IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12881 of 2005 1. SIYA LAL YADAV SON OF LATE BALDEV YADAV 2. RAMESHRE YADAV SON OF JANAK YADAV 3. PHOLL KUMAR YADAV, SON OF LATE RAMCANDRA YADAV 4. RAM BHAROSE DAS SON OF LATE JALESHWAR DAS, ALL RESIDENTS OF VILLAGE TALIPUR, P.O. JAGANNATHPUR, P.S. BIRAUL, DISTRICT DARBHANGA …PETITIONERS Versus 1. THE STATE OF BIHAR 2. THE COLLECTOR, DARBHANGA 3. THE ADDITIONAL COLLECTOR DARBHANGA 4. THE D.C.L.R. BIROUL, DARBHANGA 5. ANCHAL ADHIKARI, BIRAOUL, DISTRICT DARBHANGA …RESPONDENTS 1ST SET 6. RAM REKHA RANJAN WIDOW OF DAMODAR RAI, RESIDENT OF VILLAGE DEKULIDHAM, P.O. DEKULIDHAM, P.S. BIRAUL, DISTRICT DARBHANGA 7. KRISHNA KUMAR RAI 8. SATYA NARAIN RAI 9. TRILOKI NATH RAI, NOS.7-9 SONS OF LATE DAMODAR RAI, ALL RESIDENTS OF VILLAGE DEKULIDHAM, P.O.DEKULIDHAM, P.S. BIRAUL DISTRICT DARBHANGA …RESPONDENTS 2ND SET 10(I) VISHWANATH PASWAN 10(II) RAMJAPPO PASWAN 10(III) GODHIA PASWAN 10(IV) MAHESH PASWAN, ALL SONS OF LATE SRI MUSHHAR PASWAN,AND RESIDENT OF VILLAGE TALIBPUR, POST OFFICE JAGANNATHPUR, POLICE STATION BIRAUL, DISTRICT DARBHANGA 12. BHATU PASWAN SON OF BUDHAN PASWAN 14(I) GANGU PASWAN 14(II) SOMAN PASWAN 14(III) ASHRAFI PASWAN 14(IV) BHIKARI PASWAN 14(V) MANGALI, NOS. 14(1) TO 14(IV) SONS AND 14(V) DAUGHTER OF LATE ANANDI PASWAN, ALL RESIDENT OF VILLAGE TALIBPUR, POST OFFICE JAGANNATHPUR, POLICE STATION BIRAUL, DISTRICT DARBHANGA 15(I) TETAR PASWAN 15(II) SURPIT PASWAN 15(III) RAMNATH PASWAN 15(IV) PALTANIA DEVI, 15(1) TO 15(III) SONS OF LATE BHOLA PASWAN, 15(IV) WIDOW OF LATE BHOLA PASWAN, ALL RESIDENTS OF VILLAGE TALIBPUR, POST OFFICE JAGANNATHPUR, POLICE STATION BIRAUL, DISTRICT DARBHANGA. 16(I) DINKAR PASWAN SON OF LATE SRICHAN PASWAN 16(II) JANKI DEVI WIDOW OF LATE SRICHAN PASWAN, BOTH RESIDENTS OFVILLAGE TALIBPUR, POST OFFICE JAGANNATHPUR, POLICE STATION BIRAUL, DISTRICT DARBHANGA. 18(I) LAL BAHADUR PASWAN 18(II) JUNG BAHADUR PASWAN, BOTH SONS OF LATE GUJO PASWAN 2 18(III) BUCHI DEVI, WIDOW OF LATE GUJO PASWAN, ALL RESIDENT OF VILLAGE TALIBPUR, POST OFFICE JAGANATHPUR, POLICE STATION BIRAUL, DISTRICT DARBHANGA. 19. ASHARFI PASWAN, SON OF ANANDI PASWAN 20. SADHUSARAN PASWAN SON OF GENA PASWAN 21. VIRANCHI PASWAN SON OF CHHATTU PASWAN 22(I) GONAR MOCHI 22(II) MANMA MOCHI 22(III) UPENDRA MOCHI 22(IV) BHUTTO MOCHI, ALL SONS OF LATE SAINI MOCHI 22(V) BUCHI DEVI WIDOW OF LATE SAINI MOCHI, ALL RESIDENTS OF VILLAGE TALIBPUR, POST OFFICE JAGANNATHPUR, POLICE STATION BIRAUL, DISTRICT DARBHANGA. 23(I) MAHENDRA MOCHI SON OF LATE SARYUG MOCHI, GRANDSON OF LATE ANUP MOCHI, RESIDENT OF VILLAGE TALIBPUR, POST OFFICE JAGANNATHPUR, POLICE STATION BIRAUL, DISTRICT DARBHANGA 24. ROUDI MOCHI SON OF CHHATU MOCHI 25. DIGAMBER MOCHI SON OF KARI MOCHI 27. BAIDHNATH DAS SON OF RUBBI DAS 28. DHANESHWAR BANIYA SON OF BANIYA DAS 29(I) RAM JATAN YADAV 29(II) SHYAM YADAV BOTH SONS OF LATE GONAR YADAV 29(III) GUGRI DEVI WIDOW OF LATE GONAR YADAV ALL RESIDNENTS OF VILLAGE TALIBPUR, POST OFFICE JAGANNATHPUR, POLICE STATION BIRAUL, DISTRICT DARBHANGA 30. RAMPUKAR YADAV SON OF BUDHAN YADAV 31(I) MAHENDRA YADAV 31(II) NARAYAN YADAV BOTH SONS OF LATE KHELU YADAV 31(III) MUNNI DEVI WIDOW OF LATE KHELU YADAV ALL RESIDENT OFVILLAGE TALIBPUR, POST OFFICE JAGANNATHPUR POLICE STATION BIRAUL, DISTRICT DARBHANGA RESP. NO.10-31 ALL RESIDENTS OF VILLAGE TALIBPUR, P.O. JAGANNATHPUR, P.S. BIRAUL, DISTRICT DARBHANGA ….RESPONDENTS 3RD SET ----------- For the petitioners :Mr. Khatim Reza For the State :Mr. Pawan Kumar Mishra G.P.22 & :Mr. Shashank Shekhar Jha ---- 12. 30.03.2011 Present application under Articles 226 and 227 of the Constitution of India has been filed seeking appropriate order/direction for quashment of the order dated 31.05.2004 ((Annexure-14) as also the order dated 08.08.2005 (Annexure- 17), passed by Respondent-Collector, Darbhanga, whereby 3 queries have been made in respect of the claim of the petitioners for creation of Jamabandi in respect of the land(s) purchased by them from the original landholder(s). Background facts leading to the present writ application may be summarized as under: A land ceiling proceeding being L.C. Case No. 221/75-76 was initiated against one Damodar Rai(hereinafter referred to as the „original landholder‟) in respect of altogether 176 and odd acres of land situated in different village(s)/Mouzas including village Talipur within Biraul Anchal in the district