Disposed

Gopinath Singh Jansewa Sansthan Through Its Secretary Girinath Singh v. The State Of Jharkhand And Ors.

Jharkhand HC15 Jul 2019WPC/5023/2017

Case brief

AI extract

What is this about?

The High Court disposed of a writ petition challenging the cancellation of land settlement (jamabandi) for a college. The court held that since the land title is disputed based on conflicting revenue records and settlement claims, this Court will not interfere. It directed parties to approach a competent civil court for final adjudication of the title.

What did the court decide?

Writ petition disposed of; parties directed to approach competent civil court for adjudication of disputed land title.

Gopinath Singh Jansewa Sansthan Through Its Secretary… — Land Acquisition | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No.5023 of 2017

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Gopinath Singh Jansewa Sansthan, Bishunpur, Katchari Road Garhwa, P.O. and P.S. and District-Garhwa, through its Secretary, Girinath Singh son of late Gopinath Singh, resident of Bishunpur, Katchari Road, Garhwa, P.O. and P.S. and District-Garhwa, Jharkhand.

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…… Petitioner

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Versus

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The State of Jharkhand.

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The Commissioner, Palamau Division Medninagar, P.O. and P.S. and District Palamau, Jharkhand.

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The Secretary to the Commissioner, Palamau Division, Medninagar, P.O. and P.S. and District Palamau, Jharkhand.

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The Deputy Commissioner, Palamau Division, Medninagar, P.O. and P.S. and District Palamau, Jharkhand.

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The Deputy Commissioner cum District Magistrate, Garhwa, P.O. and P.S. and District Garhwa.

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The Additional Collector, Garhwa, P.O. and P.S. and District Garhwa.

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The Land Reforms Deputy Collector, Ranka, P.O. and P.S. Ranka, District Garhwa.

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The Sub-Divisional Officer, Ranka, P.O. and P.S. Ranka, District Garhwa, Jharkhand.

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The District Education Officer, Garhwa, P.O. and P.S. and District Garhwa, Jharkhand.

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Jharkhand Academic Council, through its Chief Secretary, P.O. and P.S. Namkum, District-Ranchi, Jharkhand.

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The Circle Officer, Ranka, P.O. and P.S. And District-Garhwa, Jharkhand.

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…… Respondents

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CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Petitioner : Mr. Anil Kumar, Sr. Advocate Ms. Chandana Kumari, Advocate

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For the Respondents : Mr. Suraj Prakash, AC to SC Mines-I

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10 / Dated 15th July, 2019

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This writ petition is under Article 226 of the Constitution of India whereby and whereunder following prayers have been made :

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(i) to quash the entire proceeding with respect to Misc. Case No.07/2016-17 including the order dated 11.07.2017 passed by the respondent authorities by which the recommendation has been made by the Deputy Commissioner-cum-Collector to respondent No.4 for cancellation of the jamabandi created in favour of Rajmata Gunjeshwari Devi Inter College, Ranka in exercise of power conferred under Section 4(h) of the Bihar Land Reforms Act, 1950 ;

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(ii) to quash the order dated 24.07.2018 passed by the Deputy Commissioner-cum-District Magistrate, Garhwa whereby and whereunder the jamabandi created in favour of the Rajmata Gunjeshwari Devi Inter College, Ranka over the land of Khata No.276, Plot No.1367 has been cancelled.

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The brief facts of the case of the petitioner as per the pleadings made in the writ petition is that the land in question since was in possession of Ranka Estate and at the time of vesting of intermediary interest, a return was filed by the Ranka Estate showing some land in Khas possession only through himself or through his co-sharers, one Gorakshan Prasad Singh was one of the share-holders of the intermediary of Ranka Estate and after vesting the intermediaries interest in the Estate, the authority has found that the said Gorakshan Prasad Singh is in Khas possession of land of 2.86 acres of Plot No.1367, Khata No.276 of Village-Ranka besides other lands.

