Mahendra Paswan v. The State of Bihar

Mr. Jitendra Kishore Verma, Advocate Mr. Anjani Kumar, Advocate Mr. Ravi Raj, Advocate Ms. Sweta Raj, Advocate Mr. Yash Roohan, Advocate Mr. Subodh Kumar Mishra, AC to GP-14 Mr. Sanjay Kumar Pandey, Advocate Mr. Shashi Ankit Mudgal, Advocate For the Respondent/s For Private Resp. ====================================================== CORAM: HONOURABLE MR. JUSTICE RUDRA PRAKASH MISHRA ORAL JUDGMENT Date : 26-09-2024 Heard learned counsel for the petitioners and learned counsel for the respondents.

2. Following relief(s) have been prayed for in paragraph no. 1 of the present writ application. “1.(a) For setting aside the order dated

11.09.2015 (Annexure-P3) passed by Learned Deputy Collector, Land Reforms, Patna City Patna High Court CWJC No.4313 of 2017 dt.26-09-2024 respondent no. 3 in Mutation Appeal Case No. 11 of 2013-14 and order dated 14.09.2016 (Annexure- P4) passed by respondent no. 4 in Mutation Case No. 11 of 2013-14 which are illegal and without jurisdiction and for restoring the earlier order dated 19.06.2013 (as contained in Annexure P2) passed by respondent no. 4 in Mutation Case No. 112 of 2013-14 which is legal. (b) For setting aside the letter issued by Learned C.O., Khusrupur dated 21.09.2016 Memo No. 1441 (Annexure- P5) addressed to Revenue Karamchari namely Parshuram Singh for cancellation of the jamabandi in favour of petitioners and creating new jamabandi in favour of respondents 2nd set and directing to issue rent receipt in favour of private respondents 2nd set, which is illegal and without jurisdiction. (c) Any other relief(s) as deemed fit and proper in the facts and circumstances of the petitioner's case.”

3. Learned counsel for the petitioners submits that the Patna High Court CWJC No.4313 of 2017 dt.26-09-2024 land in question was initially recorded in khatiyan in the name of Churaman Dusadh, son of Chamman Dusadh as Goraiti Jagir Lands. He further submits that after the death of Churaman Dusadh his son namely Ramshararm Dusadh and Jhapsi Dusadh left the work of Goraiti and therefore, the then landlord Babu Ram Nandan Singh, son of Late babu Dhari Singh and Babu Deoki Singh, son of Late Babu Matuk Singh appointed Jadu Dusadh @ Yadu Dusadh (ancestors of petitioners) as a new Goraiyat and had given the possession of disputed land through settlement much prior to 1946. In the year 1956 after abolition of zamindari, zamabandi was created in the name of Jadu Dusadh on the basis of Goraiti settlement by ex-landlord and the rent receipt was also issued in his favour. In the year 2008, one Suresh Paswan, grandson of Churaman Dusadh filed a petition before learned Circle Officer, Khusrupur bearing Misc. Case No. 9/08-09 for his mutation regarding different lands including the lands in dispute. The Circle Officer, Khusrupur vide order dated 27.01.2010 dismissed the petition on the basis of Halka Karamchari report that applicant is not in possession of the land in question. Subsequently, Respondent Nos. 5 & 6 filed a mutation case on 28.05.2013 bearing Mutation Case No. 112/1 of 2013-14 for mutation of their names with respect to the lands Patna High Court CWJC No.4313 of 2017 dt.26-09-2024 in dispute being the heirs of Churaman Dusadh. The notices were issued to the parties and vide order dated 19.06.2013, the Respondent No. 4 rejected the application for mutation relying upon the previous rejection of prayer of mutation in Misc. Case No. 9 of 2008-09 and the report of the Circle Inspector etc. that Respondent Nos. 5 and 6 are not in possession and observed that Respondent Nos. 5 and 6 may approach the competent civil court.

4. Learned counsel further submitted that being aggrieved by the aforesaid order dated 19.06.2013, the Respondent Nos. 5 and 6 preferred appeal being Mutation Appeal No. 11 of 2013-14 before Respondent No. 3 who, by an ex-parte order dated 11.09.2015 (Annexure-P3) set aside the order dated 19.06.2013 passed in Mutation case No. 112 of 2013-14 by a wholly non-speaking and unreasoned order which is also in violation of principle of natural justice. The appellate court was exercising a jurisdiction through the order impugned regarding mutation but, unfortunately, transgressed its jurisdiction and passed an order, which, in effect, amounts to cancellation of jamabandi without realising that the power to cancel jamabandi exclusively vests in the domain of the Additional Collector under the provisions of Bihar Land Patna High Court CWJC No.4313 of 2017 dt.26-09-2024 Mutation Act, 2011 and the DCLR has no jurisdiction to cancel an existing jamabandi. Learned counsel further contended that the appellate order impugned herein also suffers from the vice that the settlement in favour of the ancestor of the petitioners regarding Goraiyati Jagir having been made prior to 01.01.1946, no jurisdiction vests in state authorities even under Section 4(h) of the Land Reforms Act to enquire its validity.

