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2020 DIGILAW 530 (JHR)

State of Jharkhand v. Attaul Haque S/o Md. Yasim

2020-05-27

RAVI RANJAN, SUJIT NARAYAN PRASAD

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ORDER : 1. With consent of the learned counsel for the appellants, hearing of this matter has been done through video conferencing. Learned counsel has not raised any complaint regarding net connectivity or audio-visual quality. I.A. No. 3269 of 2019 2. This Interlocutory Application has been filed for condoning the delay of 304 days, which has occurred in preferring this appeal. 3. Having heard learned counsel for the appellants and on perusal of the averments made in this application, we are of the view that the appellants were prevented by sufficient cause from preferring the appeal within the period of limitation. 4. Accordingly, the delay of 304 days in preferring the present appeal is hereby condoned and this application stands allowed. L.P.A. No. 281 of 2019 5. Heard this appeal on the point of admission at this stage with consent of the learned counsel appearing for the appellants-State. 6. This intra-court appeal has been preferred by the appellants-State of Jharkhand assailing the order dated 23.04.2018 passed in W.P. (C) No. 2516 of 2017 by the learned Single Judge of this Court whereby and whereunder the writ petition filed by the sole respondent was allowed and the State was directed to accept the rent from the writ petitioner and issue rent-receipt with respect to the land in dispute. 7. Heard the learned counsel for the appellants-State and perused the record of this case. 8. Brief facts, which would be required to be considered in this matter, stand enumerated as under: “The writ petitioner-sole respondent claims to have purchased a land measuring an area of 26¼ decimals appertaining to R.S. Plot No. 881 of Khata No. 94, P.S. Ramgarh, Thana No. 21, District Ramgarh, by virtue of a registered sale-deed dated 30.07.2011 from one Smt. Kaushalya Devi W/o Mahendra Mandal. A copy of the registered Deed was appended as Annexure-1 to the writ petition. The writ petitioner, after purchase of the aforesaid land, made an application before the Circle Officer, Ramgarh for correction in the Revenue Records and mutation of his name in place of his vendor Kaushalya Devi. The Circle Officer, after making due enquiry, had made necessary correction and mutated the name of the writ petitioner in the Revenue Records and thereafter correction slip and rent-receipt were issued by the competent authority which stand appended as Annexure-2 series to the writ petition. The Circle Officer, after making due enquiry, had made necessary correction and mutated the name of the writ petitioner in the Revenue Records and thereafter correction slip and rent-receipt were issued by the competent authority which stand appended as Annexure-2 series to the writ petition. The writ petitioner further claims that he has executed an agreement in favour of one Naresh Thakur and Anil Kumar Sinha for development of the aforesaid land and Power of Attorney has also been given to them authorizing them to take necessary steps for development of the aforesaid property and construction of a building thereupon for which plan has already been sanctioned by the competent authority. It has further been claimed by the writ petitioner that a large sum of money was already invested by the aforesaid persons/Developers towards construction of building but the Circle Officer has stopped granting further rent-receipts due to which the writ petitioner and the Developers/Power of Attorney holders are facing difficulty in getting a loan sanctioned for the said purpose. The writ petitioner claims that the refusal is without any rhyme or reason and such action is wholly arbitrary, vindictive and against the mandate of law. The respondent Nos. 3 and 4 in the connected writ petition, who are the appellant Nos. 3 and 4 in the present appeal, had filed a counter affidavit before the Writ Court taking a stand that Khata No. 94 of Village Murramkalan stands recorded as Jungle Jhari and Gairmazarua land in the Record of Rights. After coming into force of Bihar Land Reforms Act 1950, the said land had vested into the State Government and is exclusive property of the State Government. It has further been stated that the vendor of the writ petitioner, i.e. Kaushalya Devi, did not have any right to transfer the property in favour of the writ petitioner and the rent-receipts claimed to have been issued in favour of the writ petitioner are collusive and obtained by playing fraud upon the subordinate Revenue officials and as such, the issuance of the same has rightly been stopped by the State-authorities. It has further been stated that it is well within the jurisdiction of the State authorities to correct the Revenue Records and stop issuing rent-receipts. It has further been stated that it is well within the jurisdiction of the State authorities to correct the Revenue Records and stop issuing rent-receipts. It has further been stated that the issuance of rent-receipt does not create any right, title and interest in favour of such persons and actually if the writ petitioner is aggrieved, he can move before the civil court of competent jurisdiction for deciding declaration of his right, title and interest.” 