The High Court found that the Survey Authority acted within its powers under Rule 111 to correct a bona fide mistake in survey records. The petition challenging the addition of brothers' names was dismissed, with instructions to the parties to pursue civil remedies for title disputes.
The writ application was dismissed; no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.7885 of 2011 =========================================================== Mahanth Lakhan Das, Chela late Ramkeshwar Das, Resident of Mohalla Manpur Pakkisangat, Gopalganj Road, Near Durga Asthan, P.S.-Buniyadganj, DistrictGaya .... .... Petitioner/s Versus 1. The State of Bihar through the Principal Secretary, Revenue and Land Reforms Department, Government of Bihar, Patna. 2. The Principal Secretary, Revenue and Land Reforms Department, Government of Bihar, Patna. 3. The Secretary, Revenue and Land Reforms Department, Government of Bihar, Patna.
.... .... Respondent/s =========================================================== Appearance : For the Petitioner/s : Mr. Siddharth Prasad Mr. Abhay Shanker For the Respondent/s : Mr. Suresh Kumar, A.C. to G.P.-5 For the respondent nos. 8 to 10 : Mr. Shailesh Kumar
=========================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL JUDGMENT Date: 10-03-2016
Challenge in this writ petition is to the order dated 07.11.2010 passed by the Superintendent of Survey, Gaya (respondent no. 4) in Case No. 29 of 2010 on an application filed by the respondent nos. 8 to 10, who are full brothers of the writ petitioner. By the said order, the respondent no. 4 directed to enter the names of private respondents in column no. 4 of the Revisional Survey
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Khatiyan/continuous khatiyan of the Municipal Survey record, Ward no. 30 within the Municipal Corporation, Gaya along with the name of the writ petitioner.
The subject land appertain to Hal khata no. 957, Hal khesra no. 1271, „ka‟ to „Ja‟ of the then Gaya Municipality Ward no. 30 measuring a total area of 25.25 acres.
According to the writ petitioner, the subject land is the Math property over which only petitioner has right, title and possession as the Mahanth after the death of his Guru Late Mahanth Ram Keshwar Das in the year 1980. Respondent nos. 8, 9 and 10 are although brothers but they have no concern with the properties/land in question. Pakki Sangat situated at Mohalla Manpur-Gopalganj road, District Gaya was headed by Mahanth Ram Keshwar Das who was the Mahanth of the said Sangat. The petitioner was living with the Mahanth since long. Upon the death of the Mahanth Ram Keshwar Das on 3.5.1980, the petitioner performed his last rites. He was appointed by the Sangat as the Mahanth of Pakki Sangat. A memorandum, in this regard, was signed by 10 persons declaring that the petitioner was installed as Mahanth of Pakki Sangat. The subject land stood entered in the name of Baba Ishwari Das, Chela Rai Ram Das ji Kaun Nanak Sahi in the Cadestral Municipal Survey Khatiyan. During Revisional Survey, the respondents, finding right, title and
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possession of the petitioner over the land, prepared khata for the subject land in the name of Mahanth Lakhan Das. Petitioner being the „Chela‟ of Ram Keshwar Das got entered his name in respect of the land in the Khesra Panji of Nagarpalika. He was treated as Raiyat of the subject land. The copy of the Raiyati Khatiyan of Ward no. 30 of the Corporation is annexed as Annexure-3. Even during the Revisional Survey, the name of the petitioner was entered as raiyati holder by the competent authority with respect to the subject land and a draft khatiyan of Municipal Survey (Annexure-4) was published. The respondents later finally prepared the continuous khatiyan and published under Section 10(1) of Bihar and Orissa Municipal Survey Act, 1920 (for short „the Act‟) wherein the petitioner was entered as raiyat/holder of the subject land/properties. A copy of the final publication of continuous khatiyan is enclosed at Annexure-5. Until the survey records were finally framed and published, no objection was filed by the respondents. On 02.02.2010, the respondent nos. 8, 9 and 10 filed a case bearing Case No. 29 of 2010 invoking jurisdiction of the survey authority under Technical Rule 111 of the Settlement Department before the respondent Superintendent of Survey. They claimed for entering their names with the name of the petitioner in column no. 2 of the continuous khatiyan. On notice, the petitioner appeared in the proceeding and filed a written statement on
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10.08.2010 (Annexure-6) in which besides objecting to the claim of the respondents, an issue with regard to maintainability of the proceeding was also raised. The respondent Superintendent of Survey by the impugned order dated 07.11.2010 allowed the claim of the respondent nos. 8 to 10 and directed to enter their names along with the name of the writ petitioner in the revisional survey khatiyan.
Heard Mr. Sidhartha Prasad for the petitioner, Mr. Shailesh Kumar for the private respondent nos. 8 to 10 and the Counsel for the State. Parties have exchanged pleadings.
