondent no. 5 is null and void and, as such, it does not confer any right, title and interest in favour of the respondent no. 5, the respondent no. 5, if so advised, would be at liberty to contest the aforesaid suit as he has been impleaded as defendant no. 1 and/or he would also be at liberty to assert his right by instiuting any suit before a civil court of competent jurisdiction.