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2018 DIGILAW 80 (JHR)

Rekha Agarwal v. State of Jharkhand

2018-01-10

RAJESH SHANKAR

body2018
ORDER : The present writ petition has been filed for issuance of direction upon the respondents to denotify the land of the petitioner from acquisition and to issue rent receipt in her favour. It has further been prayed for quashing the order dated 24.7.2014 (Annexure-5) passed by the Deputy Commissioner, Koderma (respondent No. 2) in Misc. Case No. 11 of 2001. 2. The factual background of the case as stated in the writ petition is that by virtue of the sale-deed dated 31.1.1979, the petitioner had purchased the land under Khata No. 40, Plot No. 1250 area 2.52 acres, Khata No. 4, Plot No. 1251, area 1.90 acres, Khata No. 25, Plot No. 1249, area 2.03 acres and Khata No. 57, Plot No. 1252, area 1.00 acre total area 7.45 acres in Mouza Moriyawan (hereinafter to be referred as "the said land") from Prayag Modi, Raghav Modi and Ram Krishna Modi. Khata No. 25 stands recorded in the name of Ghanshyam Pandey & Others, Khata No. 40 stands recorded in the name of Naro Gope & Ors. Khata No. 4 stands recorded in the name of Anhachh Gope & Ors. and Khata No. 57 stands recorded in the name of Bhikho Gope and Ors. The vendors of the petitioner had purchased the said land from the heirs of the recorded tenants by way of registered sale-deed dated 21.7.1976. The petitioner applied for mutation of her name for the said land in the year 1999, however the same was rejected on the ground that the said land has been declared as surplus land of one M/s. Christian Mica Industries Ltd., Domchanch (in short M/s. CMI Ltd.) vide Gazette Notification No. 466 dated 30.6.1976. Thereafter, one Release Case No. 11 of 2001 was filed before the Deputy Commissioner, Koderma (respondent No. 2) whereupon the respondent No. 2 vide letter No. 37 dated 24.5.2002 called for an enquiry report from the Circle Officer, Koderma (the respondent No. 6) and finally vide impugned order dated 24.07.2014, the application of the petitioner was rejected which gives rise to filing of the present writ petition. 3. The learned senior counsel appearing on behalf of the petitioner submits that the petitioner is a bona-fide purchaser of the said land. 3. The learned senior counsel appearing on behalf of the petitioner submits that the petitioner is a bona-fide purchaser of the said land. The khatian of the said land clearly reveals that the same was the raiyati land of the recorded tenants which was subsequently purchased by the vendors of the petitioner and finally came in the hands of the petitioner. M/s. C.M.I. Ltd. had no concern with the said land at any point of time thus the alleged acquisition has no valid effect. It is further submitted that similarly situated persons namely Smt. Yashoda Rani Sharma and others had filed a writ petition before Ranchi Bench of Patna High Court being CWJC No. 3026 of 1998 (R) for de-notification of land purchased by them from the descendants of Ghanshyam Pandey of Mouza Moriyawan for plot No. 1249 of Khata No. 25, which was also notified as surplus land of M/s. C.M.I. Ltd. A Bench of this Court vide order dated 1.5.2009, allowed the said writ petition and ordered for de-notification of their land. It is also submitted that the case of the petitioner is squarely covered by the decision of this Court dated 1.5.2009 passed in 2009 (3) JCR 371 (Jhr) : CWJC No. 3026 of 1998 (R) (Smt. Jasoda Rani Sharma & Ors. v. The State of Bihar and Ors.). It is further submitted that the enquiry report, of the Circle Officer, Koderma (the respondent No. 6) dated 29.6.2002 and 29.8.2013 clearly establish the title and possession of the petitioner upon the said land and he accordingly recommended for de-notification of the same. It is further submitted that the petitioner is an old lady suffering from cancer and her husband had also undergone treatment for many years and finally died. As such, she could not apply for mutation earlier and the delay in approaching the authority for de-notification, is not intentional, rather due to the circumstances beyond her control, she approached the authorities late. It is also submitted that the jamabandi running in the name of recorded tenants was cancelled by the Land Reform Deputy Collector, Koderma vide order dated 19.8.1991 without issuing any notice or affording opportunity of hearing to the petitioner though, at that time itself, the petitioner had become the rightful owner of the said land. It is also submitted that the jamabandi running in the name of recorded tenants was cancelled by the Land Reform Deputy Collector, Koderma vide order dated 19.8.1991 without issuing any notice or affording opportunity of hearing to the petitioner though, at that time itself, the petitioner had become the rightful owner of the said land. It is further submitted that the Gazette notification dated 30.6.1976 was not acted upon by the respondents, as the possession of the land had not been taken. 