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2025 DIGILAW 1885 (JHR)

Micro Cement Pvt. Ltd. v. State of Jharkhand

2025-09-12

DEEPAK ROSHAN

body2025
JUDGMENT : Deepak Roshan, J. 1. Heard learned counsels for the parties. Since both these writ applications are interconnected and relates to the same petitioner; as such, both were heard together and being disposed of by this common order. 2. The writ application being W.P. (C) No. 264 of 2018 has been preferred by the petitioner praying therein for the following reliefs: i. For quashing of the Order dated 21.01.2016 whereby the circle officer has rejected the Petitioner’s application for mutation in utter violation of Bihar Tenants Holdings (Maintenance of Records) Act, 1973. ii. For issuance of appropriate writ particularly in the nature of certiorari for quashing and setting aside the list of prohibited land (Annexure-8) whereby and whereunder the Land in question i.e., Khata No. 157, Plot No. 413 admeasuring an area of 6 kathas i.e., 9.9 decimals, has been inserted in the list of prohibited land issued for Prohibition of Registration of Transfer of land under National Generic Document Registration System List (NGDRS List). (Subsequently inserted through an I.A. no. 4623 of 2025 vide order dated 25.04.2025). 3. The writ petition being W.P. (C) No. 265 of 2018 has been preferred by the petitioner praying therein for the following reliefs: i. For quashing of the Order dated 21.1.2016 whereby the circle officer has rejected the Petitioner’s application for mutation in utter violation of Bihar Tenants Holdings (Maintenance of Records) Act, 1973. ii. For issuance of appropriate writ particularly in the nature of certiorari for quashing and setting aside the list of prohibited land (Annexure-8) whereby and whereunder the Land in question i.e. Khata No. 157, Plot No. 413 admeasuring an area of 14 kathas has been inserted in the list of prohibited land issued for Prohibition of Registration of Transfer of land under National Generic Document Registration System List (NGDRS List). (Subsequently inserted through an I.A. no. 4624 of 2025 vide order dated 25.04.2025). 4. Briefly stated, the Land in question were purchased from the Settled Raiyat long back and had been thereafter duly mutated and Jamabandi was opened in the name of the Vendors of the Petitioner which was continuing for more than forty years. Thereafter, the petitioner purchased the plot of land. A complaint was made that the land in question was a Gair Abad Khata and, therefore, the mutation was put on hold. Thereafter, the petitioner purchased the plot of land. A complaint was made that the land in question was a Gair Abad Khata and, therefore, the mutation was put on hold. The private compliant was enquired into by the Additional Collector and in the letter dated 19.09.2015 and he recorded a finding that the petitioner was in possession of the land since long and the complaint was false and frivolous. Despite the findings as recorded on enquiry by the Additional Collector, the Deputy Commissioner vide letter dated 18.05.2016 directed the Circle Officer that since the land belongs to Gair Abad Khata and was transferred after 01.01.1946, therefore, it was felt necessary to make enquiry into the said transfer and directed that the letter of Additional Collector be not acted in the said matter. Further, the property of petitioner has been inserted in the list of prohibited land issued for prohibition of Registration of Transfer of Land under National Generic Document Registration System List. Hence, these writ applications. 5. Learned counsel for the petitioner submits that one Chawra family purchased 1 Bigha 2 Kathas of land vide registered deed of sale bearing 6080 dated 11.06.1954 and subsequently the names of members of the Chawra family were mutated in the revenue records of the State (Refer Annexure 1 series). Thereafter, proceedings under Bihar Land Enforcement Act were initiated against Chiman Lal Chawra @ Chiman Khangarji Chawra on the ground that lands in Khata no. 157 bearing plot no. 413 having a total area of 1.49 acres is recorded as Gair Abad Malik land in khatiyan. Pursuant thereto; the said Chiman Lal Chawra appeared and produced all the relevant documents before the Circle Officer and upon which vide its order dated 29.04.1976, the Circle Officer held that the rent receipts were being issued since the time of vesting and therefore, land encroachment was not applicable in the said case and consequently, the aforesaid proceedings were dropped. Further, it is apparent from the order dated 29.4.1976 that the names of predecessors in interest of Petitioner were mutated in the Revenue Records of the State and Rent Receipts were issued in their favour. 