CIVIL WRIT JURISDICTION CASE No.15244 OF 2008 *** 1. ZOHARO BANO, WIFE OF LATE HAJI AMANULLAH 2. AFTAB ALAM, SON OF LATE HAJI AMANULLAH 3. SAHZAD ALAM, SON OF LATE HAJI AMANULLAH 4. FAIYAZ ALAM, SON OF LATE HAJI AMANULLAH 5. MD. SIYAZ ALAM, SON OF LATE HAJI AMANULLAH ALL RESIDENT OF RASOOLPUR KATESHAR, POST OFFICE KATESHAR, DISTRICT PATNA ………………………………………………………………………..PETITIONERS VERSUS 1. THE STATE OF BIHAR 2. THE DISTRICT MAGISTRATE, PATNA 3. THE SURVEY SETTLEMENT OFFICER, PATNA, BIHAR 4. THE CIRCLE OFFICER, BIHTA, PATNA 5. SHRI HARIBANSH NARAYAN PANDEY, RESIDENT OF JAGAT APARTMENT, BRAHM STHAN ROAD, SHEIKHPURA, DISTRICT PATNA THE THEN SUEVEY SETTLEMENT OFFICER, PATNA, BIHAR …………………………………………………………………………..RESPONDENTS ********* FOR THE PETITIONER :- MR. J. K. VERMA, ADVOCATE MR. HARISH KUMAR, ADVOCATE FOR THE S T A T E :- MR. PRIYANK SAMDARSHI, AC TO SC-XX ******* P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN Sheema Ali Khan, J. The petitioner being aggrieved by the order dated 29.07.2008 passed by the Survey Settlement Officer, Patna in Suo Motu Case No. 1/Bihta/2008 setting aside the order dated 10.04.2000 in Revision Case Nos. 11 and 12 of 2002 under rule 103A (iii) of the Bihar Tenancy Act in purported exercise of powers under Section 467 of the Bihar Survey and Settlement Manual, 1959 (hereinafter referred to as the Manual). The dispute revolves around 10 decimals of 2 land out of 21 decimals of land under Khata No. 221 plot no. 1623 situated in village Rasoolpur Kateshar within Bihta circle. The lands were originally recorded as GAIR MAZRUA MALIK MOKIRDAR and the house of the ex- landlord was standing on the aforesaid lands. The ex- landlord settled an area of 10 decimals appertaining to plot no. 1623 to Halkhora Paswan, Sukhdeo Paswan and Baldeo Paswan by way of a HUKUMNAMA and the settlees were in peaceful possession over the lands in question. The settlees due to urgent need of money sold the aforesaid 10 decimals of land on 24.07.1961 by a registered document to Abdul Hamid who came in possession thereof and constructed his house. Abdul Hamid had four sons, Akram Hussain, Mumtaj Hussain, Gulam Hussain and Altaf Hussain. Altaf Hussain holding the Power of Attorney on behalf of his three other brothers sold the 10 decimals of land of plot no. 1623 on 18.06.1999 to Haji Amanullah. It may be pertinent to mention that the sale deed was registered at Mumbai. The case of the petitioner is that one Musaraff Hussain constructed a house on 8 decimals of land of plot no. 1623 and is residing there with his family members. The family of the ex-landlord also constructed house on 2 decimals of land of plot no. 1623 and his legal heirs are now living in peaceful possession as owners in 3 the said house. In the year 1999, one Chauki Paswan surreptitiously opened a separate Khata of plot no. 1623 in his name. Chowki Paswan has claimed that the lands were settled in his favour, however, after spot verification it was found that Chowki Paswan was not in possession on the lands in question. Chowki Paswan also claimed that there was a pucca `chabutra’ which was used for religious purposes, and by taking the help of unsocial elements, he (Chowki Paswan) was instigating communal feelings. The Assistant Circle Officer also found that the petitioners had his house and courtyard just next to the said chabutra which was in possession of the petitioner. 107 Cr.P.C. proceedings were started against Chowki Paswan. The petitioner filed Case No. 261 of 1999 under Section 103A of the Bihar Tenancy Act when he came to know about the actions of Chowki Paswan. The Assistant Settlement Officer, Patna ultimately by his order dated 17.01.2000 did not enter the name of any of the parties in the register on the ground that Chowki Paswan in collusion with anti social elements had created a situation which was likely to cause a communal riot in the locality and it was observed by the Assistant Settlement Officer that it would not be proper to open a separate Khata in the name of the either parties until matters had normalized in the village and recorded the lands in the name of State of Bihar. 