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2015 DIGILAW 819 (JHR)

Prem Prakash Arya v. State of Jharkhand

2015-07-20

SHREE CHANDRASHEKHAR

body2015
Order : Aggrieved by orders dated 05.05.2011 in Case No. 326 of 201011 and final order dated 20.01.2012 passed by the Land Reforms Deputy Collector, Dhanbad respondent no. 3, the present writ petition was filed. Subsequently, I.A. No. 1135 of 2015 was filed seeking amendment in the writ petition for challenging order dated 16.03.2012 passed by the Deputy Commissioner and the said application was allowed vide, order dated 04.03.2015. 2. The brief facts of the case narrated in the writ petition are summerised thus; (i) The land in dispute in the present proceeding is about 48 decimals comprised in Plot No. 860 (Part) under Khata No. 158 in MouzaDhanbad which was recored in the record of rights in the name of exlandlord namely, Jharia Raj. The subject land was settled by the exlandlord in or around 1945 in favour of the father of the petitioner namely, Jeewan Das Arya who came in peaceful possession over the said land and constructed house known as “Jeewan Sadan”. Encroachment Case No.17(III) of 195960 was initiated against the father of the petitioner under Bihar Public Lands Encroachment Act, 1953, in the proceeding of which a spot enquiry was conducted by the Circle Officer, Dhanbad. The father of the petitioner was found in peaceful and uninterrupted possession of the suit land and accordingly, vide order dated 29.05.1962, the Circle Officer, Dhanbad fixed rent @ Rs. 4 per Katha from the date of vesting. Consequently, Jamabandi/Holding No. 726 was created in the name of the father of the petitioner who paid rent vide receipt dated 12.06.1962. The subject land was mutated in the name of the father of the petitioner in Dhanbad Municipality and he paid taxes to the Municipality against valid receipt. After the death of his father in the year, 1990, the petitioner started paying rent to the Government of Bihar and thereafter, to the State of Jharkhand as also the Dhanbad Municipality. During his lifetime, the father of the petitioner sold a part of the subject land admeasuring 5.81 decimal to one Ranbir Kumar through registered saledeed dated 06.10.1967. The purchaser subsequently sold the said land to another person and finally, the land comprised in saledeed dated 06.10.1967 was sold to one Dharmendra Kumar Keshri vide saledeed dated 29.02.2008. The said Dharmendra Kumar Keshri made an application for mutation which was registered as Mutation Case No. 1361 of 200809. The purchaser subsequently sold the said land to another person and finally, the land comprised in saledeed dated 06.10.1967 was sold to one Dharmendra Kumar Keshri vide saledeed dated 29.02.2008. The said Dharmendra Kumar Keshri made an application for mutation which was registered as Mutation Case No. 1361 of 200809. In the said case, the Circle Officer rejected the application for mutation vide order dated 16.08.2008 against which the said Dharmendra Kumar Keshri preferred Mutation Appeal No. 03 of 200809. The appeal preferred by Dharmendra Kumar Keshri was dismissed on 14.02.2009 by the Land Reforms Deputy Collector, Dhanbad and by the said order, respondent no. 3 directed the Circle Officer to take steps for cancelling Jamabandi running in the name of the father of the petitioner. Notice dated 05.05.2011 was issued to the petitioner under Section 4 (h) of the Bihar Land Reforms Act, 1950. However, vide order dated 27.04.2010, Revision No. 03 of 2009 preferred by the purchaser namely, Dharmendra Kumar Keshri was allowed. Order dated 20.01.2012 records that though photocopy of Jamabandi No. 726 notarized on 15.06.2011 from Delhi was produced by the petitioner however, the petitioner did not produce rent receipts. It is further recorded that the petitioner produced only 3 rent receipts dated 29.09.2010 and 06.09.2007 pertaining to 200708, 201011 and 201112. The plea taken by the petitioner that the land in question was settled by the exlandlord in the year, 1945 was disbelieved on the ground that order passed for mutation was not produced by the petitioner. The Deputy Collector Land Reforms, Dhanbad held that it was a case of encroachment and the father of the petitioner made false statement and got Jamabandi No. 726 created in his name. The SubDivisional Officer vide order dated 01.02.2012 recommended cancellation of Jamabandi created in the name of the father of the petitioner. The Deputy Commissioner vide order dated 16.03.2012 approved the recommendation for cancellation of Jamabandi. 