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1e94c68957a0-0 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.1091 of 2013
With
Interlocutory Application No. 1572 of 2013
In
Civil Writ Jurisdiction Case No. 1091 of 2013
===========================================================
1. Maheshwar Mandal S/O Late Bachchi Mandal
2. Sanjay Mandal S/O Maheshwar Mandal, both resident of Village Sahebganj, P.S., P.O. and Anchal- Narpatganj, Subdivision- Forbesganj, District Araria .... .... Petitioners Versus
1. The State of Bihar
2. Divisional Commissioner, Purnea
3. Land Reforms Deputy Collector, Forbesganj, Araria ..... ..... Respoondents 1st Party
4. Smt. Jashoda Devi, wife of Gosain Mandal, resident of Village Sahebganj, P.S., P.O. and Anchal- Narpatganj, Subdivision- Forbesganj, District Araria .... .... Respondent 2nd Party =========================================================== Appearance :
For the Petitioners : Mr. Yogendra Mishra &
Mr. Uma Kant Tiwary,
Mr. Binod Kumar, Advocates
For Respondent No. 4 : Ms. Kumari Ritambhara, Advocate
For the State : Mr. Lalit Kishore, PAAG with
Mr. Piyush Lall, AC to PAAG
Mr. Ram Kishore Singh, AC to AAG 7 &
Mr. Syed Hussain Majeed, AC to AAG 7
Ms. Shashi Priya Pathak, AC to AAG 7 | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-1 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | Ms. Shashi Priya Pathak, AC to AAG 7
=========================================================== <span class="hidden_text" id="span_1"> Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014</span> CORAM: HONOURABLE THE CHIEF JUSTICE And HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH C.A.V JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-2 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | 12. 24.06.2014 This Petition under Article 226 of the Constitution has been filed by a father and the son Maheshwar Mandal and Sanjay Mandal to challenge the order dated 27th December 2011 made by the Competent Authority-cum-Deputy Collector Land Reforms, Forbesganj, Araria in B.L.D.R. Act Case No. 91 of 2011-12 in exercise of power conferred by the Bihar Land Disputes Resolution Act, 2009 (hereinafter referred to as "the Act of 2009"). The petitioners have also challenged the constitutional validity of the Act of 2009. | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-3 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | One Jashoda Devi, the respondent no. 4, wife of one Gosai Mandal approached the Competent Authority under the Act of 2009 for a declaration that she is the owner of the disputed parcels of land (hereinafter referred to as "the suit land") and that she is entitled to the possession of the suit land. She complained that the petitioners herein had forcibly dispossessed her. She, therefore, be put in possession of the suit land. The case was contested by the writ petitioners. According to them, the suit land was part of the lands inherited by the petitioner no. 1 and his brothers from their father Bachchi Mandal. It was the ancestral property inherited from the original owner Babujan Mandal. The sons of Bachchi Mandal were the joint owners of the land. The plaintiff, Jashoda Devi was the wife of one of the brothers. She claimed title over the suit land through a sale purportedly made by the late Bachchi Mandal on 22nd December 1995. According to the <span class="hidden_text" id="span_3"> Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014</span> petitioners, the said sale was later on cancelled on 29th February 1996. The land continued to be the joint property of the six brothers and was partitioned amongst them on 12th April 2009 under a partition deed. | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-4 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | The Competent Authority-cum-Deputy Collector Land Reforms, Forbesganj (hereinafter referred to as "the Competent Authority") held that the deed of cancellation of sale was not a valid document and that the plaintiff, Jashoda Devi was the lawful owner of the suit land. In view of the said finding, the Competent Authority issued direction to the petitioners to handover possession of the disputed parcels of land to the plaintiff, Jashoda Devi, the respondent no. 4 herein. The said order of the Competent Authority has been confirmed by the Divisional Commissioner, Purnea Division, Purnea on 8th August 2012 in Land Dispute Appeal No. 69 of 2012. Therefore, this Petiton.
Learned advocate Mr. Yogendra Mishra has appeared for the petitioners. He has assailed the provisions contained in the Act of 2009. He has submitted that the provisions contained in the Act of 2009 divest the Civil Court of its function of adjudicating the question of title over the land. The Act of 2009 also confers unfettered and unbridled power upon the Competent Authority. Mr. Mishra has strenuously urged that the State legislature has no authority to confer power upon the executive to adjudicate civil disputes which is traditionally conferred upon the Civil Court under the Code of Civil Procedure. In support of his submission, he has relied upon Section 9 of the Code of Civil Procedure and a Full Bench judgment of this Court in the matter of Nand Kumar Rai & Others Vs. State of Bihar & Others [AIR 1974 Patna 164].
The Petition is contested by the State Government. | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-5 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | The Petition is contested by the State Government.
Learned advocate Mr. Ram Kishore Singh has appeared for the State Government. He has relied upon Entry 18 of the State List of Schedule VII to the Constitution of India, the Bihar Tenancy Act, 1885 and the judgment in the matter of Smt. Basmati Devi Vs. Smt. Anju Kumari [2012 (3) PLJR 214]. He, however, concedes that in the present case the Competent Authority has exceeded his jurisdiction. | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-6 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | In view of challenge to the constitutional validity of the Act of 2009, we have heard learned Principal Additional Advocate General, Mr. Lalit Kishore on behalf of the State Government. Mr. Lalit Kishore has contested the challenge to the constitutional validity of the Act of 2009. He has taken us through the various provisions of the Act of 2009. He has submitted that the Act empowers the Competent Authority to enforce the rights conferred by or accrued under the six enactments mentioned in Schedule I to the Act of 2009. The power vested in the Competent Authority is, therefore, required to be read as confined to the enforcement of the rights conferred by or accrued under the aforesaid six enactments alone; and if so read, none of the provisions of the Act of 2009 can be said to be unconstitutional. Mr. Lalit Kishore has submitted that the petitioners have not challenged a particular provision/s of the Act of 2009, but the challenge is general and vague. He has submitted that unless the State legislature lacks the legislative competence to make the enactment, the enactment cannot be said to be unconstitutional. He has further submitted that to challenge any provision as unconstitutional one has to establish contravention of the provisions contained in the Constitution. In the present case it is not the case of the petitioners that any of the provisions contained in the Act of 2009 is unconstitutional in any manner. Mr. Lalit Kishore <span class="hidden_text" id="span_7"> Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014</span> has next submitted that the provisions contained in the Act of 2009 are specific and unambiguous. Such provisions are required to be interpreted as they are. The rule of construction of legal provisions does permit reference to the preamble of the enactment, but no provision can be | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-7 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | of construction of legal provisions does permit reference to the preamble of the enactment, but no provision can be held to be ultra vires the preamble of the enactment. Mr. Lalit Kishore has meticulously taken us through each provision particularly Section 4 and various clauses under Sub-section (1) of Section 4 of the Act of 2009. | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-8 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | In support of his submissions, Mr. Lalit Kishore has relied upon the judgments of the Hon‟ble Supreme Court in the matters of M/s Burrakur Coal Co. Ltd. Vs. The Union of India and Others {AIR 1961 Supreme Court 954, Mohan Lal Vs. Kartar Singh and Others {1995 Supp (4) Supreme Court Cases 684, Union of India Vs. Elphinstone Spinning and Weaving Co. Ltd. and Others {(2001)4 Supreme Court Cases 139} and Shiv Kumar Chadha Vs. Municipal Corporation of Delhi and Others {(1993) 3 Supreme Court Cases 161}.
