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Judgment
K.K. Mandal
The present application under Article 226 and 227 of the Constitution of India is directed against the order dated 24.9.1991 passed by the Respondent Sub Divisional Officer, Siwan in Jamabandi Correction Case No. 3/85-86 (Ram Jee Lal and Ors. vs. Baban Tiwary and Ors.) as contained in Annexure-1. The original writ petitioner during the pendency of the application died and on an application filed in this behalf he was substituted by his heirs and legal representatives. For the sake of convenience, the petitioner shall be referred as original writ petitioner.
Relevant facts as uncertained in the writ petition may first be noticed.
The dispute pertains to 3 bighas, 13 kathas and 3 dhurs of land appertaining to C.S. Khata No. 319/391 corresponding to R.S. Plot No. 748 and 1210 situate in village Darauli in the district of Siwan. The writ petition asserts that in the year 1924 the ex landlord namely Majhauli Raj who was then under Court of Wards settled 4 katha 10 dhurs of land in plot no. 1216 in favour of the father of the original writ petitioner vide two Hukumnamas each for 2 kathas 5 dhurs. Accordingly Jamabandi Nos. 444 and 445 were created in the Siresta of Zamindar in the name of the father of the original writ petitioner who came in possession thereof and constructed a dwelling structure thereon. In 1938 one Surajdeo Narain Lal raised a dispute over 5 dhurs out of the aforesaid land by filing Title Suit No. 110/38 seeking declaration of right, title and interest over the subject land on the ground that the same was settled with the plaintiff by the ex landlord and the said suit was decreed. Aggrieved thereby the original writ petitioner filed Title Appeal No. 195/1940 which was allowed and the suit was dismissed. On 1.4.1942 the ex landlord again settled the rest of the land measuring 3 bighas 8 kathas and 13 dhurs by executing Sada Hukumnama followed by grant of Maliki receipts. Such settlement was obtained by the original writ petitioner along with one Sarabjeet Tiwari who was a Benamidar for one Aana share. A new Jamabandi bearing no. 625 whereafter was created in the name of the original writ petitioner. The petitioner filled up part of the Gadha/ditch existing thereon and constructed his dwelling structure in due course of time. A Land Encroachment Case No. 3/174 of 1953 was initiated at the instance of the persons hostile to the original writ petitioner namely Ram Tapesar Tiwary claiming the subject land to be Gairmazarua land which was a ditch used for irrigation by the people of the locality. The claim was that the original writ petitioner had encroached thereon. On contest the same was dropped by order dated 20.4.1953 (Annexure-2) passed by the Addl. Sub Divisional Officer. The said authority found the land not the public land and the original writ petitioner was not held in unauthorized occupation thereof. Said order was not challenged by anyone and became final. By enforcement of Bihar Land Reforms Act the intermediary right of the ex landlord vested in the State of Bihar. The ex landlord filed return vide Annexure-3, 3/A and 3/B wherein the original writ petitioner was treated as raiyat (settlee). During the Bujharat operation an objection was raised by the aforesaid Ram Tapeshar Tiwary which was, on consideration, rejected by order dated 06.04.1985 (Annexure 4) passed by the Revenue Officer. After having failed in his efforts the son of Ram Tapeshar Tiwary again filed an application before the Circle Officer who settled the fishery right in plot no. 1216 appertaining to Jamabandi no. 625 giving rise to Misc. No. 2/79-80. An enquiry was conducted therein. The Respondent Circle Officer by order dated 15.12.1975 (Annexure-5) rejected the same. The Respondent Circle Officer subsequently recommended the matter before the Respondent-DCLR for initiation of a proceeding u/s 4(h) of the Bihar Land Reforms Act. On notice, the original writ petitioner appeared and filed reply. The matter was heard in extents by the Respondent DCLR. By order dated 30.9.1989 (Annexure-6) the aforesaid proposal mooted by the Respondent Circle Officer and considered in Case No. 3/85-86 was rejected observing therein that whoever wants Jamabandi in respect of the subject land cancelled on the ground that the land contained Gadha/ditch/pond which was used by the public at large should approach the court of competent jurisdiction for such declaration.
