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2018 DIGILAW 152 (JHR)

Basudeo Mandal v. State of Jharkhand

2018-01-18

RAJESH SHANKAR

body2018
ORDER : Heard learned counsel for the parties. 2. The present writ petition has been filed for restraining the respondents from encroaching the raiyati land of the petitioners and further for restraining the unauthorized construction of road upon it. 3. Learned counsel for the petitioners submit that the petitioners are the raiyati owners of the land of Mouza-Polkiri, Mouza No. 241, Old Khata No. 85, New Khata No. 255, Old/new plots 2447/2476, 2448/2481 and 2449/2480 measuring total area of 4 acres and 63 decimals as per old Khatian and 4 acres and 35 decimals as per new Khaitan at P.S.-Chandankiari, District-Bokaro, jointly recorded in the name of Babulal Mandal (father of the petitioner no. 1), Khandu Mandal (father of the petitioner no. 2) and Jaidev Mandal (petitioner no. 3). The said land was inherited by the petitioners and other legal heirs of the said recorded raiyats and came in possession of the same and paying rent thereof. It is further submitted that the respondents are encroaching upon the land of the petitioners and are constructing a road over the part of the said land through the respondent no. 5 in unauthorized manner without acquiring the same or giving any compensation to the petitioners. The petitioners enquired from the respondent no. 5 about the said construction and also requested him to stop the encroachment, however, the respondent no. 5 threatened them of dire consequence. The petitioners also informed the matter to the Circle Officer, Chandankiari (the respondent no. 3) and filed representation before the Deputy Commissioner, Bokaro (the respondent no. 2) for restraining the encroachment upon their land but nothing was done, which gives rise to filing of the present writ petition. 4. The learned counsel appearing on behalf of the respondent-State submits that the said land is recorded in the record of right as Gair Mazurwa and after vesting of Zamindari, the same vested in the State under Section 3 of the Bihar Land Reforms Act, 1950 (in short lithe B.L.R. Act, 1950"). It is further submitted that the respondents were constructing road over the said Gair Mazurwa land, which was obstructed by the petitioners and, thereafter, the respondent no. 3 issued due notices to the petitioners to show their right, title and interest but they failed to satisfy the authority concerned that the said land is their raiyati land, thus, the respondent no. 3 issued due notices to the petitioners to show their right, title and interest but they failed to satisfy the authority concerned that the said land is their raiyati land, thus, the respondent no. 3 initiated Miscellaneous proceeding being No. 1/2015-16 and on the basis of the documentary evidence and inquiry report, passed order dated 19.6.2015 recommending to the D.C.L.R., Bokaro for cancelling Jamabandi of the said land. It is further submitted that if the petitioners have any grievance against the said order, they should knock the door of the competent Civil Court. It is further submitted that the petitioners have no valid right, title and interest upon the land in question and as such, the present writ petition is not maintainable. 5. Heard the learned counsel for the parties and perused the materials available on record. The petitioners have contended that the said land is their raiyati land upon which they claim their right, title and interest. Per contra, the learned counsel appearing on behalf of the respondents has contended that the said land is Gair Mazurwa land and the petitioners failed to show any valid document of the said land, thus the jamabandi running in their name has been cancelled and a road is being constructed over it for the benefit of public. The petitioners, in support of their claim, have filed the raiyati khatian and the rent receipts issued till 2004-05. Even if the argument of the respondents is accepted that the said land is Gair Mazurwa land, the same does not entitle the Government authorities to take over the same if it is claimed by the occupant of the land that the same has been settled to him/his predecessor in interest by the ex-landlord. 6. In the case of Gulabasi Devi vs. State of Bihar reported in (2003) 3 JLJR 793 , a Bench of this Court held in para 6 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. 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 ." 7. In the present case also, as per the letter of the Circle Inspector (annexed as Annexure-C series of the counter affidavit), the said land was claimed to be settled in favour of one Shakti Pado Mandal and others by the landlord in the year 1937. It is a settled position of law that any settlement made, by the landlord may be cancelled under Section 4(h) of the Bihar Land Reforms Act, 1950 by the Collector on the ground mentioned therein and not otherwise and dispossession can only be made after concurrence of the State Government. The respondents have not brought on record any document to show that any proceeding under Section 4(h) of the B.L.A. Act, 1950 was initiated for the said land. Moreover, a raiyati khatian of the said land has also been issued from the office of the Settlement Officer, Dhanbad in which the names of Babulal Mandal (father of the petitioner no. 1), Khandu Mandal (father of the petitioner no. 2) and Jaidev Mandal (petitioner no. 3) have been mentioned as raiyat. Any record of right published under Section 83(2) of the C.N.T. Act, 1908 is presumed to be genuine and true. The burden of proof to controvert the same is upon the person who challenges the said correctness. 1), Khandu Mandal (father of the petitioner no. 2) and Jaidev Mandal (petitioner no. 3) have been mentioned as raiyat. Any record of right published under Section 83(2) of the C.N.T. Act, 1908 is presumed to be genuine and true. The burden of proof to controvert the same is upon the person who challenges the said correctness. Admittedly, the jamabandi was created in the name of Babulal Mandal (father of the petitioner no. 1), Khandu Mandal (father of the petitioner no. 2) and Jaidev Mandal (petitioner no. 3) and the rent receipts were issued in their favour till 2004-05. However, it is contended by the respondents that no order of any competent authority is on record in this regard. Here, it may be observed that though the land has been recorded as Gair Mazarua Khas in the Records of Right, yet the State has recognized the tenancy right of the petitioners by accepting rent over a period of several decades. It is not the case of the respondents that the petitioners or their predecessors had played any fraud or misrepresentation in creation of Jamabandi. A long running Jamabandi cannot be cancelled, unless there is any such decree/order of a competent Court or it is established in any legal proceeding that the Jamabandi was created by playing fraud by the raiyat or the creation of such Jamabandi was vitiated in law. 8. For the reasons as stated above, the present writ petition is allowed and the respondents are directed not to disturb the possession of the petitioners upon the said land till any order is passed by the competent authority declaring right, title, interest and possession of the petitioners upon the said land as illegal or the land is acquired by the respondents by paying proper compensation to the real owner of the land. 9. The writ petition is disposed of in terms with aforesaid observation and direction.