In the matter of M.s Burrakur Coal Co. Ltd. (supra) the very issue of interpretation of statute was the subject matter of consideration by the Constitutional Bench of the Hon‟ble Supreme Court. The Hon‟ble Court held, "it is one of the cardinal principles of construction that where the language of an Act is clear, the preamble must be disregarded though, where the object or meaning of an enactment is not clear, the preamble may be resorted to explain it. ... We cannot, therefore, start with the preamble for construing the provisions of an Act, though, we would be justified in resorting to it, nay, we will be required to do so, if we find that the language used by Parliament is ambiguous or is too general though in point of <span class="hidden_text" id="span_9"> Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014</span> fact Parliament intended that it should have a limited application." | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-9 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | In the matter of Mohan Lal (supra) a similar provision for summary enquiry by collector was the subject matter of challenge before the Hon‟ble Supreme Court. The Hon‟ble Court observed, "Though the enquiry is summary it is judicial in nature. .... Therefore, merely because the Collector acting under section 43 has to make a summary enquiry, it cannot be said that he can decide only simple questions as regards the nature of possession and not those questions which are complicated but have a bearing on the nature of possession."
In the matter of Union of India (supra) challenge was directed to the Textile Undertakings (Taking Over of Management) Act, 1983. The Court observed, "There is always a presumption that the legislature does not exceed its jurisdiction and the burden of establishing that the legislature has transgressed constitutional mandate, such as those relating to fundamental rights is always on the person who challenges its vires". The Hon‟ble Court further held, "The Court must therefore adjudge the constitutionality of such legislation by the generality of its provisions and not by its crudities or inequities or by the possibilities of abuse of any of its provisions."
In the matter of Shiv Kumar Chadha (supra) challenge was against the bar imposed upon the Civil Court to entertain matters under the Delhi Municipal Corporation Act, 1957.
Learned advocate Ms. Kumari Ritambhara has appeared for the respondent no. 4-plaintiff. She has supported the orders of the authorities below. | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-10 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | True, the petitioners have not raised a specific challenge <span class="hidden_text" id="span_11"> Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014</span> to a particular provision/s. The challenge to the constitutional validity of the Act of 2009 is too general and vague. The sole reliance is placed on the Full Bench judgment in the matter of Nand Kumar Rai & Others (supra). Mr. Yogendra Mishra appearing for the petitioners has failed to establish that any of the provisions of the Act of 2009 is unconstitutional; nor it is the plea of Mr. Mishra that the Act of 2009 has been enacted by the State legislature without the legislative competency. Nevertheless, I do feel that there are certain provisions in the Act of 2009 which, strictly speaking though are not unconstitutional, do require reading down.
As the Act of 2009 is under challenge before us, we shall first examine the objects and reasons of the Act of 2009 and its provisions. | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-11 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | The preamble of the Act of 2009 reads as under :-
"WHEREAS, in the State of Bihar, disputes relating to record of rights, boundaries, entries in revenue records, unlawful occupation of raiyati land and forcible dispossession of allottees and settlees of public land, generate problems and cause unnecessary harassment to bona fide allotees/settlees, raiyats or occupants;
WHEREAS, such disputes with respect to raiyati land or public land allotted in favour of different classes of allottees are unnecessarily occupying major space of Civil Courts and Hon'ble High Court and which should otherwise have been resolved by the Revenue Authorities, who may be better equipped to deal with such disputes having regard to their continued presence in the field offices and their expertise in <span class="hidden_text" id="span_13"> Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014</span> Revenue Administration, WHEREAS, in larger public interest it is deemed necessary to provide for effective and speedy mechanism to resolve such disputes which give rise to major turbulence if not addressed immediately and effectively;
AND, WHEREAS, it has been found in analysis of data relating to nature of disputes that they mostly appertain to matters connected with the Record of Rights, partition of jamabandi, forcible dispossession of allottees/raiyats, boundary disputes etc. and in this context, the administration of the following Acts is involved:
(1) The Bihar Land Reforms Act, 1950,
(2) The Bihar Tenancy Act, 1885,
(3) The Bihar Privileged Persons Homestead Tenancy
Act, 1947,
(4) The Bihar Bhoodan Yagna Act, 1954, | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-12 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | (4) The Bihar Bhoodan Yagna Act, 1954,
(5) The Bihar Land Reforms (Fixation of Ceiling and
Acquisition of Surplus Land) Act, 1961,
(6) The Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956, AND, WHEREAS, different forums and procedures have been provided for the resolution of disputes under the above referred Acts and it is considered expedient to provide a uniform and common forum, procedure and mechanism which would achieve the objective of effective, efficacious and speedy resolution of disputes." | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-13 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | Section 2 of the Act of 2009 defines various terms and phrases used in the Act. Clause (a) defines, ""Competent Authority" shall be the Deputy Collector Land Reforms or any officer assigned to discharge the function and duties of the Deputy Collector Land Reforms in the Sub-division". Clause (d) defines, ""Land" connotes Government land, raiyati land, with structure, if any". Clause (e) thereof defines, ""Allotted Land or Settled Land" connotes the land which is allotted or settled or on which raiyati rights have accrued under any of the Acts mentioned in Schedule-1 of this Act". Clause | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-14 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | (f) thereof defines, ""Allottee or Settlee" connotes the person with whom land has been settled by the competent authority or the person who has acquired raiyati rights over the land, under any of the Acts contained in Schedule-1 of this Act". Clause (g) thereof defines ""Raiyat" connotes a raiyat as defined under the provision of the Bihar Tenancy Act, 1885". Section 3 of the Act of 2009 gives the Act of 2009 overriding effect over the procedure prescribed under (i) The Bihar Land Reforms Act, 1950, (ii) The Bihar Tenancy Act, 1885, (iii) The Bihar Privileged Persons Homestead Tenancy Act, 1947, (iv) The Bihar Bhoodan Yagna Act, 1954, (v) The Bihar Land Reforms (Fixation of Ceiling and Acquisition of Surplus Land) Act, 1961, (vi) The Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956. Section 4 thereof provides for the jurisdiction of the Competent Authority. Sub-section (1) thereof empowers the Competent Authority, interalia, to resolve the disputes arising out of | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-15 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | (a) Unauthorised and unlawful dispossession of any settlee or allottee from any land or part thereof, settled with or allotted to him under any Act contained in Schedule-1 of this Act by issuance of any settlement document/parcha by a Competent <span class="hidden_text" id="span_17"> Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014</span> Authority; (b) Restoration of possession of settled/ allotted land in favour of legally entitled settlee/ allottee or his successors/heirs, upon adjudication of unauthorized and unlawful dispossession; (c) Threatened dispossession of a legally entitled settllee/allottee; (d) Any of the matters enumerated in
(a), (b) and (c) above appertaining of raiyati land; (e) Partition of land holding; (f) Correction of entry made in the Record of Rights including map/survey map; (g) Declaration of the right of a person; (h) Boundary disputes; (i) Construction of unauthorized structure; and (j) Lis pendens transfer. Sub-section (3) thereof imposes specific bar upon the Competent Authority in respect of the fresh rights of allottee/settlee or a raiyat which is not yet determined and is required to be determined in accordance with the provisions contained in any of the aforesaid six enactments. Sub-sections (2) to (5) thereof read as under :-
"(2) The Competent Authority shall not have jurisdiction to review or reopen any finally concluded and adjudicated proceeding under any of the Act contained in Schedule-1. The Competent Authority shall exercise his authority for resolving the dispute brought before him on the basis of any final order passed by any of the authorities empowered to do so in the Acts contained in Schedule-1 of this Act. | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-16 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | (3) The Competent Authority shall not have jurisdiction to adjudicate any fresh rights of allottee/settlee or a raiyat which is not yet determined and is required to be determined in accordance with provisons contained in any of the <span class="hidden_text" id="span_19"> Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014</span> Acts contained in Schedule-1:
Provided that where rights of allottee/settlee or raiyat are already determined under any of the Acts contained in Schedule-1, the Competent Authority shall have jurisdiction to entertain cases appertaining to matters enumerated in sub- section (1).