of Darbhanga. Upon conclusion of the proceeding, a notification under section 15(1) of the Land Ceiling Act (hereinafter referred to as the „Act‟) was published on 31.05.1976, whereby original landholder was allowed 01 ceiling unit. Accordingly, 30 acres of Class-IV land(s) was/were allowed to be retained by the original landholder and 146 acres of lands were declared surplus. The three sons of the landholder filed an objection under section 37 of the Original Act claiming additional units for themselves. The said application was rejected by the Collector. Aggrieved thereby, the three sons of the original landholder filed a writ petition before this Court being CWJC No. 121 of 1977. By a proceeding dated 17.03.1977 (Annexure-1), this Court quashed the order of the Collector and issued direction to consider the objection and pass/issue consequential order/notification. The Addl. Collector in pursuance of the direction of the High Court, by a proceeding dated 14.02.1978, on a consideration of 4 materials placed before him, allowed only two ceiling units to the two sons of the original landholder. In other words, the land holder(s) were allowed to retain altogether three ceiling units. The third son of the petitioner, however, was not found entitled to separate ceiling unit. Aggrieved by the aforesaid adjudication and refusal to grant one ceiling unit to the third son of the original landholder(s), the third son filed revision before the Board of Revenue being Revision Case No. 163 of 1979. The Board of Revenue, vide Resolution dated 22.08.1979 (Annexure-2), allowed the revision application and allowed 01 additional unit to the third son of the original landholder (revisionist). In substance, the original land holder was allowed to retain 04 ceiling units. In the light of the order passed by the Board of Revenue, the Respondent-Addl. Collector by order dated 29.11.1980 (Annexure-3), passed the consequential order, whereby the landholder(s) of the aforesaid land ceiling proceeding being L.C. Case No. 221/75-76 was/were allowed to hold 04 units. Accordingly, a direction was also issued for publication of a fresh notification under section 15(1) of the Act. The land holders were thus allowed to hold 120 acres of Class IV lands and 56 and odd acres were declared surplus. In other words, the initial notification issued under section 15(1) of the Act on 31.05.1976 was modified. Annexure-4 is the fresh notification issued under section 15(1) of the Act on 01.07.1983 whereby 120 acres of land were allowed to be retained by the landholder (s) and 56 and odd acres were only declared surplus. 5 It is to be noted here that the land(s) claimed by the writ petitioners were allowed to be retained by the landholder(s) within the ceiling units to which they were found entitled to by order dated 29.11.1980 (Annexure-3). The sons of the original landholder and the widow of the original landholder got a suit for partition instituted on 07.05.1993 wherein a decree was passed on 07.05.1993 (Annexure-5), whereby the land purchased by the writ petitioners fell in the share of the widow of the original landholder. The widow of the original landholder(vendor of the writ petitioners) filed an application for creation of Jamabandi in respect of the land allotted to her share by virtue of decree passed in partition suit (Annexure-5). The revenue authority by order dated 18.02.1998 (Annexure-6) allowed the said prayer of the widow of the original landholder and the land claimed by her by virtue of the decree was allowed to be mutated in her name. Accordingly, Jamabandi no.66 was created in her name, followed by issuance of rent receipt. The widow having found her name recorded in records of rights sold part of 9.90 acres of land situated in village Talipur in the district of Darbhanga in favour of the writ petitioners by executing and registering one sale deed (Annexure-7). The petitioners thereafter approached the authority for mutating their names. It appears that such prayer was made before the Addl. Collector on 10.10.2002. The Addl. Collector called for a report from the Respondent-Circle Officer regarding the status of the subject land. The Circle Officer submitted a report (Annexure-10) 6 stating therein that in view of the facts appearing from records the lands were required to be mutated in the name of the purchaser and, as such, requested