6. Further, it is apparent from the order dated 29.4.1976 that the names of predecessors in interest of Petitioner were mutated in the Revenue Records of the State and Rent Receipts were issued in their favour. 6. Learned counsel further submits that the main grievance of the petitioner is that when the petitioner made an application for mutation (refer Annexure-3) with all the documents before the concerned authority, the respondents kept the matter pending for 3 years and finally the Circle Officer, Dhanbad has rejected the Mutation application submitted by the Petitioner vide impugned order dated 20.01.2016. Further, the property of the petitioner has been wrongly inserted in the list of prohibited land issued for prohibition of Registration of Transfer of Land under National Generic Document Registration System List (NGDRS List). 7. Learned counsel lastly submits that although there is provision of appeal before the LRDC; however the reason for not preferring the statutory right of appeal is that since the impugned order rejecting the petitioners’ mutation application had been passed by the Circle Officer under the direction of Deputy Commissioner, he would not get justice by filing an appeal before LRDC as the said Appellate Authority is also an officer below the rank of Deputy Commissioner and would not apply its independent mind; therefore, the Petitioner has invoked the Writ Jurisdiction of this Hon’ble Court. 8. Learned counsel for the respondents relying upon the counter affidavit opposes the prayer made in the instant writ applications and has raised only the point of appeal under Section 16 of Bihar Tenants Holdings (Maintenance of Records) Act, 1973. 9. Having heard learned counsels for the parties and after going through the averments made in the respective affidavits, it appears that the impugned order dated 21.01.2016 is absolutely against the provisions contained in Sections 4 and 14 of Bihar Tenants Holding (Maintenance of Records) Act, 1973. From the impugned order itself, it is evident that the name of the vendor is recorded in registered deed and similarly name of other persons are also running in Register-II with regard to separate portions of the same property purchased by them. Once the name of transferor is found to be entered in Register-II and he/she has transferred the said property by way of registered deed then the Circle Officer could not have refused to mutate the name of the petitioner/purchaser. Once the name of transferor is found to be entered in Register-II and he/she has transferred the said property by way of registered deed then the Circle Officer could not have refused to mutate the name of the petitioner/purchaser. It is well settled principle that the revenue authorities while mutating the names of a person, the Circle Officer is only required to see the instrument by which the property/land has been transferred and further, the status of possession on the date of the application and no other aspects have to be seen by revenue authorities. The revenue authorities cannot travel beyond the aforesaid prerequisite in making entries in the revenue record of the State and therefore, the said impugned order is bad in law. It further transpires that since the authorities have found that the petitioner is in possession of land in question having purchased the land through a registered deed of sale and therefore, the Circle Officer ought to have mutated the name of the Petitioner in revenue record of the State. As stated hereinabove, in the instant case, proceedings under Bihar Land Reforms Act has been initiated and dropped on merit, as far back as year 1974 itself and other Jamabandis with regard to identically placed person was running in Register-II, no reason left with the Circle Officer to refuse the mutation application. 10. Further in regard to the insertion of the land of petitioner in the prohibited list; this issue is covered by the judgment dated 13th December, 2024 passed by this Court in W.P. (C) No. 847 of 2023 ( Brinda Devi Agarwal Vs. State of Jharkhand ) wherein it has been held as under: “9. Before delving deep into the matter, it would be appropriate to examine the important issues involved in the instant writ petition: (I) Whether the entry of the land in the prohibited list of NGDRS has civil consequences? (II) Whether the Respondent-State can put the land in the prohibited list under NGDRS without following due procedure of law and the principles of natural justice? 10. (II) Whether the Respondent-State can put the land in the prohibited list under NGDRS without following due procedure of law and the principles of natural justice? 