(4) Notwithstanding anything contained in sub- section (2) and (3) hereinabove, if no provision is made in any of the Acts contained in Schedule-1 for determination of rights of allottee/ settlee or raiyat and claimed right is yet to be determined, it shall be open to the Competent Authority to finally determine such right.
(5) The Competent Authority, wherever it appears to him that the case instituted before him involves complex question of adjudication of title, he shall close the proceeding and leave it open to parties to seek remedies before the competent Civil Court." | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-17 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | Section 5 of the Act confers certain powers of Civil Court upon the Competent Authority. Section 6 of the Act provides, "in all cases of civil nature, concerning a land or a portion thereof, and in which one of the parties to the case is an allottee or settlee under Section-2 of the Act, the State shall be a necessary party". Section 7 of the Act enjoins the Competent Authority to dispose of all cases summarily in accordance with the Act and Rules framed thereunder. Section 9 of the Act provides for expeditious resolution of disputes. Section 12 of the Act empowers the Collector to exercise power of supervision and control over the <span class="hidden_text" id="span_21"> Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014</span> Competent Authority. Section 15 of the Act enjoins the Competent Authority to execute its orders. Section 16 of the Act confers power, interalia, of attachment of the standing crop upon the Competent Authority. It is apparent that the Act of 2009 has been enacted with a laudable purpose of giving quick relief to the allottees and settlees who have earned a right or to whom a right has accrued under any of the aforesaid six enactments. That is why Section 3 of the Act of 2009 gives that Act overriding effect over the procedure prescribed under any of the said six enactments. Thus, in my view, the scope and ambit of the Act of 2009 is limited and is circumscribed to the extent of enforcement of rights conferred by or accrued under the aforesaid six enactments. In other words, it is an enactment for execution of the orders made under the above referred six enactments. This intention is reinforced by Sub-section(2) of Section 4 of the Act of | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-18 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | This intention is reinforced by Sub-section(2) of Section 4 of the Act of 2009 insofar as it expressly provides, "Competent Authority shall exercise his authority for resolving the dispute brought before him on basis of any final order passed by any of the authorities empowered to do so under the Acts contained in Schedule-1 of the Act". Similarly, Sub-section (3) thereof expressly prohibits the Competent Authority from exercising its jurisdiction to adjudicate any fresh rights of allottee or settlee or a raiyat not yet determined under any of the aforesaid six enactments. Thus, the legislative intent to confine the Act of 2009 to execution of the orders made under the aforesaid six enactments is clear and unambiguous. Having thus circumscribed the powers of the Competent Authority under the Act of 2009, the mischief has crept in in Sub-sections (4) & (5) of Section 4 of the Act of 2009. The said Sub-section (4) of Section 4 of the Act of 2009 enables the <span class="hidden_text" id="span_23"> Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014</span> Competent Authority to determine the rights of allottees or settlees or raiyats which are not yet determined. Similarly, Sub-section (5) of Section 4 of the Act of 2009 confers a discretionary power upon the Competent Authority either to adjudicate complex questions of title himself or to allow the parties to seek remedy before the Civil Court. But for Section 4(4) of the Act of 2009, the Competent Authority is not vested with power of adjudication under any of the other provisions of the Act of 2009. The Act which is designed to execute the orders made or to enforce the rights accrued under | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-19 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | The Act which is designed to execute the orders made or to enforce the rights accrued under any of the aforesaid six enactments, has been converted into a substantive or adjudicating enactment by Section 4(4) of the Act of 2009. The power of adjudication conferred under the aforesaid Sub- sections (4) & (5) of Section 4 of the Act of 2009 are largely misused. The power, which is confined to the disputes in relation to the allottees or settlees or raiyats, is exercised in respect of any dispute including the complex issues of title. Though there is no express bar against the jurisdiction of the Civil Court, the said sub- sections practically take away the jurisdiction of the Civil Court to entertain and adjudicate the disputes relating to the title to the land. | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-20 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | It is apparent that the Act of 2009 has been enacted with an intention to give immediate relief to the allottees and the settlees whose rights are crystallized under any of the six enactments mentioned in Schedule-1 to the Act of 2009. It is, therefore, necessary that any person approaching the Competent Authority under the Act of 2009 must have a right settled or accrued to him or her under any of the aforesaid six enactments. In other words, the plaintiff has to be the allottee or a settlee of the land under any of the aforesaid six enactments and seeks enforcement of a right crystallized in favour of the plaintiff or accrued to the plaintiff <span class="hidden_text" id="span_25"> Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014</span> under any of the aforesaid six enactments. It is such a claim alone which can be entertained by the Competent Authority under the Act of 2009. This opinion of mine is corroborated by Section 6 of the Act which makes it mandatory that in all such cases the State Government shall be a necessary party. The preamble of the Act is clear and discloses the intention of the legislature in enacting the Act of 2009. It says, "disputes with respect to raiyati land or public land allotted in favour of different classes of allottees...........". Preamble of the Act of 2009 further refers to disputes in relation to, "the Record of Rights, partition of jamabandi, forcible dispossession of allottees/ raiyats, boundary disputes etc." In context of the above referred six enactments, Section 3 of the Act of 2009 gives the overriding effect to the Act of 2009 in respect of the procedure prescribed in the above referred six enactments | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-21 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | to the Act of 2009 in respect of the procedure prescribed in the above referred six enactments This seemingly unfettered and unbridled power of adjudication has been misused by the Competent Authority to resolve disputes of title to the land which traditionally are required to be resolved by a Civil Court. In the present case, the respondent no. 4, the plaintiff, asserted her right to land under a sale deed. Neither she is an allottee nor a settlee nor does the dispute arise from any right crystallized or accrued under any of the aforesaid six enactments. The Competent Authority has clearly exceeded his jurisdiction and has usurped the jurisdiction of the Civil Court. | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-22 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | Incongruity in legislative drafting of sub-sections (3) & (4) of Section 4 of the Act of 2009 is evident. But then, that is the way the legislature functions. On one hand Sub-section (3) of Section 4 of the Act of 2009 expressly debars the Competent Authority from adjudicating any fresh rights of allottee, settlee or a <span class="hidden_text" id="span_27"> Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014</span> raiyat which is not determined or which is required to be determined in accordance with the provisions contained in any of the aforesaid six enactments. On the other hand, in stark contradiction, sub-section (4) of Section 4 of the Act of 2009 enables the Competent Authority to finally determine the rights of allottee, settlee or raiyat not yet determined. It is this sub-section (4) which is the mischief monger. Although it refers to the rights of allottee, settlee or raiyat, the broad language used by the legislature is largely misused to usurp the power not conferred by the Act of 2009 and to determine the rights claimed by the persons other than allottee, settlee or raiyat and the rights claimed outside any of the aforesaid six enactments. This wide amplitude granted under sub- section (4) calls for intervention by this Court and reading down of the sub-section (4) to bring it in consonance with the other provisions of the Act of 2009. | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-23 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | Similarly, sub-section (5) of Section 4 of the Act of 2009 also is a mischief monger. Once jurisdiction of the Competent Authority is confined to the execution of the orders made or enforcement of rights accrued under any of the aforesaid six enactments, sub-section (5) of Section 4 of the Act of 2009, by necessary implication, allows the Competent Authority to entertain matters not arising out of the aforesaid six enactments and issues invoking complex questions of adjudication of title. The complex issues of title can never be decided in a summary proceeding envisaged by the Act of 2009. The said sub-section (5) also has the tendency to convert the power of execution of orders into the power of adjudication. The said sub-section (5) also requires to be read down to bring it in consonance with the other provisions contained in the Act of 2009.