4 The petitioner being aggrieved by the order dated 17.01.2000 filed Revision Case Nos. 11 and 12 of 2002 and the Incharge, Settlement Officer, Patna after considering all aspects of the matter, modified the order dated 17.01.2000 on 10.04.2000 by canceling the entry made in the name of State of Bihar and directed that a separate Khata in the name of the petitioner should be opened. In pursuance of the order of the Incharge, Settlement Officer, Patna a separate Khata was opened in the name of the petitioner and the petitioner continued in possession over the 10 decimals of lands of plot no. 1623 ever since the registered sale deed was executed in their favour by Altaf Hussain. One Musraf Hussain of the same locality reported the matter to the National Human Rights Commission, New Delhi and prayed that the Commission should intervene in the matter. The complaint petition of Chowki Paswan and others was sent to the Senior Superintendent of Police, Patna for an appropriate action. The Deputy Superintendent of Police, Danapur in pursuance of the orders of the Senior Superintendent of Police, Patna enquired into the matter and submitted his report on 07.08.2004 in which he has reported that the petitioner was the bonafide owner and purchaser of the lands of plot no. 1623 measuring 10 decimals. However, 5 due to the unpleasant situation created by Chowki Paswan and others, a proceeding under Section 107 of the Code of Criminal Procedure was initiated against Chowki Paswan and others. A copy of the enquiry report was also forwarded to the National Human Rights Commission, New Delhi. The petitioner remained in peaceful possession over the lands in question undisturbed by any quarters after the enquiry report was submitted to the National Human Rights Commission, New Delhi until he received a notice on 23.07.2008 which was dated 18.07.2008 from the Settlement Officer, Patna in Suo Motu Case No. 1/Bihta/2008 fixing 28.07.2008 as the date for appearance in the case. The contention of the learned Counsel for the petitioner is that the order passed by the Assistant Settlement Officer is without jurisdiction as he has no power to review under rule 467 of the Manual and that the order has been passed without giving a reasonable opportunity to the petitioner and the Officer who has passed the order with a malafide intention as would be apparent from the order sheet of the records. It is alleged that the Officer was to retire in two days and, therefore, without giving any opportunity to the petitioner passed this order. This Court will now discuss the provisions of 6 the Manual. The Manual has been described as a compilation of the principal rules of procedure for surveys and settlements. The technical rules are contained in a separate manual entitled “Technical Rules of the Settlement Department”. These two manuals replace the Bengal Survey Manual, 1908, and the Bengal Settlement Manual, 1908 for the province of Bihar and Orissa. This aspect of the matter has been emphasized by the Court to demonstrate that by virtue of exercise of power under rule 467 of the Manual, an order passed under the Statues cannot be reviewed. Rule 467 of the Manual is being quoted below. “467. Correction of fraudulent entries.- It has been ruled that where it is desired to correct an entry in the finally published records that has been procured by fraud the Settlement Officer has an inherent right to order the excision of the fraudulent entry, and his act in doing so is a ministerial act, not open to appeal. At the same time the Settlement Officer should make the correct entry, leaving a note against the excised entry that it is fraudulent, and either stating his reasons in the record or making in the record a reference to a proceeding in which those reasons have been stated, as may be more convenient.” 7 As noted above, this rule clearly states that the Settlement Officer has an inherent right to order the excision of a fraudulent entry. This act is a ministerial act of the Officer concerned and is not open to appeal before a higher authority and it further requires the Settlement Officer to make a correct entry with a finding with a note against the excised entry that it is fraudulent and state reasons in the record with respect to the reasons for coming to a finding that the entry is fraudulent. Thus, this Court has to examine the reasons given by the Settlement Officer and the manner in which he has conducted the proceedings. The Officer has acted on a complaint made before the District Officer which has been sent to the Settlement Officer for examination of the issue. It would also be apparent from the order dated 18.07.2008 that it was Chowki Paswan or his heirs who had made the said complaint. The reasonings mentioned