10. Having gone through the records of the case and after hearing the rival contention of the parties across the bar, it is an admitted fact that the land forming subject matter of the instant case was settled in the favour of the predecessor-in-interest of the Petitioner, namely Hari Prasad Agarwal in the year 1948 through a registered patta bearing number 1167 of 1948. The land was thereafter sold one to another individual namely Lalita Bhanote vide a registered sale deed dated 31st of March 1989. The Petitioner purchased the land in the year 2007 vide a registered sale deed dated 30th of November 2007. After the Petitioner purchased the land, she filed an application for mutation which was allowed vide order dated 24th of December 2007 and revenue rent receipts was issued in the favour of the Petitioner. 11. A bare perusal of the impugned order dated 11th of November 2022 will show that the land was marked as ‘suspicious’, and it was only on the basis of the same that the land forming subject matter of the instant writ petition was put in the prohibited list. The Respondent-State has not countered the fact that notices were not issued to the Petitioner prior to the jamabandi of the Petitioner being marked as ‘suspicious’ or before the land was entered in the prohibited list of NGDRS. 12. It is trite law that right to property and its enjoyment is not only a constitutional right but also a human right. The Hon’ble Apex Court in the case of Lachhman Dass vs. Jagat Ram and Ors. reported in 2007 10 SCC 448 has held that the right to property is a constitutional right guaranteed under Article 300A of the Constitution of India and if there is any entity claiming a superior right, then such right has to be enforced in accordance with the procedure prescribed under law. The relevant portion of the judgement is as under:- “16…His right, therefore, to own and possess the suit land could not have been taken away without giving him an opportunity of hearing in a matter of this nature. To hold property is a constitutional right in terms of Article 300A of the Constitution of India. The relevant portion of the judgement is as under:- “16…His right, therefore, to own and possess the suit land could not have been taken away without giving him an opportunity of hearing in a matter of this nature. To hold property is a constitutional right in terms of Article 300A of the Constitution of India. It is also a human right. Right to hold property, therefore, cannot be taken away except in accordance with the provisions o a statute. If a superior right to hold a property is claimed, the procedures therefore must be complied with.” 13. ‘Civil consequence’ has been defined by the Hon’ble Apex Court in the case of Nirma Industries Ltd. and Ors. vs. Securities and Exchange Board of India reported in (2013) 8 SCC 20 . The relevant portion of the judgement is reproduced as under: - “28….Here again, this Court has reiterated that even an administrative order, which involved civil consequences, must be consistent with the rules of natural justice. The expression "civil consequences" encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In other words, anything which affects the rights of the citizen in ordinary civil life.” 14. In the given facts of the case and the law laid down by the Hon’ble Apex Court there is no doubt that inclusion of the land into the ‘Prohibited List’ affects the right of enjoyment of the property of an individual which includes right of transfer. The said person can be deprived of various rights such as right to lease the property, right to develop the property or as in the case at hand, the right to alienate/sell the property. As such, this Court has no hesitation in holding that the inclusion of any land in the prohibited list has ‘civil consequences.’ The first issue stands answered accordingly. 15. Coming onto the second issue, it is trite law that any action, including administrative law, which has civil consequences must adhere to the principles of natural justice and non-adherence to the same would be fatal to such action. In the case at hand, the State has not countered the fact that the no notice(s) were issued to the Petitioner prior to the land being included in the prohibited list of NDGRS. In the case at hand, the State has not countered the fact that the no notice(s) were issued to the Petitioner prior to the land being included in the prohibited list of NDGRS. This Court fails to understand that despite having ample opportunity to file a reply, the State Respondent did not bring any procedure on record for the inclusion or exclusion of any property in the prohibited list of NGDRS. Having already observed that inclusion of a property in the prohibited list has civil consequences and as such a Petitioner cannot be deprived of the same without following the due process of law. The action of the Respondent State fails on this