4. The learned counsel appearing on behalf of the respondents submits that the said land was acquired in the year 1976 itself as the same belonged to M/s. CMI Ltd., Domchanch under the provisions of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (In short 'the Act 1961') as excess land of M/s. CMI Ltd. It is further submitted that since the date of acquisition, the State is in possession of the said land. It is also submitted that in the remarks column of the khatian, the nature of the said land has been shown as "Parti". Though the demand was running in the name of original raiyats, after the acquisition, jamabandi were cancelled by the order of the LRDC, Koderma vide letter No. 885 dated 19.8.1991 and thereafter the Anchal Adhikari, Koderma cancelled the jamabandi vide memo No. 728 dated 16.9.1991 and subsequently the issuance of receipts were stopped. It is also submitted that admittedly the said land was purchased by the petitioner after the date of acquisition thus the alleged sale-deed has no legal effect. It is further submitted that if the petitioner had any grievance against the acquisition, she should have filed the objection within 12 years which was not done, thus the claim of the petitioner is barred by limitation. It is also submitted that the case of the petitioner is different from CWJC No. 3026 of 1998 (R) (Smt. Jasoda Rani Sharma & Ors. v. The State of Bihar and Ors.), hence the judgment rendered in the said case will not apply in the present case. 5. Heard the learned counsel for the parties and perused the materials available on record. The petitioner has claimed for de-notification of her land which was acquired vide notification dated 30.6.1976 under the provisions of the Act, 1961. v. The State of Bihar and Ors.), hence the judgment rendered in the said case will not apply in the present case. 5. Heard the learned counsel for the parties and perused the materials available on record. The petitioner has claimed for de-notification of her land which was acquired vide notification dated 30.6.1976 under the provisions of the Act, 1961. The main ground of challenge to the acquisition is that the said land was acquired as surplus land of M/s. CMI Ltd., but actually the M/s. CMI Ltd. had no concern with the said land, rather it was the raiyati land which was initially-purchased by her vendor by way of registered sale-deed dated 21.7.1976 and subsequently on 31.1.1979, the petitioner purchased the said land by way of registered sale-deed and since the date of purchase, she is in possession of the same. In support of her claim, the petitioner has relied upon the report of the Circle Officer dated 29.6.2002 and 29.8.2013 and also a judgment rendered by a Bench of this Court in CWJC No. 3026 of 1998(R). I have perused the report of the Circle Officer (the respondent No. 6). In the said report, the respondent No. 6 had stated that at no point of time, the jamabandi was running in the name of M/s. CMI Ltd. It was further reported that earlier jamabandi was running in the name of the recorded tenant which was cancelled in the year 1991. It was also reported by the respondent No. 6 that at the time of sale of the said land, it was in possession of the vendor. I have also, perused the judgment dated 01.05.2009 passed by a Bench of this Court in 2009 (3) JCR 371 (Jhr) : Smt. Jasoda Rani Sharma & Ors. v. The State of Bihar (supra). In the said case also, the subject-matter was the land under Khata No. 25 Plot No. 1249 which was acquired under the provision of Act, 1961 as a land of M/s. C.M.I. Ltd. A Bench of this Court vide judgment dated 1.5.2009 has allowed the said writ petition with following observation :- "12. In the instant case there has been no final publication as required under Section 11 of the Act. In the instant case there has been no final publication as required under Section 11 of the Act. The fact remains that the petitioners are bona fide purchaser of the lands in question which was recorded in the name of late Ghanshyam Pandey and were granted rent receipt and even zamabandi was in their favour. There is nothing on record to show and prove that the land in question of Khata No. 25, Plot No. 1249 for a total area of 2.74 acres was transferred to CMI Company. No final publication under Section 15 under Bihar Land Reform (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 has been published and the ancestors were settled raiyat and after passing of the Bihar Land Reforms Act. The raiyat interest was never be changed and the same was also recorded in cadastral survey itself and thus the purchase from the descendant of settled raiyat late Ghanshyam Pandey appears to be bona-fide and genuine more so when there is nothing on record to show that in the khatiyan or in the cadastral Survey land was ever acquired or was in the name of C.M.I. Company. Even, the authorities below have given reasoned order upholding the contention of the petitioners which has neither been challenged nor set aside instead a technical plea has been raised with regard to power of Collector which also is devoid of any merit. 