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The land in question has been settled in favour of Gorakshan Prasad Singh after initiating a proceeding under the Bihar Land Reforms Act, 1950 in terms of Sections 5, 6 & 7 of the Act and fair and equitable rent has been determined and Form-M was issued and rent was fixed with respect to different plots of Khata No.276 and different plots including Plot No.1367 having an area of 2.86 acres and fair and

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equitable rent has been determined. After determination of fair and equitable rent in terms of Bihar Land Reforms Act, 1950, the State Government has recognized Gorakshan Prasad Singh as the occupancy raiyat in terms of Section 6 of the Act, 1950 and entered his name in the Demand Register-II in Ranka Anchal, in view thereof, Gorakshan Prasad Singh continued his right, title and possession over the land and continuously paid the rent to the State Government and obtained rent receipt thereafter.

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Gorakshan Prasad Singh being one of the co-sharers of Ranka Estate expressed his desire to the local people of Ranka to establish a college in the name of 'Rajmata Gunjeshwari Devi Inter College' for giving higher education to the people of the locality for their development of education and in pursuance to the aforesaid wish, the said Gorakshan Prasad Singh donated two acres of land of Khata No.276, Plot No.1376 of village-Ranka for the establishment of said college and executed a gift deed in favour of the said college itself and after its establishment, the same has been recognized by the Jharkhand Academic Council in terms of the provisions of the Act as the same is running now.

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In the meanwhile, a complaint was made before the Chief Minister Grievance Cell, Jharkhand being Grievance Cell No.2016/5031 dated 07.12.2016 alleging therein that the Government land has been encroached by the said college itself, in pursuance thereto, SubDivisional Officer, Ranka has issued notice on 03.09.2016 which has been responded to through the representative of the college and subsequent thereto, the Circle Officer, Ranka has also issued a notice on 25.04.2017 to submit the evidence with respect to land of Khata No.276, Plot No.1367, wherein, allegation has been made that the land belongs to the department of Education in the recent survey.

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The authorities have conducted detailed inquiry and vide order dated 20.05.2017, the recommendation was made for initiation of a proceeding under Section 4(h) of the Act, 1950 for cancellation of jamabandi created and referred the matter to the Land Reforms

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Deputy Collector, Ranka who in turn has recommended for cancellation of jamabandi under the provision of Section 4(h) of the Act, 1950 vide order dated 27.05.2017, the same was forwarded before the Deputy Commissioner, Garhwa who after conducting a thorough inquiry in this regard and considering the written argument submitted by the petitioner has made a recommendation for cancellation of jamabandi created in favour of Rajmata Gunjeshwari Devi Inter College, Ranka before the Commissioner, Palamau Division, Medininagar.

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The Deputy Commissioner finally passed an order on 11.07.2017 directing that the jamabandi created in favour of Rajmata Gunjeshwari Devi Inter College, Ranka is to be cancelled in terms of Section 4(h) of the Act, 1950 and forwarded the file for subsequent action before the respondent authority.

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The aforesaid order is under challenge on the following grounds :

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(i) the land in question has been settled in favour of the exlandlord in view of the provision of Sections 5, 6 & 7 of the Act, 1950 ;

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(ii) when the settlement has been made under the provision of Sections 5, 6 & 7 of the Act, 1950 and if no appeal has been filed, therefore, the determination of fair and equitable rent as has been fixed, the same has attained its finality and as such there cannot be initiation of proceeding under Section 4(h) of the Act, 1950 and therefore, the entire proceeding initiated under the provision of section 4(h) of the Act, 1950 is absolutely improper.

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The respondent has been represented by Mr. Suraj Prakash, learned AC to SC Mines-I who on the strength of counter affidavit has submitted that there is no infirmity in the proceeding initiated under Section 4(h) of the Act, 1950 as because the aforesaid provision of the Act, 1950 stipulates that a proceeding under Section 4(h) can be

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initiated if the settlement is on or after 01.01.1946, herein, the settlement as has been admitted by the petitioner is after 01.01.1946 and hence, the inquiry was required to be conducted under the provision of Section 4(h) of the Act, 1950 and accordingly it has been conducted wherein, in course of inquiry the authorities have came to finding that in the records of right of revisional survey published in the year 1998, the said Gorakshan Prasad Singh is having no right, title and possession rather he is claiming the right and title on the basis of manipulated, forged and fabricated document only to illegally grab the government land while the real fact is that the land in question is recorded as a public land and therefore, the proceeding under Section 4(h) has been initiated.

