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2017 DIGILAW 1482 (JHR)

Damri Ram Singh v. State of Jharkhand

2017-08-21

RAJESH SHANKAR

body2017
ORDER : The present writ petition has been filed for quashing the order dated 23.7.2008 passed by the Additional Collector, Ranchi (respondent No.3) in Misc. Case No.25/2007-08 (Annexure-6 to the writ petition) whereby, the Zamabandi running in the name of the petitioners, has been cancelled. 2. The factual background of the case is that the land under Khata No.47, Plot No.1496, area 5 acres, situated at Village-Dubaliya, District-Ranchi [hereinafter referred to as 'the said land'] was purchased by the petitioners by way of registered deed of sale dated 14.2.1991. After purchase, the said land was mutated in the names of the petitioners by the Circle Officer, Kanke vide Mutation Case No. 803R-27/1990-91 and thereafter they had been paying the rent to the Government. Suddenly, after 2003, the Circle Officer, Kanke Anchal, Ranchi refused to issue rent receipt for the said land and when the petitioners inquired about the matter, they came to know that issuance of rent receipt was stopped pursuant to an order of the Additional Collector, Ranchi, contained in Memo No.36 dated 25.1.2003. The petitioners, thereafter, filed an application being Misc. Case No.25/2007-08 before the respondent No.3 for regularizing the issuance of rent receipt wherein the Circle Officer, Kanke submitted a report with a recommendation for cancellation of Zamabandi running in the name of the petitioners. The respondent No.3 passed the impugned order dated 23.7.2008 for cancellation of Zamabandi running in the name of the petitioners holding that the Register-II does not disclose as to on what basis the names of the vendor of the petitioners, namely, Bindeshwari Sahu and others have been entered in Register-II. 3. The learned Sr. Counsel for the petitioners submits that the said land was settled by the ex-landlord in the name of Surajnath Sahu by way of Hukumnama dated 22.10.1949 and the names of the sons of the settlee, namely, Bindeshwari Sahu and others were entered in the Register-II and they also paid rent for the said land. A proceeding under Section 4(h) of the Bihar Land Reforms Act, 1950 being Case No.2/1983 was also initiated against Bindeshwari Sahu, Balchand Sahu and Naresh Sahu, which was finally dropped. A proceeding under Section 4(h) of the Bihar Land Reforms Act, 1950 being Case No.2/1983 was also initiated against Bindeshwari Sahu, Balchand Sahu and Naresh Sahu, which was finally dropped. It is further submitted that during the survey and settlement operation, the draft record of rights had been prepared wherein the nature of the said land was recorded as 'Anabad Bihar Sarkar' and then the petitioners filed objection under Section 89 of the C.N.T. Act being Case No.273 of 1991 and finally vide order dated 5.1.1993, a direction was issued for deleting the name of 'Anabad Bihar Sarkar' with further direction that a separate Khata be opened in the name of the petitioners. The learned Sr. Counsel further submits that the impugned order has been passed in violation of the principle of natural justice. It is also submitted that since the date of purchase, the petitioners are enjoying their right, title, interest and possession over the said land, which is evident from the 'Banda Purcha' (Annexure-8 to the supplementary affidavit dated 13.3.2013). 4. Learned Sr. Counsel for the petitioners submits that the petitioners approached the Additional Collector, Ranchi ventilating their grievance against non-acceptance of the rent which they were paying since 1991, however, on the said application, the Additional Collector, Ranchi, in a most arbitrary manner, passed the impugned order dated 23.7.2008 (Annexure-6) cancelling the Zamabandi of the petitioners itself. 5. Learned Sr. Counsel for the petitioners puts reliance on a judgment rendered by this Court in the case of Jitan Mahto & Anr. Vs. The State of Bihar & Ors. reported in 2004 (1) JLJR 718 and submits that the revenue authorities have no jurisdiction to cancel the Zamabandi running in the name of a raiyat/tenant. The remedy with the State authorities is to take recourse before the Civil Court of appropriate jurisdiction for declaration of right, title and interest over the land in question. 6. The learned Counsel appearing on behalf of the respondent-State, on the other hand, submits that the land under Khata No.47 has been recorded as 'Gair Mazurwa Malik' land in the revisional survey record of right and the same is vested in the State of Bihar under Sections 3 and 4 of the Bihar Land Reforms Act, 1950. 6. The learned Counsel appearing on behalf of the respondent-State, on the other hand, submits that the land under Khata No.47 has been recorded as 'Gair Mazurwa Malik' land in the revisional survey record of right and the same is vested in the State of Bihar under Sections 3 and 4 of the Bihar Land Reforms Act, 1950. It is further submitted that since the date of vesting, the State is continuing the possession of the said land and the original Zamabandi of Khata No.47 has been recorded at Page No.47 of Register-II (Vol. I) of Mouza-Dubaliya in the name of the State of Bihar. It is further submitted that no portion of the said land was ever transferred in favour of Bideshwari Sahu and also no Zamabandi with respect to 15.10 acres of Khata No.47 was opened in his name. It is further stated that the demand for 15.10 acres of land of Khata No.47 has been opened at Page No.157 of Register-II in the name of Bindeshwari Sahu and others in connivance with the revenue officials without mentioning the ground of opening the demand. 7. Heard the learned counsel for the parties and perused the materials placed on record. The petitioners are claiming that the said land was actually settled in the name of the father of the vendor of the petitioners by the ex-landlord on 22.10.1949 and after vesting of Zamindari, the name of the vendor of the petitioners was entered in Register-II and he paid rent for the said land. It is further claimed by the petitioners that the said land was purchased by them on 14.2.1991 and since the date of purchase, they are in possession of the said land and their names were also mutated in the office of the Circle Officer, Kanke and they paid rent till 2003. However, the respondents, on the other hand, are claiming that the said land was 'Gair Mazurwa Malik' land and after vesting of Zamindari, the same vested in the State of Jharkhand. It is further claimed that the State of Jharkhand is in possession of the said land and the original Zamabandi of Khata No. 47 was opened in the name of 'Anabad Bihar Sarkar'. It is further claimed that the State of Jharkhand is in possession of the said land and the original Zamabandi of Khata No. 47 was opened in the name of 'Anabad Bihar Sarkar'. The respondents also claim that the vendor of the petitioners as well as the petitioners in connivance with the revenue officials, got their names mutated without any decision of the competent authority. 