ground as well. 16. It is trite law that ‘no person can be judge in his own cause’. The fact that neither there is any order by the competent court nor there is any proceeding pending against the Petitioner with respect to cancellation of jamabandi. The contention of the Respondent that the land is of the nature ‘Gair Abad’ and jamabandi appears to be suspicious cannot be ground to cancel the long standing jamabandi as has been held in the case of Pashupati Narayan Singh v. State of Jharkhand and Anr reported in 2008 SCC OnLine Jhar 946, the relevant portion of which is as under:- “8. Learned counsel, appearing on behalf of the petitioner, submitted that while; refusing to grant ‘No Objection Certificate’ to the petitioner, the learned Additional Collector, Dhanbad has delved into the question of right and ownership of the petitioner over the land, in question, which is beyond his jurisdiction. The name of the petitioner and predecessor- in-interest had been mutated long ago and they have been paying rent to the State, the State-respondent has already accepted the petitioner as raiyat of the said land. However, in the impugned order learned Additional Collector has observed that the land is a Gair Abad of Ex- landlord and that the petitioner has got no right over the same and he has no legal basis. The action of the Additional Collector recommending annulment of the settlement of the said land is in violation of the provisions of Section 4 (h) of the Bihar Land Reforms Act, that too without holding any enquiry required under law, is also perverse, arbitrary and illegal. The said order, thus, cannot stand. The action of the Additional Collector recommending annulment of the settlement of the said land is in violation of the provisions of Section 4 (h) of the Bihar Land Reforms Act, that too without holding any enquiry required under law, is also perverse, arbitrary and illegal. The said order, thus, cannot stand. I find much substance in the contentions of learned counsel for the petitioner.” 11. Even otherwise, in view of the fact that the respondent authorities are not vested in any law to exercise any jurisdiction affecting the right, title and interest of any individual. It is only the Civil Court of competent jurisdiction, who will decide such issue. Placing any property in prohibited list is a colourable exercise of power and the State authorities cannot be the judge of its own cause. 12. This Court is not impressed by the argument of learned counsel for the respondent with regard to alternative remedy as to exhaust the alternative remedy is the rule before invoking writ jurisdiction, but in exceptional cases where the appeals and revisions become an empty formality and a foregone conclusion, then it will become inequitable to drive the petitioner for alternative remedy after long pendency of the writ petition. At the cost of repetition, in the case at hand, Deputy Commissioner is the revisional authority, who from record appears to have taken a stand for holding an enquiry under Section 4 (h) of the B.L.R Act with respect to the land in question. Under the circumstance relegating the petitioner to exhaust the alternative remedy in the form of appeal and revision will be an exercise in futility and a waste of time. This Court is of the view that circumstances of the present justify invoking the writ jurisdiction by surpassing the local remedies. 13. It is reiterated that the property in question has come to the possession by way of chain of registered transfers and the first transfer was by way of registered deed prior to the enforcement of Bihar Land Reforms Act and therefore, the State cannot put the petitioner’s property in NGDRS list and if it claimed the said property as State’s property, then it was required to have initiated appropriate proceedings within reasonable time, after the enforcement of BLR Act. The State, however, neither challenged the registered transfers; nor the order by which proceeding under Public Land Encroachment Act had been dropped on merit. 14. Having regard to the aforesaid facts and circumstances of the case, both these instant writ applications are allowed and the Order dated 21.01.2016 is quashed and set aside and Annexure 8 in both these writ application i.e. the list of prohibited land is also quashed and set aside to the extent whereby the Land in question i.e., Khata No. 157, Plot No. 413 admeasuring an area of 6 kathas i.e., 9.9 decimals, in W.P. (C) No. 264 of 2018 and to the extent whereby the Land in question i.e. Khata No. 157, Plot No. 413 admeasuring an area of 14 kathas in W.P. (C) No. 265 of 2018 has been inserted in the list of prohibited land. 15. As a result, both these writ applications stand allowed. Pending I.A., if any, also stands closed.