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2014 DIGILAW 393 (PAT)

Ramnandan Singh v. State of Bihar

2014-03-31

NAVANITI PRASAD SINGH

body2014
ORDER In the year 1999 substantial lands were sought to be acquired for establishment of an Ordinance Factory at Rajgir in the district of Nalanda. All the petitioners of these four writ petitions belong to one family with excerption of the last writ application where the petitioners are purchasers from the said family. Section 4 notification, dispensing with the objection under section 5-A in terms of section 17(4) of the Land Acquisition Act, was issued in the year 2000, initiating District Land Acquisition (DLA) Nalanda Case No. 07 of 2000. Nevertheless, the petitioners filed their objections. This was followed by notification under section 6 of the Land Acquisition Act in the year 2000 itself. Possession was taken and the lands vested in the State and in due course were handed over to the Ordinance Factory, which is a Government of India Undertaking. 2. When it came to making of Award or for that matter paying 80% compensation as was required to be paid before possession was taken, an enquiry was ordered and initiated with regard to claim of the petitioners, in which a report (Annexure 7) was submitted. In the said enquiry report, the Additional Collector looked into all documents. He noticed that the petitioners were settlees from the ex-Zamindar and settlements were made and mentioned in the Return filed upon vesting of Jamindari. Pursuant to this document as far back as in the year 1956, the petitioners were duly recorded as tenants in Register-II by the State and Jamabandi was opened in their favour. Still, he doubted the correctness of the settlements. Accordingly, the Collector, Biharsharif recommended to the Government for necessary action. 3. Later on proceedings under section 4(h) of the Bihar Land Reforms Act, 1950 (for short ‘the Act’) was initiated in the year 2002 for cancellation of the said Jamabandi. In these proceedings again an enquiry was ordered. The enquiry report is Annexure 10. The enquiry report was submitted clearly stating all the facts, which were all matters of record including Government records, which were all over 50 years old. It was also admitted that the predecessors of these petitioners were continuously in possession since the very beginning of settlement. The 4(h) proceedings are still pending. The enquiry report is Annexure 10. The enquiry report was submitted clearly stating all the facts, which were all matters of record including Government records, which were all over 50 years old. It was also admitted that the predecessors of these petitioners were continuously in possession since the very beginning of settlement. The 4(h) proceedings are still pending. The result is that even though petitioners and their predecessors were found in possession for over 50 years, Jamabandi having been created as far back as in 1956 pursuant to the Return filed by the Jamindar in the year 1952-53, which is Annexure 2, yet the proceedings for cancellation are kept pending. The effect is that though the petitioners have been the owners of the lands, they were summarily evicted for the factory aforesaid, and they have been deprived of compensation. State, which was not entitled to receive the compensation, received the compensation in the meantime and appropriated it. 4. It is submitted that the whole proceedings are not only without jurisdiction but mala fide as well. With reference to section 4(h) of the Act, it is submitted that there are only three contingencies, under which section 4(h) of the Act could have been invoked. One where soon after vesting it is found that any settlement had been made by the ex-land lord after first day of January, 1946, the genuineness of those settlements could be examined for the reason of avoidance of consequences of jamindari abolition. Second, where settlements were made to enhance the claim of compensation on jamindari abolition and third such settlements were made to cheat the Government. An enquiry could be initiated under section 4(h) of the Act and Jamabandi created could be cancelled. Section 4(h) of the Act permits no other contingencies. 5. As noted above, all the four cases arise out of the same proceedings and all the petitioners are relatives with exception as noted earlier. In the first case, a counter affidavit has been filed by the State, wherein it is stated that the lands were originally Gair mazarua malik lands and as such a doubt had now, after 50 years, arisen about settlements. I am afraid, that cannot be a ground because it is now well-settled by series of judgments of this Court that if it is Gair mazarua malik land, the Zamindar had full authority to make settlement thereof. I am afraid, that cannot be a ground because it is now well-settled by series of judgments of this Court that if it is Gair mazarua malik land, the Zamindar had full authority to make settlement thereof. There appears to be some misconception with the authorities that Gair mazarua malik land cold not be settled. Apart from attempting to create a vague doubt, there is no substance in the counter affidavit. 6. It is equally well-settled by several decisions of this Court firstly that power under section 4(h) of the Act cannot be exercised in a casual manner. Secondly, if the State challenges the correctness of the settlements and the entries in relation thereto, onus is entirely upon the State to prove that they are wrong. The onus cannot be fastened on the person, who has been in possession and that too since long. 7. Then it is submitted that even the satisfaction of the Collector has to be based on some objective material and not on his subjective satisfaction. Then it is submitted that if settlements had been validly made by ex-intermediary then the Collector had no jurisdiction to cancel the same except under the contingencies as mentioned in section 4(h) of the Act. Thus, the very initiation of these proceedings and on that ground to deny the right of the petitioners to receive compensation was mala fide and without jurisdiction. Reference was made to Division Bench judgment of this Court in the case of Chandreshwari Prasad Narain Deo and others vrs. State of Bihar and another, since reported in A.I.R. 1956 Patna 104; another Division Bench judgment in the case of Khiru Gope and others vrs. Land Reforms Deputy Collector, Jamui and others, since reported in A.I.R. 1983 Patna 121; in the case of Laxman Sahai and others vrs. State of Bihar and others, since reported in 1990 (1) B.L.J. 457 (in particular paragraph 14 thereof) and judgment of this Court in analogous cases being C.W.J.C. No. 19317 of 2010 (Suresh Singh Suchi vrs. the State of Bihar & Ors.), disposed of on 13.02.2014. 