IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.1316 OF 2006 YOGENDRA MANDAL, SON OF LATE SUBADH MANDAL, RESIDENT OF VILLAGE SANT NAGAR, POLICE STATION LAUKAHA (LALMANIYA), DISTRICT MADHUBANI ………………………………………….PETITIONER VERSUS 1. THE STATE OF BIHAR 2. THE DISTRICT COLLECTOR, MADHUBANI 3. THE DISTRICT FISHERIES OFFICER, FISH FARMING DEVELOPMENT AGENCY, MADHUBANI 4. THE DEPUTY COLLECTOR LAND REFORMS, JHANJHARPUR, DISTRICT MADHUBANI 5. THE SUB DIVISIONAL OFFICER, PHULPARAS, DISTRICT MADHUBANI 6. THE CIRCLE OFFICER, KHUTAUNA, DISTRICT MADHUBANI 7. CHAITU MUKHIYA, SON OF LATE SONAI MUKHIYA, RESIDENT OF VILLAGE GOTH KHUTAUNA, POLICE STATION KHUTAUNA, DISTRICT MADHUBANI ………………………………………………………………………….RESPONDENTS ********* FOR THE PETITIONER :- MR. H. P. SINGH, ADVOCATE MR. M. K. GAUTAM, ADVOCATE MR. MANISH KUMAR-4, ADVOCATE FOR THE S T A T E :- MR. GYAN SHANKAR, AC TO SC 17 FOR RESP. NO. 7 :- MR. PRABHAS RANJAN, ADVOCATE MR. ASHOK KUMAR PRASAD, ADVOCATE ************* 3 18/08/2010 The petitioner has filed this application challenging the order dated 14.10.2005 passed by the Collector, Madhubani as contained in Annexure-8 by which he has set aside the order of the Sub Divisional Officer, Phulparas dated 06.10.2004 as contained in Annexure-7. The Sub Divisional Officer, Phulparas had given permission to the petitioner to fish in the pond situated in Khata No. 649, Plot No. 957, measuring 69 decimals. Besides the aforesaid prayer, the petitioner has filed this writ application for an order restraining the respondents from disturbing the physical possession of the petitioner over the pond in question and 2 also restraining them from creating any obstruction to his right to fish in the said pond. The facts of the case are that the petitioner was settled the lands appertaining to Khata No. 649, Plot No. 957, measuring 18 Kathas 16 dhurs by the ex-landlord in the year 1945. The document of settlement is contained in Annexure 1, whereas Annexure-2 is the rent receipt granted in favour of the petitioner by the ex-landlord. Subsequent to which, the returns filed by the ex-landlord in the name of the petitioner jamabandi no. 3 was created in favour of the petitioner. After the vesting of the zamindari, the petitioner got his name mutated in the revenue records and has been paying the rent to the State of Bihar vide Annexure-3 series. The trouble began sometime in the year 1983-84 when the respondent-State attempted to settle the pond in favour of a third party. The petitioner filed an application for exempting all his lands from the Sairat Register and the Circle Officer, Khutauna by letter no. 107, dated 15.03.1985, recommended that the lands in question should be deleted from the Sairat Register. The entire file was forwarded to the Land Reforms Deputy Collector, Jhanjharpur. Again in the year 2004, an attempt was made for settlement of the fisheries right in favour of a third party which resulted in the filing of the present writ application. An application was filed by respondent no. 7 before 3 the Sub Divisional Officer. The petitioner appeared in the said case. The order of the Sub Divisional Officer is contained in Annexure-4, which indicates that there was a recommendation for exemption of the lands of the petitioner from the Sairat Register in the year 1985. Those records have not been traced, although it is admitted that they were sent to the Land Reforms Deputy Collector at the relevant time. It also appears that the private respondent has made a claim that the lands which have been settled in his favour are appertaining to Khata no. 549, Plot No. 957, measuring 80 decimals. It is said that the pond/Jalkar is actually situated over Khata No. 549 and the petitioner is attempting to mislead the authorities by saying that it is situated over Khata No. 649. This dispute is hardly relevant because it is a question of verification from the Khatiyan, map and on the actual spot verification. However, it is not disputed by the respondents that the petitioner is claiming, that the Khata number is 649 which measures 69 decimals. The Sub Divisional Officer had called for an enquiry report from the Officer-in-charge of the Lalmania Police Station. The report of the Officer-in-charge, Lalmania Police Station (Annexure-6) indicates that the petitioner is in the possession of the Khata No. 649, Plot No. 957 which is described to be pond/Jalkar. On the basis of the aforesaid facts, the Sub Divisional Officer has come to the conclusion that attempt should be made to trace the records 4 lying in the Office of the Land Reforms Deputy Collector which was sent to him 19 years ago by the Circle Officer recommending exemption of the lands of the petitioner from the Sairat Register. Against the order of the Sub Divisional Officer, the respondent-State moved before the Collector, Madhubani. The Collector, Madhubani by order dated 14.10.2005 has similarly ordered that there should be an enquiry with respect to the records relating to letter no. 107 dated 15.03.1985 issued by the Circle Officer for exemption of the lands of the petitioner from the Sairat Register and after enquiry, steps should be taken under Section 4 H of the Bihar Land Reforms Act (hereinafter referred to as the Act) for cancelling the settlement made in favour of the petitioner. I may make it clear that if the records are not traced, steps may be taken to re-construct the file, if possible. The stand of respondent no. 7 and the State is that the petitioner has misled