A Full Bench of this Court in the matter of Nand Kumar Rai (supra) had the occasion to examine the constitutional validity of Section 109 of the Bihar Tenancy Act, 1885 as it stood after its amendment under the Act 6 of 1970. It appears that under the said amendment the legislature barred the jurisdiction of the Civil Court in respect of any application or suit concerning the preparation or publication of record or rights or settlement of rent or preparation of Settlement Rent Roll or for alteration of any entry in any such record or for the determination of the incidents of any tenancy. | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-24 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | The said enactment was challenged on the ground that it was a fraud on the legislative power of the State and was enacted in colourable exercise of that power and that the impugned provisions were arbitrary. The Bench held that clause (d) of sub-section (1) and sub-section (2) of Section 109 of the Act introduced by Bihar Act 6 of 1970 were constitutionally invalid. The said clause (d) of sub- section (1) and sub-section (2) of Section 109 of the Act barred the jurisdiction of the Civil Court in the following terms :-
"(d) for declaration of title to or recovery of possession of or confirmation of possession over any holding or tenancy or part thereof in which correctness of any entry in any such record or roll is expressly or impliedly challenged or in which determination of incidents of any tenancy is involved.
(2) Suit for declaration of title to or recovery of possession of or confirmation of possession over any holding or tenancy or part thereof, in which correctness of any entry in any record-of-rights or <span class="hidden_text" id="span_31"> Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014</span> Settlement Rent roll is expressly or impliedly challenged or in which determination of incidents of any tenancy is involved may be instituted before the Collector or any Revenue Officer specially empowered by the State Government by notification in this behalf who shall dispose of the suit in the prescribed manner." | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-25 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | The Bench held, "It is difficult to conceive how complicated title suits would be speedily and summarily disposed of by Revenue Courts and how the under-raiyats would be benefited thereby. I can take judicial notice of the fact that a large number of title suits have been filed throughout the State of Bihar wherever Revisional Survey operations have taken place. I am also aware that the number of Civil Courts is too small to dispose of such large number of title suits. I am, however, also aware of the fact that the number of Revenue Courts is also not sufficient, rather too small to dispose of such a large number of complicated title suits. They will be simply unable to decide them unless they technically choose to literally dispose of the suits by any means; no Court by a judicial approach will be above to dispose of such a large number of suits. I am, however, not concerned with the wisdom behind this legislation. I am concerned merely with its constitutional validity. In procedural matter suits of lighter vein have been allowed to be brought to the High Court and complicated suits <span class="hidden_text" id="span_33"> Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014</span> are to be finally disposed of by the Revenue authorities. I also do not see any justification for making a distinction between title suits for declaration of title and possession and suits of other types such a partition or mortgage suits." | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-26 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | In my opinion, a similar mischief is found in the Act of 2009 where the competent authority is allowed to entertain and summarily decide the rights which are not crystallized under any of the aforesaid six enactments and to entertain and decide complex issues of title to the land under sub-sections (4) & (5) of Section 4 of the Act of 2009. The Act of 2009 is clear and explicit insofar as its scope and ambit are concerned. It is repeatedly emphasized that the Act of 2009 has been enacted for enforcement of a right conferred by or accrued under the above referred six enactments. It would not be out of place to note that all the above referred six enactments relate to land reforms and are pretty old. The said Acts are in force for more than fifty years. Most of the issues must have been settled by now. It may be only residuary matters which may still require to be adjudicated/enforced. No claim to a property or a dispute relating to a property can be entertained or decided by the Competent Authority under the Act of 2009 to resolve disputes other than the ones arising from the above referred six enactments. | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-27 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | In my opinion, clause (e) of Sub-section (1) of Section 4 of the Act of 2009 which reads, "Partition of land" has to be read as the dispute relating to the land allotted or settled under any of the above referred six enactments and the claim made by an allottee/ a settlee or a Raiyat. The said clause (e) will not cover each and every issue relating to any land and the partition between the co-sharers, <span class="hidden_text" id="span_35"> Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014</span> co-parceners, joint owners etc. of such land. Similarly, clause (g) of Sub-section (1) of Section 4 of the Act of 2009 which provides for "Declaration of the right of a person" also requires to be read down. Again the right referred to in the said clause (g) has to be a right conferred by or accrued under any of the aforesaid six enactments and none other. „A person‟ would mean an allottee/ a settlee of a land or a Raiyat as defined in clause (f) of Section 2 of the Act of 2009. No person other than an allottee/ a settlee or a Raiyat can have an access to the remedy under the Act of 2009. Clause (i) of Sub-section (1) of Section 4 of the Act of 2009 which refers to "Construction of unauthorized structure" should also be read down to mean the construction of unauthorized structure on the land of a Raiyat allotted or settled under any of the above referred six enactments and no other land or structure. Clause (j) of Sub- section (1) of Section 4 of the Act of 2009 is clearly outside the purview | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-28 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | (1) of Section 4 of the Act of 2009 is clearly outside the purview of the any of the above referred six enactments. The principle of lis pendence transfer is necessarily applicable to a civil litigation. If at all, its reference in the Act of 2009 would necessarily mean the transfer of the land of a Raiyat or a settlee allotted or settled under any of the aforesaid six enactments pending the adjudication under the concerned Act. In our opinion, the power of the Competent Authority under the Act of 2009 cannot be read to be wide enough to enfold in its embrace all kinds of disputes relating to any land. | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-29 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | In my opinion, Sub-section (4) of Section 4 of the Act of 2009 brings a complete anachronism as it has the effect of encompassing in its folds any real or imaginary right an allottee or a settlee or a Raiyat can claim which is not conferred by any of the aforesaid six enactments. That would necessarily mean that the <span class="hidden_text" id="span_37"> Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014</span> rights which are not conferred by or accrued under the above referred six enactments also can be adjudicated by the Competent Authority under the Act of 2009. This wide power conferred upon the Competent Authority is unbridled, unfettered and unguided. As we have seen on the facts of the present case that they are grossly abused. It is not possible to save the said Sub-section (4) of Section 4 of the Act of 2009 by employing the principle of harmonious interpretation. The said Sub-section (4) requires to be held to arbitrary and to that extent unconstitutional.