8. It is an admitted position that though the land in question has been originally recorded as 'Gair Mazarua Malik' in the Revisional Survey Records of Right, the Zamabandi in respect of the said land had been running in the name of Bindeshwari Sahu and others since 1969-70 to 1990-91. On the basis of the said Zamabandi, the respondents all along accepted rent and recognized Bindeshwari Sahu as Raiyat in respect of the said land. The petitioners are the purchasers of the said land and after purchasing the same, they applied for mutation before the Circle Officer. Consequently, mutation was allowed. The petitioners had also been paying rent in respect of the said land till 2003. Though the said land is recorded as 'Gair Mazarua Malik' or 'Gair Abad Malik' in the Revisional Survey Records of Right, the State has recognized the tenancy right of Bindeshwari Sahu by accepting rent over a period of several decades and his name had been running in the Tenants Ledger/Register-II maintained by the Anchal Office for such a long time without any objection from any quarter. It is a settled position of law that a long running Zamabandi cannot be cancelled, unless there is any such decree/order of a competent Court or it is established in any legal proceeding that the Zamabandi was created by playing fraud by the Raiyat or creation of such Zamabandi was vitiated in law. It is a well-known concept of law that a revenue authority has no jurisdiction to decide the question of title by initiating a proceeding of cancellation of Zamabandi, which was running since long. Any such decision can only be taken by a Court of competent civil jurisdiction. The cancellation of the Zamabandi by the revenue authority and setting the right, title and interest of the petitioners over the said land, at naught, is therefore without jurisdiction. 9. Any such decision can only be taken by a Court of competent civil jurisdiction. The cancellation of the Zamabandi by the revenue authority and setting the right, title and interest of the petitioners over the said land, at naught, is therefore without jurisdiction. 9. In the case of Ramayan Yadav vs. State of Bihar reported in 2013 (3) PLJR 533 , a Division Bench of this court has held as under : "8. So far the other point is concerned, it is settled principle of law that the Jamabandi cannot be cancelled by the said authority, rather a civil suit is the only remedy. On this point, a plethora of decisions are available including a decision of the Division Bench of this Court in case of Khiru Gope and two others Vs. The Land Reforms, Deputy Collector, Jamui and three Others, reported in A.I.R. 1983 Patna 121. Learned counsel for the appellants completely failed to controvert this issue." 10. In the case of Gulabasi Devi vs. State of Bihar reported in 2003 (3) JLJR 793 , a Bench of this court has held as follows : "6. Admittedly the land was recorded in the survey record of right as Gair Mazarua Malik in the name of the ex-landlord who settled the land in favour of the vendor of the petitioner Ram Kewal Sahu. The ex-landlord submitted his return showing Ram Kewal Sahu as settlee and jamabandi was opened in his name. The genuineness of the record of right, the settlement made in favour of Ram Kewal Sahu and the jamabandi opened in his name was never challenged by the State of Bihar rather in all the proceedings initiated at the instance of Baij Nath Prasad and respondent No.7 the authorities of the State decided all those proceedings in favour of the petitioner. It is well settled that once jamabandi opened in favour of a person and that continued for a number of years, it can be cancelled only by initiating a proceeding by the Collector under Section 4(h) of the Bihar Land Reforms Act. Reference may be made to a Division Bench decision of the Patna High Court in the case of Harihar Singh Vs. Additional Collector, 1978 BBCJ 323 ." 11. In the case of Jitan Mahto & Anr. vs. The State of Bihar & Ors. Reference may be made to a Division Bench decision of the Patna High Court in the case of Harihar Singh Vs. Additional Collector, 1978 BBCJ 323 ." 11. In the case of Jitan Mahto & Anr. vs. The State of Bihar & Ors. (supra) also, the same view has been reiterated by a Bench of this Court holding that the Zamabandi running since 1969, cannot be cancelled by the respondents. 12. Otherwise also, the stand of the respondent-State that the land in question is recorded as 'Gair Mazarua Malik' in the record of rights and as such after vesting of Zamindari, the same has been vested in the State Government, cannot be accepted as a good ground because it is 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 and if the State challenges the correctness of the settlement and possession, 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 of the said land since long. The manner in which the State-respondents have acted in the present matter is self-explanatory, as on the one hand, it is claimed by the State authorities that the land in question belongs to the State and on the other hand, a Revenue Officer of the State Government opened the Zamabandi of the said land in the name of the petitioners and also accepted rent for the said land for considerable period. In my view, the State authorities should refrain themselves from taking such steps, as has been taken in the present case. 13. In view of the above discussions and judicial pronouncements, the writ petition is, accordingly, allowed. The impugned order dated 23.7.2008 passed by the Additional Collector, Ranchi (respondent No.3) in Misc. Case No.25/2007-08 (Annexure-6) is, hereby, quashed and set aside. However, the State Government shall have liberty to take recourse in accordance with law. 14. The writ petition is disposed of in terms of aforesaid observation and direction.