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Further ground has been taken that there is no record in the Anchal office of the assessment of rent under Sections 5, 6 & 7 of the Act, 1950. However, it has been stated that there is no evidence that authority has found the Khas possession of Gorakshan Prasad Singh of land measuring an area of 2.86 acres of Plot No.1367 of villageRanka, Khata No.276 and further there is no evidence in record of the assessment of rent of S.A.R. Case no.316/1955-56. The M. Roll itself contradicts the record opening of demand in Misc. Case No.15/200304 as claimed by the said Gorakshan Prasad Singh submitting the rent receipt but no rent receipt has been produced of the land in proof of creation of jamabandi on the basis of assessment of rent in the name of Gorakshan Prasad Singh.

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On the basis of the aforesaid fact, submission has been made that there is no infirmity in the impugned order, therefore, the same may not be interfered with.

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Having heard the learned counsel for the parties and appreciated their rival submissions, before entering into the merit of the claim of the petitioner, this Court deem it fit and proper to make reference of Bihar Land Reforms Act, 1950 and of the provisions contained therein.

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The Bihar Land Reforms Act, 1950 was enacted with the object to end the colonial land governance system (Jamindari system) by following

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all intermediary (tenure holders) between the State and the tenant and brought State and tenant in direct relation. It provided for the transference to the State of the interest of the proprietors and the tenure holders in the hall of the mortgagee and lessee in such interests including interest in Trees, Forests, Fisheries, Jalka, Ferries, Hats, Bazars, Mines and Minerals. All the intermediary interest, except Mundari Khutkattari tenancy and the Bhuihari tenure vested in the State. The salient features of the Act came for detailed discussion before the Hon’ble Apex Court in the case of Gurucharan SinghVs.-Kamla Singh and others reported in (1976) 2 SCC 152 , wherein, the Hon’ble Apex Court while discussing the object and scope has been pleased to observe “although there is a blanket vesting of proprietorship in all the lands in the State, the legislation is careful, in the initial stage of agrarian reform, not be deprivatory of the cultivating possession of those who have been tilling the land for long, therefore, while the consequence of vesting is stated to be an annihilation of all interested encumbrances and the Collector, in the land, certain special categories of rights are save, thus, the Raiyats and under-Raiyats are not dispossessed and their rights are preserved. The full proprietorship, Khas possession is also not disturbed. Certainly, the large land holders, whose lands have, for long been tenancies, lease their land to the State by virtue of vesting operations, nevertheless, the reform laws consists the continuation of the limited species of interest, in favour of those Jamindars. The three classes of lands is brought into the saving bucket by including them in the Khas possession of the proprietors. They are legislatively included in the Khas possession by an extended itemization in Section 6 (1). The purpose and the purport of the provision is to allow the large land holders to keep the small areas, which may designated as the private or the privileged or the mortgaged lands, traditionally held directly and occasionally made over law to others, often servant or others in the shape or of lease or mortgaged. The crucial point to remember is that Section 3 in all its transfers of the interest of lands to the State, the exception being the lesser interest under the State set out in detail in Sections 4, 5, 6 and 7, so much so, anyone, who claims their

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title after the date of vesting, notified under Section 4 has no longer any such proprietorship. All the same, he may have a lesser rights, if he feels within same provision i.e. Section 5, 6 and 7.

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These sections does not stop, which merely saving lands in the Khas possession of the intermediaries, provides to include certain lands on temporary leases or mortgages with others. Section 3 provides that the State Government, may from time to time by Notification, declare that estate or tenure of the proprietor or the tenure holder specified in the Notification, have passed up and become vested in the State.

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The consequence of vesting has been allowed in Section 4 of the BLR Act. Section 4 (a) to (c) lays down different interests, which got vested in consequence of the Notification of vesting, once an estate vests in the State, the various interests of the intermediaries enumerated therein are also vested in the State absolutely free from all encumbrances, barring the Raiyati or under-Raiyati interest. When an Estate is vested in the State, any encumbrances is automatically wiped out.

