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2018 DIGILAW 787 (JHR)

Madhusudan Singh v. State Of Jharkhand

2018-04-06

ANUBHA RAWAT CHOUDHARY

body2018
ORDER Anubha Rawat Choudhary, J. - Heard, Mr. Rajeev Ranjan Tiwary, counsel appearing for the petitioner. 2. Heard Mr. Atanu Banerjee, G.A. appearing for the respondent nos. 1 to 5. 3. Mr. Arpan Mishra, counsel appears for the respondent nos. 6 to 8. 4. Mr. Arpan Mishra, counsel appearing for the respondent nos. 6 to 8 submits that he does not have instruction in the matter. However, he is present to assist the Court. 5. This writ petition has been filed for the following reliefs:- a) "For calling upon the records and quashing the relevant order whereby the Raiyati land of the petitioner, on which the tank is situated has been transferred by the Circle Officer, Bokaro to the Fishery Department, in the facts & circumstances of the present case, as the said land is the Raiyati land of the petitioner and respondent authority has got no right to transfer the same to Fishery Department and the entire exercise is wholly illegal, unjust & unsustainable in the eye of law. b) For quashing the settlement of the said tank to Matsyajiwi Sahyog Samiti Limited, Chas, which cannot be evident from the information supplied by the respondent under R.T.I. Act dated 04.10.2010, as the respondents have got no authority to settle the same, as the same is the raiyati land of the present petitioner." 6. However, during the pendency of the writ petition, respondents had further passed order in connection with settlement of tank which were challenged by filing petition for amendment and the petition for amendment was allowed. Moreover, the respondents had also brought on record the order by which tank in question was transferred to the District Fisheries Department. The writ petition was amended challenging the said order of transfer. Thus by virtue of two subsequent orders i.e. order dated 25.01.2017 and 05.10.2017, following two prayers were added:- a) "The petitioner prays for issuance of an appropriate writ(s)/order(s)/direction(s) or a writ in the nature of certiorari for quashing of office order vide letter no. The writ petition was amended challenging the said order of transfer. Thus by virtue of two subsequent orders i.e. order dated 25.01.2017 and 05.10.2017, following two prayers were added:- a) "The petitioner prays for issuance of an appropriate writ(s)/order(s)/direction(s) or a writ in the nature of certiorari for quashing of office order vide letter no. 437 dated 15/07/2016, issued by District Fishery Officer cum Chief Executive Officer, Bokaro so far as it relates to the tank of the present petitioner in the facts and circumstances of the present case as the respondent department has got no jurisdiction to settle the Rayiti tank of the Petitioner to any person or body and hence the office order dated 15/07/2016 is wholly arbitrary, unjust and unsustainable in the eye of law. b) The petitioner further prays for issuance of an appropriate order staying the settlement of tank of the Petitioner in pendency of the present writ petition or restraining the respondent no. 6 and others from disturbing the peaceful possession of the present Petitioner. c) The petitioner further prays for quashing of letter no. 854 dated 2/11/93 issued by Circle Officer Chas (Respondent No. 5) whereby and whereunder the whole Barabandh tank has been transferred to the District Fishery Department." 7. Thus the petitioner is challenging the letter no. 854 dated 02.11.1993 issued by the Circle Officer, Chas, whereby the Barabandh tank which is claimed by the petitioner has been transferred to the District Fishery Department. The petitioner is also challenging the office order vide letter no. 437 dated 15.07.2006 issued by the District Fishery Officer cum Chief Executive Officer, Bokaro whereby the said tank has been settled in favour of the private respondent. 8. Counsel for the petitioner submits that the tank involved in this case is private property of the petitioner and the respondent State has no authority to transfer the same to the Fishery Department and Fishery Department has no authority to settle the same to the private respondent i.e. respondent no. 6 herein. 8. Counsel for the petitioner submits that the tank involved in this case is private property of the petitioner and the respondent State has no authority to transfer the same to the Fishery Department and Fishery Department has no authority to settle the same to the private respondent i.e. respondent no. 6 herein. While referring the facts of the case, counsel for the petitioner submits that: a) The tank is situated under Mouja No. 35, khata No. 87, Plot No. 3158, area 36 decimals as well as well as Mouja Satanpur, Khata No. 197, Plot No. 1430, area 13 acres 38 decimals of village Satanpur and both the plots are amalgamated as a Tank which is commonly known as Barabandh Tank, which is evident from the fact that M Form is issued showing the said land as raiyati land of the present petitioner. b) The petitioner also submits that the petitioner has been paying rent in connection with the said property and has been paying rent since 1957 itself and getting rent receipts of the same from the