CIVIL WRIT JURISDICTION CASE No. 6640 OF 1991 ***** ( In the matter of applications under Articles 226 and 227 of the Constitution of India ****** 1. BHOLA PRASAD CHOUDHARY 2. GAURI SHANKAR CHOUDHARY 3. KAILASH PRASAD CHOUDHARY 4. HIMANSHU KUMAR CHOUDHARY 5. SUDHANSHU KUMAR CHOUDHARY 6. AMIT KUMAR CHOUDHARY ALL SONS OF LATE SHEO KUMAR CHOUDHARY, RESIDENT OF POLICE STATION AND POST OFFICE TARAPUR, DISTRICT MUNGER ………………………..…………………………………………….……...PETITIONERS VERSUS 1. THE STATE OF BIHAR 2. THE DISTRICT MAGISTRATE AND COLLECTOR, MUNGER 3. THE ADDITIONAL COLLECTOR, MUNGER 4. THE SUB DIVISIONAL OFFICER (SADAR), MUNGER 5. THE CIRCLE OFFICER, TARAPUR, MUNGER 6. THE DEPUTY COLLECTOR, LAND REFORMS, MUNGER …………………………………………………..…………………….RESPONDENTS ******************** FOR THE PETITIONERS :- MR. SIDHESHWARI PRASAD, SR. ADV. MR. DIWAKAR PD. KARN, ADVOCATE FOR THE S T A T E :- MR. N. K. SINHA, AAG X MR. MD. ANIS AKHTAR, AC TO AAG X ********* P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN O R D E R Sheema Ali Khan, J. The petitioners have challenged the order dated 20.01.1992 as contained in Annexure-9, by which the Additional Collector, Munger has held that the petitioners have no right to hold a „Hat‟ over the C.S. Plot No. 9, which is adjacent to Plot Nos. 10, 11, 12 and 21, where the State Government is now holding a „cattle Hat‟. 2 The dispute with respect to holding of a hat over plot no. 9 arose in the year 1950. The petitioner filed Title Suit No. 11 of 1950/04 of 1953 in which he made a prayer that the defendants ( i.e. the Banaili Raj) and the defendants 2nd set i.e. the public in general, should be injuncted from holding a hat over plot no. 9 of village Tarapur. Apparently, the dispute arose because of the fact that the erstwhile Banaili Raj held a bi-weekly „Hat‟ over plot nos. 10, 11, 13 and 21, which belongs to Banaili Raj. The Banaili Raj wanted to extend the area of operation of the hat and thus, extended the Hat to Plot No. 9, which led to the filing of the suit. The defendants 2nd Set, on the other hand, claimed that they had a right of easement over the lands, and as such, they were entitled to hold a Hat over plot No. 9. The suit of the petitioner was dismissed which led the petitioner to file Title Appeal No. 44 of 1954, which was disposed of by judgment dated 19th August, 1955. The respondents filed second appeal in the high Court, which was disposed of on 27th February, 1975. The defendants‟ case is that the hat was being held from time immorial on the present site, which includes plot no. 9. The daily bazaar of fish was held over plot no. 89 which had nothing to do with what was popularly known as Tarapur Weekly Hat. It has been said that plot no. 9 was recorded in the survey records of rights in the name of the 3 ancestors of the plaintiffs as „Bhauli lands‟. It is alleged that the plaintiffs have got the right only to appropriate use the fruits of the trees and he has no right to interfere with the holding of the „Hat‟ over plot no. 9. After the order passed in the second appeal, the petitioner continued to enjoy possession over the disputed lands. All of a sudden, vide Annexure-6, a notice was issued to the petitioner by the Land Reforms Deputy Collector, Munger whereby it was declared that the State is taking over the lands of the petitioner which was being utilized as a Hat. The petitioner thereafter moved this Court challenging Annexure-6, which was stayed by this Court on 01.11.1991. By order dated 06.12.1991 passed in the present writ application, the matter was taken up for hearing in which the stand of the State was that before taking over the possession of the lands belonging to the petitioner, a notice was issued vide Annexure-A to the counter affidavit. The Court noticed that the petitioner was called upon to explain, as to how he was legally running cattle fair near the Government Hat and he was called upon to give evidence regarding the aforesaid facts. Accordingly, the Court directed the petitioner to appear and file his show cause. Subsequent to the directions of this Court, the petitioner appeared and filed his show cause, which resulted in the order as contained in Annexure-9, passed by the Additional Collector 4 on 01.11.1991. During the pendency of this writ application, Annexure-9 has been stayed by this Court. The order impugned of the Additional Collector records the fact that the petitioner had filed a title suit which was dismissed; thereafter Harihar Prasad Choudhary filed Title Appeal No. 44 of 1954, which was allowed by the Additional Subordinate Judge, Munger. The appellate order was challenged by filing a second appeal. During the pendency of the second appeal, the Zamindari Abolitation Act came into existence and as such the petitioner was allowed to amend the plaint, and to add the State of Bihar as respondent in the second appeal. The Land Acquisition Case No. 53 of 1972-73 was also initiated by the State of Bihar, which was dismissed and no steps were taken against the order of dismissal. The case of the State Government is that Nakku Choudhary, the father of the petitioner was not a recorded raiyat and the land in question is not an agricultural land. On the other hand, it is said that the ex-landlord Kalanand Singh and Others were merely „Boulidar‟ and as such the claim is that the petitioner had only share in the mango trees. It is claimed that the rent receipts produced on behalf of the petitioner are forged and fabricated