Sub-section (5) of Section 4 of the Act of 2009 empowers the Competent Authority to allow the parties to approach the Civil Court for adjudication of complex issues of title. Although the said Sub-section (5) is directory, should be read as mandatory. It shall be the duty of the Competent Authority to refer the complex issues of adjudication of title to the concerned Civil Court having jurisdiction to entertain and adjudicate such disputes. | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-30 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | For the aforesaid reasons, this Petition is allowed. Clauses (e), (g), (i) and (j) of Sub-section (1) of Section 4 of the Act of 2009 are read down to the extent indicated hereinabove. Sub- section (4) of Section 4 of the Act of 2009 is held to be arbitrary and ultra vires Article 14 of the Constitution and unconstitutional to that extent. The said Sub-section (4) of Section 4 is, therefore, quashed. Sub-section (5) of Section 4 of the Act of 2009 will be read as mandatory provision as indicated hereinabove.
The impugned order dated 27th December 2011 made by the Competent Authority-cum-Deputy Collector Land Reforms, Forbesganj in B.L.D.R. Act Case No. 91 of 2011-12 is quashed and set aside. Consequently, the appellate order made on 8th August 2012 made by the Divisional Commissioner, Purnea in Land <span class="hidden_text" id="span_39"> Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014</span> Dispute Appeal No. 69 of 2012 stands quashed. The B.L.D.R. Act Case No. 91 of 2011-12 filed before the Competent Authority-cum- Deputy Collector Land Reforms, Forbesganj is dismissed. The respondent no. 4 will bear the costs throughout.
It is clarified that this order shall not preclude the respondent no. 4, the plaintiff, from asserting her right to the disputed parcels of land before the Civil Court.
Interlocutory application stands disposed of. | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-31 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | Interlocutory application stands disposed of.
(R.M. Doshit, CJ) As per Ashwani Kumar Singh, J I have had the privilege and advantage of perusing the judgment of Hon‟ble the Chief Justice. Since Hon‟ble the Chief Justice has extensively dealt with the facts and law involved in the matter, I need not repeat the same.
I fully concur with the view of Hon‟ble the Chief Justice with regard to Sub-sections (1) and (4) of Section 4 of The Bihar Land Disputes Resolution Act, 2009 (for short „the Act of 2009‟). The Hon‟ble Chief Justice has held that the Act of 2009 is an enactment for execution of the orders made under the six enactments referred to in the preamble and schedule-I of the Act of 2009. she has further held that but for Section 4 of the Act of 2009, the Competent Authority is not vested with the power of adjudication under any of the other provisions of the Act of 2009, and the Act which is designed to execute the orders made under the aforesaid six enactments, converts the Competent Authority into an adjudicating Court by dint of Section 4 of the Act of 2009. I am in <span class="hidden_text" id="span_41"> Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014</span> complete agreement with the aforesaid view of Hon‟ble the Chief Justice. I also agree with the view that Sub-section (5) of Section 4 of the Act mandatorily requires the Competent Authority to allow the parties to approach the Civil Court for adjudication of complex issues of title. | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-32 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | However, I am unable to resist from adding some of my own observations in the context of the provisions of Sub-section (5) of Section 4 of the Act of 2009. Sub-section (5) of Section 4 of the Act of 2009 reads as follows :
"(5) The Competent Authority, wherever it appears to him that the case instituted before him involves complex question of adjudication of title, he shall close the proceeding and leave it open to parties to seek remedies before the competent Civil Court".
The group of words "complex question of adjudication of title" which form part of the sentence in Sub-
section (5) of Section 4 of the Act of 2009 has been used as a phrase in the said provision. While incorporating the aforesaid group of words as a phrase in Sub-section (5), the legislature itself says that all cases involving issues of title per se involve complex questions and which cannot be decided in a summary proceeding, being the ambit and scope of the Act of 2009, and thus under all circumstances where issues relating to title arise would have to be mandatorily closed by the Competent Authority.
In other words, the said phrase occurring in sub-section (5) of Section 4 of the Act of 2009 envisages that no sooner than a question of adjudication of title which is inherently a complex one is involved, the Competent Authority is required to invariably close the proceeding. The word „complex‟ has not been used in <span class="hidden_text" id="span_43"> Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014</span> contradistinction to the word „simple‟. | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-33 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | In above view of the matter, I am of the considered opinion that Sub-section (5) of Section 4 of the Act of 2009 strictly forbids the Competent Authority to entertain matters involving questions of adjudication of title. I am of the view that the Competent Authority, irrespective of nature of cases involving issues of title, is bound to close the proceedings for want of jurisdiction and leave it open to the parties to seek remedies before the competent Civil Court.
In the result, subject to the aforesaid observations of mine, I fully agree with the findings and conclusions arrived at by Hon‟ble the Chief Justice in the matter.
(Ashwani Kumar Singh, J.) AFR Manish/Sanjeet | https://indiankanoon.org/doc/154031036/ |
32be51b91e2b-0 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | IN THE HIGH COURT OF JUDICATURE AT PATNA
MA No.38 of 2004
1.SRI ASHOK GOENKA son of late Kedarnath Goenka and
Proprietor M/S Premier Synthetics, Patna, resident
of Mohalla Laxmi Bhawan, Munger, P.S.Kotwali Town,
District Munger, at present residing at B-9,
Greater Kailash, New Delhi
2.M/S Premier Synthetics, Kumaharar, P.S.Sultanganj
Town, District Patna, represented through its
Proprietor Sri Ashok Goenka son of late
Kedarnath Goenka, residing at B-9, Greater
Kailash, New Delhi-Defendants 1 set- Appellants
(in both the appeals)
Versus
1.Chandra Bhushan Singh son of Permanand Singh
2.Manoj Kumar Rai son of Sri Permanand Singh
Both resident of village Bishunpur, P.S.Akhilpur
District Patna--Plaintiffs- Respondents 1st set
3.Smt. Gulabia Devi W/o Sri Rambabu Rai
4.Smt.Fulpatia Devi W/o Sri Jagat Rai
5.Smt.Malwa Devi W/o Sri Niranjan Rai
All resident of village Purana Punnapur, P.S.