apart from this by the Settlement Officer is that the land was earlier recorded in the name of State of Bihar and Chowki Paswan was shown to be in illegal possession of the land and, therefore, the Settlement Officer found sufficient grounds to proceed in this matter. Accordingly notices were issued to the petitioner. The petitioner appeared on 27.07.2008 and prayed that he may be granted sometime to file his reply and to produce the records. Time was granted to the 8 petitioner Ultimately, the Settlement Officer granted the petitioner one day’s time. This Court has not come across in any proceeding before any authority where on the first appearance the Court or the Authority is so unreasonable as to grant one day’s time to the answering respondent. This Act of the Settlement Officer is unreasonable, arbitrary and malafide in law and facts purporting to exercise officers powers of a judicial or semi-judicial nature or acting as the Court within the meaning of the particular Act are duty bound to act in a fair and reasonable manner. The Actions of the Settlement Officer are contrary to the well settled principle that “justice should not only be done but appears to be done”. On the very next date i.e. on 29.07.2008 the Settlement Officer passed the order unsettling the orders passed by the Assistant Settlement Officer eight years ago. The reasons for canceling the entry in the name of the petitioner are even more interesting. This Court is enumerating them below. (i) It is said that Khata NO. 211 Khesra No. 1623, 21 decimals of land is GAIR MAZRUA MALIK land. It contains a platform which is known as “MAHAVIR JEE KA CHABUTRA’. The RAM NAVMI flag is taken every year to the said CHABUTRA and it is known till today for this purpose. The reason for this finding is that the villagers 9 have filed an application to this effect. This finding is without any evidence. (ii) Haji Amanullah who has his house had opened a door and entered into the land with a view to take illegal possession of the said land and he is responsible for building communal feelings. (iii) The order of the Settlement Officer under rule 103 A in Case No. 261 of 1999 (which was set aside in revision) is correct whereby the land was shown to belong to the State of Bihar. (iv) The register II shows that the land is not in the name of any person and, therefore, belongs to the State of Bihar. (v) The order of the Assistant Settlement Officer entering the name of the petitioner in Register II and the Khatiyan is an act by the Officer to instigate communal disharmony. (vi) The sale deed dated 18.06.1999 was registered in Mumbai. The petitioner’s argument has been noted but not answered by the Assistant Settlement Officer wherein the petitioner had stated that the lands were recorded as GAIR MAZRUA MALIK MOKRDAR and the ex- landlord is in possession over the part of the plot no. 1623 and has his house over it. It was also submitted that the 10 ex-landlord had settled part of the land to Sukhdeo Paswan and others and the settlees were in possession over the part of land settled to him and this dispute has been created by Chowki Paswan only to grab the land. The petitioner is in possession and has title through the sale deeds executed in his favour. The alleged `CHABUTRA’ is part of the petitioners’ courtyard which is a pucca construction. In the teeth of all records and for reasons which are not substantiated except on a frivolous complaint by the anti social element who want to grab the land of the petitioner, the Settlement Officer has held that the part of the lands in question was used during RAM NAVMI for the purposes of bringing the flag of MAHAVIR JEE. From the order sheet, it is also apparent that there is no finding of the Court below that the entry was fraudulent and the reasons given by him are unsustainable as it is completely beyond the records. It is apparent that out of 21 decimals of plot no. 1623, 2 decimals has been utilized by the ex-landlord who has his house over the said land whereas 8 decimals are in possession of the settlees of the ex-landlord. The petitioner has acquired only 10 decimals of land through sale deed firstly executed by the settlee in favour of Abdul Hamid and secondly by the sale deed executed by heirs of 11 Abdul Hamid in favour of the petitioner. The aforesaid fact also leads to the conclusion that all the parties who are living and are in occupation on 21 decimals of land on plot