9. The learned Single Judge, after hearing the parties, allowed the writ petition. The relevant passage from the impugned order is extracted and reproduced as under:- “After hearing the parties and after going through the record, I find that the petitioner is claiming ownership over the land in question by virtue of a registered sale-deed. He submits that his possession was confirmed in the mutation proceeding. The State is also claiming right over the land in question, by virtue of the records of right and by virtue of vesting. Thus, I find the State is challenging the title of the petitioner and the sale-deed itself. If a title is to be disputed, the same has been challenged in an appropriate proceedings as per law. This proceeding has not been initiated by State. Since the State has not taken any step to challenge the title of the petitioner, the State cannot take plea that as they have stopped accepting the rent the petitioner now does not have title over the land in question. The issuance of rent receipt does not confer title upon any person. Similarly non-issuance of rent receipt will not take away a valid title from a land holder. There must be an adjudication by the appropriate civil Court on title before the State can take an unilateral decision not to accept the rent from the occupier of the land whose land has been mutated pursuant to a registered sale-deed. Thus, action of the State cannot be justified. The State is directed to accept the rent of the petitioner. If at any point of time the State intends to initiate any proceeding against the petitioner to challenge the right and tile over the land in question, it will be is free to do so before an appropriate civil Court. Thus, action of the State cannot be justified. The State is directed to accept the rent of the petitioner. If at any point of time the State intends to initiate any proceeding against the petitioner to challenge the right and tile over the land in question, it will be is free to do so before an appropriate civil Court. Till the State does initiate to any proceeding against the petitioner they are bound to accept rent until and unless mutation is set aside by a competent authority. This writ application stands allowed.” 10. In the aforesaid background of the matter, we have heard the learned counsel appearing for the appellants-State and have given anxious consideration to the pleadings advanced by him and the materials available on record. 11. It appears that the name of the vendor of the writ petitioner, i.e. Kaushalya Devi, was already mutated in the Revenue Records maintained by the State by creating a Jamabandi in her name. The State has not taken any stand in the counter affidavit contrary to the aforesaid fact and has nowhere stated that no rent was being accepted from Kaushalya Devi and as such, no rent-receipt was being issued to her acknowledging the payment of rent from her. Aforesaid Kaushalya Devi had transferred the land in question in favour of the writ petitioner through a registered sale-deed dated 30.07.2011, a copy of which has been appended in the writ petition as Annexure-1. Thereafter, the writ petitioner applied for correction of the Revenue Records by striking-off the name of the earlier raiyat and mutating his name in her place. That was also done by the competent authority after due enquiry and, thereafter, not only correction slip was issued but rent was also accepted and rent-receipt was also issued. The stand of the appellants-State is that the writ petitioner has obtained the order of mutation and rent-receipt by playing fraud upon the State authorities. The question would be as to what action was taken against the writ petitioner if such fraud was played by him? What is the nature of the fraud allegedly played by him has nowhere been stated. The State has nowhere stated in the counter affidavit that the vendor of the writ petitioner was not a Jamabandi holder against the said land and she was not being issued rent-receipts in acknowledgement of the rents being paid by her. What is the nature of the fraud allegedly played by him has nowhere been stated. The State has nowhere stated in the counter affidavit that the vendor of the writ petitioner was not a Jamabandi holder against the said land and she was not being issued rent-receipts in acknowledgement of the rents being paid by her. It is also nowhere stated in the counter affidavit as to how and in what manner the Jamabandi was wrongly created in the name of the vendor of the writ petitioner. There is also no denial in the counter affidavit about the creation of Jamabandi in the name of Kaushalaya Devi and in this case, the Jamabandi was running in the name of the vendor of the writ petitioner which was corrected and mutation order was passed in his favour. The State authorities are not in a position to say that the transaction is sham and the order of mutation is apparently fraudulent in nature and that too, without passing any order to that extent by any competent authority cancelling the Jamabandi in the name of the vendor of writ petitioner. Without taking any decision for getting a registered sale-deed declared to be an invalid and fraudulent document, the Revenue authorities cannot take a stand questioning the same without any decision by a competent authority to that extent. This can only be decided by a civil court of competent jurisdiction. Till the Jamabandi was running in the name of the vendor, which remains unchallenged, the State authorities cannot take a stand that the same is fraudulent and has been obtained by playing fraud and, therefore, they would refuse to accept rent and deny rent-receipt. Such Jamabandi was created by the competent authority and as is still existing, even for cancellation of the Jamabandi, a proper proceedings in accordance with law would have to be initiated and only after granting reasonable opportunity to the writ petitioner any order can be passed by the authority. Without even any order having been passed in accordance with law, one fine morning a Revenue authority cannot assume or presume the sale-deed to be a fraudulent document and the mutation and Jamabandi having been obtained by playing fraud upon the authorities. For such type of declaration, an order would have to be passed by a competent forum. Without even any order having been passed in accordance with law, one fine morning a Revenue authority cannot assume or presume the sale-deed to be a fraudulent document and the mutation and Jamabandi having been obtained by playing fraud upon the authorities. For such type of declaration, an order would have to be passed by a competent forum. The same authority which had passed the order of mutation in favour of the writ-petitioner, cannot sit in appeal to its earlier view whereas in the case in hand even such order has also not been passed. 