It is the stand of the petitioners that some persons who was/were not party to the proceeding in the court below filed a revision case there against before the Respondent Addl. Collector which gave rise to Revision Case No. 222/-89-90. The Addi. Collector by order dated 5.12.1989 (Annexure-7) observed that the matter shall be considered/examined by the Sub Divisional Officer and directed the parties to appear before the Sub Divisional officer and submit their case. In the light of the aforesaid order the Sub Divisional officer entertained the parties and on a consideration of material placed before him by the impugned order dated 24.9.1991 (Annexure-1) held that the issue(s) involved was/were required to be raised before and considered by the court of competent jurisdiction. He however, also recommended that in the meanwhile issuance of rent receipts in respect of subject land in favour of the original writ petitioner be stopped. The matter was directed to be placed before the Addi. Collector for taking appropriate decision. The said order as contained in Annexure-1 has been challenged by the petitioner(s) in the present proceeding.
Heard Mr. Shashi Shekhar Dwivedi for the petitioner(s), Mr. J.S. Arora S.C. 6 for the State and Mr. Ravindara Nath Verma for the private respondents.
A counter affidavit has been filed on behalf of the private respondents. Rejoinder thereto has been filed by the petitioner(s). No counter affidavit has been filed on behalf of the State.
While challenging the legality/correctness of the order passed by respondent no. 3 (Annexure-1), it has been submitted that the said respondent acted beyond jurisdiction in passing the order (Annexure-1) as the matter was not remanded by the Respondent Addl. Collector by order dated 5.12.1989 (Annexure-7). In his submissions, a party to the proceeding can file revision/appeal against the order dated 30.10.1989 (Annexure-6). The private respondents were not parties to the proceeding in the court below. Learned Counsel submits that there as/was no proposal submitted by any Revenue Officer vesting the Respondent Addl. Collector to pass the order dated 5.12.1989 (Annexure-7). He submits that no lis, in fact, was pending concerning the subject land as in a proceeding u/s 4(h) of the Act, the Respondent Deputy Collector by order dated 30.10.1989 (Annexure-6) decided the same in the following manner:-
Learned Counsel made diverse submissions relying on the enclosures/annexures appended to the writ petition as well as the rejoinder in order to submit that after such settlement of the subject land the ex intermediary created Jamabandi in respect of subject land vide Jamabandi Nos. 625,444 and 445 and return in respect thereof was filed by the ex landlord as contained in Annexure-3, 3/A and 3/B respectively. The State Respondent thereafter treated the subject land under those Jamabandis and continued to issue rent receipt(s) against payment of land rent. It is thus the contention that the order contained in Annexure-1 is fit to be quashed and set aside.
Learned Counsel for the State, on the other hand, submits that on perusal of the order contained in Annexure-7 and the impugned order (Annexure-1) it would, prima facie, appears that the revision preferred by the private respondents was remitted to the court of DCLR for fresh consideration. He relies in this regard on the impugned order (Annexure-1) itself. He further submits that from the order (Annexure-1) it would appear that the court of Deputy Collector, Land Reforms entertained the matter in the same case being Jamabandi Correction Case no. 3/85-86. The Sub Divisional Officer acting as Deputy Collector, Land Reforms considered the submissions of the parties and passed the aforesaid order dated 24.9.1991 (Annexure-1) which is not final. He, therefore, takes a stand that the writ application is wholly premature as on making enquiries into the matter in presence of the parties the same has been directed to be placed before the Addl. Collector for appropriate orders. Since no order thereafter has been passed by the Respondent-Addl. Collector in Revision Case No. 222/89-90 the original writ petitioner had no cause of action as the claim of the parties have not been finally decided. Relying on Annexure-1, it is submitted that relevant document of title such as Hukumnama, return etc. were not traced in the records of the Government and as such it was not deemed appropriate to decide the issue once for all. He also highlights that jurisdiction of the authority who passed the order dated 24.9.1991 (Annexure-1) cannot be challenged by the original writ petitioner as he participated in the proceeding without raising any objection in this regard.
Learned Counsel for the private respondent submits that from bare perusal of the cause title of the Revision Case No. 222/1989-90 it would appear that the revision was preferred by some of the private respondents who was/were parties to the proceeding taken up and decided by the Respondent-Deputy Collector, Land Reforms by order dated 30.10.1989 (Annexure-6). He also submitted that the disputed land(s) appertaining to plot no. 1216 of khata 391 has been recorded in records of right (Annexure-A and B) as Gadha, pond and Dih Basgit which contradicts the case of the original writ petitioner. The entries made there against do not support the case of the petitioner. He submits that the documents have been created as the son of the original writ petitioner was Sarpanch and during the relevant time entrusted with the task of rent collection as he discharged the duty of head clerk in Darauli Anchal for some time. By forging/interpolating documents a forged Jamabandi was opened in the name of the original writ petitioner inasmuch the name of Sarbjeet Tiwari was penned through in Register-II. In the submissions of the counsel, in view of the contents of Annexure-1, the same does not merit interference particularly when no final decision thereon has till date been taken either by the Respondent-Deputy Collector, Land Reforms or the Addl. Collector.
