Remanded

Bishwa Nath Prasad Nagar v. District Administration

Jharkhand HC22 Mar 2023WPC/6551/2012

Case brief

AI extract

What is this about?

Petitioner challenged an order cancelling jamabandi. The court found a mismatch in land description between the notice and order. It set aside the relevant portion of the order, remitted the matter for verification, and held that title disputes based on 1941 settlements fall within civil jurisdiction and cannot be decided in this proceeding.

What did the court decide?

Impugned order to the extent of Jamabandi Cancellation Case No. 11 remitted to Deputy Commissioner for verification of property description.

Bishwa Nath Prasad Nagar Vs District Administration — Land Acquisition | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(C) No. 6551 of 2012

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Bishwa Nath Prasad Nagar son of Late Jadu Kahar, resident of village Bhuda, P.O. and Police Station- Dhansar (Dhanbad), district Dhanbad

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… … Petitioner

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Versus

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The State of Jharkhand

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Deputy Commissioner, Dhanbad

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Additional Collector (Revenue) Dhanbad.

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Sub-Divisional Officer, Dhanbad

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Land Reforms Deputy Collector, Dhanbad

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Circle Officer, Dhanbad Nos. 2 to 5 all having their office at Dhanbad, P.O. and P.S. Dhanbad, District Dhanbad … … Respondents

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Petitioner : Mr. Sachi Nandan Das, Advocate Mr. Om Prakash Singh, Advocate For the Respondents : None ---

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05 /22.03.2023 Learned counsel for the petitioner are present.

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2. Nobody appears on behalf on behalf of the respondent- State.

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3. On 06.05.2013, the learned counsel for the State was granted time to file a counter-affidavit in the present case, but no counteraffidavit has been filed.

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4. This writ petition has been filed for the following reliefs:

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“That this writ application is directed against the order dated 21.09.2012 passed in Jamabandi Cancellation Case No. 11/2011-12, 12/2011-12, 13/2011-12 and 14/2011-12 passed by the Additional Collector (Revenue), Dhanbad pursuant to a report dated 08.06.2012 submitted by the land Reforms Deputy Collector, Dhanbad through Sub-Divisional Officer, Dhanbad respondent no.3 to 5 respectively as contained in Annexure-5 and 8 and to this writ petition which are illegal and fit to be quashed/set aside since long standing Jamabandi in the name of mother of the petitioner pursuant to the settlement dated 11.01.1941 by registered deed of settlement (Deed No. 175 dated 11.01.1941) and the B.P.L.E. Case No. 15(III) of 200607 and B.P.L.E. Case No. 16(III) of 2006-07 against petitioner have been dropped accepting the petitioner as raiyats of the land in dispute, since 11.01.1941, hence the order dated 21.09.2012 is illegal and fit to be quashed. AND during the pendency of the writ petition, the operation of the order dated 21.09.2012 passed by Additional Collector, Dhanbad in Jamabandi Cancellation Case No. 11 to 14 of 2011-2012 as

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contained in Annexure- 7 to the writ petition may be stayed and respondents may be restrained from giving effect to the aforesaid order dated 21.09.2012.”

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5. While giving the foundational background of the case, the learned counsel for the petitioner has submitted that vide registered deed of settlement bearing deed no. 175 dated 11.01.1941 executed by ex-landlord Rani Smt. Hemkumari widow of Late Raja Durga Prasad Singh, she settled five plots of land i.e. plot nos. 1164, 1165, 1166, 711 and 1161 measuring 5 bighas (1.65 acres) out of khata no. 35/36 of Khewat No. 2 of Mouza Bhuda (Mouza No. 48) with Fulkumari Kaharin wife of Jadu Kahar, resident of Mouza Bhuda, District Dhanbad and put her in possession over the land. The petitioner is the son of Fulkumari Kaharin. The deed of settlement is annexed as Annexure- 1 to this writ petition.

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6. It is further case of the petitioner that Fulkumari Kaharin paid rent to the ex-landlord and remained in peaceful cultivated possession over the aforesaid plots since 11.01.1941 without any obstruction.

