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2014 DIGILAW 544 (PAT)

Niwas Rungta v. State of Bihar

2014-05-01

RAMESH KUMAR DATTA

body2014
R.K.Datta, J. – Heard learned counsel for the petitioners and learned counsel for the State. 2. The petitioners seek quashing of the order dated 16.12.1991 passed by the respondent Collector, Purnea in Misc. Ceiling Case Nos. 141/1984-85 and 140/1984-85, by which he has cancelled the settlement of 14 decimals of land with respect to petitioner Nos. 1, 2 and 3, and 47 decimals of land with respect to petitioner No.4 and further for quashing the proceedings initiated under the Public Land Encroachment Act in Case No.5/1991-92 consequential upon the order of the Collector. 3. The petitioner Nos. 1, 2 and 3 purchased the Nagadi Sikmi rights of lands by registered sale deed dated 16.6.1965 from Sri Chirangi Lal Kedia and Sri Jagdish Prasad Kedia, both residents of village Jalalgarh, bearing Khesra No.632/2931, area 13 decimals situated in Mouza Jalalgarh, Thana No.189 within Touzi No. 8/5 recorded in Haal Survey in Khata No.326. as per Schedule-B of the sale deed; in Schedule-C of the same sale deed, they had similarly purchased six dhurs of land recorded in Haal Survey Khesra No.633, Khata No.765. The said lands have come under settlement in favour of the Vendors of the petitioner from Shri Prakash Narain Dubey and Sri Sambhu Dayal Dubey by virtue of registered patta dated 9.6.1965 and 3.5.1965 respectively. 4. Similarly, the petitioner No.4 purchased 47 decimals of Nagdi Sikmi rights in the land by two sale deeds, both from Sri Shankar Dayal Singh, Sri Lilanand Singh, Sri Devanand Singh Most. Bhama Devi. The first sale deed bearing Deed No.356 having been executed on 28.6.1962 by which 28.5 decimals of land being part of Khesra No.635, Khata No. 765 (309 Sikmi) was purchased and by another sale deed dated 19.9.1972 another area of 18.5 decimals of the same Khesra No.635, Khata No.765 (309 Sikmi) was purchased. 5. The petitioners claim to be coming in peaceful possession over the said lands since then. The petitioners, after taking loan from the Bihar State Financial Corporation, jointly established a Rice Mill on the aforesaid land. In the ensuing land ceiling proceedings under the provisions of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, some of the lands of the land-lord were declared surplus, including the lands upon which the petitioners were sikmidars. 6. In the ensuing land ceiling proceedings under the provisions of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, some of the lands of the land-lord were declared surplus, including the lands upon which the petitioners were sikmidars. 6. It is the specific stand of the petitioners that after the lands being declared surplus, they filed applications under Section 22 of the Ceiling Act separately before the Collector under the Act who, it is claimed that after making enquiries and being satisfied about the sikmi rights of the petitioners and their possession, settled the land with the petitioners on compensation to be paid for 30 years as per the rate provided in the schedule. 7. It is the stand of the petitioners that although the settlement was made under Section 22 in favour of the petitioners in the year 1976 itself but purchas remained lying in the Circle Office and only in the year 1983 some mistakes in the purcha were discovered that instead of Sri Nivas Rungta, the name of Ram Nivas Rungta was mentioned in the Purcha with respect to lands in plot Nos. 632 and 633 and similarly in the other purcha of 47 decimals of land of plot No.635 instead of the name of petitioner No.4, his father’s name only, that is, Ram Nivas Rungta was mentioned. The said clerical errors being clearly contrary to the sale deeds, the petitioners applied for correction of the errors before the Circle Office on 3.1.1983. The Additional Collector, Purnea acting as Collector under the Act got the purcha corrected in the year 1983 and the said purcha was given to the petitioners, which has been annexed to the writ application. 8. Thereafter on 3.8.1984, two applications, being Misc. Case Nos. 140 of 1984 and 141 of 1985, were filed by the Government Pleader before the Collector, Purnea praying for cancellation of the two red cards that had been issued. Upon notice, the petitioners were heard and they took the stand that the red cards have been issued in terms of the provisions of Section 22 of the Act. However, by the common order dated 16.12.1991 the Collector, after rejecting the stand of the petitioners, allowed both the applications and cancelled the red cards and further directed the lands to be distributed in terms of the provisions of the Ceiling Act. However, by the common order dated 16.12.1991 the Collector, after rejecting the stand of the petitioners, allowed both the applications and cancelled the red cards and further directed the lands to be distributed in terms of the provisions of the Ceiling Act. Aggrieved by the same, the petitioners have come to this Court. 