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The provision has been made under Section 4 (h), which provides that the Collector shall have power to make inquiry in respect of any transfer including the settlement or lease of any land comprised in such Estate or tenure or the transfer of any kind of interest in any building, used primarily as office or Kutchery for the collection of rent of such Estate or tenure or part thereof and if he is satisfied that such transfer was made at any time after the 01^st day of January, 1946, with the object of defeating any provisions of this Act or causing loss to the State, he may after giving notice to the parties annul such transfer, dispossess from the possession, claiming it and take possession of such property.

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The question of genuineness of transfer by ‘Sada Hukumnama’ is also to be verified by the Collector to assess its benefits of settlement deed under Section 4 (h), failing which the settlement cannot be challenged.

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The question of consideration of the transfer by way of ‘Sada Hukumnama’ fell for consideration before the Hon’ble Patna High Court in the case of Ram Nath Mandal and others-Vs. - Jojan Mandal and others reported in AIR 1964 Patna 1 , wherein, it has been held that if a person claims to have obtained Raiyati interest by virtue of an unregistered document and claiming to be actually in possession of the same by him in making payment of rent, which has been accepted by the landlord, his title to Raiyati interest must be recognized, even though the unregistered lease is inadmissible as evidence of title.

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It is further evident from the provision of Section 3 of the Act, 1950 that after vesting, the settlee is to make an application under Form ‘M’ alongwith the relevant documents i.e. the Hukumnama coupled with the rent receipt issued by the ex-landlord and the State Government, thereafter will issue Form ‘K’ and then only the name of the concerned would be entered in the record of rights i.e. the Register II.

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It is therefore, evident that the settlement, as has been claimed by the petitioner, which has been made by the ex-landlord is to be proved by the evidence and the evidence would be that if the landlord has settled the land or the Tank as the case may be, the rent is to be deposited by the ex-landlord in the State exchequer and to that effect, the rent receipt is supposed to be issued by the State and it is only thereafter, the land will be said to be settled by the ex-landlord in favour of the settlee.

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It is evident from the provision as contained under Section 4 (h), wherein, there is a cut off date of 01.01.1946 and if any settlement has been made prior to 01.01.1946, the provision of Section 4 (h) will not be attracted, but it is not the case of the petitioner, herein since he is claiming the settlement by the ex-landlord in his favour without making any reference of the date, while his admitted case is that sometime in the year 1989, his land was settled in favour of the petitioner.

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It has been referred while dealing with the provision of statute by making reference of provision of Section 5, 6 & 7.

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Section 5 deals with vesting of all homesteads comprised in an estate or tenure and being in the possession be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession of the land comprised in such homesteads and to hold it as a tenant under the State free of rent.

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Provided that such homesteads as are used by the intermediary for purposes of letting out on rent shall be subject to the payment of such fair and equitable ground rent as has been determined by the Collector in the prescribed manner.

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If the claim of an intermediary as to his possession over such homestead or as to the extent of such homesteads is disputed by any person within three months from the date of such vesting, the Collector shall, on application, make such inquiry into the matter as he deems fit and pass such as may appear to him to be just and proper.

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Section 6 of the Act, 1950 is the saving clause which protects the land in Khas possession of the proprietor and tenure holder and they will be entitled to retain the possession thereof and hold them as raiyat under the State having occupancy in respect of such land subject to payment of rent.

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The category of lands which have been enumerated in this Section are all lands used for agricultural or horticultural purposes, which were in Khas possession of an intermediary on the date of such vesting, including –

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(a) (i) proprietor's private land let out under a lease for a term of years or under a lease, from year to year, referred to in section 116 of the Bihar Tenancy Act, 1885 ;

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(ii) landlord's, privileged lands let out under a registered lease for a term exceeding one year or under a lease, written or oral, for a period of one year or less; referred to in Section 43 of the

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Chota Nagpur Tenancy Act, 1908.

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(b) lands used for agricultural or horticultural purposes and held in the direct possession of a temporary lessee of an estate or tenure and cultivated by himself with his own stock or by his own servants or by hired labour or with hired stock, and

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(c) lands used for agricultural or horticultural purposes forming the subject-matter of a subsisting mortgage on the redemption of which the intermediary is entitled to recover khas possession thereof.

