Aabid Ansari And Ors vs State Of Jharkhand And

This writ petition is under Article 226 of the Constitution of India whereby and whereunder the orders dated 06.03.2007, 8. 11.2008, 20.09.2013, 25.11.2013, 30.08.2014, 20.08.2015 and 20.08.2015 (Annexure-4 series) are under challenge. The recommendation for cancellation of Jamabandi has been made which has been affirmed by the Deputy Commissioner.

The specific case has been made out by Mr. Ayush Aditya, learned counsel appearing for the petitioners that the entire proceeding is initiated not in the eye of law since no notice has ever been issued by the respondent authority.

The ground has been taken that the proceeding has been initiated against the dead person and it is settled position of law that the proceeding, if initiated against the dead person would be nullity in the eye of law. It is the further ground of the petitioners that the Deputy Commissioner in one line has concurred with the finding given by the Additional Collector, therefore, there is no application of mind by the Deputy Commissioner and as such the decision to cancel the Jamabandi per se illegal.

Ms. Sunita Kumari, learned A.C. to L&C-III has submitted that the fact about the non-issuance of notices is incorrect in view of the fact that the notices have been issued way back on 22.06.2002 and the same have been effected as would be evident from the order dated 08.11.2008 and since then the petitioners, continuously absented from their putting appearance before the revenue authorities and therefore, the proceeding has been proceeded and ultimately culminated with the recommendation of the Circle Officer as also the Deputy Collector Land Reforms and Additional Collector, Ranchi which has been affirmed by the Deputy Commissioner, therefore, it cannot be said that the petitioners have not been provided the opportunity of hearing.

The contention as has been raised by the learned counsel that the entire proceeding has been initiated against the person whose name is on record and since the petitioners who claims to be legal heirs of the said dead person, have not made any application to enter their name in record of rights i.e., in the Register-II and admittedly the name of predecessor is appearing in the record of rights, therefore, so long as the name of the petitioners are not recorded in the record of rights they have got no right to be heard.

Learned counsel for the petitioners in response submitted that the Jamabandi has been created way back and after lapse of fifty years the proceeding has been initiated, therefore, on this ground alone the decision taken by the revenue authorities is not proper.

Having heard the learned counsel for the parties and on appreciation of their rival submissions, this Court before entering into the merit of claim of the issues, deem it fit and proper to discuss about the aim and scope of the Bihar Land Reforms Act, 1950.

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

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 a Estate is vested in the State, any encumbrances is automatically wiped out.

The provision has been made under Section 4 (h), which provides that the Collector shall have power to make enquiry in respect of any transfer including the settlement or lease of any land comprised in such State 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 State or tenure or part thereof and if he is satisfied that such transfer was met at any time after the 01st 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 the possession, claiming it and take possession of such property. 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.

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.

So far as the facts of the case in hand is concerned, it is apparent that the land pertaining to Khata No.383, Plot No.100, Area 4.46 acres was recorded in the record of rights in the name of Imam Ali, son of Kaillu Ansari of Mouza-Pundag, Thana-Jagarnathpur and the land in question was Gairmazurua malik land as per the record of rights and according to the petitioners the land was settled by the ex-landlord namely Bala Lal Kandarb Nath Sahdeo by virtue of hukumnama and accordingly the delivery of possession was given and the rent receipt was issued.

It is further case of the petitioners that on the verge of vesting under the provisions of Bihar Land Reforms Act, the compensation case was registered which was numbered as Compensation Case No.05 of 1955-56 in which compensation for the land in question was assessed from which it is evident that the Khata No.383, Plot No.100, Area- 4.46 acres was settled with Imam Ali and therefore, the fact about the settlement of land in favour of said Imam Ali cannot be disputed. The name of Imam Ali was registered in Register-II after vesting of the intermediaries and accordingly the rent receipt was issued in his favour but all of a sudden the jamabandi case being Doubtful Jamabandi Case No.125 of 2002-03 was initiated against Imam Ali vide order dated 22.06.2002, notices were directed to be issued on 13.07.2002 but the notices were not served upon them and further the proceeding awaited for five years and thereafter the record was placed on 6.03.2007 before the Circle Officer, Ranchi, who has come to the finding that the entry made in the record of rights is baseless and suspicious, therefore, concurring with the enquiry report submitted by the Deputy Collector Land Reforms, Ranchi who in continuation to the said proceeding has recommended for cancellation of the jamabandi and has sent the record before the Additional Collector for its recommendation and in pursuance to the same, the Additional Collector, Ranchi has also been recommended, upon which the Deputy Commissioner, Ranchi has concurred.

