Patna High Court
Case Details
Patna High Court CWJC No.12651 of 2003 (16) dt.20-06-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12651 of 2003 ====================================================== Mostt.Suthar Devi wife of Late Bhadai Ram, resident of village-Dhekha Tika Tola, P.S.-Motihari Muffasil, District-East Champaran. Versus .... .... Petitioner/s 1. The State of Bihar 2. The Collector, East Champaran 3. The Additional Collector, East Champaran at Motihari 4. The Anchal Adhikari, Motihari 5. Champa Devi wife of Badri Bhagat, resident of village-Dhekha Tika Tola, P.S.-Motihari Muffasil, District-East Champaran. 6. Sukhit Sah son of Mahadeo Sah, resident of village-Dhekha Maniar Tola, Post-Motihari Muffasil, Distt.-East Champaran(Motihari). .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Jitendra Kishore Verma, Advocate For the Respondent No. 1 to 4 : Mr. Rajiv Ray, G.P.5 Mr. Arun Kumar, A.C. to G.P.5 For the Respondent No.6 : Mr. Sri Prakash Srivastava, Advocate Mr. Santosh Bharti, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER 16 20-06-2013
Legal Reasoning
Heard the parties. The petitioner, admittedly a settlee of the lands in dispute, has approached this Court under Article 226 of the Constitution of India assailing the validity and correctness of the order dated 10.8.2000 (Annexure-5) passed by the respondent- District Collector, East Champaran, in Settlement Case No. 6 of 1991-92, whereby in purported exercise of his powers under the provisions of the Bihar Tenancy Act, 1885 ( in short B.T. Act ) he has cancelled the settlement of 37 decimals of Gair Mazaura Malik lands made in favour of the petitioner earlier in the year 1991-92. It appears that in the year 1991-92 Settlement Case No. 6 of 1991-92 was initiated and altogether 37 decimals of Gair Patna High Court CWJC No.12651 of 2003 (16) dt.20-06-2013 2 Mazaura Malik lands of Khata No. 1689 appertaining to plot No. 8245/1 (10 decimals), plot No. 8805/2 (11 decimals) and plot No. 8799/1+2+3 (16 decimals), situated at Mouza- Dekha Tika Tola, Anchal-Motihari, Distt.-East Champaran (in short lands in question) was settled in favour of the petitioner. It further appears that subsequently respondent-Circle Officer, Motihari, vide letter dated 4.4.2000 recommended for cancellation of settlement made in favour of the petitioner whereafter respondent-Additional Collector, East Champaran, Motihari issued a show cause notice dated 1.7.2000 (Annexure-1). In response to the aforesaid show cause notice, petitioner filed her show cause (Annexure-2). Thereafter by the impugned final order dated 10.8.2000 (Annexure-5), the settlement of the lands in question made in favour of the petitioner earlier has been cancelled. Learned counsel appearing on behalf of the petitioner submits that the impugned order dated 10.8.2000 (Annexure-5) is
Legal Reasoning
wholly without jurisdiction. It is contended that once settlement of lands in question was made in favour of the petitioner, being a protected tenant under the meaning of Section 49B of the B.T. Act, even if she has transferred certain area of the settled lands to the respondent No. 5 without obtaining prior permission from the District Collector, as is required under Section 49G of the B. T. Act, then in that case also the District Collector could have set aside the aforesaid improper transfer made in favour of the respondent No. 5 in exercise of his powers under Section 49 K of the B. T. Act, but in no case the settlement of lands in question made in favour of the petitioner could have been cancelled by the impugned order. It is next submitted that the respondent-District Collector while passing the impugned order has not considered the Patna High Court CWJC No.12651 of 2003 (16) dt.20-06-2013 3 show cause in its proper perspective and in a mechanical manner he has cancelled the settlement of lands made in favour of the petitioner. Learned Government Pleader No. 5 appearing on behalf of the State of Bihar and its functionaries has opposed the prayer made in the present writ petition and has tried to support the impugned action of the respondent-District Collector. It is contended by the learned State counsel that immediately after settlement made in favour of the petitioner, she transferred the lands in question in favour of respondent No. 5 on 16.4.1992 without obtaining permission from the respondent District Collector, as is required under Section 49G of the B. T. Act. In support of his above contentions he has placed reliance on a Government circular dated 24.5.1974, which has been brought on record as Annexure-A to the counter affidavit filed on behalf of the official respondents. Learned counsel appearing on behalf of respondent No. 6 submits that after the impugned order dated 10.8.2000 (Annexure-5) was passed by the respondent-District Collector cancelling the settlement of the lands made in favour of the petitioner, the lands in question reverted back to the State of Bihar. Whereafter a fresh proposal was made for settlement of 11 decimals of land of plot No. 8805 appertaining to Khata No. 1689 in favour of respondent No. 6 and three others. It is contended by the learned counsel appearing on behalf of the respondent No. 6 that on 18.9.2003 Parwana was issued in favour of the respondent No. 6 with respect to 11 decimals of land of plot No. 8805. The aforesaid Parwana has been brought on record as Annexure-R/1 to the counter affidavit filed on behalf of the respondent No. 6. Patna High Court CWJC No.12651 of 2003 (16) dt.20-06-2013 4 After having heard the parties at great length and on consideration of all the materials available on record, this Court