9. Learned counsel for the petitioners submits that the order of the Collector is clearly contrary to the materials on the record. It is submitted that the so-called amended red cards issued after correction itself show that they have been issued in terms of Section 22 of the Land Ceiling Act as the first card clearly provides that it has been issued on payment of compensation of an amount of Rs.352.50 by the petitioners payable in a period of 30 years at the rate of 11.75 per year in terms of the provisions of Section 22 (1) of the Act; the other amended Red Card also shows that it has been issued on payment of compensation amount of Rs. 105/- to be paid in 30 equal instalments at the rate of Rs. 3.50 per annum in terms of the provisions of Section 22 (1) of the Act. 10. It is submitted by learned counsel for the petitioners that the Collector has seriously erred in holding that the petitioners are not entitled to the benefits coming out under Section 27 of the Act. It is further submitted that the finding that the provisions of Section 22 of the Ceiling Act have not been followed cannot be considered to be sustainable in view of the fact that the official Acts are deemed to be regularly performed and further that the so-called amended red cards are clearly under Section 22 of the Act. 11. Learned counsel for the State, on the other hand, submits on the basis of the stand taken in the counter affidavit that the petitioners never filed any application under Section 22 of the Ceiling Act before the Collector rather application for issuance of Red Card was filed which have been produced before the Collector in the present matter. 11. Learned counsel for the State, on the other hand, submits on the basis of the stand taken in the counter affidavit that the petitioners never filed any application under Section 22 of the Ceiling Act before the Collector rather application for issuance of Red Card was filed which have been produced before the Collector in the present matter. However, no document in support of the said assertion has been brought on the record in the counter affidavit and despite several adjournments granted to learned counsel for the petitioners even at the stage of hearing of the application nothing could be filed in support of the said bare assertion. The entire stand of the State appears to be on the basis of the words ‘Amended Red Card’ mentioned in the Parwana of land settlement issued to the petitioners in that regard and not supported by any documentary evidence. 12. The further stand of the respondents is that what was issued was Red Card and the same is done under Section 27 of the Ceiling Act and the petitioners were not eligible for the issuance of such Red Cards. The said stand also appears to be not supported by any documentary evidence regarding any proceeding under Section 27 of the Ceiling Act when the so called Red Cards were issued to the petitioners, rather they are based upon the hypothesis that the documents in question as have writing in ink by hand as being amended Red Cards. 13. On a consideration of the facts and circumstances of the case and the submissions of learned counsel for the parties as also the materials on the record, this Court finds sufficient force in the submission of learned counsel for the petitioner and is of the view that the stand of the State is not backed by any contemporaneous documents. 14. Section 22 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 and Section 27(1)(a) relating to disposal of surplus land are quoted below: – “Section 22. (1) Under-raiyat on surplus land to acquire status of raiyat. 14. Section 22 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 and Section 27(1)(a) relating to disposal of surplus land are quoted below: – “Section 22. (1) Under-raiyat on surplus land to acquire status of raiyat. – If there is an under-raiyat on the surplus land on the date it vests in the State under the provisions of this Act, such under-raiyat shall, if he makes an application in this behalf in the prescribed manner, be allowed to retain as occupancy raiyat, subject to payment in the prescribed manner and within the prescribed period to the State Government the amount specified in this behalf in the Schedule, so much of the land as together with all the other lands held by him anywhere in the State does not exceed the area he may hold under Section 5. (2) If the under-raiyat refuses or fails to make the application within the said period, he shall be liable to be ejected by the Collector and where he is allowed to retain the land under sub-section (1), he shall not have any right to transfer the land until the entire amount he is liable to pay to State Government under sub-section (1) has been paid. (3) The amount payable by the under-raiyat as to the State Government under sub-section (1) shall be a charge on the land and shall take priority over all other claims on the land.” “Section 27. Disposal of surplus land. – (1) Subject to the other provisions of this Act, fifty percent of the land acquired or deemed to be acquired by the State Government under this Act may, subject to rules made in this behalf be settled by the Collector – (i) with landless persons belonging to the Scheduled Castes, Scheduled Tribes or Backward Classes mentioned in Government of Bihar Revenue Department notification no. A/T-1015/55-1091-R, dated the 7th February, 1956 and no. A/T-1015/55-1091-R, dated the 7th February, 1956 and no. A/T-3043/61-4523-R, dated the 23rd June, 1962, published in Bihar Gazette, dated the 22nd February, 1956 and 18th July, 1962, respectively, of the village in which the land is situated; (ii) with persons belonging to the Scheduled Castes, Scheduled Tribes or Backward Classes mentioned in the notification referred to in clause (1) of the village in which the land is situated and not having more than one acre of Class III land or its equivalent in area; (iii) with other landless persons of the village in which the land is situate; (iv) with other persons of the village in which the land is situated having not more than one acre of Class 1 land or equivalent area; (v) with persons serving in the Army, Navy or Air Force of the Union of India, or with families of such persons killed in action, (vi) with ex-servicemen of Army, Navy or Air Force of the Union of India, who are resident of