no. 1623 are enjoying uninterrupted possession and title over the said lands and, therefore, the dispute raised by Chowki Paswan is unwarranted and mischievous. Chowki Paswan on whose petition the impugned order has been passed was party and has appeared at all stages in the case. Chowki Paswan or his heirs had also gone so far as to file a petition before the National Human Rights Commission, New Delhi which led to an enquiry made by the Deputy Superintendent of Police, Danapur which was in favour of the petitioner. The National Human Rights Commission, New Delhi was duly satisfied and no further action was taken in the matter. After eight years on a complaint by some unknown persons, the Suo Motu case has been instituted. Learned Counsel for the petitioner contends that still today, there has been no problem with the members of the other community rather it is a few anti social elements who want to take forcible possession over the land in question are raising disputes over the said land. The petitioner is being put to harassment from time to time and the reasons stated by the Settlement Officer for canceling the entry in the name of the petitioner in the 12 revenue records is absolutely biased and unfounded by any facts. Referring to the finding with respect to the sale deed of the petitioner, learned Counsel refers to a decision of this Court in the Case of Deo Raj Kumar Prasad vs. State of Bihar & Others, reported in 2002 (1) PLJR 600 in which the petitioner was aggrieved by the order of the respondents not allowing the mutation on the ground that the sale deed were not registered within the State of Bihar as provided under Section 30 (2) of the Indian Registration Act, 1908. The Court held that the respondents should mutate the name of the petitioner over the said land purchased by him on the condition that the petitioner agrees to pay the difference of the stamp duty. In the circumstances, it has been submitted that the mutation of the name of the petitioner could not have been cancelled on the ground that the sale deed was registered in Mumbai although learned Counsel for the petitioner points out that at the time of the registration of the sale deed, there was no prohibition for registration outside the State of Bihar which was introduced at a later date. A counter affidavit has been filed on behalf of the State and infact Annexure-B of the counter affidavit would reveal that the registration in Mumbai is illegal. Learned Counsel for the petitioner has also relied on the 13 decision of this court to meet this objection of the State. Learned Counsel for the State also points the fact that the rent receipts were not issued to the ex-landlord in the year 1961-62 would indicate that the lands should be treated as Government lands. This argument of the State Counsel is unsustainable in view of the fact that there is no doubt about the fact that the lands in question were recorded as GAIR MAZRUA MALIK and not GAIR MAZRUA AAM which indicates that the lands did not belong to the State of Bihar. The question that the rent receipts were not issued prior to 1961-62 does not divest the MALIK from his title or for that matter his possession. In any event, it is not being doubted that since 1961 the MALIK or the others through him were in possession over the land in question i.e. for almost 50 years which infact would have its own implications. Therefore, this Court cannot accept the arguments put forth by the State with respect to the delay of four years for issuance of the rent receipts. This Court has already noted and discussed that the power of reopening of a matter is only a ministerial act. A ministerial act has to be nevertheless performed with fairness and inspire the confidence of the Court if put to challenge. The manner in which the entire proceedings have been conducted and the reasons for holding that the name of the petitioner has wrongly been 14 mutated, is absolutely arbitrary and has to be set aside. In the result, this writ application is allowed and the order dated 29.07.2008 passed by the Survey Settlement Officer, Patna in Suo Motu Case No. 1/Bihta/2008 is quashed. The respondents are directed to take appropriate steps in correcting the survey records and entering the name of the petitioner in the revenue records with respect to the 10 decimals of land in Khata No. 211 plot no. 1623. ( Sheema Ali Khan, J. ) Patna High Court Dated, the 27th July, 2009 A.F.R./Anand