The question has been raised by the learned counsel for the petitioners that the issue of cancellation of Jamabandi has been raised for the first time on 26.02.2002 and as such, there is delay of about 50 years and therefore, proceeding cannot be initiated which has been set at rest, but this argument is contrary to the legal settled position in view of the fact that if the inception is wrong, the subsequent development cannot improve if the wrong crept up at inception. The wrong committed at the inception and if notice is being issued even after substantial delay, it is incumbent upon the concerned to prove, if any illegality has been committed.

Here, in the instant case the illegality would not be settled if the ex-landlord would have issued rent receipt after settlement of the land in favour of the settlee and after vesting of the intermediaries i.e. on or after 01.01.1956, the settlee is supposed to submit Form-M before the State Government and in consequence thereof, the competent authority of the State Government is supposed to issue Form-K and thereafter, the necessary entry would be made in the record of rights and rent receipt would be issued in favour of the settlee and it can be said that there is no illegality at inception.

This Court has found from the record that there is no rent receipt issued by the ex-landlord as also there is no reference of Form-M or Form-K, therefore, it cannot be said that the illegality has not been committed at inception. The issue of settlement by the hukumnama can be said to be incorrect if rent receipt would have been issued by State in favour of the ex-landlord, this issue has been decided by the Hon'ble Patna High Court in the case of Ram Nath Mandal and Others-Vs.-Jojan Mandal and Others (supra).

The issue of wrong has been committed at inception cannot be said to improve the subsequent development fell for consideration by the Hon'ble Supreme Court in the case of State of Uttar Pradesh and Ors. Vrs. Neeraj Chaubey and Ors. reported in (2010) 10 SCC 320, and in the case of State of Orissa and Anr. Vrs. Mamata Mohanty reported in (2011) 3 SCC 436.

In view of the aforesaid settled proposition as has been laid down by the Hon'ble Apex Court in the judgment referred hereinabove that at the inception if there is any illegality, that cannot be rectified by subsequent development for the reason that the illegality is committed is not allowed to be perpetuated and the moment it will come to the notice of the authority, the illegality is to be rectified.

Argument has been advanced by the learned counsel for the petitioners that there is delay of about 50 years in initiating a proceeding and therefore, the same is not allowed to be proceeded but this argument is also not fit to be accepted for the reason that if any illegality has been committed even after substantial delay and if it came to the notice of the authority has been tried to be rectified, but the illegality which crept up at initiation cannot be improved and moment it will come to the notice the same is to be rectified otherwise it will lead to the illegality to be perpetuated. The question of the principle that the illegality cannot be allowed to be perpetuated, judgments rendered by the Hon'ble Apex Court in the case of Union of India & Anr. Vrs. International Trading Co. & Anr. reported in (2003) 5 SCC 437 and in the case of Kulwinder Pal Singh & Anr. Vrs. State of Punjab & Ors. reported in (2016) 6 SCC 532 has been dealt with that if the authorities have initiated proceeding to rectify the issues, it cannot be said that the authorities have committed illegality and therefore, the substantial delay in initiating the proceeding will not come in the way.

It is not in dispute that the name of title-holder is recorded in Register-II as annexed, it is incumbent upon the legal heir to make an application for getting the record of rights corrected but no such plea has been taken by the petitioners that as ever the steps for issuance of correction slip for inserting the name of the petitioners or the other legal heirs of the recorded raiyat has been taken, therefore, this Court is of the view that the petitioners or their legal heirs consciously have not made applications for getting their name entered into the Register-II only in order to take advantage that if in case any proceeding for cancellation of jamabandi, the plea of death would be taken and as such the petitioners since are not on record, therefore, he has got no locus to challenge the order passed by the revenue authorities.