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7. A notice dated 03.01.1984 was issued to Fulkumari Kaharin in terms of section 4(h) of Bihar Land Reforms Act, 1950 by the Land Reform Deputy Collector, Dhanbad.

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8. Learned counsel for the petitioner has submitted that the notice issued under Section 4(h) of the Bihar Land Reforms Act was challenged by Fulkumari Kaharin in a writ petition numbered as CWJC No. 38 of 1984(R).

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9. The learned counsel submits that although the said writ petition was dismissed on the ground that the petitioner having challenged the notice itself, this Court was not inclined to enter into the jurisdictional fact, but this Court issued a direction to the Land Reform Deputy Collector to decide the point by way of preliminary issue.

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10. The learned counsel submits that pursuant to the order passed by this Court in CWJC No. 38 of 1984(R), an order dated 28.10.1989 was passed and the proceeding under Section 4(h) of Bihar Land Reforms Act was dropped. He submits that the said order attained finality and the petitioner continued to remain in peaceful possession of the property.

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11. The learned counsel for the petitioner further submits that thereafter, Jamabandi Cancellation Case No. 11 of 2011-12 was

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initiated against Fulkumari Kaharin by the Land Reform Deputy Collector and was tagged with other cases with which the petitioner is not concerned.

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12. He submits that a notice was issued to Fulkumari Kaharin (Annexure- 6) only to the extent it relates to Jamabandi Cancellation Case No. 11 of 2011-12, wherein all details of the property including jamabandi number, plot numbers and Khata Numbers are mentioned. Pursuant thereto, Fulkumari Kaharin responded vide annexure-7 in Jamabandi Cancellation Case No. 11 of 2011-12 and a recommendation was made, interalia, to cancel the jamabandi no.65. 13. He further submits that the aforesaid facts regarding dropping of the 4(h) proceedings were duly brought to the notice of the aforesaid authority, but the said authority rejected the plea of Fulkumari Kaharin by recording that the order was illegally obtained and therefore, such order could not be relied upon. The Land Reform Deputy Collector, Dhanbad passed order dated 08.06.2012 with a recommendation for cancellation of Jamabandi.

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14. Ultimately, vide impugned order dated 21.09.2012 (Annexure8), final order was passed cancelling the jamabandi, interalia, in Jamabandi Cancellation Case No. 11 of 2011-12 and common order was passed clubbing other cases with which the petitioner is not concerned as already submitted above.

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15. The learned counsel submits that in the said order of cancellation of Jamabandi, so far as it relates to Fulkumari Kaharin, the plot number as well as the area has been wrongly mentioned as plot number 963 area 1.56 acres. He has referred to the statement made in para 26 of the writ petition that there is no plot no. 963 measuring 1.56 acres in khata number 35 and 36 of jamabandi no. 65 in the name of Fulkumari Devi.

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He submits that the authority, while passing the impugned order, has recorded that Fulkumari Kaharin had claimed that she had obtained the settlement from Rani Hem Kumari Devi in the year 1941, but has disbelieved the settlement. The learned counsel has also submitted that it was for the authorities to consider the returns filed by the Zamindar at the time of vesting but instead of verifying their own records, the respondent authority has recorded that there is no evidence that Smt.

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Rani Hem Kumari Devi had any right in connection with transfer of the land in the year 1941 and consequently, cancelled the long running Jamabandi running in favour of Fulkumari Kaharin.

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16. The learned counsel for the petitioner has submitted that the point for consideration is that once the proceeding under Section 4(h) of Bihar Land Reforms Act, 1950 initiated against Fulkumari Kaharin was dropped as back as on 28.10.1989 (Annexure- 4) , there was no occasion for the State to cancel the long running Jamabandi running in favour of the petitioner. The learned counsel for the petitioner has also submitted that long running Jamabandi created on the basis of registered documents, cannot be cancelled in the manner it has been done in the present case. He also submits that if the State claims title over the property, it is open to the State for getting their title declared. The learned counsel has also submitted that there is no provision under the Bihar Tenant’s Holdings (Maintenance of Records) Act, 1973 for cancellation of Jamabandi. He also submits that the Jamabandi having created on the basis of registered settlement created prior to 01.01.1946, cannot be lightly interfered.

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Findings of this Court.