for issuance of an appropriate instruction/direction in this regard. It appears from the said report that during the pendency of the proceeding taken up by the original land holder and his heirs (sons) part of the land situated in village Talipur earlier acquired by reason of notification issued under section 15(1) of the Act on 31.05.1976 was/were settled with the eligible persons by issuing Purcha(s) in terms of the provision of the Act. Having found the aforesaid facts appearing from the report, the Addl. Collector by order dated 15.7.2003 (Annexure-11), transmitted the records to the Collector with a proposal for according approval for cancellation of Jamabandi in the names of those settlees. It appears that said matter remained pending before the Collector in which queries were made from time to time which includes order(s) contained in Annexures-14 & 17. The Collector initially called for a report from the Addl. Collector which were immediately replied to. The Collector again called for a report from the Deputy Collector, Land Reforms by a proceeding dated 31.05.2004(Annexure-14). The Deputy Collector, Land Reforms submitted a detailed report on 21.05.2005 (Annexure- 15) explaining all the facts and circumstances. It appears therefrom that although the Purchas in terms of the provisions of the Act were issued in favour of the settlees after initial notification issued under section 15(1) of the Act, but Jamabandi 7 in respect of those lands were created only in the year 2001 in favour of only 13 such settles(Purchaholders). On receiving the said report (Annexure-15), the Addl. Collector by a proceeding dated 23.07.2005, sent the same to the Respondent-Collector for his perusal and according approval. It is the case of the petitioner that thereafter again queries have been made by order contained in Annexure- 17 and the matter is pending before the said authority leading to filing of the present writ petition. A counter affidavit has been filed on behalf of the State. Nobody has appeared on behalf of the private respondents to contest the present writ application. Heard learned counsel for the petitioners and the State and perused the materials on records. Learned counsel for the petitioners submits that in view of fresh notification issued under section 15(1) of the Act on 01.07.1983 (Annexure-4), the earlier notification acquiring the land(s) including the lands purchased by them becomes a nullity in the eye of law. Once the subject land(s) having been found and declared to be the land(s) to which the landholder(s) are entitled to hold/possess in terms of the provisions of the Act, any action taken prior thereto by the State-Respondents treating the said lands to be the lands acquired by the State would also become a nullity. It is submitted that the Purchas earlier issued in favour of the respondents treating the same to be the lands acquired by the State by reason of earlier notification under section 15(1) of the Act, became inoperative in the eye of law. 8 No order in the eye of law is required to be passed specifically by respondents for cancelling the purcha/settlement and creation of Jamabandi since the land in question by reason of subsequent notification issued u/s 15(1) of the Act on 01.07.1983 (Annexure-4) was allowed to be retained by the landholder(s) of the ceiling proceeding. Once it is found and declared that lands including the subject land have not been acquired by the State of Bihar free from all encumbrances in terms of section 15(1) of the Act, then any action taken in respect thereof including the settlement thereof shall have no sanctity in the eye of law and thus inoperative. It is submitted that Jamabandi in respect of part of the land(s) purchased by the petitioners were created in the year 2001 based on the Purcha issued in their favour and, as such, the creation of Jamabandi shall also be a nullity in view of subsequent modification/deletion in the notification issued under section 15(1) of the Act allowing the landholder(s) to retain the land(s) in question. Learned counsel for the petitioner, in this regard relying on paragraphs 5,6 and 7 of the report dated 21.05.2005 (Annexure-15), submits that said authority has taken a right view in the matter when it was found and recommended that in view of the factual aspects of the case no separate/fresh order is required to