Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9785 of 2010 ====================================================== Shankar Kumar S/O Late Satya Narayan Lal Karna R/O Vill.- Baheri, P.O.- Baheri, P.S.- Baheri, Distt.- Darbhanga, … .... .... Petitioner Versus 1. The State Of Bihar, 2. The Collector, Darbhanga, 3. The Additional Collector, Darbhanga, 4. The Circle Officer, Baheri, Darbhanga, .... .... Respondents ====================================================== Appearance : For the Petitioner : Mr. Anand K.Ojha, Advocate For the State : Mr. Alok Ranjan, AC to GP 17 ====================================================== CORAM: HONOURABLE DR. JUSTICE RAVI RANJAN ORAL ORDER 5 21-03-2013 I have heard learned counsel for the petitioner and the State. Petitioner seeks quashing of that part of the order 22.04.2010 contained in Annexure 1 passed by the Additional Collector, Darbhanga in Encroachment Appeal No. 03/2009-10, by which the Additional Collector has directed the Circle Officer, Baheri, i.e., respondent no. 4, to send a proposal to cancel Basgit homestead Purcha issued in favour of the petitioner and also for cancellation of Zamabandi created in his favour through the Deputy Collector Land Reforms, Sadar. From the records of this case it appears that the Circle Officer, Baheri has passed some order against the petitioner in Encroachment Case No. 1/09-10 on 27.11.2009 depicting him as
Legal Reasoning
Patna High Court CWJC No.9785 of 2010 (5) dt.21-03-2013 2 encroacher and directing him to remove the encroachment from 5 decimals of land of plot no 9092(old) which is now plot no. 7694(new) appertaining to old Khata No. 117 corresponding new Khata No. 3071. Against the aforesaid order the petitioner preferred Appeal Case No. 03/09-10 before the Additional Collector, Darbhanga. The Additional Collector has held that in view of the homestead purcha having already been issued in favour of the petitioner and Zamabandi also having been created long back, the petitioner cannot be depicted as encroacher and cannot be directed to remove the alleged encroachment. However, in view of the report of the Circle Officer, Baheri in the encroachment case that the concerned land has been described as Gair Majarua Aam Rasta and Nahar in the Khatian, a Basgit homestead purcha could not have been issued with respect to a public land by the then Anchaladhikari and, therefore, the Zamabandi created in favour of the petitioner on that basis is also bad, the Additional Collector has directed to send a proposal for
Legal Reasoning
cancellation of both through the Deputy Collector Land Reforms. Learned counsel for the petitioner submits that it would be apparent from the impugned order itself that the homestead purcha was issued in favour of the petitioner by the then Anchaladhikari Patna High Court CWJC No.9785 of 2010 (5) dt.21-03-2013 3 in the year 1969-70 itself and a house has been constructed by the ancestors of the petitioner upon that. In Mutation Case No. 2025/69-70 Zamabandi No. 1468 was also created in favour of the ancestor of the petitioner, namely, late Satya Narayan Lal Karna. The appellate authority has found that the petitioner is in peaceful possession of the land since 50 years as the Zamabandi No. 1468 is also continuing in the name of his father. He also refers the opinion of the Government Advocate, Civil Court, Darbhanga dated 12.01.2010 stating that in view of the homestead purcha having been issued and Zamabandi having been created by a competent authority, the petitioner cannot be depicted as encroacher. Thus, it is contended that rightly it has been finally held by the appellate authority that the petitioner cannot be held to be encroacher and cannot be directed to remove the encroachment. However, without initiation of any proper proceeding and without proper consideration of the matter by granting reasonable opportunity to the petitioner, only on the basis of the report of the Anchaladhikari, Baheri, which was available in the encroachment case and was based on some entry in the cadastral survey record of right, a proposal has been directed to be submitted before the Additional Collector for cancellation of the Zamabandi as well as Patna High Court CWJC No.9785 of 2010 (5) dt.21-03-2013 4 the homestead purcha. Per contra, learned counsel for the State has submitted that in view of the entry shown in the cadastral survey record of right shown as Gair Majarua Aam Rasta and Nahar, the same ought not have been settled in favour of the petitioner by issuing homestead purcha and Zamabandi also ought not have been created in his favour in the year 1969 and, thus, rightly such direction has been given. On consideration of rival submissions, I find force in the submission made on behalf of the petitioner. Once the revisional survey has been done and record has finally been published and the name of the petitioner’s father has been entered therein as land-holder with respect to the land in question, i.e., new