Anjani Kumar vs The State of Bihar

Jyoti Saran, J.—The petitioner by way of this writ petition has prayed for a writ in the nature of certiorari for quashing the order dated 14.09.2013 passed by the Collector-cum-District Magistrate, Gaya in a case arising from Miscellaneous Case No. 1 of 2013 whereby the representation filed on behalf of the petitioner in the light of the orders passed in CWJC No. 9565 of 2013 praying for restraining the Circle Officer, Wazirganj from interfering with the possession of the petitioner over the land in question has been rejected.

With the consent of the parties the writ petition has been taken up with a view to its final disposal by way of this judgment.

Facts of the case briefly stated is that out of a piece of land admeasuring 8.10 acres, 4 acres was settled by the State in favour of three persons, namely, Ramu Dhobi, Rajendra Rajak and Asho Mahto in the year 1969-70. The settlees in turn executed four sale deeds in favour of four persons including the mother and father of the petitioner transferring four acres of land in their favour which was executed on 31.8.1978 and 16.4.1980. The petitioner happens to be the successor in interest of these vendees.

In the revisional survey the plots were re-numbered as Khata No. 962, Plot No. 4565 admeasuring 8.10 acres and the name of Saswati Middle School was shown in the revenue records. The dispute is relatable to four acres out of the aforementioned 8.10 acres which stands transferred in the name of the predecessor in interest of the petitioner through four sale deeds executed by the original settlees.

The petitioner filed a suit under Section 106 of the Bihar Tenancy Act, 1885 (hereinafter referred to as ''the Act'') for correction of the survey entry giving rise to Suit No. 8307 and 8309 of 1981. Suit No. 8307 of 1981 was allowed under a decree dated 21.6.1986 and the name of the transferees i.e. the present petitioner was directed to be entered in the records. However, insofar as Suit No. 8309 of 1981 is concerned, the prayer was allowed only to the extent of 30 decimals while insofar as 2.20 acres is concerned, the prayer was rejected and being aggrieved the petitioner has filed Title Suit No. 13 of 1997. It is stated at the bar that the said suit after having been dismissed for non-prosecution, is subject matter of a restoration application in Miscellaneous Case No. 7 of 2007. The dispute between the parties has arisen when the respondent authorities of the State Government started construction of a Kasturba Gandhi Vidyalaya which according to the petitioner encroaches over 0.35 acres of their land bearing Plot No. 4565. Apart from institution of an FIR, a representation was also filed before the District Magistrate drawing his attention over the same. Since no action was taken by the District Magistrate that the petitioner moved this Court in CWJC No. 9565 of 2013 and which was disposed of by order dated 9.5.2013 placed at Annexure-10 to the writ petition whereby direction was issued to the Collector, Gaya to consider the representation of the petitioner and dispose of the same after holding due enquiry. Pursuant to the order passed by this Court, the petitioner approached the Collector and filed a written argument in support of his claim and by the impugned order passed on 14.9.2013 the same was rejected and hence this writ petition.

I have heard Mr. Jashawir Singh Arora, learned counsel appearing on behalf of the petitioner, Mr. Manindra Kishore Singh, learned S.C. 6 and Mr. Girijesh Kumar, appearing for the respondent No. 3.

Mr. Arora has referred to the statutory provisions underlying the Bihar Tenancy Act and to submit that the prayer of the petitioner has been rejected by the respondent District Magistrate-cum-Collector by relying upon the provisions of Section 49S of the Act and to hold that the settlees had no right to transfer the lands in favour of the petitioner. Mr. Arora while referring to the provisions of Section 48S of the Act has submitted that the said enabling provision empowers a Collector of a District to set aside any settlement in circumstances where a land so settled is not put to cultivation within five years of such settlement or has been alienated in contravention of the provisions of Chapter VIIA of the Act. Mr. Arora next turned to the provisions of Section 49C of the Act to submit that this provision was declared ultra vires under the judgment and order of a full Bench of this Court rendered in the case of Brajeshwar Sahay Vs. K.K. Sinha and Others, . He submits that notwithstanding the said legal position even if the provisions of Section 49G of the Act requires a procedure to be followed in case of any transfer to be made by a settlee of a land which according to the statutory authorities is not in consonance with the Act, the manner for disposal of such matters can be found under Section 49K of the Act and which casts an obligation on the Collector of the district to interfere with any such transfer only if it is made within 12 years of such consideration and after giving due opportunity to show cause against proposed rejection. He submits that in the present case the Collector while exercising power under Section 49S of the Act has failed to discharge the obligation cast upon him under Section 49K of the Act and the stipulations provided thereunder. He submits that the view expressed in the case of Bhageran Thakur (supra) stands reiterated by another full Bench in a matter arising from L.P.A. No. 1097 of 1998 (Praduman Soren vs. Jiv Lal Das & Ors.) and L.P.A. No. 1098 of 1998 (Praduman Soren vs. Chaiti Mahto @ Chaitu Yadav & Ors.). The full bench taking note of the 44th constitutional amendment wherein Article 19(1)(f) was omitted from the constitutional provision and which was the basis for the judgment rendered in the case of Bhageran Thakur (supra) has held that the omission to the said fundamental right would not result in an automatic revival of the statutory provisions of Section 49C of the Act.