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The above category of land shall be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold them as a raiyat under the State having occupancy rights.

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The proviso further provides that intermediary shall not be entitled to retain possession of any naukarana land, chaukidari chakran or goraiti jagir or mafigoraiti in the record of right which is already accrued to a raiyat before the date of vesting.

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Appreciating the above definition, it is evident that the intermediary was entitled to retain land in khas possession.

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The Khas possession has been defined under Section 1(k) of the Act, 1950 which stipulates “khas possession used with reference to the possession of a proprietor or tenure-holder of any land used for agricultural or horticultural purposes means the possession of such proprietor or tenure-holder by cultivating such land or carrying on horticultural operations thereon himself with his own stock or by his own servants or by hired labour or with hired stock.”

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The definition of khas possession fell for consideration in the case of Brijnandan Singh vs. Jamuna Prasad Sahu, reported in 1958 BLJR 122 in which the definition of khas possession has been defined giving therein two elements i.e., juridical possession and on the form in which the act of possession is exercised at the time of

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vesting by the outgoing proprietor.

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The word khas qualifies the possession of proprietor without the intervention of any tenant and not an physical or actual possession.

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The Hon'ble Apex Court in the case of Suraj Ahir and ors. vs. Prithinath Singh and ors., reported in AIR 1963 Supreme Court 454 has held that the view expressed in the case of Brijnandan Singh (supra) by holding the definition as it stands can only relate to actual or constructive possession by the intermediary or tenure holder, either personal or by means of hired labour. The intermediary is denied the shelter under Section 6 of the Act, 1950 by the very fact that any other kind of constructive possession is foreign to the definition.

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In the case of Ramesh Bijoy Sharma and Ors. vs. Pashupati Rai and Ors., reported in 1979 (4) SCC 27 that if the tenant-at-will in actual possession and holds out against the landlord and questions his right to be put in possession, can it be regarded as khas possession of the landlord ?

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This question was answered in negative and it has been held that a tenant-at-will is someone other than the landlord. If the tenantat-will is cultivating land used for agriculture, the agricultural operations cannot be said to be the cultivation of the landlord himself, nor the stoked tenant-at-will can be regarded as the stock of the landlord, nor the tenant-at-will can be regarded as the servant of the landlord.

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The word used in Section 6 is not 'possession' but it is qualified by the adjective 'khas possession' its equivalent being 'actual possession' as the word is used in contra-distinction to the word 'constructive possession'. The expression khas possession used in Section 6 (1) of the Act, 1950 does not include the right to have possession.

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The subsisting title of the landlord over certain land on the date of

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vesting is not making that land under his khas possession.

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On the basis of the aforesaid legal position, the fact of the case in hand is that the land in question wherein the rent has been fixed under Sections 5, 6 & 7 of the Act, 1950 in a proceeding initiated in Case No.316/1955-56. By virtue of the said document, the petitioner is claiming that the land since is in khas possession, will be deemed to have settled under the provision of Section 6 of the Act, 1950 and therefore, the said case cannot come under the fold of Section 4 (h) of the Act, 1950.

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It is evident from the material available on record that on complaint, an inquiry was constituted and a report was submitted to the fact that upon the land in question, a building has been constructed and is in illegal possession wherein the college in question is running.

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The copy of the hal-survey khatiyan has been referred by the State respondent wherein the land in question has been recorded in the name of the Education Department of the State.

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The petitioner has been directed to satisfy the authority with

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respect to his perfect title who is claiming that the aforesaid land has been donated by the ex-landlord to run a college and the college in question has made a request/application for creation of a mutation in his favour basis upon which a Misc. Case was opened being Misc. Case No.15/2003-04 in which the revenue authorities have created mutation in favour of the petitioner-institution but the authorities on scrutiny of the record has found that the Government land has illegally been mutated in favour of college in question, therefore, recommendation has been made to initiate a proceeding under Section 4 (h) of the Act, 1950.