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17. No counter-affidavit has been filed in the present case. Accordingly, this writ petition is being disposed of on the basis of the materials available on record.

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18. However, on the basis of materials available on record, it appears that a proceeding was initiated against Fulkumari Kaharin under Section 4/5 and 4(h) of Bihar Land Reforms Act, 1950 vide notice dated 03.01.1984 issued by the Land Reforms Deputy Collector, Dhanbad. The said notice, at the threshold, was challenged by Fulkumari Kaharin in CWJC No. 38 of 1984(R) challenging the jurisdiction of the LRDC stating that on earlier occasion also, the LRDC had found that Fulkumari Kaharin had obtained the land by registered patta no. 175 dated 11.01.1941. However, this Court refused to exercise power under Article 226 of the Constitution of India at the stage of notice and liberty was also given to Fulkumari Kaharin to challenge the order to be passed on the preliminary issue, if the same was decided against her by the concerned LRDC and the writ

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petition was dismissed vide order dated 12.02.1988 with the said observation and direction.

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19. Pursuant to the order passed by this Court in CWJC No. 38 of 1984(R), an order dated 28.10.1989 was passed and upon considering the registered deed and other documents, the Land Reform Deputy Collector dropped the proceeding initiated under Section 4(h) of Bihar Land Reforms Act.

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20. The description of property as mentioned in the said order dated 28.10.1989 dropping the proceedings against Fulkumari Kaharin was as follows in Mouza Bhuda District Dhanbad:-

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Khata	Plot no.	Area
No.
35	711	0.08 decimal
36	1164	0.66 decimal
36	1165	0.28 decimal
36	1166	0.68 decimal
36	1161	0.05 decimal
		Total area -1.65 acre

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21. It further appears that a proceeding for cancellation of Jamabandi was inter alia initiated against Fulkumari Kaharin which was numbered as Jamabandi Cancellation Case No. 11 of 2011-12. Fulkumari Kaharin duly participated in the said proceedings and brought the aforesaid facts to the notice of the authority. 22. A show-cause notice dated 03.04.2012 (annexure-6) was issued to Fulkumari Kaharin bearing Jamabandi Cancellation Case No. 11 of 2011-12 showing jamabandi number 65 in Mouza Bhuda District Dhanbad with the aforesaid plot numbers as mentioned in the aforesaid table and showed the area as 5 bighas and mouza number 48. Fulkumari Kaharin duly responded to the said notice issued in Jamabandi Cancellation Case No. 11 of 2011-12 and interalia mentioned about: -

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a. the aforesaid final order dated 28.10.1989 dropping the proceeding under Section 4/5 and 4(h) of Bihar Land Reforms Act, 1950.

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b. A title suit bearing number 186/2007 which was filed by Fulkumari Kaharin seeking declaration of title and confirmation of possession and injunction against the state of Jharkhand and others said to be pending before the learned sub-judge, Dhanbad.

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Fulkumari Kaharin prayed for dropping the proceedings for cancellation of jamabandi.

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23. However, the Land Reform Deputy Collector, Dhanbad while passing the final order dated 08.06.2012 in connection with Jamabandi Cancellation Case No. 11 of 2011-12 observed that Fulkumari Kaharin did not produce any rent roll; there was also a reference to Case No. 8(II)/62-63 regarding acceptance of rent, but document with regard to the same was not annexed. The Land Reform Deputy Collector, Dhanbad also recorded that the earlier order dropping the proceeding under Section 4(h) was wrongly obtained by Fulkumari Kaharin and a recommendation was made for cancellation of Jamabandi, inter alia, in connection with Jamabandi No. 65.

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24. Thereafter the Deputy Commissioner, Dhanbad passed the impugned order dated 21.09.2012 (annexure-8) recording that the claim of Fulkumari Kaharin on the basis of registered deed of the year 1941 executed by Rani Hem Kumari Devi was not sustainable and Rani Hem Kumari Devi did not have the power to settle the land which was Gochar land and she did not have the power to settle land after the death of the ex-landlord. It was also recorded in the impugned order that there was no evidence that Smt. Rani Hem Kumari Devi was the Zamindar after death of the ex-landlord.