12. At this juncture, when the Court asked a question to the learned counsel appearing for the State-appellants as to under which provision of law this refusal for accepting rent and issuing rent-receipt, even after creating Jamabandi and issuing rent-receipt on the earlier occasions, can be done by them and if this is without passing any order, or under which statute or provision of law the State authority would have a right to cancel the Jamabandi created earlier, the learned counsel for the State was completely at a loss in answering the aforesaid query. 13. The learned counsel appearing for the appellants has vehemently argued to impress upon us that the lands of Khata No. 94 of Village Murramkalan stand recorded as Gairmazarua Jungle Jhari in the Record of Rights which was vested into the State after coming into force of the Bihar Land Reforms Act, 1950. However, it has nowhere been stated that as to whether it was recorded as such in the Cadastral Survey Records or Revenue Survey Records and if that was the case that on the vesting of zamindari the lands relating to Khata No. 94 were recorded as Gairmazarua Jungle Jhari, then how a Jamabandi was created in the name of Kaushalya Devi, i.e. the vendor of the writ petitioner or her ancestor. It has also to be kept in mind that the Hon’ble Supreme Court in Gauri Shanker vs. Ram Singhasan, AIR 1952 Patna 472 (SC) has held that entry in the Record of Rights though has a presumptive value but it weakens and wanes through passage of time. It does not appear from the counter affidavit the State is referring to the Survey Record of Rights created after the survey conducted in which year. It does not appear from the counter affidavit the State is referring to the Survey Record of Rights created after the survey conducted in which year. If it was done long time back, it may be possible that the nature of lands might have changed even before vesting of zamindari. 14. That apart, the writ petitioner has averred in the writ petition that he is not only in possession of the land, but a building map has already been sanctioned in his favour for construction of a building and perhaps part of the building has already been constructed. Therefore, the State is not in a position to say that the writ petitioner is not in possession. Even if it is assumed that the title of the petitioner is erroneous, in that case also, he can only be dispossessed through the process of law by knocking the door of a civil court of competent jurisdiction. The learned counsel for the State is completely unable to show any provision of law under which they have a right of not accepting any rent or granting rent-receipt even after creation of Jamabandi without cancellation of the same. 15. At this juncture, the learned counsel appearing for the appellants has informed us orally that a proceedings under Section 4(h) of the Bihar Land Reforms Act, 1950 has already been initiated for cancellation of Jamabandi. We wonder as to whether such decision can be taken in a proceedings under Section 4(h) of the Bihar Land Reforms Act, 1950. The Division Bench of Patna High Court in Ramnandan Singh and Others vs. State of Bihar and Others, 2014 (2) PLJR 636 has held that there are only three contingencies under which Section 4(h) of the Act can be invoked. One, where soon after vesting it is found that any settlement had been made by the ex-landlord after first day of January, 1946, the genuineness of those settlements could be examined for the reason of avoidance of consequences of Zamindari abolition. Second, where settlements were made to enhance the claim of compensation on Zamindari abolition and third, such settlements were made to cheat the Government. In such a situation, an enquiry can be initiated under Section 4(h) of the Act and then only a Jamabandi created can be cancelled. Second, where settlements were made to enhance the claim of compensation on Zamindari abolition and third, such settlements were made to cheat the Government. In such a situation, an enquiry can be initiated under Section 4(h) of the Act and then only a Jamabandi created can be cancelled. Another decision of the Division Bench of Patna High Court in State of Bihar vs. Ramanandan Singh, 2018 (2) PLJR 802 has again affirmed the aforesaid view taken by the earlier Division Bench. 16. However, since the matter of a proceedings under Section 4(h) of the Bihar Land Reforms Act, 1950 is not before us for consideration, it will be premature to express our view on the issue as to whether in this particular case such proceedings can be initiated or not. That would be considered by the competent authority in accordance with law. However, it is made clear that any decision should be made by the authority only after following the principles of audi alteram partem. 17. Having regards to the aforesaid discussion, considering the rival submissions and on perusal of the materials available on record, we are of the view that the impugned decision taken by the learned Single Judge cannot be faulted with. However, we again make it clear at the cost of repetition that we have not expressed our final view on any proceedings under Section 4(h) of the Bihar Land Reforms Act, 1950 as there is no material before us for considering the same as, according to the learned counsel for the appellants, the proceedings has been initiated after the impugned order having been passed. Thus, the competent forum would be at liberty to take a decision in respect of the same on its own merit and in accordance with law. 18. In the result, this appeal is dismissed 19. Stay Petition (I.A. No. 4228 of 2019) stands disposed of.