LETTERS PATENT APPEAL No.145 OF 2007 ------ Against the judgment and order dated 6.4.2005 in CWJC No.10711 of 2004 passed by learned Single Judge of this Court. ------ 1. The State of Bihar through the District Magistrate, Patna 2. The Circle Officer, Patna Sadar, Patna .... Respondents ... Appellants VERSUS Kailash Kumar Agarawal, son of Late Moti Lal Agarawal, presently residing at Rajendra Nagar, Maila Tank Road, P.S. Kadamkuan, District Patna .... Petitioner .... Respondent ------ For the Appellants : Mr Ray Shivaji Nath, AAG 4 Mr Amarendra Kumar, AC to AAG 4 For the Respondent : None ------ P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA Shiva Kirti Singh H.K.Srivastava, JJ. Heard learned counsel for the appellants. Nobody appears on behalf of the sole respondent although name of his counsel appears in the daily cause list. 2. By the order under appeal, the learned Single Judge has allowed writ petition preferred by the sole respondent and has directed that name of the writ petitioner be mutated with respect to the land in question for which an order had been passed by the Circle Officer, Patna Sadar, Patna on 18.7.1982 in Mutation Case No.890 of 1982-83. 2 It is relevant to record here that according to learned counsel for the appellants the order of the Circle Officer is actually dated 6.8.1982 and only recommendation for mutation was made by Circle Inspector on 18.7.1982. He has advanced this submission on the basis of Annexure- C to the writ petition. Be that as it may, the main issue in this appeal is whether the State can ignore the order for mutation passed by the Circle Officer either on 18.7.1982 or 6.8.1982 on the ground that land in question has been subsequently found to be “Gair Majaruwa Aam” land as per relevant Khatian. The other issue is whether the order of the Writ Court directing for mutation of the name of the writ petitioner in respect of land in question is a proper order or requires interference. 3. Only for the purpose of record it is indicated that as per petitioner’s case his father Motilal Agrawal along with one Awadh Behari Singh had purchased land of Tauzi No.5806, Khata No.769, Plot No.1220 measuring 3 Kathas 11 Dhurs and 14 Dhurkis from Most. Godhani Devi through a sale deed dated 22.6.1981 (Annexure-1 to the writ petition). Subsequently, the petitioner purchased land in the share of Awadh Behari Singh through another sale deed dated 30.11.1981 (Annexure-2 to the writ petition). Thereafter, writ petitioner’s father applied for mutation vide Mutation Case No.890 of 1982-83 before the Circle Officer, Patna who allowed the claim for 3 mutation on 6.8.1982 after obtaining reports from the Karmchari and the Circle Inspector concerned. 4. Learned counsel for the appellants has submitted that since the land in question is recorded in the Khatian as “Gair Majaruwa Aam” land which could not have been sold by anyone hence the purchaser’s application for mutation could not have been allowed by the Circle Officer. This objection has been properly considered by the Writ Court and has been rejected on the admitted fact that State or its officials have never challenged the order of Circle Officer allowing mutation in favour of Motilal Agrawal, father of the writ petitioner. The Writ Court has further correctly observed that right of a vendor to sell the land in question on the ground that land was a “Gair Majaruwa Aam” land raises issue of title which can be raised before and decided by only a competent civil court. 5. Further submission on behalf of the appellants is that order of the mutation is only in favour of Motilal Agrawal, father of the writ petitioner and after his death, the writ petitioner is required under law to apply for mutation in his own name which has yet not been done and, therefore, the Writ Court should have confined its direction only for mutation in the name of Motilal Agrawal so that State may get another opportunity to object if the writ petitioner applies for mutation in his own name on the ground of death of his father. 4 6. So far as the aforesaid submission is concerned, from the averments made in the writ petition it is clear that the application for mutation was by Motilal Agrawal and the writ petitioner has sought implementation of order of the Circle Officer dated 6.8.1982 which directs for recording of the land by way of mutation only in favour of Motilal Agrawal. It further appears that the writ petitioner himself has not filed any application for further mutation of the land in question in his name. In such factual situation, the direction of the Writ Court for mutation of the land in question in favour of the writ petitioner deserves to be modified and is accordingly modified to the extent that pursuant to order of the Circle Officer dated 6.8.1982 contained in Annexure-3 to the writ petition, the land in question shall be mutated in the name of Motilal Agrawal, father of the writ petitioner and if the writ petitioner wants further mutation in his name, he would be at liberty to file application for that purpose before the concerned authority. 7. Lastly, it was submitted on behalf of the appellants that fraud can be challenged whenever it is detected and hence, the appellants be given liberty to challenge the order of the Circle Officer dated 6.8.1982 before the competent authority in accordance with law. It goes without saying that on the plea that land in question is actually “Gair Majaruwa Aam” land, the State can always take suitable steps and action to protect its own interest through an appropriate 5 proceeding by way of appeal or revision in accordance with law. Further, as observed by the Writ Court, the State can also take recourse to the competent civil court if occasion arises for the same. 8. With the modification ordered earlier and the aforesaid clarification, the appeal is disposed of. No costs. (Shiva Kirti Singh, J.) (Hemant Kumar Srivastava, J.) Patna High Court The 17th August, 2010 S.Kumar NAFR