the authorities by claiming that Khata No. 649 is the plot on which the pond/Jalkar is situated. It has been specifically stated in the counter affidavit purportedly filed on behalf of the Sub Divisional Officer, Phulparas that the Anchal Sairat Register discloses Khata No. 549 as the khata on which the Jalkar is situated, although the plot is common i.e. 957. This aspect of the matter is subject matter of verification. The other aspect is very important that the Collector 5 has decided that an enquiry should be made as to whether the Land Reforms Deputy Collector, Jhanjharpur has accepted the proposal mooted in the year 1985 for exemption of Khata No. 649, Plot No. 957 from the Sairat Register of the Anchal. Indeed, it would be proper that such an enquiry should be made, however, until enquiry is made, I do not think it proper that the respondent-State should further settle the lands in favour of any third party. One of the facts that may be noted in this case is that even before the vesting of the lands in the State of Bihar, by virtue of Annexures 1 and 2 as well as by virtue of Annexure 3, after the enactment of The Bihar Abolition of Zamindaris Act, 1948 i.e. from the year 1946, right up till the year 1983-84, the petitioner has been enjoying his rights over the settled land. Till the year 1983-84, nobody has come forward to dispute the title or possession of the petitioner, nor is it the case of the respondent-State that these lands were ever settled or utilized by the State. In fact, when the petitioner came to know that an adverse entry has been made with respect to his land, he moved the proper authority i.e. the Circle Officer, Khutauna for correction of the said entry. In view of this fact, it cannot be said at this stage, that the State has been able to show that in fact the lands vested in the State of Bihar. It is also not clear from the counter affidavit or the statements thereunder, as to when the lands in question 6 were entered in the Sairat Register of the Anchal. The various orders passed by the Circle Officer, Sub Divisional Officer and the Collector indicate that in fact the State has not been successful in handing over possession to any third party with respect to the said sairat. The Collector, Madhubani has set aside the order contained in Annexure-7 giving the rights of fishing to the petitioner. In my opinion, the Collector could not have done so until the rights of the particular person are finally decided. The State authorities are restraining the petitioner on the basis of the fact that there is an entry in favour of the State, in the Sairat Register of the Anchal. This entry does not create any right or title in favour of the State, as the presumption with respect to the possession would depend on the revenue records and not on an entry made in the Sairat Register, which cannot be treated to be a piece of evidence, for the purposes of declaring title or possession of the State of Bihar. Therefore, this Court finds and holds that part of the order impugned by which Annexure-7 has been quashed is not in accordance with law and as such this part of the Collector’s order has to be quashed until a full fledge enquiry is made in the matter. The State has not come up with a plea that sairat had vested in the State of Bihar after abolition of Zamindari. The land Reforms Act specifically provides that the land would vest under Section 3 of the Act on the date notified in Section 7 4 of the Act, but carves out land and leaves untouched, apart from raiyati holdings, the basgit lands in the KHAS possession of the ‘intermediary’ i.e. prior full owners under Section 6 of the Act. Therefore, the scope of the Act saves certain types of lands and allows them to remain in the possession of the under raiyats or intermediaries and protects such lands which are in the khas possession of the person concerned. The order of the Collector, Madhubani indicates that the proceedings under Section 4 H of the Act should be initiated against the petitioner. Section 4 H of the Act gives the power to the Collector to make enquiries in respect to any transfer including the settlement or lease of any land comprised in such estate or tenure or the transfer of any kind of interest in any building used primarily as office or cutchery for the collection of rent of such estate or tenure or part thereof, and if he is satisfied that such transfer was made at any time after the first day of January, 1946, with the object of defeating any provisions of this Act or causing loss to the State or obtaining higher compensation thereunder, the Collector may, after giving reasonable notice to the parties concerned to appear and be heard, annul such transfer, dispossess the person claiming it and take possession of such property on such terms as may appear to the Collector to be fair and equitable. Therefore, the Collector should decide this matter 8 after making an enquiry as to whether the lands vested in the State of Bihar, and whether there was a previous order by the Circle Officer for delisting these lands from the sairat register, before making any further settlement of the Pokhar in favour of a third party. The petitioner, on the other hand, would also have the remedy of filing a suit for declaration of title and confirmation of possession, if he so advised. In the result, the order as contained in Annexure-8 is quashed to the extent mentioned aforesaid. This application is thus allowed. Anand ( Sheema Ali Khan, J. )