Patna High Court
Case Details
Patna High Court CWJC No.15786 of 2005 (11) dt.03-07-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15786 of 2005 ====================================================== Braj Kishore Chaudhary son of Late Gauri Shankar Chaudhary, resident of village-Hardas pur at present Mohanpur, Patharghat, P.S.-Patory, District- Samastipur. Versus .... .... Petitioner/s 1. The State Of Bihar through Collector, Samastipur 2. The Commissioner, Darbhanga Division, Darbhanga at Laheria Sarai, District-Darbhanga. 3. The Collector, Samastipur, District-Samastipur. 4. The Land Reforms Deputy Collector, Patory, District-Samastipur 5. The Circle Officer, Patory, District-Samastipur 6. Munna Kumar Chaudhary son of Prahlad Chaudhary 7. Bilat Prasad Chaudhary son of Nirsoo Chaudhary Both residents of village-Dharnipatti, Tole-Rasalpur, P.O.-Hardaspur, P.S.-Patory, District-Samastipur. 8. Raj Kishore Prasad Chaudhary 9. Nand Kishore Chaudhary 10. Awadh Kishore Chaudhary Serial Nos. 8 to 10 are sons of Late Gauri Shankar Chaudhary, resident of village-Dharnipatti, Tole-Rasalpur, Hardaspur, at present Mohanpur, Patharghat, P.S.-Patory, District-Samastipur.
Legal Reasoning
this Court in exercise of its powers of judicial review. It is well settled that creation/correction of Jamabandi with respect to plot of lands neither creates right and title of a particular person over that plot of land nor it extinguishes such right and title of other persons. At best, it merely shows the possession of that particular person in whose favour Jamabandi is created/corrected and that authorizes that person to pay rent to the State of Bihar. In the present proceeding, both sides claim to be purchasers of the lands in dispute. The issues of facts raised by the parties in support of their respective claims go to the root of the title with respect to the lands in dispute. The issues of right and title can be effectively and properly decided by a civil court of competent jurisdiction by recording evidence of both sides and not by a revenue authority. The question of right and title also cannot be effectively decided in a proceeding under Articles 226 or 227 Patna High Court CWJC No.15786 of 2005 (11) dt.03-07-2013 5 of the Constitution of India. In the aforesaid factual background of the case, the
Arguments
.... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Chitranjan Sinha, Sr. Advocate Mr. Choudhary Shyam Nandan, Advocate For the Respondent/s Nos. 1 to 5 : Mr. Rabindra Kumar Priyadarshi, A.C. to P.A.A.G. For the Respondent Nos. 6 & 7 : Mr. Shashi Shekhar Dwivedi, Sr. Advocate Mr. Ranjan Kumar Dubey, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER 11 03-07-2013 Heard the parties. In the present proceeding under Article 226 of the Constitution of India, the dispute relates with respect to creation/correction of Jamabandi regarding 12 bighas 8 kathas of Patna High Court CWJC No.15786 of 2005 (11) dt.03-07-2013 2 land of Tauzi No. 404, Thana No. 239 situate at Mouza-Hardaspur in the district of Samastipur (referred to as lands in dispute). The claims of the petitioner and respondent Nos. 8 to 10 at one side vis-a-vis respondent Nos. 6 and 7 on the other side with respect to the lands in dispute are based on separate registered sale deeds executed in their favour by their respective vendors. In a proceeding under the provisions of The Bihar Tenants Holdings (Maintenance of Records) Act, 1973 ( in short 1973 Act) prayer for mutation made by the petitioner and his three brothers viz respondent Nos. 8 to 10 with respect to the lands in dispute was allowed by the respondent Anchal Adhikari, Patory in Mutation Case No. 34 of 1995-96 by a cryptic and non-speaking order dated 15.7.1995. The aforesaid order has been brought on record as Annexure-2/1 to the writ petition. The order passed by the respondent Anchal Adhikari, Patory was reversed and set aside in appeal preferred by the respondent Nos. 6 and 7 by the appellate authority, namely, D.C.L.R., Patory by order dated 23.7.1996 passed in Mutation Appeal No. 3 of 1995-96 in exercise of his powers under Section 15 of the 1973 Act. The revision preferred by respondent No.8, full brother of the