Akhilpur, District Patna-Defendants II set- | https://indiankanoon.org/doc/44290554/ |
32be51b91e2b-1 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | -----Respondents II set
(in M.A.No.38 of 2004)
1.Sri Sukhnandan Rai son of late Ganga Bishun Rai
resident of Haripur Colony, Digha, P.S.Digha Town
District Patna
2.Smt.Neelam Devi D/o late Ram Prasad Yadav,
resident of village Bishunpur, P.S.Akhilpur,
District Patna
At present residing at Mohalla Digha, P.S.Digha
Town, District Patna-Plaintiffs, Respondents Ist set
3.Smt.Gulabia Devi W/o Sri Rambabu Rai
4.Smt.Fulpatia Devi W/o Sri Jagat Rai
5.Smt.Malwa Devi W/o Sri Niranjan Rai
All resident of village Puranapunnapur, P.S.Akhilpur
District Patna---Defendants IIset,Respondents II set
(in M.A.No.39 of 2004)
------
For the Appellants in both the appeals :M/S S.S.Dwivedi,Sr.Advocate Praveen Kumar,Advocate Arunjay Kumar,Advocate For Respondents 1 & 2 in both the appeals :M/S Devendra Kr.Sinha,Sr.Advocate Nikesh Sinha,Advocate For Respondents 3-5 in both the appeals :Mr.Manoj Kr.Ambastha,Advocate
-------
17. 15.9.2009 In both these Miscellaneous Appeals identical issues arise on practically the same set of facts and therefore with the consent of the parties the matters have been heard together and are being disposed of by this common order at the stage of admission itself. | https://indiankanoon.org/doc/44290554/ |
32be51b91e2b-2 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | M.A.No.38/04 is directed against the order dated 24.11.2003 passed by the Ist Sub- Judge, Danapur in Title Suit No.24 of 2003 by which he has allowed the petition dated 17.4.2003 filed by the plaintiffs-respondents Ist Set under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure and directed that the defendants-appellants shall not make attempt to dispossess the plaintiffs from the disputed land till the disposal of the suit.
M.A.No. 39 of 2004 is also directed against the order dated 24.11.2003 passed in Title Suit No. 19 of 2003 by which also a petition dated 17.4.2003 under the same provisions has been allowed in the same terms.
The defendants-appellants and the defendants-respondents II set nos. 3 to 5 are common in both the appeals.
Both the suits had been filed by the plaintiffs-respondents nos. 1 and 2 in the respective appeals for a direction upon the defendants-appellants to execute a registered sale-deed in favour of the plaintiffs in respect of Schedule-I property and if the defendants fail to do so within the time fixed by the court the sale-deed be executed and registered through the process of the court and according to law conveying absolute title to the plaintiffs. The further relief sought for in the suit is for restraining the defendants by an order of ad-interim injunction from executing and registering the sale-deed in favour of any other persons with respect to the suit land and in any manner disposing of the land or creating any encumbrance thereon detrimental to the interest of the plaintiffs till disposal of the suit and confirm the possession of the plaintiffs over the suit land. | https://indiankanoon.org/doc/44290554/ |
32be51b91e2b-3 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | The defendant-appellant no.2 and defendant-appellant no.1 are the firm and proprietor of the said firm which is the owner of the suit land in both the cases.
The case of both the sets plaintiffs was that the defendants-appellants had entered into an agreement with them and executed in both the cases an agreement for sale on 27.3.2002 for the sale of the respective suit lands and as per the terms and conditions of the agreement for sale 5 kathas of land in each of the case would be sold at the rate of Rs.63,000/- per katha and the total consideration money comes to Rs.3,15,000/-, out of which the plaintiffs in each case have already paid the advance money of Rs.2,50,000/- at the time of execution of the agreement and the balance amount of Rs.65,000/- was to be paid at the time of registration of the suit land. It was asserted that the defendants-appellants gave possession of the suit land to the respective plaintiffs. It was further agreed that the sale-deed would be executed and registered in between 27.3.2002 and 31.1.2003. However, the request by the plaintiffs for such registration was not paid heed to and even the legal notice sent on 16.12.2002 in each of the cases had no effect and the defendants-appellants failed and neglected to perform their part of contract and hence the suit was filed. | https://indiankanoon.org/doc/44290554/ |
32be51b91e2b-4 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | The defendants-appellants appeared in the suits and filed their written statements in which, inter alia, apart from raising the plea of maintainability it was alleged that the agreement for sale is most fabricated, sham, without consideration and a document prepared by means of practicing fraud. The statement regarding payment of the amount of Rs.2,50,000/- in each of the cases was denied as concocted and further stand taken is that the agreement for sale could not have been executed in view of the amendment made in the Registration Act and such a document could not be a legal document in the absence of registration.
The plaintiffs thereafter filed the aforesaid petitions dated 17.4.2003 under Order 39 Rules 1 and 2 read with Section 151 CPC with the prayer for ad-interim injunction restraining the defendants from executing and registering the sale-deed in favour of any other persons with respect to the suit land or in any manner disposing of the land or dispossessing the plaintiffs from the suit land. It was alleged in the injunction petition that after receiving the summons in the suit on 22.3.2003 the defendant-appellant no.2 had executed and registered a sale-deed for the suit land on 24.3.2003 in favour of the defendants-respondents nos. 3 to 5. Show cause to the said injunction petitions was filed on behalf of the defendants-appellants in which the fact of having entered into an agreement for sale with the plaintiffs was denied and further stated that the land in question had been sold to the defendants- respondents nos. 3-5 who were the bonafide purchasers and have been put in actual physical possession over the suit land.
The learned trial court, however, upon hearing the parties passed the aforesaid impugned orders in the terms as mentioned above. | https://indiankanoon.org/doc/44290554/ |
32be51b91e2b-5 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | Learned counsel for the appellants submits that the unregistered agreement for sale dated 27.3.2002 under which the plaintiffs-respondents claim part performance having been put in possession of the suit land is barred by the provisions of Section 17(1-A) of the Registration Act read with Section 53A of the Transfer of Property Act. It is contended that on the basis of the said unregistered agreement for sale no plea regarding part performance could have been raised by the plaintiffs-respondents or entertained by the court below as the same is completely barred under the provisions of Section 17(1-A) of the Registration Act which has been inserted into the said Act by Act 48 of 2001. It is thus urged that the court below could not have taken into account any claim of possession on behalf of the plaintiffs on the basis of any clause contained in the said unregistered agreement for sale and granted any relief on the basis of the same.
Learned counsel further submits that even otherwise the law is well established that an agreement for sale does not create any interest in the property but only entitles a party to bring a suit claiming the equitable right of purchase on the basis of Section 53A of the Transfer of Property Act and thus the order of injunction cannot travel beyond the scope of the said Section. It is argued that the rights under Section 53A can only be utilized for the purpose of protecting the defendants' possession and he cannot be permitted to claim any title on the basis of such provision.
