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2018 DIGILAW 224 (JHR)

Sidique Kasmi v. State of Jharkhand

2018-01-29

RAJESH SHANKAR

body2018
ORDER : RAJESH SHANKAR, J. 1. The present writ petition has been filed for quashing the order dated 12.5.2015 passed by the respondent No. 3-Deputy Commissioner, Giridih in Raiyati Reorganization Record Case No. 1 of 2014-15 (LR-03/2014-15), whereby the prayer of the petitioners for recognizing their raiyati right has been rejected with a direction upon the respondent No. 6-the Circle Officer, Dumri, Giridih to transfer the said land immediately to the Government. The factual background of the case as stated in the writ petition is that the petitioner Nos. 1 to 7 and the father of the petitioner No. 8 had purchased the land situated at Village-Shankardih, Thana-Dumri, P.S. No. 187, having total area of 12 acres 20 decimals of Khata No. 17, Plot Nos. 633, 634, 635 and 717 (hereinafter referred to as "the said land and tank") by way of registered sale-deed dated 30.1.1985 from one Jageshwar Prasad. Pursuant to a public petition, the respondent No. 5-the Land Reforms Deputy Collector, Giridih issued a letter under Memo No. 2106 dated 19.9.1985 directing the respondent No. 6-the Circle Officer, Dumri to send enquiry report regarding the said land and tank and the respondent No. 6 initiated a proceeding being Misc. Case No. 12/1985-86 against the petitioners, however, vide order dated 28.12.1985, the same was dropped. Thereafter, on the basis of the application of the petitioners dated 4.1.1986, a mutation proceeding of the said land and tank was initiated vide Mutation Case No. 999 of 1985-86 and vide order dated 30.1.1986, the mutation application was allowed. However, on the basis of a public petition, another proceeding being Case No. 1 of 1986-87 was initiated on 21.3.1986 under Section 4(h) of the Bihar Land Reforms Act, 1950, however, vide order dated 24.5.1986, the respondent No. 5 dropped the said proceeding by accepting the response submitted by the petitioners. Subsequently, on the basis of a petition filed by one Kuldeep Prasad, Misc. Case No. 5 of 2011-12 was initiated by the Circle Officer, Dumri (respondent No. 6) on 28.7.2011 and finally, vide order dated 13.10.2011, the same was also dropped by rejecting the claim of the complainant. Subsequently, on the basis of a petition filed by one Kuldeep Prasad, Misc. Case No. 5 of 2011-12 was initiated by the Circle Officer, Dumri (respondent No. 6) on 28.7.2011 and finally, vide order dated 13.10.2011, the same was also dropped by rejecting the claim of the complainant. The petitioners, thereafter made an application requesting inter alia for their raiyati recognition upon the said land and tank, whereupon the respondent No. 6 recommended for the same and the respondent No. 5 also approved the said recommendation and sent the record to the Sub-Divisional Officer, Dumri. However, vide impugned order dated 12.5.2015 passed in Case No. 1 of 2014-15 (LR-03 of 2014-15), the respondent Nos. 3 and 4 rejected the recommendation for raiyati recognition over the said land and tank with a direction to the respondent No. 6 to cancel the jamabandi running in the name of the petitioners and to transfer the said land and tank in favour of the State. 2. The learned counsel for the petitioners submits that the said land and the tank belonged to Raja Ran Bahadur Singh which was settled to Shri Damodar Prasad Lala by virtue of Hukumnama dated 4.5.1927. Subsequently, the same was sold to Baleshwar Prasad and by virtue of a registered partition dated 22.11.1958, the said land and tank came in the share of Parmeshwar Ram. The Circle Officer-cum-Block Development Officer, Dumri had issued a notice for Sairat Settlement to be held on 15.7.1971 with respect to Plot Nos. 633 and 635, however, after the objection of Parmeshwar Ram, the same was dropped vide order 15.11.1971 by holding that any settlement made prior to 1.1.1946 cannot be re-opened. It is further submitted that the long running jamabandi cannot be cancelled without following the due procedure of law. The impugned order dated 12.5.2015 has also been passed in violation of the principles of natural justice and thus, the same may be set aside. 3. Per contra, learned counsel for the respondent-State submits that 0.337 acres land of Plot No. 717 has been acquired by the Government and the petitioners have claimed compensation for the same. The impugned order dated 12.5.2015 has also been passed in violation of the principles of natural justice and thus, the same may be set aside. 