Patna High Court
Case Details
Patna High Court CWJC No.8993 of 2004 (13) dt.02-07-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.8993 of 2004 ====================================================== Kameshwar Paswan son of late Pyare Paswan, resident of village-Gauhar Nagar, P.S.-Sikandra, District-Jamui .... .... Petitioner/s Versus 1. The State Of Bihar 2. The Collector cum District Magistrate, Jamui 3. The Dy. Collector, Land Reforms, Jamui 4. The Circle Officer, Sikandra 5. Hemraj Yadav, son of Budhu Gope 6. Mishri Yadav, son of Budhu Gope Nos. 5 and 6 are residents of village-Fatehpur Tola Gauharnagar, P.S.- Sikandra, District-Jamui. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Arun Kumar, Advocate Md. Hussamuddin Azad, Advocate Mr. Sanjay Kumar Sharma, Advocate For the Respondent Nos. 1 to 4 : Mr. Krishna Kumar, A.C. to G.P.- 26 For the Respondent Nos. 5 and 6 : Mr. Amrendra Kumar, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER 13 02-07-2013
Legal Reasoning
Heard the parties. 2. The petitioner, being aggrieved by the order dated 23.2.2004 (Annexure-7) passed in Jamabandi Correction Appeal Case No. 4 of 2003-04 by the respondent District Collector, Jamui, has approached this Court under Article 226 of the Constitution of India assailing the validity and correctness of the impugned order. 3. A plot of land bearing Khata No. 225 appertaining to plot No. 15, area 85 decimals (hereinafter referred to as lands in question) situate at village-Gauhar Nagar, Anchal-Sikandra in the district of Jamui is the subject matter of dispute in the present Patna High Court CWJC No.8993 of 2004 (13) dt.02-07-2013 2 proceeding. 4. Learned counsel appearing on behalf of the petitioner submits that the lands in question was originally recorded as Gairmazrua Malik Land in the survey khatiyan, and after its vesting in the State of Bihar, it was subsequently settled
Legal Reasoning
in favour of one Smt. Nunuwati Devi in Settlement Case No. 177 of 1975-76 and was , accordingly, mutated in her name. Subsequently, on 16.6.1982 the aforesaid Smt. Nunuwati Devi is said to have transferred the lands in question to one Pyare Paswan, father of the petitioner, through a registered sale deed, which has been brought on record as Annexure-1 to the writ petition. In view of the aforesaid purchase, the lands in question was mutated in the name of the father of the petitioner. It is contended by the learned counsel appearing on behalf of the petitioner that against the order of mutation made in favour of the father of the petitioner, respondent Nos. 5 and 6 filed Jamabandi Correction Appeal Case No. 4 of 2003-04 before the respondent District Collector, Jamui, which has been allowed by the impugned order and a direction has been issued to distribute the lands amongst the eligible persons by starting a settlement case. It is claimed that when aforesaid appeal was filed against Pyare Paswan, father of the petitioner, he was dead and without taking steps for substitution, the proceeding was allowed to continue and impugned final order was passed against a dead person. 5. Learned counsel appearing on behalf of respondent Nos. 5 and 6 has opposed the prayer and has submitted that as a matter of fact the lands in question was settled in favour of one Budhu Gope, the father of respondent Nos. 5 and 6, through a Hukumnama by the ex-landlord, therefore, the lands in question Patna High Court CWJC No.8993 of 2004 (13) dt.02-07-2013 3 could not have been settled in favour of the aforesaid Smt. Nunuwati Devi by the State of Bihar and further after such settlement she could not have transferred the lands in question in favour of the father of the petitioner. 6. Learned counsel appearing on behalf of the State while placing reliance on the averments made in the counter affidavit filed on behalf of respondent Nos. 1 to 4 has not been able to satisfy this Court that even if Jamabandi created in favour of the father of the petitioner was ordered to be cancelled, then how the lands in question could have been directed to be distributed amongst the eligible persons by starting a settlement case, without taking recourse to a proceeding under Section 4(h) of the Bihar Land Reforms Act, 1950 (in short Act). 7. It is well known that if any Gairmazrua Malik Land, which vested in the State of Bihar, was transferred by the ex-landlord either by way of settlement or through any other method after 1.1.1946, then the Collector is authorized to initiate a proceeding under Section 4(h) of the Act for annulling such transfer. Apparently, in the present proceeding there is nothing to show that any proceeding under Section 4(h) of the Act was ever initiated for annulling the transfer made by the ex-landlord in favour of the father of the respondent Nos. 5 and 6 or any other person. Furthermore, this Court is of the opinion that if the lands in question was at all settled in favour of Smt. Nunuwati Devi in Settlement Case No. 177 of 1975-76, then probably she had no right to transfer the lands in question by executing a sale deed in
Decision
favour of the father of the writ petitioner. The entire claim of the petitioner over the lands in question on the basis of purchase is fully under cloud. Whether Srimati Nunuwati Devi had right to Patna High Court CWJC No.8993 of 2004 (13) dt.02-07-2013 4 transfer the lands in question through a registered sale deed or not has not been examined by the respondent District Collector, Jamui while passing the impugned order. Similarly, whether claim of settlement of the lands in question in favour of the father of respondent Nos. 5 and 6 by the ex-landlord was valid or not has not been examined by the respondent District Collector, Jamui. Apparently, the claims raised either by the petitioner or by respondent Nos. 5 and 6 with respect to the lands in question have not been properly gone into by the respondent District Collector, Jamui while passing the impugned order. The issues indicated above go to the root of the matter. 8. In the aforesaid factual background, this Court is of the considered opinion that the entire matter requires reconsideration and fresh decision by the respondent District Collector, Jamui. 9. For the reasons recorded above, the impugned order dated 23.2. 2004 (Annexure-7) passed by the respondent District Collector, Jamui is hereby set aside and the matter is remitted back to him for a fresh decision in accordance with law in the light of the observations made above. 10. It is clarified that before passing a fresh order the respondent District Collector shall be obliged to give reasonable opportunity of hearing to the petitioner, respondent Nos. 5 and 6 and all other concerned persons and only thereafter he shall pass a fresh order. While deciding the matter afresh the respondent District Collector, Jamui shall also take into consideration as to whether any proceeding under Section 4 (h) of the Act is required to be initiated or not. He shall further be obliged to consider as to whether the lands in question was ever settled in favour of Patna High Court CWJC No.8993 of 2004 (13) dt.02-07-2013 5 Srimati Nunuwati Devi or not and as to whether she had right to transfer the lands in question through a registered sale deed in favour of the father of the petitioner or not. All these issues, indicated above, must be gone into by the respondent District Collector, Jamui before taking final decision in this matter. 11. In order to expedite the matter, the petitioner and respondent Nos. 5 and 6 are directed to appear before the District Collector, Jamui within a period of six weeks from today with a certified copy of the present order, whereafter the respondent District Collector, Jamui shall fix a firm date for proceeding in the matter further. All endeavours shall be made by the respondent District Collector, Jamui, to decide the matter afresh at an early date preferably within a period of six months from the date of receipt/production of a copy of the present order by either of the party. 12. The parties shall be obliged to produce all the materials/evidences in support of their respective claims. 13. The writ petition stands finally disposed of with the observations and directions made above. (Birendra Prasad Verma, J) sudip/-