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2019 DIGILAW 1787 (JHR)

Upendra Kumar Singh v. State of Jharkhand

2019-10-22

SUJIT NARAYAN PRASAD

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JUDGMENT : This writ petition is under Article 226 of the Constitution of India, by which, the decision taken by the authority vide order dated 18.02.2015 as contained under annexure-5 passed by the Deputy Collector Land Reforms, Barhi Hazaribagh, whereby and whereunder, he has refused to recognize the petitioner as raiyat for the purpose of receiving compensation against acquisition of land pertaining to Khata No.1, Plot No.7 out of 3.24 acres for the purpose of construction of national highway-1 as also for quashing the order dated 18.03.2016 passed by the Deputy Commissioner as contained under annexure-6, by which, the order dated 18.02.2015 has been affirmed by the Deputy Commissioner, Hazaribagh. 2. The brief facts of the case of the petitioner as per the pleading made in the writ petition is that the land measuring an area of 3.24 acres situated at Khata No.1, Plot No.07, Thana no.41 in village Sardarpur in the district of Koderma which was initially in the Ramgarh Ward No.2 and was settled in favour of the ancestors of the petitioner in the year 1926 through Hukumnama. After coming into the effect of Bihar Land Reforms Act, 1950, the petitioner became the raiyat of the land in question by virtue of the provision as contained under Section 6 of the Bihar Land Reforms Act, 1950 and continued making payment of rent. In the year 1952, there was an amicable partition amongst the family members and further partition on 14.05.1981 amongst the legal heirs. The Deputy Collector Land Reforms has initiated a proceeding as provided under Section 4(h) of the Act, 1950 and arrived at the conclusion by taking decision by cancelling the Jamabandi which was running in the name of the father of the petitioner vide order dated 02.06.1970 and being aggrieved with the said order, the father of the petitioner preferred an appeal before the appellate authority being Misc. Case No.14 of 1970 which was allowed vide order dated 19.02.1971 by setting aside the order passed by the Deputy Collector Land Reforms dated 02.06.1970 and accordingly, the Jamabandi was restored. Case No.14 of 1970 which was allowed vide order dated 19.02.1971 by setting aside the order passed by the Deputy Collector Land Reforms dated 02.06.1970 and accordingly, the Jamabandi was restored. The land in question was subjected to acquisition proceeding which culminated into the land acquisition proceeding being Land Acquisition Case No.01/2002-2003, upon its conclusion, the petitioner has been held to be entitled to get the amount of compensation as would appear from annexure-4 appended to the writ petition but the rest part of the land even though acquired for the purpose of construction of national highway, when no compensation amount has been paid, the petitioner has made an application before the competent authority for disbursement of amount of compensation, upon which, an inquiry has been conducted which ultimately culminated into an order passed by the Deputy Collector Land Reforms who vide order dated 18.02.2015 has refused to recognize the petitioner as raiyat thereby, denying the claim of the petitioner for compensation which has also been affirmed by the appellate authority. 3. Mr. A.K. Das, learned counsel appearing for the petitioner has submitted that the land since has been settled sometime in the year 1926 and as such, the authority who has initiated a proceeding for cancellation of jamabandi has passed an order in exercise of power conferred under Section 4(h) of the Act, 1950, has been reversed by the appellate authority by taking into consideration the scope of Section 4(h) of the Act, 1950 which provides the cut of date for initiation of proceeding under Section 4(h). Under the said provision, if any settlement has been made on or after 01.01.1946, a proceeding is required to be initiated by the Deputy Commissioner for conducting an inquiry about the settlement of the land but herein, since the land has been settled in the year 1926, therefore, no proceeding can be initiated under Section 4(h) of the Act, 1950. Further submission has been made that the State while making the acquisition of the land has paid the amount of compensation for part of the land as would appear from annexure-4 and as such, there is no reason for the State-Respondent to deny the claim of the petitioner with respect to the disbursement of the amount of the compensation. 4. Counter affidavit has been filed by the State-Respondent and by placing the same, Mr. 4. Counter affidavit has been filed by the State-Respondent and by placing the same, Mr. Abhijeet Kumar Singh, learned counsel appearing for the State of Jharkhand, has submitted that the petitioner has relied upon the Hukumnama of the year 1926, family partitions of 1952 and 1981 and the rent receipts but these documents cannot be said to be conclusive proof of title of the petitioner, since by virtue of Hukumnama, the title can be transferred in favour of the others in pursuance to the provision of the Indian Registration Act which provides that transfer of value of more than Rs.100/- is to be affected only by virtue of the registered sale deed. The reviewing authority while adjudicating the issue which is the subject matter of the present writ petition has considered these aspects of the matter and basis upon the same, conclusion has been arrived at regarding improper title of the petitioner. 5. Rejoinder has been filed to the said counter affidavit and the stand has been taken by the respondent-State in the counter affidavit has seriously been disputed reiterated the factual aspect involved in the writ petition. 6. This Court after having heard the learned counsel for the parties and after going across the pleading made in the affidavits filed by the respective parties, deem it fit and proper to first reflect the admitted facts which is available on record i.e.:- (i) the land belonging to khata no.1, plot no.7 which is being claimed by the petitioner said to have been settled sometime in the year 1926. Although, the question of genuineness of Hukumnama has been raised in the counter affidavit but it is the admitted fact that the part of the land was subjected to acquisition proceeding as would appear from annexure-3 and on acquisition of the said proceeding, the raiyati right of the petitioner has been recognized and the amount of compensation has been awarded to be paid in favour of the petitioner; (ii) the rest part of the land also was subjected to acquisition proceeding but when the amount of compensation has not been paid, an application has been filed for its consideration but the same has been rejected; (iii) prior to initiation of acquisition proceeding, a proceeding has been initiated for cancellation of jamabandi and the same has been cancelled also by an order passed by the Deputy Collector Land Reforms on 02.06.1970 by initiating a proceeding under Section 4(h) of the Bihar Land Reforms Act, 1950 but the same has been reversed by the appellate authority vide order dated 19.02.1971 passed in Misc. Case No.14 of 1970. 