3. Per contra, learned counsel for the respondent-State submits that 0.337 acres land of Plot No. 717 has been acquired by the Government and the petitioners have claimed compensation for the same. Though, the respondent No. 5 made recommendation to the respondent No. 3 for recognizing the raiyati right of the petitioners over the acquired land, however, as soon it came to the notice of the respondent No. 3 that the alleged settlement of the land and Tank with Parmeshwar Ram was doubtful and the jamabandi in Register-ll in respect of the said land and tank has not been created under any order of competent authority, the claim of the petitioners was found not genuine and thus, the respondent No. 3 refused to recognize the raiyati right of the petitioners over the aforesaid land and tank vide impugned order dated 12.5.2015. It is further submitted that the vendor of the petitioners has claimed that he had got the land in family partition as his ancestor had obtained it by unregistered Hukumnama, however, the petitioners' vendor never acquired raiyati right over the said land and tank and alleged settlement was for fishery purpose which after abolition of Zamindari, vested in the State. It is further submitted that from the recital of the sale-deed relied upon by the writ petitioners, it would be evident that the fishery right has been sold to petitioners. It is also submitted that a proceeding under Section 4(h) of the Act, 1950 being Jamabandi Cancellation Case No. 1 of 2017-18 has also been initiated for making enquiry regarding the genuineness of settlement made by the ex-landlord and as such, the present writ petition is not maintainable. 4. Heard the learned counsel appearing on behalf of the parties and perused the materials available on record. The petitioners had purchased the said land and tank by virtue of a registered sale-deed dated 30.1.1985 and the jamabandi of the said land and tank was also opened in their names vide order dated 30.1.1986 passed by the respondent No. 6. Earlier, a proceeding under Section 4(h) of the Act, 1950 was initiated, however, the same was dropped by the respondent No. 5 after considering the response of the petitioners. Earlier, a proceeding under Section 4(h) of the Act, 1950 was initiated, however, the same was dropped by the respondent No. 5 after considering the response of the petitioners. The respondents have contended that the said land and tank is recorded as Gair Mazurwa Khas which is alleged to have been acquired by virtue of a Hukumnama, but no return to that effect had been submitted by the landlord. It has further been contended by the respondents that the jamabandi in the name of the petitioners has not been created by the competent authority. Thus, the respondent No. 3 vide impugned order dated 12.5.2015 has rejected the raiyati recognition of the petitioners and further directed to the respondent No. 6 to send recommendation for cancelling the jamabandi of the said land and tank running in the name of the petitioners. 5. In the case of "Gulabasi Devi vs. State of Bihar" reported in 2003 (3) JLJR 793 , this Court has held thus: 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 Pataa High Court in the case of Harihar Singh vs. Additional Collector, 1978 BBCJ 323 . 6. In the case of "Ramayan Yadav & Ors. vs. State of Bihar & Ors." reported in 2013 (3) PLJR 533 , a Division Bench of Patna High Court has held as under:-- 8. 6. In the case of "Ramayan Yadav & Ors. vs. State of Bihar & Ors." reported in 2013 (3) PLJR 533 , a Division Bench of Patna High Court has held as under:-- 8. So far the other point is concerned, it is settled principle of law that the Jambandi 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. 7. In the present case, admittedly, the jamabandi of the said land and tank was opened in the name of the petitioners by the respondent No. 6 which continued for about 30 years and now, vide impugned order that too without any order under Section 4(h) of the Act, 1950, the respondent No. 6 has been directed to send recommendation to cancel the jamabandi running in the name of the petitioners and also to send proposal for transfer of the said land and tank to the Government. The learned counsel for the respondents, however, appraises this Court that the proceeding under Section 4(h) of the Act, 1950 being jamabandi Cancellation Case No. 1 of 2017-18 is still pending before the respondent No. 3. 8. Considering the aforesaid facts and circumstances of the case, the operation of the impugned order dated 12.5.2015 so far as the respondent No. 6 has been directed to send the proposal for transferring the land to the Government, is directed to be kept in abeyance, till the respondent No. 3-the Deputy Commissioner, Giridih passes an order under Section 4(h) of the Act, 1950, in jamabandi Cancellation Case No. 1 of 2017-18 after allowing due opportunity of hearing to the petitioners. The petitioners are at liberty to appear before the respondent No. 3 and produce all the relevant documents in support of their claim. It is made clear that this Court has not gone into the legality of the proceeding under Section 4(h) of the Act, 1950. The writ petition stands disposed of in terms with the aforesaid observation and direction.