Criticizing the order, Mr. Prasad has submitted that dispute of such nature cannot be entertained and decided by the Survey Superintendent in summary manner or proceeding. The Survey Superintendent in exercise of his power has in fact reviewed its earlier order finalizing the survey entry. The Act does not give such power to the respondent. The order is non-speaking one inasmuch as it does not deal with the contentions of the petitioner. Technical rule of the Settlement Department does not confer power to review a previous order on merit. Rule 111 of the Technical Rules only empowers the survey authority to effect or correct bona fide mistake in the order which is not the case in hand.
Counsel for the private respondents has supported the impugned order. Referring to the order passed by the Municipal
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Commissioner of the Corporation on 27.02.2009, it has been submitted that on application(s) filed by the respondent in respect of part of the subject land for mutation of their names, the Municipal Commissioner after hearing both sides and considering the objection thereto of the writ petitioner, allowed those applications overruling the case of the writ petitioner for entering only his name in respect of the subject building on the basis of the entry in the draft publication of the survey khatiyan. Diverse documents including the sale deed jointly executed by the respondents as well as the petitioner were taken into consideration. It has been submitted that the said order passed on contest by the writ petitioner, remained unchallenged and achieved finality. This being a case of bona fide mistake was rightly corrected by the Superintendent of Survey (competent authority) invoking jurisdiction under Rule 111 of the Technical Rules. The Municipal Survey Act contains no clause relating to this power or the period during which such corrections can be made. Under the Technical Rules a period of one year has been prescribed from the date of final publication for effecting such bona fide mistakes or errors. The genealogy table of the family of the writ petitioner and the private respondents has been set out from which it appears that the private respondents and the writ petitioner are full brothers, being sons of late Yamuna Das. Ram Keshwar Das also belonged to the
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family of the petitioner who is said to have died issueless. The word „Baba‟ in the survey records is used against Ishwar Das, the common ancestor of both parties, as he was the „Karta‟ of the family. In brief, the case of the respondents is that the property/subject land are not the property of Mahanth or Math but the ancestral property of the writ petitioner and the private respondents who all are followers of Nanak Panth also known as Nanak Sangat. After death of Baba Ishwar Das, Ram Keshwar Das was called as Mahanth or Karta in the family and when Ram Keshwar Das became old, he entrusted the management of the family to Triveni Das. After death of Triveni Das and Ram Keshwar Das, the petitioner, who was unmarried at that time, was being called as Mahanth. At one point of time, the Bihar Religious Trust Board issued a notice to the respondents and the petitioner treating it to be the public trust which was challenged by the respondents in C.W.J.C. No. 9817 of 2006 in which after hearing the parties, the writ application was allowed and the notice was quashed. The said order is enclosed as Annexure-D to the counter affidavit. The petitioner was not actually Mahanth/Chela of the Math but as per the practice is called Mahanth. Several sale deeds were executed jointly by the petitioner and the respondents as sons of Yamuna Das between the years 2004 to 2009. The subject land was purchased from the joint family fund in the name of Lakhan Das, son of Yamuna Das and not a
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Chela of Ram Keshwar Das. It was the mala fide act on the part of the writ petitioner to get the subject land surreptitiously entered only in his name depicting him as Mahanth of the Math to the exclusion of his brothers/private respondents.
A brief survey of the relevant law covering the field shall be useful. The Bihar Survey and Settlement Manual is a compilation of the principal rules of procedure for surveys and settlements. The Technical Rules form separate part of the manual. The Bengal Survey Manual, 1908 as well as the Bengal Settlement Manual, 1908 are replaced by these legislations. The entire settlement process for preparation of record of rights besides other operations has been provided. The Technical Rules provide, inter alia , the publication and disposal of objection as provided under the Bihar and Orissa Municipal Survey Act, 1920 (for short „the Act‟). The Rules deal with the manner in which objections are filed, disposed of, the appeal is filed thereagainst and dealt with. Rule 110 attaches sanctity of being final of the notification of the final publication. Immediately thereafter comes Rule 111 which provides as under:-
“111. Correction of bona fide mistake- The Superintendent of Survey has the power to correct bona fide mistakes after final publication. The Municipal Survey Act contains no clause relating to this power, or to the period during which new corrections can be made. It is advisable that a limit of one year from the date of final publication be fixed as the period during which bona fide mistakes can be
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corrected. The power should be exercised with caution, and care should be taken that no corrections other than those of bona fide mistakes are made and that if any person‟s interest might be affected by the correction, a notice be served on that person to appear and be heard.”