The third argument advanced by the learned counsel for the petitioners i.e. no notice has been issued either by the Circle Officer or by any of the authorities herein.

It needs to clarify that the question of cancellation of jamabandi or mutation under the provision of Bihar Holdings (Maintenance of Record) Act, 1973 the provision has been carved out in view of the provision of Section 14 of the Act, 1973, if any decision would be taken by the Circle officer, the same would be challenged before the authority under the provision of Section 16 and prior to repealment a revision under Section 17.

The issue herein is that the initiation of proceeding about testing the genuineness of the jamabandi created in the name of the predecessor in interest of the petitioners and for creation of jamabandi or for cancellation of jamabandi, the authorities are supposed to initiate proceeding by the Circle Officer, who has not been made adjudicatory authority rather he will conduct an enquiry and sent it before the Deputy Collector Land Reforms, thereafter, Deputy Collector Land Reforms will give a finding with respect to acceptance or disagreement of the said report submitted by the Circle Officer and refer it before the Additional District Magistrate, who also with his finding concurring or differing with the finding recorded by the Circle Officer or the Deputy Collector Land Reforms, Ranchi will refer it before the Deputy Commissioner, who has authority for taking final decision.

In view thereof, the aforesaid procedure as has been assessed by this Court by going across the order sheet as annexed with writ petition from which it is evident that a proceeding was initiated on 26.02.2002 wherein notice has been issued upon the recorded tenant and thereafter as would be evident from the order dated 01.11.2009 the notice having been effected but none represented on behalf of opposite party and in absence thereof the authority has come to the finding that the recommendation about the cancellation of jamabandi as would be evident from the order dated 08.11.2008 and forwarded the record before the Deputy Collector Land Reforms even before the Deputy Collector Land Reforms none appears for the opposite party which has ultimately came before the Additional Collector, Ranchi, who has concurred with the recommendation made by the Circle Officer or the Deputy Collector Land Reforms and forwarded it before the Deputy Commissioner who has concurred it, thereby, it is not a case that the notice has not been issued rather the petitioners have not chosen to appear and the argument has been advanced that the notices have not been issued, either by the Deputy Collector Land Reforms or Deputy Commissioner and thereafter even if the appearance has been made before the Circle Officer Sadar, Ranchi does not mean that there is no requirement to issue notice by the Deputy Collector Land Reforms or the Additional Collector or the Deputy Commissioner, but this argument is also not fit for consideration in view of the cancellation of jamabandi is continuation of proceeding to be initiated from the stage of the Circle Officer reaches to the conclusion by an order passed by the Deputy Commissioner thereby it is not incumbent upon each and every authority to issue notice to the concerned, it is also settled that if the proceeding is in continuation to be conducted at the different stage by the different officials there is no requirement to issue notice on each and every date on the enquiry as has been settled by the Hon'ble Apex Court in the case of Ram Nath Mandal and Ors. Vrs. Jojan Mandal and Ors. (supra).

The other argument has been advanced that the proceeding has been initiated against the dead person, therefore, the order is nullity in the eye of law, but the question herein is that the notices are to be issued against the person whose names are recorded as Imam Ali in the record of rights, there is no reference of the name of legal heirs or the representatives whose name has been recorded in the record of rights, the plea of issuance of notice against the dead person or the initiation of proceeding against the dead person is not coming in the way, it is for the simple reason that when the notices have been issued on the address reflected in the record of rights who is on the record, it is the duty of the legal heirs to put their appearance to apprise the court otherwise the proceeding would be allowed to continue and reach to the conclusion the benefit of the death of person whose name is recorded in the record of rights.

This Court, after answering the argument advanced by the learned counsel for the petitioners, is of the view that the Revenue Authority while passing such order, has committed no illegality, therefore, this writ petition fails and accordingly, dismissed.