5. Learned counsel further submitted that pursuant to above referred appellate order, the Circle Officer, Respondent No. 4 herein, passed consequential order on 14.09.2016 illegally declaring the possession of Respondent Nos. 5 and 6 without any basis and directed for issuance of rent receipt in their favour. Learned counsel further contended that the order dated

14.09.2016 is also without jurisdiction and is based on no materials rather contrary to the materials on record and is in violation of principal of natural justice. Learned Circle Officer, Khusrupur passed order impugned dated 14.09.2016 without determining and considering the evidence filed by the second party (petitioners) and report submitted by the Halka Karamchari/Circle Inspector after the spot enquiry and verification, when continuously jamabandi was running in the name of petitioners and illegally directed to issue the rent Patna High Court CWJC No.4313 of 2017 dt.26-09-2024 receipts which is without jurisdiction and also allowed the mutation petition and directed the concerned Revenue Karamchari to issue the rent receipt in favour of first party (Respondent Nos. 5 and 6) but did not order to cancel the jamabandi which was continuously running in favour of petitioners but interestingly, thereafter, learned Circle Officer issued a letter dated 21.09.2016, Memo No. 1441 to Revenue Karamchari namely Parsuram Singh for cancellation of the jamabandi in favour of the second party (petitioners herein) and to create the new jamabandi in favour of first party (Respondent Nos. 5 and 6) and also directed to issue the rent receipt. Learned counsel, therefore, contended that the said order/letter is illegal, perverse, arbitrary and without jurisdiction, and, therefore prays that the same is liable to be set aside.

6. Learned counsel therefore, contends that both the impugned orders passed by Respondent Nos. 3 & 4 respectively are relating to cancellation of jamabandi under the garb of mutation which power can be exercise only by the Additional Collector and that too in the facts of the present case when the complicated question of title was involved and jamabandi was long standing for more than 50 years, the only remedy available to the private respondents was to approach the competent civil Patna High Court CWJC No.4313 of 2017 dt.26-09-2024 court in view of the law laid down by this Court and also in view of Annexures P1 & P2. Furthermore, in view of Annexure P1, proceeding having become final the Land Mutation case No. 112 of 2013-14 was not maintainable. Even otherwise, the State authorities do not have power to question and cancel jamabandi when the same is made/opened on the basis of settlement made by the ex-landlord.

7. On the other hand, learned counsel for the State submits that petitioners have alternative remedy to move before DCLR against the order dated 20.09.2016 passed by Circle Officer as per the provisions contained in Section 8 of the Bihar Land Mutation Act, 2011.

8. From perusal of order dated 19.06.2013 and other relevant documents (as contained in Annexure-P2), it appears that petitioners were already in possession of the land in question and despite the same, Respondent No. 3 passed the order dated 11.09.2015 which is arbitrary and without jurisdiction. Further, on perusal of the order dated 11.09.2015 passed by DCLR, i.e. Respondent No. 3, and subsequent order dated 14.09.2016 passed by Circle Officer, (Respondent No. 4 herein) in Mutation Appeal No. 11 of 2013-14, it appears that the order dated 14.09.2016 passed by the Circle Officer to stay Patna High Court CWJC No.4313 of 2017 dt.26-09-2024 the Jamabandi against the petitioner and the direction to create Jamabandi in favour of the private respondents is illegal and without jurisdiction as the power to cancel the Jamabandi vests only in the Additional Collector.

9. Having considered the submissions canvassed by learned counsel appearing on behalf of the parties and on perusal of the material placed on record, this Court is of the view that the order dated 11.09.2015 passed by DCLR (Respondent No. 3) and the subsequent order passed by the the Circle Officer (Respondent No. 4) dated 14.09.2016 are without jurisdiction and, therefore, both the orders are, hereby, set aside and the matter is remanded back to the DCLR (Respondent No.3) to pass a fresh reasoned and speaking order in accordance with law after giving opportunity of hearing to both the parties.

10. With the aforesaid observation/direction, the present writ application stands disposed of. (Rudra Prakash Mishra, J) Alok Verma/- AFR/NAFR CAV DATE Uploading Date Transmission Date NAFR N/A 05.10.2024 N/A