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25. It further appears that in the impugned order the description of the property in connection with Fulkumari Kaharin has been mentioned as jamabandi no. 65 plot no. 963 area 1.56 acres, although the notice at annexure -6 was issued in connection with Jamabandi no. 65 Plot No. 1164, 1165, 1166, 711, 1161 area 5 bighas. There is complete mismatch with regards to the description of property in the notice as contained in annexure-6 and that mentioned in the impugned order relating to Fulkumari Kaharin. The petitioner has stated at para 26 of the writ petition that there is no plot no. 963 measuring 1.56

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acres in khata number 35 and 36 of jamabandi no. 65 in the name of Fulkumari Devi.

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26. Thus, this court finds that the description of property as mentioned in notice at annexure-6 is different from that mentioned in impugned order so far as it relates to Fulkumari Kaharin. A comparative chart is as follows: -

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Description of property in the	Description of	property in the
notice at annexure-6	impugned order
Jamabandi no. 65 Plot No. 1164,	jamabandi no.	65 plot no. 963
1165, 1166, 711, 1161 area 5	area 1.56 acres.
bighas.

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27. Thus, it is required to be verified as to description of property with regards to jamabandi no. 65. For this purpose, the impugned order, to the extent it relates to Jamabandi Cancellation Case No. 11 of 2011-12, relating to Fulkumari Kaharin, is set-aside to enable the respondent deputy commissioner to verify the actual description of property with regards to jamabandi no.65.

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28. Accordingly, the matter is remitted back to the learned Deputy Commissioner to look into the records and verify if the jamabandi no. 65 relates to the property mentioned in the registered deed of settlement of the year 1941 particularly in the light of the notice as contained in annexure-6 to this writ petition.

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29. In case it is found that jamabandi no.65 is in relation to the property as submitted by the petitioner, this Court is of the considered view that: -

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a. the learned Deputy Commissioner has failed to consider that the proceeding under Section 4/5 and 4(h) of Bihar Land Reforms Act, 1950 was earlier dropped vide Annexure-4 in connection with the property mentioned in the aforesaid chart at para 20 and the Jamabandi in connection with the said property was running in the name of Fulkumari Kaharin and the claim was based on a registered deed of settlement of the year 1941.

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b. The legality and validity of the settlement done by Rani Hem Kumari Devi by registered deed in favour of Fulkumari

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Kaharin as back as in the year 1941 could not have been gone into by the Deputy Commissioner in a proceeding for cancellation of Jamabandi, particularly when the proceeding under Section 4/5 and 4(h) of Land Reforms Act, 1950 was already dropped, that too by holding that the order of dropping the proceeding was illegally obtained by Fulkumari Kaharin.

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c. The matter essentially relates to serious dispute in connection with right, title and possession of the property covered by the registered deed of settlement of the year 1941. These kinds of issues can be ultimately settled only through a competent court of civil jurisdiction.

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30. It is also important to note that a title suit bearing number 186/2007 was said to have been filed by Fulkumari Kaharin seeking declaration of title and confirmation of possession and injunction against the state of Jharkhand and others and was said to be pending before the learned sub-judge Dhanbad as mentioned in the reply dated 19.04.2012 (annexure-7). However, neither the plaint of the title suit nor the present status of the title suit, has been brought on record. Even the State may get their right, title and interest over the property declared through a competent court of civil jurisdiction in accordance with law.

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31. The petitioner is directed to appear before the learned Deputy Commissioner, Dhanbad within a period of 2 month with a copy of this writ records and also file a detailed representation with a copy of this order. Upon appearance of the petitioner, the learned Deputy Commissioner shall pass a reasoned order within a period of 2 months from the date of appearance of the petitioner and communicate the same to the petitioner through speed post.

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32. This writ petition is accordingly disposed of.

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33. Pending interlocutory application, if any, is closed.

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34. Let this order be communicated to the concerned Deputy Commissioner.

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(Anubha Rawat Choudhary, J.)

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Pankaj

Bishwa Nath Prasad Nagar v. District Administration

Case brief

What is this about?

What did the court decide?

Bishwa Nath Prasad Nagar v. District Administration

Case brief

What is this about?

What did the court decide?

What the court decided

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