In support of the said proposition learned counsel relies upon a decision of a learned Single Judge of this Court in the case of Fool Kumari Devi vs. Krishna Deo Upadhya & anr. : 1998(1) PLJR 262, in paragraph-7 of which it has been held as follows : | https://indiankanoon.org/doc/44290554/ |
32be51b91e2b-6 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | "7. An order of injunction restraining the defendant in a suit for specific performance of contract from making repairs or construction on the suit premises, as may be necessary, does not fall in any of the three categories. It is well established that an agreement to sale does not create any interest in the property. It only provides a cause of action to him to bring a suit claiming an equitable right of purchase based on Section 53A of the Transfer of Property Act. The order of injunction, therefore, cannot travel beyond the scope of Section 53A of the said Act. It is well settled that the right conferred by Section 53A is a right available to the defendant to protect his position. The defendant cannot claim any title on the basis of the provisions contained therein. As is said sometimes, the right under Section 53A is to be used as a shield but not as a sword." | https://indiankanoon.org/doc/44290554/ |
32be51b91e2b-7 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | It is further submitted by learned counsel that since legal title in the suit land continues in favour of the appellants from the very beginning the same could not have been given to the plaintiffs and the plaintiffs being further debarred from raising the plea of part performance in view of the amended provisions of Registration Act it was not open to the court to issue an order which virtually amounts to accepting such plea of the plaintiffs. It is contended that in such circumstances neither law permits such an order nor the question of balance of convenience or irreparable loss can be held to be in favour of the plaintiffs. In support of the same he relies upon a decision of a Division Bench of this Court in the case of Kalyanpur Lime Works Ltd. vs. the State of Bihar and another : AIR 1951 Patna 226, in paragraph-10 of which it has been held as follows : | https://indiankanoon.org/doc/44290554/ |
32be51b91e2b-8 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | "10. We have also been addressed on the question whether the appellant can be sufficiently compensated by money in respect of any loss suffered before specific performance of the contract. The learned Advocate General has drawn our attention to S.12, Expln. And Ss. 54 and 56, Specific Relief Act. He has also drawn our attention to S.19, Specific Relief Act, which says that any person suing for the performance of a contract may also ask for compensation for its breach, either in addition to or in substitution for such performance. Personally, I do not see any reason why the appellant cannot be compensated by money for any loss he may suffer, provided the appellant is entitled to compensation in addition to specific performance, under the law, as to which I express no opinion at this stage. If, as I have already stated, there is no question of stopping the quarrying operations during the pendency of the suit for specific performance, the question of compensation will remain whether an order of injunction is or is not passed. It cannot surely be urged that in a suit for specific performance the plaintiff is entitled to ask, during the pendency of litigation, that the defendant in whom the legal title still vests should be restrained from using the property. If the plaintiff were so entitled, then in a suit for specific performance the defendant would be required to vacate the property which he had contracted to sell or lease. That surely cannot be the law." | https://indiankanoon.org/doc/44290554/ |
32be51b91e2b-9 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | Learned counsel for the appellants has vehemently argued that there is no factual basis for the court below to come to the conclusion that the plaintiffs were in possession over the land in question and the reliance upon Clause 5 of the alleged agreement for sale for the said purpose was completely uncalled for and barred by the newly amended provisions of the Registration Act. It is submitted that further reliance upon an order passed in 144 Cr.P.C. proceeding shows that the decision is perverse as no issue of possession has been or could have been decided in the said proceedings. Similarly no reliance could have been placed on certain criminal cases filed by the plaintiffs against the defendants-respondents nos. 3 to 5. | https://indiankanoon.org/doc/44290554/ |
32be51b91e2b-10 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | Learned counsel for the respondent nos. 3 to 5 has supported the stand of the appellants on the aforesaid grounds and further sought support from a decision of this Court in the case of Ramashish Rai vs. Baijnath Mishra & 11 another : 1998(3) PLJR 862, in paragraph-5 of which it has been laid down as follows : | https://indiankanoon.org/doc/44290554/ |
32be51b91e2b-11 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | "5. Be that as it may, admittedly, the plaintiff's case is that there was an oral agreement to sell of the suit land and on payment of consideration money the plaintiff was put in possession. There is no dispute that a suit for Specific Performance of Contract can be filed on the basis of oral agreement. The question for consideration in this case is whether the plaintiff has a legal right to restrain the defendant from alienating the suit land by obtaining an order of temporary injunction. It is well settled that an agreement to sell creates a right in personam and it does not create any right in the property. An agreement to sell gives a right to the proposed purchaser to bring a suit for specific performance of contract to sell but he cannot claim any interest in the property till his suit for specific performance is decreed. Learned counsel appearing for the petitioner placed reliance on a judgment delivered by me which is reported in 1998(2) PLJR 120 (Lallan Prasad vs. Parmeshwar Singh). The ratio decided by me in that judgment does not help the petitioner rather it totally goes against the petitioner. In the said judgment this Court observed:- | https://indiankanoon.org/doc/44290554/ |
32be51b91e2b-12 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | "I have heard learned counsel for the parties and have gone through the orders passed by both the courts below. In my opinion, both the courts below have committed serious illegality and material irregularity in granting temporary injunction in the facts and circumstances of the case. The courts below have over- looked the settled principles of law that an agreement to sell creates right in personam and it does not create any right in property. An agreement to sell gives a right to the proposed purchaser to bring a suit for specific performance of contract to sell but he cannot claim any interest in the property till his suit for specific performance is decreed. In the case of Jiwan Dass vs. Narain Dass (AIR 1981 Delhi, 291) it has been held by a Division Bench that an agreement to sell creates a right in personam and not in the estate such right created against a vendor to obtain specific performance can ultimately bind any subsequent transferee till, therefore, a decree of specific performance is obtained the vendor or a purchaser from him is not entitled to full enjoyment of the property even if a decree for specific performance of contract is obtained and no sale deed is actually executed, it cannot be that any interest in the property is passed. Consequently, temporary injunction cannot be granted till sale deed is executed on the basis of decree of specific performance of contract to prevent the transferee under the sale deed from enjoying possession." | https://indiankanoon.org/doc/44290554/ |
32be51b91e2b-13 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | Learned counsel for the respondent nos. 1 and 2, on the other hand, submits that the court below has rightly granted injunction in view of the fact that subsequent to the filing of the suit the registered sale-deed was executed in favour of the respondent nos. 3 to 5 on 24.3.2003 and an attempt was made to dispossess the plaintiffs from the suit land. It is further submitted by him that the fact of possession having been handedover to the plaintiffs is clearly mentioned in Clause 5 of the agreements for sale both dated 27.3.2003 in favour of the plaintiffs of both the cases. According to learned counsel apart from what was stated in Clause 5 the court below has also rightly relied upon S.144 Cr.P.C. proceedings and other criminal cases filed by the plaintiffs against the respondent nos. 3 to 5 when an attempt was made to dispossess them as supported by evidence as indicated by the plaintiffs. It is further submitted by learned counsel for the plaintiffs-respondents that the appellants have sold their lands to respondent nos. 3 to 5 and they cannot claim any further interest in the matter and it is not open to them to challenge the injunction order by filing these appeals. | https://indiankanoon.org/doc/44290554/ |
32be51b91e2b-14 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | In support of the aforesaid stand learned counsel relies upon a decision of the Supreme Court in the case of Ashwinkumar K.Patel vs.Upendra J.Patel and others : AIR 1999 SC 1125, paragraphs 11 and 12 of which are quoted below :
"11. A reading of the judgment of the trial Court shows that though the agreement of sale executed in favour of the plaintiff was, according to the said Court, invalid because of its being in breach of the Tenancy Act still, in view of the compromise decree and the subsequent admission of the defendants 1 to 14 and report of the Court Commissioner in special suit No. 293 of 1996, the trial Court held that plaintiff was in "permissive possession" as this was accepted by the owners. It held that a possessory right was sufficient to permit the plaintiff to have an order of temporary injunction in his favour.