documents. It is also stated that the case of the petitioner regarding the mutation of the lands is not supported by documents. The 5 said order also contends that proper steps were not taken by the State of Bihar in the second appeal and as such, the second appeal has not been decided taking in view the facts as stated aforesaid. On the merits of the case, the Additional Collector, Munger has rejected the claim of the petitioner on the ground that even if it is accepted, for the sake of argument, that the petitioner had acquired an occupancy right and the rent was commutated under Section 40, the petitioner cannot claim unfettered right to cause deterioration of the lands in question. It has been noted in the following words:- “Judicial notice of the fact can be taken that tying of animals for holding Hat on the land for a month or more will cause harm to the mango trees and it will deteriorate the condition of soil.” It has been noted that it would be a breach of contract for holding and occupying the land in question. The Additional Collector has also rejected the case of the petitioner on the ground that the holding of the Hat and animal fair by the petitioner would “grievously jeopardize the Government interest and thereafter putting the Government Hat in a great financial loss”. The findings of the Additional Collector that the lands would deteriorate by holding of Hat is contrary to the actual fact, holding of the animal fair on any land improves the conditions of the soil and makes it more fertile due to the 6 natural manure which accumulates on the land in question due to the presence of the animals. Similarly, the finding that the petitioner is not entitled to hold the hat over plot no. 9 would result in a loss to the State Government, cannot be accepted because of the simple reason, that a person who has a legal right over the lands in question, has the right to utilize the lands for any legal purposes. All citizens can compete with each other and the State of Bihar for the purposes of doing trade and commerce. For this purpose, I may refer to a decision rendered in the case of State of Bihar & Others vs. Dulhin Shanti Devi (AIR 1967 Patna 427), under Section 4 and 6 of the Bihar Land Reforms Act wherein it has been held that the Proprietor of the land has a right to hold a Mela on his Bakaste land. In the present case, there is already a finding of the Civil Court to say that the land belongs to the petitioner and the lands were converted from Bouli lands to Nagadi lands, which indicates that the State of Bihar is now only entitled to realize rents from the proprietor of the lands in question. Referring to the findings of the Additional Collector that the value of the land will be impaired if the lands is utilized for holding animal fair (Hat), I may refer to the decision of the Division Bench rendered in the case of Ahmad Ali Khan and Another vs. The State of Bihar & Others (AIR 7 1978 Patna 250), wherein while consider the proceedings under Section 23 of the Bihar Tenancy Act, wherein there was an objection by the State of Bihar that the value of the lands would be permanently impaired if the raiyat is permitted to hold a cattle fair on agricultural lands. This Court hold that the operation of 23 (1) would not come into play if the lands are temporarily not utilized for agricultural purposes and has set aside the decision of the authority in question. In the present case, it would appear that the land has a mango orchard on it and, therefore, it cannot be said that it is not being utilized for the purposes of agriculture. Besides, which, the holding of cattle fair, as noted above, does not impair the value or the nature of the lands in question. This Court cannot ignore the findings of the Appellate Court and the High Court when it records a finding that there is sufficient evidence, oral and documentary, to show that the petitioner has held a Hat since before 13.12.1949. Similarly, the findings of the Court that the public in general do not have the right of easement over the lands in question are to be noted. It has been held that the defendants have hopelessly failed to establish the right of easement or their right to hold Hat over plot no. 9, which admittedly belongs to the plaintiff. The documents, rent receipts etc. have been examined before the Court could 8 conclude that the petitioners were in possession of lands in dispute. Once, there is a finding of the defendant vis-à-vis the public as well as the defendant Banaili Raj, that they did not have any right to interfere in the plaintiff/petitioner right to hold the Hat, it is difficult to believe and hold that the State has subsequently acquired a right. The contention of the State before this Court is that an appeal would lie against the order of the Additional Collector has no meaning at this stage as this aspect of the matter ought to have been raised and the objection to the maintenance of the appeal should have been argued by the State Counsel at the time when the Court took notice of Annexure-9, which has been presented before this Court by way of supplementary affidavit, which was subsequently stayed while admitting the case on 13.03.1992. Such an objection at the stage is rather belated. In the result, the order of the Additional Collector, Munger dated 20.01.1992 is set aside. This writ application is accordingly allowed. ( Sheema Ali Khan, J. ) PATNA HIGH COURT DATED, THE 02nd NOVEMBER, 2010 A.F.R./ANAND