6. In the present case also, part of the said land pertains to khata No. 25 plot No. 1249 and the land was acquired as surplus land of M/s. C.M.I. Ltd. The petitioner purchased the said land in the year 1979 from the rightful vendors. On perusal of the report of the respondent No. 6 it appears that in the jamabandi record, the name of M/s. C.M.I. Ltd. has not been mentioned. Thus, the case of the petitioner is squarely covered by the judgment dated 1.5.2009. On query, the learned counsel appearing on behalf of the respondents submits that no LPA was preferred against the judgment of learned Single Judge rendered in the case of Smt. Jasoda Rani (supra), thus the same has attained finality. Thus, the case of the petitioner is squarely covered by the judgment dated 1.5.2009. On query, the learned counsel appearing on behalf of the respondents submits that no LPA was preferred against the judgment of learned Single Judge rendered in the case of Smt. Jasoda Rani (supra), thus the same has attained finality. The learned counsel appearing on behalf of the respondents tried to distinguish the case of Smt. Jasoda Rani Sharma (supra) with the present one by submitting that in the case of Smt. Jasoda Rani Sharma, the jamabandi was running in the name of the petitioners of that case, however in the present case no jamabandi was opened in the name of the petitioner namely Rekha Agarwal. I do not find any substance in the contention of the learned counsel for the respondents. The jamabandi does not create nor extinguish any right, title and interest of a party upon any land. The purpose of creation of jamabandi is to collect land revenue by the Government. The impugned order dated 24.7.2014 has been passed by the respondent No. 2 merely on the ground that there was delay in challenging the notification of acquisition. It is an admitted case of the respondents that the land was acquired in the year 1976, but the jamabandi was continuing in the name of the recorded tenant till 1991 and only after about 25 years, the jamabandi running in the name of the recorded tenant was cancelled that too without issuing any notice to the petitioner who was the bona fide purchaser. Thus, the respondents are not justified in contending that since the petitioner committed delay in challenging the acquisition notification, the petitioner's prayer may be rejected, whereas the respondents themselves adopted lethargic approach in acting upon the acquisition. The petitioner has explained that her husband remained seriously ill for several years who finally died and therefore the objection against the acquisition could not be filed earlier. It has also been averred that she is also an old lady suffering from cancer which in my view appears to be a reasonable ground for approaching the authorities and filing of the writ petition after a long delay. Section 45-B of the Act, 1961 provides that the State Government at any time may call for and examine the record of any proceeding disposed of by the Collector and dispose it of afresh. Section 45-B of the Act, 1961 provides that the State Government at any time may call for and examine the record of any proceeding disposed of by the Collector and dispose it of afresh. Thus, no time limit has been prescribed for examining any proceeding disposed of under the Act, 1961. Therefore, the argument of the learned counsel for the respondents that the application of the petitioner for de-notification of the land is barred by limitation is not tenable. 7. Under the facts and circumstances, the order dated 24.7.2014 (Annexure-5) passed by the Deputy Commissioner, Koderma (the respondent No. 2) in Misc. Case No. 11 of 2001 is hereby quashed and the respondent-State is directed to de-notify the land of the petitioner from the acquisition. So far the issuance of rent receipt is concerned, the petitioner may file fresh application for creation of jamabandi and issuance of rent receipt before the Circle Officer, Koderma (the respondent No. 6) after issuance of the order of de-notification, which shall be dealt with by the respondent No. 6 in accordance with law. 8. The writ petition is accordingly disposed of. Petition disposed of.