Abdul Jabbar vs The State of Bihar and Others

S.B. Sinha, J.—This application is directed against an order dated 20th April, 1983, passed by the Sub-divisional Officer Sadar Chapra as contained in Annexure-9 to the writ application whereby and whereundcr a Jamabandi created in the name of the petitioner has been cancelled. According to the petitioner the land in question was settled in his favour by the ex-landlord in the year 1945 and the said ex-landlord had also shown the petitioner and one Shivpujan Mahto as settle in the rent receipt filed by him after vesting of the land in the estate under the provisions of the Bihar Land Reforms Act and thereafter the name of the petitioner was entered in the Jamabandi and he has been paying rent to the State of Bihar. The petitioner has further stated that in the year 1955 an encroachment proceeding was initiated against him which was virtually dropped by reason of order which are contained in Annexures 1 and 1/1. It was further stated that there had been a proceeding u/s 144, Cr. P.C. wherein also the State could not show any document with regard to its claim over the land. However, the Anchaladhikari on the basis of the report of Halka Karamchari initialed a proceeding for cancellation of Jamabandi. He, thereafter, sent the record to respondent No. 4 who by reason of the impugned order cancelled the said Jamabandi. In this case a counter-affidavit has been filed wherein it has been contended that no settlement has been made in favour of the petitioner by the ex-landlord. According to the petitioner he had encroached 3 dhurs of land in question and for which an encroachment proceeding was initialed against him. It has further been contended that the Sada patta granted by the ex-landlord in favour of the petitioner must be forged and fabricated. The Learned Counsel appearing on behalf of the petitioner has submitted that in view of the fact the petitioner was granted a Sada Patta by the ex-landlord and as the Jamabandi has been created in his name the respondents have no jurisdiction to initiate any proceeding for cancellation of Jamabandi. The Learned Counsel in this connection has relied upon in the case of Khiru Gope and Others Vs. Land Reforms Deputy Collector, Jamui and Others, .

In my opinion as a general proposition it cannot be said Jamabandi once created can never be cancelled. In Khiru Gope''s case this Court merely has held following the earlier decisions of this Court in Harihar Singh''s case and Jamaluddin Ahmad''s case that if cancellation of Jamabandi amounts to cancellation of settlement; such power cannot be exercised. However, it may be mentioned that another Division Bench of this Court in Gobind Singh v. The State of Bihar, reported in 1978 NOC 88 has held that orders of mutation are administrative orders and thus the same can be reviewed. Unfortunately the aforementioned Division Bench of this Court in Gobind Singh''s Case AIR 1978 NOC 88 was not brought to the notice of this Court deciding Khiru Gope''s case. In this situation in my opinion, it cannot be said as a general proposition of the law that a Jamabandi created can never be cancelled. However, this case stands on a different fooling. The petitioner has in possession only 3 dhurs of land. It is admitted that in respect of the same land a proceeding of Bihar Public Land Encroachment Act was initiated against him and the said proceeding was dropped against him. It is thus only in that proceeding the petitioner could have been evicted. The State did not question the said order passed in the aforementioned proceedings and therefore, at this juncture it does not lie in its mouth to say that the petitioner had not been able to prove his settlement. If the petitioner has not been able to prove the settlement made in his favour evidently the aforementioned land encroachment proceeding could not have been dropped. In this view of the matter the only course left to the State was to file an appropriate suit for getting its title declared. This has also not been done. In this view of the matter, in my opinion, the State could not be permitted to do any thing indirectly which it cannot do directly. The State even having lost the proceeding in the Bihar Public Land Encroachment Act cannot be permitted to evict the petitioner by taking recourse to a proceeding for cancellation of Jamabandi and thereby get its title declared by the revenue authorities In this view of the matter, the impugned order cannot be sustained which is accordingly quashed. In the facts and circumstances of the case there will be no order as to costs.