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Patna High Court · body

2020 DIGILAW 124 (PAT)

Nityanand Sharma v. State Of Bihar

2020-01-29

PRABHAT KUMAR JHA

body2020
ORDER : 1. Heard both sides. 2. Petitioner filed this writ petition for quashing order dated 08.07.2019 (Annexure 2) passed by the Additional Collector, Kishanganj initiating a proceeding for cancellation of jamabandi standing in the name of the petitioner and for quashing the notice (Annexure 3) issued pursuant to the order dated 08.07.2019. 3. The petitioner assailed the order on the ground that the Additional Collector has not recorded his satisfaction for holding an enquiry that the jamabandi standing in the name of the petitioner is created in violation of any law or the circular issued thereupon. For initiation of enquiry, the satisfaction of the Additional Collector is a sine-qua-non and unless the Additional Collector recorded his satisfaction, the order initiating a proceeding for cancellation of jamabandi and notice issued thereupon are illegal, fake and fit to be set aside. 4. On the other hand, learned counsel for the respondent State contended that simple notice was issued and the writ petition is premature. 5. The only question arises for consideration whether the Additional Collector is vested with power to initiate a proceeding for cancellation of jamabandi without recording his satisfaction that jamabandi was created in violation of any law for the time being in force or in contravention of any executive instruction? 6. Section 9 (1) of the Bihar Land Mutation Act provides as follows:- "The Additional Collector, either suo motu or on an application, shall have the power to make inquiries in respect of any Jamabandi, which has been created in violation of any law for the time being in force or in contravention of any executive instruction issued in this behalf. The Additional Collector, in whose jurisdiction the land is situated, may, after giving reasonable opportunity to the parties concerned to appear, adduce evidence and be heard, cancel such Jamabandi, dispossess the person claiming under it and deliver the possession to the legitimate owner/custodian, on such terms as may appear to the Additional Collector to be fair and equitable." 7. Rule 13 (3) of the Bihar Land Mutation Rules also stipulates that the Additional Collector before initiation of proceeding for cancellation of jamabandi must record his satisfaction that there is sufficient evidence that the jamabandi has been created in violation of any law or in contravention of any executive instructions. 8. Rule 13 (3) of the Bihar Land Mutation Rules also stipulates that the Additional Collector before initiation of proceeding for cancellation of jamabandi must record his satisfaction that there is sufficient evidence that the jamabandi has been created in violation of any law or in contravention of any executive instructions. 8. On bare perusal of the provisions as contained in Section 9(1) and Rule 13 (3), it is apparent that the Additional Collector either suo motu or on an application in this behalf filed by any person is required to record his own satisfaction with regard to creation of jamabandi in violation of any law or in contravention of any executive instruction and only thereafter shall initiate proceeding and issue notice to the person in whose name jamabandi is standing but from the order dated 08.07.2019 (Annexure 2) and the notice (Annexure 3) issued thereupon, it is crystal clear that there is absence of satisfaction on the part of the Additional Collector and the Additional Collector appears to have acted perfunctorily and initiated the proceeding for cancellation of jamabandi without recording his own satisfaction merely on receipt of the petition of the respondent. Therefore, I find that the order dated 08.07.2019 (Annexure 2) and the notice (Annexure 3) issued thereupon are illegal and fit to be set aside. In this view of the fact, the order dated 08.07.2019 (Annexure 2) and the notice (Annexure 3) issued thereupon are set aside. The matter is remitted to the Additional Collector, Kishanganj to pass order afresh in accordance with law. 9. Accordingly, this writ petition is allowed.