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The record has moved to the Additional Deputy Collector, Garhwa but after concurring with the recommendation made by the lower subordinate revenue authority, has forwarded the same before the Deputy Commissioner who after concurring with the said report and the recommendation made by the subordinate revenue authority has

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recommended for cancellation of jamabandi, initially it was send before the Commissioner, Palamau Division but the said order having been said to be improper by the Commissioner, remitted it before the Deputy Commissioner for passing an appropriate order and in pursuance thereto, fresh order has been passed by the Deputy Commissioner on 24.07.2018 by which the jamabandi created in favour of the petitioner-college has been cancelled and the record has been forwarded before the Commissioner, Palamau Division for further necessary action.

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The orders dated 11.07.2017 and 24.07.2018 are under challenge interlia on the grounds as have been referred hereinabove.

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It is evident from the discussion made hereinabove about the provisions of Sections 5, 6 & 7 while Section 5 deals with the settlement of homesteads by intermediary and Section 6 deals about land in khas possession of the intermediary.

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The homesteads has been defined under Section 2 (j) which means a dwelling house used by the proprietor or tenure-holder for the purposes of its own residence or for the purpose of letting out on rent together with any courtyard, compound, attached garden orchard and out-buildings and includes any out-buildings used for the purposes connected with agriculture or horticulture and any tank, library and place of worship appertaining to such dwelling house.

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It is evident from material available on record, more particularly, the defence taken by the petitioner who has annexed the copy of the form-M basis upon which the claim of settlement has been sought to be substantiated.

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Simultaneously, it is also evident from the material available on record that under the hal-survey khatiyan the land in question is recorded in the name of Education Department of the State of Bihar and in the year 1997, record of rights has also been published and the part of the said land i.e., about 2 acres, has been donated by Gorakshan Prasad Singh for establishing the college in the name of his

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excellency The Governor, therefore, doubt has been created that when the land in question was in the name of the State Government then under what authority the said land has been donated and that too, the land has been donated in the name of his excellency The Governor but without any justification since the land in question has been deemed to have been settled in the name of ex-landlord, as such, there is no question of donation of land by the Governor.

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It further appears that the said land since recorded in the name of the Education Department, which compelled the petitioner to make an application under Section 87 of the Chota Nagpur Tenancy Act, 1908 for making necessary correction therein which is lying pending.

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The question herein would be that the petitioner is claiming title by virtue of the provision as contained under Sections 5, 6 & 7 while the State is claiming title on the basis of the land having been recorded as Gairmajuruwa Malik in the hal-survey khatiyan.

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It is not in dispute that creation or cancellation of jamabandi does not establish any title over the land rather it is only the mode of making payment of rent to the State.

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This Court in the light of the rival submissions advanced on behalf of the parties that both the parties are trying to establish their claim on different documents.

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The petitioner is claiming the claim on the basis of exception as per the provision of Sections 5, 6 and 7 of the B.L.R. Act, 1950 but the State is disputing the aforesaid fact since according to them no record is available in that regard while State is claiming the claim over the land on the basis of survey record wherein the entry has been made in the name of Education Department of the State for which proceeding under Section 87 of the C.N.T. Act has been initiated on being applied by the petitioner but the petitioner has not disclosed the fact of the said proceeding as such this Court is of the view that in such a disputed question of fact it will not be proper and appropriate

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for this Court to exercise the jurisdiction conferred under Article 226 of the Constitution of India rather in order to resolve the dispute forever it will be proper for the parties to approach before the competent court of civil jurisdiction since it touches the title of the parties which can only be adjudicated by leading evidence for its proper adjudication, therefore, this Court is not inclined with the impugned order in exercise of power conferred under Article 226 of the Constitution of India, leaving it open to the aggrieved to approach before the competent court of civil jurisdiction for getting the right adjudicated.

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In view thereof, the writ petition stands disposed of.

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Interlocutory application being I.A. No.7464 of 2018 also stands disposed of.

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(Sujit Narayan Prasad, J.)

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Saurabh

Gopinath Singh Jansewa Sansthan Through Its Secretary Girinath Singh v. The State Of Jharkhand And Ors.

Case brief

What is this about?

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Gopinath Singh Jansewa Sansthan Through Its Secretary Girinath Singh v. The State Of Jharkhand And Ors.

Case brief

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