Seen thus, the Technical Rules provide the entire fascicules of process/procedure for exercise of power under the Act and further provide jurisdiction/power to correct bona fide mistakes committed by the Authority but only after hearing the parties. In that context, the impugned order is to be understood. The Superintendent of Survey found it to be a case of mistake as considering the materials placed before him, the land ought to have been recorded in the joint names of all brothers which was accordingly directed. Annexure-B is an order passed by the Municipal Commissioner on 27.02.2009 in Mutation Case Nos. 27, 28, 29 and 30 of 2007 which pertain to part of the subject land (the building standing thereon) which was also recorded in the name of Mahanth Ram Keshwar Das through whom the writ petitioner claims to have inherited as „Chela‟. Those applications were filed by the private respondents for mutating their names along with the name of the writ petitioner. An objection was filed by the writ petitioner in the said proceeding on the strength of draft publication of the Revisional Survey khatiyan which records the name of the writ petitioner and not his brothers. The Municipal Authority found that the sale document of the property was in the
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name(s) of all brothers and the report furnished in the case found all brothers in possession of their respective share in the property/building. Even after the contest made by the writ petitioner, those applications were allowed on 27.02.2009. The said order became final. On 17.12.2009, the Revisional Survey Khatiyan was finally published by the Superintendent of Survey, Gaya. Annexure-1 is the order passed by the Survey Authority at the Khanapuri stage which allowed to become final. The relevant endorsement thereon is extracted hereinbelow:
“xr losZ es a ckck bZ'oj nkl th ds uke ls ntZ gSA o a 'kkoyh cuk gqvk gSA
gky n[kydkj eg a Fk y[kunkl th psyk jkeds'oj nkl th dk gSA [kfr;kuh jS;r dkA
o a 'kkoyh vuqlkj ijUrq vU; vkSj dksbZ dkxtkr ugh a fn[kk;sA vkns'kkFkZ
g- vLi"V
6-12-85
gky [ksljk 1] d] [k] x] ?k] p] N] t] dk [kkrk egUFk y[kunkl psyk jkeds’oj nkl ds uke ls cukos a A
g- vLi"V
10-12-85”
Ram Keshwar Das was found the Khatiyani Raiyat. A
genealogy was also presented. Merely on that basis, the Survey Records were finalized. The Respondents have provided a genealogy of the family which is not much in dispute. It was presumably a case of misleading the authority as the genealogy presented by the petitioner is not filed and available on record. On perusal of the materials, the respondent Superintendent of Survey found it a case of
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bona fide mistake and afforded an opportunity of hearing to both sides and directed correction in the Survey Records by adding the names of the brothers (private respondents herein).
The contention of the petitioner is that no such power rests with the Survey Authority. The Technical Rules being part of the Legislation do provide such correction albeit on finding bona fide mistake in the preparation of Record of Rights.
I have purposely noticed the order passed by the Municipal Authority on 27.02.2009 (Annexure-B) which relate to part of the subject land. The order, although prejudicial to the writ petitioner, remained unchallenged. The holding of the building stands in the name of four brothers which shall be contrary to the Municipal Survey Record. If the corrections directed under the impugned order are not allowed by this Court, an anomalous situation shall arise which this Court cannot countenance. The Technical Rules provide for such correction but only after hearing the parties. From the impugned order (Annexure-8), it appears the parties were allowed to place several documents which were appraised before directing for entering/recording names of the private respondents. Whether the subject land is Math property and whether the petitioner has been adopted as the „Chela‟ of the deceased Mahanth are not the scope of this writ petition. Moreover, entry in the Survey Records shall neither
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create nor extinguish title of the parties. It is always open to the aggrieved party to seek appropriate relief/declaration from the Court of competent civil jurisdiction. The pleadings on record give an impression that the writ petitioner did not act fairly while the survey proceeding was on. Even at the khanapuri stage, it was found the raiyati land of the recorded tenant and not the land of the Math /Mahanth.
Taking into consideration the circumstances indicated hereinabove, this Court is not inclined to interfere with the order leaving it to the parties to agitate their claim/grievance before appropriate authority/forum in accordance with law. The writ application is dismissed.
There shall be no order as to costs.
(Kishore Kumar Mandal, J)
Pankaj/-
U
3 issues framed by the court
Whether the Superintendent of Survey had the power under Rule 111 of the Technical Rules to correct a "bona fide mistake" by adding respondents' names to the survey record after final publication.
Whether the impugned order directing the correction of survey entries was sustainable in the facts and circumstances of the case.
Whether the writ petition required interference or if the matter should be left to civil jurisdiction.
Colour shows how this judgement treated each authority
Application challenging notice by Bihar Religious Trust BoardReferred¶27
C.W.J.C. No. 9817 of 2006
2 provisions across 2 enactments
Mahanth Lakhan Das
The State of Bihar through the Principal Secretary, Revenue and Land Reforms Department, Government of Bihar, Patna
The Principal Secretary, Revenue and Land Reforms Department, Government of Bihar, Patna
The Secretary, Revenue and Land Reforms Department, Government of Bihar, Patna
The Superintendent of Survey, Town Survey, Gaya
The Collector, Gaya
Kishore Kumar Mandal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