Decision
finds that admittedly the writ petitioner is a protected tenant under the meaning of Chapter VIIA of the B. T. Act. Admittedly, 37 decimals of Gair Mazarua Malik land was settled in her favour. She has admitted in her show cause that on 16.4.1992 she transferred 5 khata 2 dhoors of land in favour of the respondent No. 5 without obtaining permission from the respondent-District Collector as is required under Section 49G of the B. T. Act. Unfortunately, the original settlement order made in favour of the petitioner has not been brought on record either by the writ petitioner or by the respondent-State of Bihar and its functionaries. If the petitioner has violated the terms and conditions of the settlement and she has transferred certain area of settled land in favour of the respondent No. 5, then in that case the respondent-District Collector was entitled to initiate a proceeding under Section 49 K of the B. T. Act for setting aside the improper transfer, but on that ground the entire settlement of land made in favour of the writ petitioner could not have been cancelled by the respondent-District Collector. Learned Government Pleader No.5 appearing on behalf of the State of Bihar has placed reliance on Section 49 K of the B. T. Act which authorizes the Collector to set aside the improper transfer. He fairly conceded that under the B. T. Act there is no provision, which empowers the District Collector to cancel the settlement made in favour of a protected tenant. From perusal of the impugned order dated 10.8.2000 (Annexure-5) this Court finds that the respondent-District Collector has not indicated that from which provision of the B. T. Patna High Court CWJC No.12651 of 2003 (16) dt.20-06-2013 5 Act he derived power to cancel the entire settlement of land made in favour of the writ petitioner. This Court is also of the opinion that unless and until the District Collector is empowered to cancel the settlement of lands made in favour of the petitioner and unless and until the lands in question is reverted back to the State of Bihar, there was no occasion for the State authorities to make fresh settlement in favour of the respondent No. 6 and three other persons. All the issues raised above have not been answered either in the impugned order dated 10.8.2000 (Annexure-5) or in the counter affidavit filed on behalf of the respondent-State of Bihar and its functionaries. Therefore, in the considered opinion of this Court the entire matter requires reconsideration by the respondent District Collector, East Champaran, Motihari. For the reasons recorded above, the impugned order dated 10.8.2000 (Annexure-5 ) is hereby set aside and the matter is remitted back to the respondent-District Collector, East Champaran, Motihari, for reconsideration and passing a fresh order in accordance with law after giving opportunity of hearing to all concerned including the fresh settlees including the respondent No. 6. It goes without saying that in view of setting aside of the order dated 10.8.2000 (Annexure-5), the subsequent order of settlement of lands in question made in favour of respondent No. 6 and three other persons shall be kept in abeyance till a fresh decision is taken by the respondent District Collector, East Champaran, Motihari. Learned counsel appearing on behalf of the petitioner as also the learned counsel appearing on behalf of respondent No. 6 have assured this Court that the petitioner as also the respondent No. 6 shall appear before the respondent-District Collector within Patna High Court CWJC No.12651 of 2003 (16) dt.20-06-2013 6 a maximum period of six weeks with a certified copy of the present order. Whereafter the respondent-District Collector shall fix a firm date for hearing the matter afresh. The respondent- District Collector shall give opportunity of hearing to the petitioner, respondent Nos. 5 and 6 as also other concerned persons before deciding the matter afresh. The parties shall be at liberty to raise all the issues, which are available to them under the law. The respondent-District Collector shall be obliged to decide the matter afresh within a maximum period of six months from the date of appearance of the petitioner and the respondent No. 6, as indicated above, and till the matter is finally disposed of afresh, status quo, as of today, shall be maintained by the parties over the lands in question. The writ petition stands finally disposed of with the observation and direction made above. (Birendra Prasad Verma, J) sudip/-