8. A reference to the aforesaid judgments would clearly show that the power of the Collector under section 4(h) of the Act is not an unbridled power. He cannot examine all or any settlement made by the ex-land lord. the State of Bihar & Ors.), disposed of on 13.02.2014. 8. A reference to the aforesaid judgments would clearly show that the power of the Collector under section 4(h) of the Act is not an unbridled power. He cannot examine all or any settlement made by the ex-land lord. There are only three contingencies under which he can enquire into the validity of settlement as made thereunder. Then it has been held that if the State, for any reason, wants to challenge the authority or the title of any person based on such settlement then the only option left to the State is to approach the civil court for cancellation of the Jamabandi. In the present case, none of the situations stipulated above are at all even referred to as being applicable and yet without concluding the proceedings for cancellation of Jamabandi, petitioners have been deprived of compensation. As noticed above, the proceeding for cancellation of Jamabandi itself is without jurisdiction. 9. Thus, in my view, the very initiation of proceedings, which have now been pending for over 12 years and for which the report (Annexure 10) completely in favour of the petitioner is there, was itself without jurisdiction and was mala fide in law. It was only to deny just compensation to the petitioners. Not only that it was in effect an effort by the State to make unjust enrichment by taking and digesting the entire compensation, which was meant for persons like the petitioners. 10. Thus, in my view, there is no escape on the facts aforesaid to hold that the proceedings initiated for cancellation of Jamabandi being without jurisdiction cannot be sustained. Moreover, when the lands were acquired in the year 2000 undisputedly petitioners or their predecessors in interest were duly recorded raiyats which status is there till date, only they have been dispossessed without lawful compensation. Therefore, the petitioners are entitled to receive compensation in the matter there being no order otherwise disentitling the petitioners from receiving the compensation. State has already investigated the basis of claim as raised by the petitioners. 11. Here I may also refer to what was said by the Apex Court in the case of M/s Hindustan Sugar Mills Vs. Therefore, the petitioners are entitled to receive compensation in the matter there being no order otherwise disentitling the petitioners from receiving the compensation. State has already investigated the basis of claim as raised by the petitioners. 11. Here I may also refer to what was said by the Apex Court in the case of M/s Hindustan Sugar Mills Vs. The State of Rajasthan and others, since reported in AIR 1981 Supreme Court 1681, which is quoted hereunder:- “…….We hopefully expect that the Central Government will not try to shirk its legal obligation by resorting to any legal technicalities, for we maintain that in a democratic society governed by the rule of law, it is the duty of the State to do what is fair and just to the citizen, and the State should not seek to defeat the legitimate claim of the citizen by adopting a legalistic attitude but should do what fairness and justice demand.” 12. There is yet another reason to stop the State from proceeding to cancel settlement under section 4(h) of the Act. The Act really came into full operation in 1953. The matters of settlement by the ex-jamindars were required to be examined. Can it be said that as there is no time limit in statute this matter can be examined after 50 years of vesting. The obvious answer is no. Action has to be reasonably taken within a reasonable time or not at all. This has been settled by the Apex Court in the cases of Mansaram vrs. S. P. Pathak and others, since reported in A.I.R. 1983 S.C. 1239, State of Guajrat vrs. Patel Raghav Natha and others, since reported in A.I.R. 1969 S.C. 1297 and State of West Bengal and others vrs. Karan Singh Binayak and others, since reported in (2002) 4 SCC 188 . Moreover the action is sought to be taken only when the payment of compensation arose after the year 2000 and never before in the last 50 or more years. 13. Thus, holding the 4(h) proceedings to be bad and without jurisdiction, as a consequence whereof the State has now to proceed and make an Award in favour of the petitioners, who have been dispossessed of their lands since the year 2000 without any compensation. 13. Thus, holding the 4(h) proceedings to be bad and without jurisdiction, as a consequence whereof the State has now to proceed and make an Award in favour of the petitioners, who have been dispossessed of their lands since the year 2000 without any compensation. The State would be well-advised to keep in view the provision of section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Re-settlement Act, 2013 while doing so. It may be noticed that the Central Government had deposited the entire money with State at the time of acquisition itself. This delay and these consequences have occasioned not because of fault of Central Government but because of fault solely attributable to the State and its authorities. Central Government has discharged its burden. Therefore, any additional amounts payable to the petitioners would be the liability of the State. As the petitioners have been out of possession for more than a decade and have been without compensation, it is expected that the District Collector, Nalanda at Biharsharif or for that matter the District Land Acquisition Officer may be the appropriate authority, would pass necessary orders with regard to compensation to be paid to the petitioners pursuant to Award prepared at the earliest, preferably within six months from today. 14. With the aforementioned observation and direction, these four writ petitions, accordingly, stand disposed of.