The argument of Mr. Arora has been contested by Mr. Manindra Kishore Singh, learned counsel appearing on behalf of the State as well as Mr. Girijesh Kumar. It is the contention of Mr. Singh that the State Government had come up with a resolution on 24.5.1974 and whereunder it has been resolved that any such transfer made in contravention of provisions underlying Section 49G of the Act would be rendered void ab initio for it would be defeating the very object for which the settlements were made. He submits that this resolution came up for consideration before a Division Bench of this Court in L.P.A. No. 266 of 2012 (Dhruv Sah vs. The State of Bihar & Ors.) and the Division Bench of this Court vide judgment and order dated 28.3.2014/31.03.2014 while upholding the resolution of the State Government has declared that the resolution would apply to all such transfers made after 24.5.1974.

On the strength of the said judgment it is the argument of Mr. Singh that since in the present case admittedly the transfers have taken place after 24.5.1974 hence in view of the Division Bench judgment there would be no infirmity in the order passed by the Collector, Gaya.

Mr. Maninidra Kishore Singh on oral instructions further submits that the total area of plot No. 4565 is 8 acres 10 decimals and of which the petitioner is claiming title and ownership over four acres on the basis of sale deeds which do not give clear demarcations. He thus submits that in such circumstances the petitioner cannot challenge any construction.

Mr. Arora in reply to the resolution dated 14.5.1974 has submitted that even if the resolution has been upheld, it would not effect the right of the settlee and which can only be interfered by following the procedure prescribed in view of the full Bench judgment.

I have heard learned counsel for the parties and I have perused the materials on record. Perusal of the order impugned manifests that even when an objection was raised by the petitioner as to the encroachment made by the State Government in the process of construction of the Kasturba Gandhi School to the extent of 0.35 acres, the Collector, Gaya has proceeded to adjudicate upon his legal right to hold the land in question itself notwithstanding the decree passed under Section 106 of the Bihar Tenancy Act. In fact the Collector while considering the complaint of the petitioner as regarding the encroachment by the school, has proceeded to hold that the transfers made by the settlee in favour of his ancestors was prohibited under Section 49S of the Act.

Upon consideration of the argument advanced by the learned counsel appearing for the contesting parties, the following facts have emerged:

(a) In view of the full bench judgment in Bhageran Thakur (supra) there is no prohibition to transfer under Section 49C;

(b) The transfer so to be effected is to be made by following the procedure provided under Section 49G;

(c) Such transfer is liable to be set aside by the Collector in exercise of power vested under Section 49S.

(d) Any such order can be passed only after following the stipulations provided under Section 49K.

The cumulative effect of the aforementioned provisions reflects that even though the Collector is vested with sufficient powers to pass appropriate orders in case of transfer made by a settlee in contravention of the statutory provisions but then it can only be exercised within the parameters drawn under Section 49K.

Since in the present case it was the petitioner complaining of encroachment by the respondent authorities and was not stricto sensu a proceedings under Section 49S of the Act, the Collector, Gaya ought to have disposed of his representation on its own merits and if at all he intended to comment on the transfers made by the settlees in favour of the ancestors of the petitioner, then he was further legally obliged to draw a formal proceedings and put the petitioner on notice under Section 49K of the Act. The record manifests that there was no such exercise followed by the Collector, Gaya rather the order was passed on the application filed by the petitioner for restraining the authorities from encroaching over his land.

The issue pending consideration before the Collector, Gaya is not whether the sale deeds executed by the settlees have sanction of law rather the issue is whether the State while constructing the school building has encroached over the land of the settles which now stand transferred in favour of the ancestors of the petitioner. The two issues are distinct and have to be considered individually.

In the circumstances discussed, it is eloquent that the Collector, Gaya, has not only faltered in considering the grievance raised by the petitioner but has perpetuated the illegality in not observing the mandatory procedure required to be followed under Section 49K of the Act while dealing with the issue of transfer of the lands in question. As a consequence the order impugned dated 14.09.2013 passed by the Collector-cum-District Magistrate, Gaya in Miscellaneous Case No. 1 of 2013 cannot be upheld and is accordingly set aside.

The matter is remitted back to the Collector, Gaya for consideration of the matter afresh and for passing a fresh order in accordance with law after giving an opportunity of hearing to the petitioner and bearing in mind observations of this Court, the law settled on the issue as well as the obligation enshrined under Section 49K of the act.

The writ petition is allowed with the directions/observations aforementioned.