be passed for cancellation of Purcha(s) considering the subsequent notification issued under section 15(1) of the Act on 01.07.1983 (Annexure-4). It is thus contended that Respondent-Collector or the appropriate authority under the Act may be directed to pass appropriate 9 orders creating Jamabandi in respect of the purchased land(s)/plot(s) for which application was filed and is pending. Learned counsel for the State-Respondents, on the other hand, submits that the stand of the petitioners seems to be correct that in view of subsequent notification issued under section 15(1) of the Act on 01.07.1983 (Annexure-4) the earlier settlement and/or creation of Jamabandi made in favour of the settlees would be inoperative in the eye of law. It is, however, submitted that for taking possession over the vended land if not found in possession, the writ petitioners may approach the court of competent jurisdiction for the said relief and/or take recourse to other remedy available to them. I have considered the submissions advanced on behalf of the parties and perused the materials on record. From the submissions noted hereinabove, this much is evident that the three sons of the original landholder had moved this Court in CWJC No. 121 of 1977 which was disposed of by order dated 17.03.1977. The operative portion of the order reads as under: “In the result, this application is allowed, Annexure-9 is quashed and the Collector is directed to decide the claim of applicants in accordance with law. The petitioners as also the State will be entitled to produce further evidence before the Collector. If the objection of the petitioners succeeds in whole or in part, consequential amendment will have to be made in gazette notification dated 1.6.1976 and if necessary fresh gazette notification may have to be issued. It is clarified that till the decision of the claim application of the petitioners, they shall not be dispossessed from the lands which are the 10 subject matter of the proceeding. We fix 11th April 1977, as the date on which the petitioners must appear before the Collector, Darbhanga. On that date, another date should be fixed for hearing the claim petition. There will be no order as to costs.” Thereafter the matter was taken up by the authority under the Act and it was ultimately found that the three sons of the original landholder were entitled to hold separate land ceiling units. The land vended in favour of the petitioner, therefore, found and held to be the land of the landholders. After having adjudicated on this point, the authority under the Act came out with fresh notification under section 15(1) of the Act on 01.07.1983 (Annexure-4) as a result whereof the earlier notification issued under section 15(1) of the Act was cancelled/modified. The subject land, therefore, did not vest in the government. Actions taken on the premise that the land(s) in question has vested in the State therefore required to be set at right. It further appears from Annexure-15 that till 2001 Jamabandi in respect of the lands claimed by the petitioner by sale deed (Annexure-7) was not created in favour of the settlee(s)/Purchaholder(s). Only in 2001 Jamabandi was created in favour of 13 out of 20 such settlees over the land in question. Considering the earlier direction of this Court, as noticed hereinabove and the position in law, this Court is of the view that the authority under the Act was required in law to cancel aforesaid 13 Jamabandi(s) created in the year 2001 in the name of some of the settlees respecting the land covered by the sale . 11 deed (Annexure-7) Accordingly, the writ application is allowed and the impugned order(s) which are in the shape of queries made by the Respondent-Collector, as contained in Annexures-14 and 17 are quashed and set aside. Respondent-Circle Officer or the Deputy Collector, Land Reforms, as the case may be, is directed to cancel 13 Jamabandi(s) created in the name of settles/Purchaholders in the year 2001 respecting the subject land which shall be treated as the land of the vendor of the writ petitioners and thereafter shall pass an order in accordance with law on the application of the writ petitioners seeking mutation of their names respecting the subject land. Writ petitioners are directed to approach the authority with a copy of the present order for appropriate order(s). hr ( Kishore K. Mandal )