IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12954 of 2008 MAYURDHAWAJ PD.SINGH, son of Ram Balak Singh, Resident of village-Khanwan, P.S. Narhat, District-Nawadah………Petitioner Versus 1. THE STATE OF BIHAR 2. The Anchal Adhikari (Circle Officer), Narhat, Nawadah 3. The Deputy Director, Land Reforms, Nawadah 4. District Magistrate-cum-Collector, Nawadah 5. The Commissioner, Magadh Pramandal, Gaya, ………. ………….. Respondents. For the petitioner: Mr. Shinandan Prasad. Singh Mr Shyaddeo Prasad Singh For the state: Mr. Shambhu Nath A.C. to G.P. X ----------- 3. 15.05.2009 Heard learned counsel for the petitioner and the counsel appearing for the state. This application has been filed by the petitioner for quashing the order dated 03.08.2007 passed by Commissioner, Magadh Pramandal, Gaya rejecting revision case No. 19/02 and also the order dated 11.8.1993 passed by the Collector, Gaya. The Collector has passed order dated 11.8.1993 without initiating any proceeding under any of the provisions but exercising jurisdiction under rule 3 of the Bihar Board Miscellaneous Rules. The order has been passed, simply by calling Record No. 18- 32/2000. By this order, the settlement made in favour of the mother of the petitioner by ex-intermediaries in the year, 1940 has been cancelled. Since the order was passed without initiating any proceeding and without any notice to the petitioner, as such, petitioner had no knowledge about the order dated 11.8.1993. Subsequently, when he came to know about this order, he applied for the certified copy of the order that was not supplied, as such, he - 2 - filed C.W.J.C. No. 8766 of 1998 with a prayer to direct the respondents to issue certified copy of the order dated 18.9.1993 which was allowed directing the Respondents to issue certified copy of the order dated 18.9.1993. Subsequently, the order was supplied to him and, thereafter, he challenged the order by filing revision case No. 19/02 before the Commissioner, Magadh Division, Gaya. The revision case was finally decided by order dated 10.8.2007 with the finding that the claim of the petitioner of being an occupancy raiyat of the land in question, cannot be allowed. The petitioner was held to be in illegal occupation of the land, as such, the District Administration was directed to get the land released from his illegal occupation. Being aggrieved with the order passed, writ application has been filed. Counter affidavit has been filed on behalf of the respondents. In the counter affidavits, it has been stated that the order dated 11.8.1993 was passed by the Collector in exercise of jurisdiction under rule 3 of Bihar Board Miscellaneous Rules. It has also been stated that since in the Cadastral Survey, the land in question was recorded as “Donaiya river” and in revisional survey Khatiyan, it is recorded as SARVSADHARAN , as such, it is a land of public utility. Such land could not have been settled by ex- intermediary in favour of the petitioner. It has also been stated that the land, over which the petitioner is claiming his possession since 1940, could not have been settled by ex-intermediary in favour of the mother of the petitioner, under the provisions of Bihar Land - 3 - Reforms Act. The Collector has rightly passed an order cancelling settlement made in favour of the petitioner, prior to vesting of the Jamindari in the Estate of Bihar. On consideration of the pleadings of the parties and on perusal of the impugned orders, I find that the petitioner after vesting of the Jamindari in the Estate of Bihar had filed a suit under section 106 of the B.T. Act for making correction of the wrong entry in the Khatiyan and for entering his name with respect to the land in Khatiyan. This suit was instituted as Suit No. 2417/79. The Collector, Nawada, Anchaladhikari, Mukhiya, Gram Panchayat and several other villagers were impleaded as party-defendants in that suit. Issues were framed for deciding the relief prayed in the suit, evidences were led by parties. issue No. 2 was related to whether the revisional survey entry with regard to the suit land is correct ? and issue No. 3 was that whether the plaintiff is the bonafide settle from the Ex-landlord and in possession of the land ? Both the issues were taken up together. Considering the evidence led by the parties and also the surveyor’s report submitted regarding the nature of the land, the finding was recorded which is as follows: “ From examination of the material on record, it transpires that the land in suit is cultural land Dhanhar and Bhit and is in possession of the plaintiff.” Thus, it transpires that the claim of defendant that land is a public land and being used for irrigation purposes, is in contradiction of the surveyor’s report. Against the judgment and order passed in the suit under section 106 of the B.T. Act, the state of Bihar had - 4 - preferred an appeal and that was also dismissed. Against the dismissal order of appeal, state did not move before any appropriate forum and the order became final. In this view, the impugned order dated 11.8.1993 passed by the Collector, Nawadah in exercise of jurisdiction under rule 3 of Bihar Board Miscellaneous Rule is completely illegal and without jurisdiction. However, I also find that the petitioner also committed an error by filing revision before the Commissioner, Magadh Division, Gaya under Bihar Board Miscellaneous Rule. The orders passed by the Revisional authority is also without jurisdiction. Both the orders, i.e. order dated 11.8.93 passed by Collector, Nawada and order dated 3.8.07 passed by Commissioner, Magadh Division, are quashed. . Counsel for the state was very much persuasive that the matter should be remitted to the Collector for its proper adjudication after issuing notice to the petitioner. I do not find much substance in the submission for the reason that only remedy available to the state for declaration of its title and possession over the disputed land , is before the civil court. This application is allowed. akv (Mridula Mishra, J.)