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2014 DIGILAW 926 (PAT)

Mahendra Yadav v. State Of Bihar

2014-08-29

SHIVAJI PANDEY

body2014
Order Heard learned counsel for the petitioner and the State. 2. In this case, petitioner is challenging the order dated 17th April 2013 passed by the LRDC, Sadar, Gaya in Bihar Land Dispute Resolution Case No. 320 of 2012-13 whereby and whereunder he has refused to adjudicate the dispute with regard to partition between the parties, having no jurisdiction to examine and assess the correctness of the document. In the appeal, the Divisional Commissioner vide order dated 6th August 2013 refused to condone the delay in filing the appeal. 3. Counsel for the petitioner submits that the Commissioner has wrongly refused to condone the delay. 4. When this Court asked the question about the maintainability of the case before the LRDC who has dealt with the matter whereupon counsel for the petitioner submits there is no dispute whatsoever between the parties only, the petitioner wants implementation of the partition deed which was entered among the brothers. Only dispute is with respect to positioning of septic tank as according to the petitioner it has fallen in his share but other brothers have disputed it. 5. It is submitted that this dispute can be resolved under the Act as other brother has wrongly been claiming over the septic tank. Ultimate position is, there is a dispute among brothers with respect to partition. 6. This Court in the case of Maheshwar Mandal v. State of Bihar reported in 2014(3) PLJR 281 has considered the jurisdiction to decide the dispute relating to land. This Court has arrived to a conclusion that under the Bihar Land Disputes Resolution Act, 2009 the dispute arising from the Statute mentioned in the Schedule can be subject matter before the LRDC and any dispute arising from the common law, such as, title dispute, partition dispute etc. can only be resolved by a civil court of competent jurisdiction. This the Court has declared Section 4(4) as ultra vires and 4(5) has to be read in a particular manner. It is apt to quote following paragraphs:- “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. 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. 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, coparceners, 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. 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. 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. 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.” 7. In this view of the mater, though this Court is not giving any opinion on the order passed by the Divisional Commissioner, but there was no jurisdictional error in passing the order by the LRDC who has refused to entertain the petition and suggested that the petitioner should approach the court of competent jurisdiction. 8. In this view of the matter, present petition does not survive and it is accordingly dismissed. However, petitioner will be at liberty to approach the civil court of competent jurisdiction and raise this issue.