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2014 DIGILAW 1228 (PAT)

Nilambar Thakur v. State of Bihar

2014-12-12

SHIVAJI PANDEY

body2014
ORDER Heard learned counsel for the petitioners and learned counsel for respondent no.5. 2. Petitioners and respondent no.5 are their own brothers and fighting litigation for their respective share. As per petitioners land appertaining to Khata no.714, Plot No.3481 and 3482, area 2 Kathas 10 Dhurs has fallen in their share which has been disputed by respondent no.5. He is claiming to be the share holder of the aforesaid land. Respondent no.5 is a railway employee and posted at Assam and when he came to his native village he found, illegal construction was made. Respondent no.5 filed an application before the DCLR for order of injunction against the petitioners. Petitioners vide notice dated 4.8.2014 (Annexure-2) have been asked to appear before DCLR on 20.8.2014 and by the aforesaid notice petitioners have been restrained from making any further construction which led to filing of the present writ petition. 3. Petitioners and respondent no.5 are their own brothers and they are litigating for a piece of land claiming their respective right over the property. 4. In view of the judgment in the case of Maheshwar Mandal and another Vs. The State of Biahr and others, reported in 2014(4) PLJR 281 the disputed question of complex nature of title cannot be decided by the revenue court under the B.L.D.R. Act. The Court has considered and decided that sub-section (4) of Section 4 is ultra vires and dispute of title would be treated to be complex question under sub-section (5) of Section 4 of the Act and civil court will have jurisdiction to decide the issue. It will be apt to quote paragraph nos. 25 to 30 of the aforesaid judgment:— “25. In my opinion, a similar mischief is found in the Act of 2009 where the competent authority is allowed to entertain and summarily decide the rights which are not crystallized under any of the aforesaid six enactments and to entertain and decide complex issues of title to the land under sub-sections (4) & (5) of Section 4 of the Act of 2009. 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. 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 Authority 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 six 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. 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 (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. 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. 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.” 5. In view of the aforesaid authoritative pronouncement this Court is of the view that DCLR has no jurisdiction to decide the right and title which is complex question of facts and law, and that can only be decided by the court of civil court of competent jurisdiction in a partition suit. The parties will be at liberty, if so advised, may approach the civil court. 6. Learned counsel for the petitioners submits that they should be allowed to make construction over the land but they have given undertaking that if the judgment of the civil court goes against them they will remove the construction whatever be made by them. 7. In view of such undertaking given, petitioners may make construction but will be subject to the result of the suit. However, if any injunction application is filed. the civil court will have a jurisdiction to decide the injunction application as this Court is not giving any opinion on the merit of case. 8. Accordingly the proceeding as well as notice dated 4.8.2014 (Annexure-2) are hereby quashed. 9. With the aforesaid observation and this writ petition is allowed. There is no need to pass any order on I.A. No.6985 of 2014.