corresponding plot no. 7694 and new corresponding Khata No. 3071, the appellate authority could not have overlooked the revisional survey entry and banked his opinion upon the report of the Anchaladhikari disclosing the entry made in the cadastral survey record of rights. From perusal of the impugned order, it appears that it is a positive case of the petitioner that the name of his father has been entered in the revisional survey record of right with respect to the land in question as land-holder. The appellate Patna High Court CWJC No.9785 of 2010 (5) dt.21-03-2013 5 authority has nowhere rejected that plea by denying such entry or stating that there is no existence of any finally published revisional survey record of rights. From the description of the land given in the impugned order it appears that the new plot number and new khata number have also been recorded. Even otherwise also, before coming to such conclusion, the appellate authority ought to have examined as to whether in passage of time the nature of the land has changed or not. It has been held by the Apex Court in Ambika Prasad Thakur and others v. Maharaj Kumar Kamal Singh and others (AIR 1966 Supreme Court, 605) that the presumption of continuity regarding the entries made in the survey record of rights weakens with passage of time. Thus, it can safely be held that without considering the entries in the revisional survey record of right, once it is finally published, the authorities cannot bank upon the cadastral survey report, specially when it is nobody’s case that such entry was sought to be modified or altered by the State authority or by anybody by filing a suit under section 102 of the Bihar Tenancy Act or taking recourse of filing any objection during the course of survey itself. Since the revisional entry made in the revisional survey record of right is staring upon the face of the authority, Patna High Court CWJC No.9785 of 2010 (5) dt.21-03-2013 6 they could not have taken the view against the entry on the basis of certain entries having been made in the cadastral survey which obviously stands substituted after revisional survey. So far cancellation of homestead purcha is concerned, if the same has been issued under the Bihar Privileged Persons Homestead Tenancy Act, 1947(hereinafter to be referred to as “the Act”), then the Collector of the District only is empowered to call for and examine the records as per the provisions contained in section 21 of the Act. The Additional Collector is not empowered to take such decision. That apart, even the Collector of the District can take a decision only after initiation of a proceeding under the Act and after examining all the records and after granting reasonable opportunity of hearing to all the affected parties. Thereafter, on being satisfied, he can direct that the case to be
Decision
reopened and disposed of afresh under the provisions of the Act. Thus, in my considered opinion, only on the basis of some report of the Anchaladhikari in the encroachment case, the Additional Collector was not empowered for giving a direction to reopen the aforesaid matters. From that impugned portion of the concerned order, it appears that the Additional Collector has already disclosed his mind as he has directed the Circle Officer, Patna High Court CWJC No.9785 of 2010 (5) dt.21-03-2013 7 Baheri for sending a proposal to cancel Basgit homestead Purcha issued in favour of the petitioner and also for cancellation of Zamabandi created in his favour through the Deputy Collector Land Reforms, Sadar. If the Circle Officer is the person empowered to pass an order in accordance with law in a case for cancellation of Zamabandi, he would not have to act on the command of the superior authority as, after his order, one of the parties may` approach that authority itself either in appeal or revision. Therefore, in my opinion, the concluding paragraph of the impugned order, by which such directions were given, was totally uncalled for and unwarranted and not in conformity with the law. It has nothing to do with the disposal of the appeal concerned preferred against an order passed in an encroachment case under the provisions of the Bihar Public Land Encroachment Act, 1956. Accordingly, this writ application succeeds and the impugned part of the order dated 22.04.2010, contained in Annexure 1, is quashed and set aside. However, it is made clear that this order would not come in the way of the competent authority in case some decision is to be taken and some proceeding is to be initiated for the relevant Patna High Court CWJC No.9785 of 2010 (5) dt.21-03-2013 8 purpose in accordance with law. Before parting with the matter, I must record that till the homestead purcha exists in favour of the petitioner and the Zamabandi stands in his name, the petitioner cannot be depicted as an encroacher and no action for removal of encroachment with regard to the land in question can be taken by the authority. (Dr. Ravi Ranjan, J) SC/-