the village in which the land is situated: Provided that if, the village in which the land is situated is uninhabited, the land shall be settled with the aforesaid categories of persons of an adjoining village: Provided further that in the district of Santhal Parganas the Collector shall, while making such settlement, follow the principles prescribed for settlement of waste land or vacant land under Section 28 of the Santhal Parganas Tenancy (Supplementary) (Provisions) Act, 1949 (Bihar Act XIV of 1949): Provided also that the land acquired or deemed to be acquired from sugar factories, to which the provisions of sub-clause (i) of clause (a) of sub-section (2) of Section 29 are applicable may be managed by the State Government directly or in such other manner as may be prescribed; (vii) the residue of such land as is left out after settlement with the categories of persons mentioned in clauses (i) to (vi) with persons belonging to Scheduled Castes, Scheduled Tribes or Backward Classes among the repatriates of Bihar origin from Burma. (1a) The remaining fifty per cent of the land acquired or deemed to be acquired by the State Government under this Act shall, subject to Rules made under this behalf, be settled by the Collector with women belonging to categories mentioned in sub clause (i),(ii),(iii),(iv) of sub-section (1) of Section 27.” 15. (1a) The remaining fifty per cent of the land acquired or deemed to be acquired by the State Government under this Act shall, subject to Rules made under this behalf, be settled by the Collector with women belonging to categories mentioned in sub clause (i),(ii),(iii),(iv) of sub-section (1) of Section 27.” 15. It is evident from the provisions of Section 22 that an under-raiyat on the surplus land on the date under the provisions of the Ceiling Act is entitled to make an application to be allowed to retain as occupancy raiyat subject to payment of the amount specified in the Schedule to the Act so much of the land as together with all the other lands held by him any where in the State does not exceed the ceiling area. If an under-raiyat refuses or fails to make the application within the prescribed period he shall be liable to be ejected by the Collector. Rule 25 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Rules, 1963 requires that such application by an under-raiyat for being allowed to retain any surplus land of which he is an under-raiyat must be filed within a period of three months with effect from the date on which the land is declared to be surplus land or within such further period as may be allowed by the Collector and where the application is allowed the under-raiyat shall pay to the Government annually for a period of 30 years the amount specified in Part IV of the Schedule to the Act. 16. Section 27 of the Act, on the other hand relates to disposal of surplus land which has been acquired or deemed to be acquired by the State Government under the Act and provides the classes and categories of persons to whom the land should be settled. 17. It is evident from a perusal of the two printed parwanas of land settlement that although their heading is stated at the top in ink by hand as “Sansodhit Lal Card”, that is, amended Red Card, which is used for settlement of surplus land with the different categories of persons under Section 27 of the Act yet the details in the column mentioned in the said Parwanas clearly point out in column-9 that the amount to be recovered from the raiyat in 30 equal instalments is Rs. 352.50 paise in the first case and Rs. 105/- in the other case and in both the parwanas it is further provided that the compensation amount is to be paid at the rate of Rs. 11.75 paise in the first case and Rs. 3.50 paise in the second parwana as annual instalments to the Government of Bihar and until the entire amount of compensation is paid the raiyat will have no right to sell or transfer the land in any other form. The form containing all these conditions is clearly a form for the purpose of issuance of parwana under Section 22 of the Act and the mere fact that at the top of the parwana it is described in ink by hand as amended Red Card does not and cannot make it a Red Card issued under Section 27 of the Act, being issued to settle surplus land with different categories of persons. That being the position, it is not open to the respondents, having changed their own documents, to say that it is settlement of Red Card surplus land under Section 27 of the Act to which category the petitioners do not belong and therefore the settlements in their favour are fit to be quashed. 18. The aforesaid fact of the petitioners having filed the application and the parwanas having been issued to them being defective in the first place and thereafter the corrected Parwanas being issued subsequently, is further fortified by the fact that the petitioners were the purchasers of the land with Sikmi rights by registered sale deeds which have not been challenged at any stage by the respondents. Thus, it cannot be said that they had not applied under Section 22 of the Act in accordance with law. Any such statements on behalf of the respondents could only have been accepted if they could have produced any document before this Court to the contrary as they are the custodian of any such documents. 19. Thus, in the light of the aforesaid discussions, the writ application is allowed. The order dated 16.12.1991 passed by the Collector, Purnea in Misc. Ceiling Case Nos. 141/1984-85 and 140/1984-85 are both quashed; consequentially the proceedings under Section 3 of the Public Land Encroachment Act being Case No. 5/1991-92 initiated by the Anchal Adhikari, Kasba are also quashed.