7. It is evident from the order passed by the appellate authority in Misc. Case No.14 of 1970, it transpires therefrom that the appellate authority has taken into consideration the ingredients of Section 4(h) for starting annulment proceedings referring therein the conditions i.e.- (a) The transfer should be at any time after the first day of January, 1946; (b) It should be with the object of defeating any provision of the BLR Act, 1950; (c) It should be before causing loss to the state or obtaining higher compensation. These ingredients having found not available which led the appellate authority to set aside the order passed by the original authority and on the basis of the said order, the amount of compensation has also been paid. 8. These ingredients having found not available which led the appellate authority to set aside the order passed by the original authority and on the basis of the said order, the amount of compensation has also been paid. 8. It is the position of Law as has been provided under Section 4(h) of the BLR Act, 1950 is that when the Act, 1950 has been enacted, the sole object and spirit of the Act, is to achieve the purpose of abolition of intermediaries system so that the rent be paid by the raiyat directly to the State Exchequer without any intervention of the Intermediaries but the legislature has found that the efforts would be taken to frustrate the object and spirit of the Act therefore, the provision has been carved out by way of Section 4 (h) conferred power upon the Deputy Commissioner to initiate a proceeding. In such circumstance, if it is found that the land has been settled in order to frustrate the object and spirit of the Act, 1950 by the landlord themselves by settling the land in favour of the kiths and kins but the cut of date has been fixed in the said provision for making inquiry, if any settlement has been made on or after 01.01.1946 that will be subject to an inquiry under Section 4 (h) for annulment of settlement or transfer by following the proceeding i.e., the principle of natural justice. Herein, although settlement has been made by the petitioner in the year 1926 and the same has been treated by the State as fraudulent settlement as would appear from the stand taken in counter affidavit but the question is by merely saying fraud, it cannot be said to be fraud. 9. Herein, although settlement has been made by the petitioner in the year 1926 and the same has been treated by the State as fraudulent settlement as would appear from the stand taken in counter affidavit but the question is by merely saying fraud, it cannot be said to be fraud. 9. Keeping the fact into consideration, if there was a fraud, the question is, why the amount of compensation has been paid in favour of the petitioner in the regular proceeding initiated under the provision of Land Acquisition Act, 1894 as would appear from Annexure-4 to the writ petition and as such, the submission of fraud as has been stated in the counter affidavit, is contrary to the action which has been taken by the State i.e. the disbursement of payment of amount of compensation which is not in dispute and cannot be disputed, since it is the State who has made payment of compensation in a regular proceeding under the Land Acquisition Act, 1894. Further question is that once the order has been passed by the Additional Collector keeping the provision of Section 4 (h) into consideration by reflecting the cut of date as 01.01.1946. The question is that can the authority be allowed to initiate a proceeding pertaining to the same land after lapse of substantial period that to for denying the claim of compensation on account of acquisition of land. As would appear from impugned order that Hukumnama is not considered to be valid document of transfer, basis upon which, the raiyati right of the petitioner is not being accepted, again the question is that for the same part of the land which has not been objected by the State the amount of compensation has been paid upon the land belonging to Khata No.1. The rest part of the land when acquired, the right of the petitioner cannot be denied by raising an objection of commission of fraud pertaining to the settlement said to have been made in the year 1926, if that be so, the State Authority ought to have challenged the order passed by the Additional Collector in Misc. Case No.14 of 1970 but what to say about challenging the said order rather the State Authority has acted upon the same by making payment of amount of compensation. Case No.14 of 1970 but what to say about challenging the said order rather the State Authority has acted upon the same by making payment of amount of compensation. Subsequent to the said action, since the reviewing authorities have passed the order by which the petitioner is aggrieved, if allowed to sustain that will amount to reviewing the earlier decision as has been decided in the year 1970 and therefore, this Court is of the view that subsequent order which is the subject matter of the present writ petition, is nothing but in the garb of review and that is not permissible. So far as the legality and propriety of the impugned order, it needs to refer herein that the reviewing authorities have not raised any issue about commission of fraud and settlement made in the year 1926 rather the reason has been assigned in absence of registered sale deed required to be registered under Section 17 of the Indian Registration Act, Sada-hukumnama has got no validity but the question herein, is any authority can allow to act contrary to the provision of Law and to deal with such situation, the authority has been conferred with the power as provided under Section 4 (h) of the BLR Act, 1950 but there is no consideration of Section 4 (h) of the Act, 1950 and so far as the reason that the land in question has been transferred in absence of any registered sale deed as required to be contained under Section 17 of the Indian Registration Act, that also in no way help the State Respondent, it is for the reason that the transfer has been affected through Hukumnana in the year 1926 as such, the reviewing authority ought to have given reason by disputing the said Hukumnama made in the year 1926 as has been done by the authority while deciding the appeal in Misc. Case No.14 of 1970 and that can only be done in a proceeding if initiated under Section 4(h) of the BLR Act, 1950, but no such proceeding has been initiated. 10. In view thereof and in the entirety of the facts and circumstances of the case, according to the considered view of this Court, the impugned order is not sustainable in the eye of law accordingly, the same is quashed. 11. In view thereof, the writ petition stands allowed. 12. Consequence to follow.