petitioner, before the respondent District Collector, Samastipur, was rejected in terms of Section 16 of the 1973 Act by order dated 13.9.1996/26.9.1996 passed in Case No. 132 of 1996 by the respondent District Collector, Samastipur. Though second revision in terms of Section 17 of the 1973 Act was not maintainable before the Divisional Commissioner, Darbhanga in view of the amendment brought by Bihar Act 3 of 1975, yet the petitioner and his brothers filed second revision before the respondent Commissioner, Darbhanga Patna High Court CWJC No.15786 of 2005 (11) dt.03-07-2013 3 assailing the validity of the appellate order passed by the respondent D.C.L.R. and the revisional order passed by the respondent District Collector. The respondent Divisional Commissioner, unmindful of the legal position that he was not vested with the power to hear and decide the second revision in terms of Section 17 of the 1973 Act, allowed the aforesaid case No. 67 of 1996-97 by order dated 15.6.2005 (Annexure-6 to the writ petition). Subsequently, respondent Nos. 6 and 7 filed a review application before the Successor Divisional Commissioner, which has been allowed by the impugned order dated 18.8.2005 (Annexure-7) whereby the previous order dated 15.6.2005 (Annexure-6) has been recalled/set aside and second revision application filed by the petitioner and his full brothers has been dismissed. Hence, the present writ petition. Learned senior counsel appearing on behalf of the petitioner submits that the impugned order dated 18.8.2005 (Annexure-7) has been passed in violation of the principles of natural justice. Therefore, on that ground alone the said order should be set aside. Learned counsel appearing on behalf of the respondent-State and learned senior counsel appearing on behalf of the respondent Nos. 6 and 7 have strongly opposed the prayer made in the present application and has supported the impugned order passed by the respondent Divisional Commissioner. Admittedly, on 15.6.2005 when the order as contained in Annexure-6 was passed by the respondent-Commissioner purportedly under Section 17 of the 1973 Act, it stood repealed by the Bihar Act 3 of 1975 and the respondent Divisional Commissioner had no authority to exercise his powers to entertain Patna High Court CWJC No.15786 of 2005 (11) dt.03-07-2013 4 such second revision application filed on behalf of the petitioner and his brothers. In that view of the matter, the order dated 15.6.2005 (Annexure-6) was a nullity in the eye of law. Prima facie, this Court is of the view that the impugned order dated 18.8.2005 (Annexure-7) was not sustainable on the ground of violation of principles of natural justice, but once the aforesaid order dated 18.8.2005 is set aside by this Court in exercise of its powers under Article 226 of the Constitution of India, then a patently illegal order dated 15.6.2005 ( Annexure-6) shall get revived and restored, as a result of which gross illegality committed by the previous Divisional Commissioner, Darbhanga shall stand affirmed, and a wholly illegal order shall get a seal of approval by this Court, which should not and must not be done by
Decision
present writ petition is disposed of with a liberty to the petitioner and his full brothers viz respondent Nos. 8 to 10 to file a civil suit before a civil court of competent jurisdiction for getting their right, title and possession decided over the lands in dispute. If such a civil suit is filed, then the same shall be decided strictly in accordance with law on the basis of materials/evidence produced by the parties. The parties shall be at liberty to raise all the issues which have been raised by them in the present proceeding and which are available to them under the law with respect to their right, title and possession over the lands in dispute. It is clarified that any findings recorded by the revenue authorities in the impugned proceeding for creation/correction of Jamabandi shall not prejudice or influence the case of either party in the civil suit so filed with respect to the lands in dispute. The writ application stands finally disposed of with the observations and directions made above. No costs. (Birendra Prasad Verma, J) sudip/-