IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7507 of 2002 BIJAY KISHORE NARAYAN @ VIJAY KISHORE NARAIN, SON OF LATE KAUSHAL KISHORE NARAYAN, RESIDENT OF DUMAR NARENDRA, P.S. BHOREY, DISTRICT GOPALGANJ. ------ PETITIONER Versus 1. THE STATE OF BIHAR. 2. DISTRICT MAGISTRATE, GOPALGANJ. 3. ANCHAL ADHIKARI, BHOREY 4. OFFICER-IN-CHARGE, P.S. BHOREY. ------ RESPONDENTS For the petitioner :- Mr. S.K. Mazumdar, Sr. Advocate Ms. Mallika Mazumdar, Advocate For the State :- Mr. Dhurendra Kumar, A.C. to S.C. 5 ----------- 9 27.8.2010 The petitioner is a vendee of Plot No. 2798 appertaining to Khata No. 316 recorded as ‘Gair Mazrua Malik’ land of Hathwa Raj. The area of the plot is 7 acres and 24 decimals. The Collector issued a notice to the petitioner for the purposes of cancelling the Jamabandi 550 which was running in the name of the petitioner. The petitioner along with the ex-landlord appeared and put forward their case. The petitioner’s case specifically is that he had purchased land from the ex-landlord and thereafter his name was recorded and Register II was opened in his name. The petitioner has been paying rent to the State of Bihar. On the application made on behalf of one Satrughan 2 Prasad Gupta on 22.11.1987, the Circle Officer, Bhorey had the opportunity to examine the legality of the Jamabandi running in the name of the petitioner. On 7.9.1988 the Circle Officer passed the final order holding that the Jamabandi was running in the name of the petitioner and there was no occasion for the Sub-divisional Officer to cancel the Jamabandi, in the result he confirmed the Jamabandi running in the name of petitioner. The record was returned to the Sub-divisional Officer. Satrughan Prasad Gupta the person aggrieved by the fact that the petitioner was in possession of 2.12 Dhurs of land did not file an appeal against the order of the Sub-divisional Officer and as such the order attained finality. Subsequently, the present proceeding was started suo motu by the Collector for the purposes of cancelling the Jamabandi of the petitioner. The order of the Collector indicates the reasons for cancelling the Jamabandi. According to the case of the State and the order of the Collector, the main reason is that the lands of Plot No. 3 2798, Khata No. 316 which belonged to the Hathwa Raj had vested in the State of Bihar after the abolition of Zamindari. According to the State there is a kutchery, orchard, water body and vacant land on the plot aforesaid. It has accordingly been held that after vesting of the land, the ex- landlord did not have the right to transfer the lands in question to any one, and as such the Jamabandi running in the name of the petitioner is illegal. The Collector has rejected the application of the petitioner on two other grounds. It has been held by the Collector that the transfer was made for the purposes of constructing a library in the name of Nand Kishore Narayan Lal. The fact that a library has not been made, is in contravention of the purpose for which the sale deed was executed, this aspect has played in the mind of the Collector and he has found that the sale deed is not in accordance with law for the reasons assigned aforesaid. The State has also come up with a plea that the lands of Plot No. 2798 of Khata No. 316 were subject matter of a land 4 acquisition proceeding. According to the stand taken in the counter affidavit, it is said that the entire lands of Plot No. 2798 of Khata No. 316 were acquired in the proceeding. In order to substantiate this plea, a map has been produced, which according to the counsel for the petitioner has been prepared for the purposes of this case as laid in 2007-08. On the basis of the aforesaid facts the Collector has cancelled the Jamabandi. The case of the petitioner is that the ex-landlord had filed his returns and in the returns he has specified the lands that were in his Khas possession and the lands which were being retained by him. It was incumbent on the State to examine the returns and thereafter to come to a finding whether these lands had been surrendered at the time of vesting. This Court had in fact by order dated 7.4.2009 directed the State counsel to bring on record the returns filed by the ex-landlord in order to show that the land in question had vested in the State of Bihar. However, despite several opportunities the document was not brought 5 on record. In order to substantiate their case counsel for the petitioner emphasizes on the fact that the State Government has recognized the petitioner as a land holder of Plot No. 2798, Khata No. 316 in view of the undisputed fact that 4.51 acres of land were acquired by the State of Bihar. The ex-landlord received the award amount. This fact according to the counsel for the petitioner is sufficient to negate the plea of the State that the lands had vested in the State of Bihar. This Court finds that in fact the State cannot on one hand plead that the lands in question had vested in the State of Bihar and on the other hand recognize him as a landowner under the Land Acquisition Act and pay him the award amount. I find that the Collector in fact has not been able to meet this argument of the petitioner except to say that the entire lands were acquired. The stand of the State and the reasons as mentioned by the Collector that the entire lands were acquired or the presumption that since the vendee did not come forward and take compensation for the 6 lands acquired would lead to the conclusion that the lands had vested in the State of Bihar, seems to me to be an absurd conclusion. The factum as to whether the entire lands of the disputed plot were acquired would be clear from the records of the land acquisition case. The gazette notification under Section 4 would in fact reveal the area of land which had been acquired by the State of Bihar. Other reasons for cancelling the Jamabandi made in favour of the petitioner is unjustified for two reasons. Firstly, there is insufficient material for the Collector to hold that the Sub-divisional Officer earlier order of 1987, rejecting the prayer of Satrughan Prasad Gupta for cancellation of the petitioner’s Jamabandi, is illegal at this belated stage. There is no basis for the Collector to assume that no such order was passed. This Court further finds that the order passed by the Sub-divisional Officer can only be set aside if there was an appeal filed against the said order. To hold in a parallel proceeding that the order was illegal or not in accordance with law for 7 the reasons as mentioned in the order sheet is not justified. The Collector also is not justified in holding that since the lands are not being used by the vendee for the purposes for which the sale deed was executed is good enough ground for cancelling the Jamabandi is an absurd proposition. It is none of the business of the Collector or a third party to question as to what a person is doing with a particular piece of land purchased by him. The only person who can question this aspect is the vendor himself who can ask for reconviance of the land, provided that there is stipulation in the sale deed regarding this aspect of the matter. There is one other aspect of the matter which ought to be considered. It is the consistent view of the Court that the Collector does not have the power to cancel the Jamabandi. The decisions of this Court dealing with this aspect are rejected in 1978 BBCJ 323, 1983 Patna 9. Considering all aspects of the matter, I find that the order impugned dated 10.6.2002 passed in Jamabandi Cancellation 8 Case No. 2 of 2002 and any other consequential order or action taken as a result of the impugned order is not in accordance with law and has to be quashed for the aforesaid reasons. The only authority who can consider the cancellation of the Jamabandi is the Anchal Adhikari. The Collector would be the appellate authority to test the order of the Anchal Adhikari. In this case, the only question which remains to be considered is whether the entire lands were acquired by the State or not? If the authority concerned comes to a conclusion on examination of the land acquisition documents that a notification was validly issued for the acquisition of the entire land, then steps may be taken in accordance with law by the Collector of the District to take possession of the lands. This writ application is thus allowed to the extent mentioned aforesaid. Sanjay ( Sheema Ali Khan, J.)