Learned Counsel for the petitioner, in reply, submits that although by the impugned order the matter has been directed to be placed before the Addl. Collector for appropriate orders but in the light of the said order the right of the petitioner(s) to pay the rent against the rent receipt(s) has been interfered with as the respondents stopped issuing rent receipt(s) in respect of subject land against the payment in the light of the said order dated 24.9.1991 until this Court passed an interim order on the present writ petition on 20.5.1992.
Having heard the rival submissions of the parties and after perusal of the materials placed on record, it appears, for deciding the issue raised in this application in challenging the sustainability/legality of the order dated 24.9.1991 (Annexure-1) the submissions of the parties with regard to their respective claim(s) on the subject land do not require to be dealt with in detail.
Petitioner(s) have questioned the legality of the order on the ground that the said respondent had no jurisdiction to pass the order (Annexure-1) as the matter was not remitted by the revisional court by order contained in Annexure-7. The case of the State as well as the private respondents, on the other hand, is that the matter was re-examined by the respondent under Annexure-1 under the orders of remand. The question, therefore, is whether by order dated 24.9.1991 (Annexure-1) the matter was remitted to the court below for fresh enquiry and adjudication. Indisputably, the order (Annexure-7) is not under challenge. On bare perusal of the said order (Annexure-7) it appears that the same was preferred by the private respondent(s) who was/were parties to the proceeding in the court below in Jamabandi Correction/Cancellation Case No. 3/85-86 (Annexure-6). The jurisdiction of the Addl. Collector to entertain the revision proceeding, therefore, cannot be questioned. The next question is whether order dated 5.12.1989 passed in Revision Case no. 222/89-90 (Annexure-7) can be construed as an order of remand to the court below for fresh enquiry and adjudication. The superior officer is always at liberty to remand the matter, if the circumstances so demand, to the court below for fresh consideration and adjudication but while doing so, the superior officer/court has to examine/consider the submission(s) of the parties and record a findings that the order under challenge require re-investigation/re-enquiry on certain specified issue(s) and then the matter can be remanded but after setting aside the order under challenge enabling the court below to proceed afresh in the matter.
The State Respondents have not brought on record any material including the subsequent order passed, if any, by the Respondent-Addl. Collector directing such fresh enquiry in the matter by the court below. They have also not brought on record any proposal to this effect submitted by the Respondent-Deputy Collector, Land Reforms which was acted upon by the Respondent Addl. Collector. If this is the case then, in my view, there was no occasion for the Sub Divisional Officer to proceed afresh and pass the order dated 24.9.1991 and thereby make a recommendation as contained in Annexure-1. The submission of the State Respondents that the original writ petitioner submitted to the jurisdiction of the court who passed the impugned order(Annexure-1), in my view, is entirely misconceived as the submissions of the parties will not confer jurisdiction on any authority who has to act in accordance with the laid down procedure as provided under the relevant Act/Statutes. Present is a proceeding which has been initiated at the instance of the private respondents u/s 4(h) of the Bihar Land Reforms Act. If the appellate/revisional authority did not remit the mater after setting aside the order dated 30.10.1989 (Annexure-6) then there was no jurisdiction vested in the respondent to inquire into the matter afresh and pass the impugned order (Annexure-1). The stand of the respondents that the application is premature as by the impugned order no right of the original writ petitioner has been finally adjudicated, in my view, is also unsustainable in law as the petitioner has brought on record materials to show that in the light of the order dated 24.9.1991 (Annexure-1) the State Respondents stopped receiving rent in respect of the subject land against payment thereof until this Court passed the interim order in the present proceeding.
In view of discussions made above, this Court finds substance in the submissions of the counsel for the petitioner that the order contained in Annexure-I is fit to be interfered with and set aside. I accordingly quash and set aside the order contained in (Annexure-1).
Before parting with the case, let it be recoded that if the proceeding preferred by the private respondent against the order dated 30.10.1989 (Annexure-6) has not finally been decided by the revisional/appellate authority then this order shall not prevent him from deciding the same in accordance with law after hearing the parties. this Court has only quashed the order dated 24.9.1991 (Annexure-1) on the ground that the order dated 5.12.1989 (Annexure-7) cannot be treated as an order of remand passed by the Respondent Addl. Collector in Revision Case No. 222/1989-90.
The application in the aforesaid terms stands allowed. There shall be no order as to cost(s).