competent revenue authority. c) The petitioner came to know that the Fishery Department had issued notice to auction of the said Tank considering the same as being Sairat property and on coming to know about the same the petitioner had moved before this Hon''ble Court by filing C.W.J.C. No. 1112 of 1987(R) and considering the prayer made by the petitioner the Hon''ble Court has been pleased to pass the order staying the settlement of the said tank and further direction was issued to the Deputy Commissioner to look into the grievance of the petitioner and pass appropriate speaking order on a representation being filed by the petitioner. d) Pursuant to the order dated 3.11.1987 passed by this Court in C.W.J.C. No. 1112 of 1987(R), the Deputy Commissioner passed the order dated 06.04.1988 in MRA Case No. 6/1987 wherein the said authority held that the petitioner is rayati owner of the said Tank and also issued direction to issue the rent receipt for the same. e) Against this order dated 06.04.1988 in MRA Case No. 6/1987 Sairat Revision Case No. 43/1988 was filed by some private party who also claimed their right, title and interest over the property. e) Against this order dated 06.04.1988 in MRA Case No. 6/1987 Sairat Revision Case No. 43/1988 was filed by some private party who also claimed their right, title and interest over the property. The said revision case was dismissed which has been dismissed vide order dated 19.02.1990/02.04.1990 with an observation that the private party may get his right, title and interest decided through a competent court of civil jurisdiction. f) Counsel for the petitioner submits that once order has been passed by the competent authority in MRA Case No. 6/1987 against which revision was also dismissed, the respondents have no jurisdiction to transfer this particular property to the Fishery Department by virtue of the impugned order and consequently the Fishery Department cannot settle the property in favour of the private party. 9. Counsel for the respondent-State submits that order which was passed by the Deputy Commissioner in MRA Case No. 6/1987 was passed simply considering the M Form and the said order passed by the Deputy Commissioner is not in accordance with law. Counsel for the respondents further refers to the para 23 of the counter-affidavit and submits that this particular tank is not the rayati property of the petitioner as the same has been recorded as "gair aabad malik" gairmajarua land in the Khaitan maintained by the government. He also refers to various records in the counter-affidavit by showing that the property on which the tank is situated is recorded as Gair-Abad Malik. The counsel submits that the petitioner has no right, title and interest over the property and accordingly, the Fisheries Department has rightly transferred the tank by auctioning the same to the private respondent. 10. Learned counsel for the petitioner and respondents have refer various sections of Bihar Land Reforms Act, 1950 including sections 4 and 13 of the said Act to show that the State has got right to settle the tank by way of auction and the raiyat interest of the tank is vested with the State. 11. 10. Learned counsel for the petitioner and respondents have refer various sections of Bihar Land Reforms Act, 1950 including sections 4 and 13 of the said Act to show that the State has got right to settle the tank by way of auction and the raiyat interest of the tank is vested with the State. 11. After hearing the counsel for the parties, considering the materials on records, this Court finds that the respondents have not been able to dispute the order dated 3.11.1987 passed in C.W.J.C. No. 1112 of 1987(R) wherein the matter was remitted back to the Deputy Commissioner to decide the right, title and interest of the petitioner and pursuant to the direction, the Deputy Commissioner passed the order in MRA Case No. 6/1987 which was decided in favour of the petitioner and subsequently the revision against this order was also dismissed. Accordingly, the order which was passed by the Deputy Commissioner in MRA Case No. 6/1987 at Annexure-4 is binding upon the respondents and it is not open to the respondents to say that the same has not been passed in accordance with law. However, the State is at liberty to get the right, title and interest over the property declared in accordance with law. In view of the said order passed by the Deputy Commissioner in MRA Case No. 6/1987 at Annexure-4 of the writ petition, the tank in question could not have been transferred to the Fisheries Department of the State of Jharkhand and the same accordingly could not have been settled with the private respondent. 12. Accordingly the letter no. 854 dated 02.11.1993 issued by the Circle Officer, Chas, whereby the tank involved in this case has been transferred to the District Fishery Department, is set-aside. Consequently the office order vide letter no. 437 dated 15.07.2006 issued by the District Fishery Officer cum Chief Executive Officer, Bokaro whereby the said tank has been settled in favour of the private respondent, is also set-aside to the extent it relates to the tank claimed by the petitioner. 13. The writ petition is, hereby, allowed with aforesaid observations.