3. The learned counsel for the petitioner submits that, order dated 29.05.1962 in Encroachment Case No. 17(III) of 195960 was never challenged by the respondents. The Deputy Commissioner vide order dated 27.04.2010 approved the Jamabandi already created in the name of the vendor in as much as, the petition filed by the purchaser namely, Dharmendra Kumar Keshri was allowed on the ground that there was no necessity for opening a new Jamabandi in the name of the vendee. The Deputy Commissioner vide order dated 27.04.2010 approved the Jamabandi already created in the name of the vendor in as much as, the petition filed by the purchaser namely, Dharmendra Kumar Keshri was allowed on the ground that there was no necessity for opening a new Jamabandi in the name of the vendee. Referring to various rent receipts issued in the name of Jeewan Das Arya since 12.05.1962, the learned counsel for the petitioner submits that, the finding recorded by the Deputy Collector Land Reforms and the Deputy Commissioner are patently wrong. It is further submitted that after lapse of about 55 years long running Jamabandi cannot be cancelled. 4. A perusal of order dated 16.03.2012 indicates that the Deputy Commissioner recorded a finding that the document in Encroachment Case No. 17(III)/195960 was forged and fabricated document. It is further recorded that since the Circle Officer, Dhanbad passed order on 29.05.1962, the petitioner should have produced rent receipts for the year, 1962. The land in question has been described by the respondents as Gair Abad Sarvsadharan Khata land for which settlement is not permissible. The Deputy Commissioner finally held that there was no necessity for initiating proceeding under Section 4 (h) of the Bihar Land Reforms Act rather, it was a case of land grabbing by deceitful means. In the counteraffidavit the respondents took a stand that the settlement in Land Encroachment Case No. 17(III) of 195960 was made on the basis of wrong statement made by the father of the petitioner. It is asserted that the land in Mouza No. 51 is Gair Abad Sarvsadharan Khata land and it is meant for public purposes however, the respondents have not denied that the petitioner is in possession over the land in question and a house has been constructed over the same. It is further noticed that though the proceeding under Section 4(h) of the Bihar Land Reforms Act, 1950 was initiated against the petitioner, the Deputy Commissioner has recorded a finding that it is a case of illegal land grabbing of Government land. Before recording a finding that the documents of Encroachment Case No. 17(III) of 195960 produced by the petitioner are forged and fabricated documents, no notice was issued to the petitioner. Such a finding has been recorded by the Deputy Commissioner without calling for the record of the Encroachment Case. Before recording a finding that the documents of Encroachment Case No. 17(III) of 195960 produced by the petitioner are forged and fabricated documents, no notice was issued to the petitioner. Such a finding has been recorded by the Deputy Commissioner without calling for the record of the Encroachment Case. It is also not in dispute that for about 55 years, no one including the State ever laid a claim over the land in question. In view of the documents including the rent receipts produced by the petitioner in the present proceeding and, the presumptive finding of forged and fabricated document recorded by the Deputy Commissioner, I am of the opinion that order dated 16.03.2012 suffers from serious infirmity in law. Once it has been held that proceeding under Section 4(h) of the Bihar Land Reforms Act, 1950 was not necessary, a separate proceeding was required to be initiated, if permissible in law. However, the same has not been done and the Deputy Commissioner erroneously approved the recommendation for cancellation of Jamabandi. 5. Considering the above facts, order dated 16.03.2012 is hereby quashed and the matter is remitted back to the Deputy Commissioner, Dhanbad for considering the matter afresh. 6. The writ petition stands disposed of, in the above terms.