12. Therefore, without going into the validity of the agreements executed by the owners in favour of the plaintiff or defendants 15 to 28, or the validity of the sale deed executed by defendants 15 and 28, we are of the view that the trial Court was right in coming to the conclusion that the plaintiff has made out a prima facie case. The trial Court has given several reasons for the grant of temporary injunction and, in our view, the two reasons given by the High Court were, on the facts, not sufficient to warrant a remand."
Learned counsel relies upon paragraphs 4 and 5 of a Division Bench decision of the Calcutta High Court in the case of Sm. Muktakesi Dawn and others vs. Haripada Mazumdar and another: AIR 1988 Calcutta 25, for the proposition that an injunction restraining pendente lite transfer can be granted in such suits so as to preserve the property in status quo during the pendency of the suit. | https://indiankanoon.org/doc/44290554/ |
32be51b91e2b-15 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | I have considered the rival submissions of the parties and the materials on the record. It is evident from the impugned orders that the court below has not at all taken into account the effect of Section 17(1-A) of the Registration Act, 1908 as inserted by the amending Act 48 of 2001. The said provision is quoted below :
"S.17(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A." | https://indiankanoon.org/doc/44290554/ |
32be51b91e2b-16 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | It is evident from the said provision that any document containing contracts to transfer for consideration, any immoveable property for deriving the benefit under Section 53A of the Transfer of Property Act must be registered if it has been executed after the commencement of the Amending Act of 2001 and in case such document is not registered on or after such commencement it will have no effect for the purpose of invoking the doctrine of part performance under Section 53A. The doctrine of part performance protecs the right of a transferee of an agreement for sale if he has been put in possession or continues in possession in part performance of the contract or has done some act in furtherance of the contract. Prior to the amending Act of 2001 a party could claim the benefit of such possession on the basis of the doctrine of part performance even if the agreement for sale was not registered but the same has now been specifically debarred by the amending Act. That being the position, it is not open to the courts of law to permit any such plea of possession or right to continue in possession on the basis of any unregistered document. In the present matter despite the legal provision being to the contrary, by the impugned orders of injunction the court below has put a stamp of legality over the alleged possession claimed by the plaintiffs on the basis of an unregistered agreement for sale dated 27.3.2002. The same is clearly not permissible under the law. | https://indiankanoon.org/doc/44290554/ |
32be51b91e2b-17 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | Even otherwise this Court does not find that apart from the said Clause 5 of the unregistered agreements for sale there was any material before the court on the basis of which it could have come to the conclusion regarding the plaintiffs being in possession over the suit land. Thus the finding of prima facie case in favour of the plaintiffs- respondents is perverse being based on practically no material on the record apart from the reliance upon the unregistered documents which is impermissible after the Amendment Act 48 of 2001.
Even otherwise as has been laid down by this Court in the case of Fool Kumari Devi(supra) no title could have been claimed by the plaintiffs on the basis of the mere agreements for sale which only entitle them to approach the court for further relief of specific performance of contract but such agreements for sale did not create any interest in the property in their favour which they can use to injunct the owner of the land so far as the right and title over the suit land is concerned.
The reliance placed by learned counsel for the plaintiffs-respondents on the decision of the Supreme Court in Ashwinkumar K.Patel's case (supra) is of no avail as in the said case the suit was between two sets of purchasers; one directly from the owners of the land and other from the alleged power of attorney holder from the owners but in the said case the clear stand of the owners of the land was that they have put the plaintiff in possession and in the said circumstances the Apex Court held that such possessory right would entitle the plaintiff to an injunction as against the other purchaser of the land who has no possession over the land. | https://indiankanoon.org/doc/44290554/ |
32be51b91e2b-18 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | So far as the case of Sm. Muktakesi Dawn (supra) is concerned the only issue decided therein is that an injunction restraining the pendente lite transfer can be granted in an appropriate case where relief for specific performance is sought. There can be no dispute with the said proposition. However, in the present matter the subsequent sale has already been made through a registered deed of sale by the appellants in favour of respondents nos. 3 to 5.
Thus, on a consideration of the entire facts and circumstances of the case, this Court is clearly of the view that the impugned orders dated 24.11.2003 passed in Title Suit No. 24/03 and Title Suit No. 19/03 cannot be sustained being contrary to the law of the land apart from there being no factual basis for the grant of injunction in such terms and the same are accordingly set aside. The appeals are allowed.
However, considering the fact that the plaintiffs would be put to serious difficulties and inconvenience if there is any further sale of the properties in dispute the appellants and the respondents nos. 3 to 5 are restrained from making any further sale of the properties in question.
It is pointed out by learned counsels that both the suits are at the stage of hearing and two witnesses have already been examined in Title Suit No. 24/03 while the other case is ready for examination of the witnesses. In the said circumstances, the learned court below is directed to proceed expeditiously in the matters and dispose of both the title suits within a period of six months from today.
(Ramesh Kumar Datta,J.) spal/ | https://indiankanoon.org/doc/44290554/ |
c542667f83fa-0 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | IN THE HIGH COURT OF JUDICATURE AT PATNA
LPA 681 of 2010
1.Mt. Prabhawati widow of Late Madan Mishra, resident of village-
Pathakauli, P.S. Bagaha, District West Champaran
2. Kamlawati Devi @ Kalawati Devi wife of Chhedi Singh
3. Geeta Devi wife of Anirudh Singh
Both resident of Village- Narainpur, P.S. Bagaha, District West
Champaran
4. Manorama Devi, wife of Ashok Kumar Singh, resident of village
Narainpur, P.S. Bagaha, District West Champaran
5. Gayatri Devi wife of Surendra Kumar Rai, resident of Village
Rampur Tutulia, P.S. Shikarpur, District West Champaran
6. Dhruva Prasad son of Late Beni Madhava Sah, resident of Village
Pathakauli, P.S. Bagaha, District West Champaran
7. Indu Devi wife of Ram Equibal Tiwary, resident of village
Narainpur, P.S. Bagaha, District West Champaran
8. Nathuni Yadava sonof Hari Charan Yadava, resident of village
Narainpur, P.S. Bagaha, District West Champaran
9. Shree Narain Pathak, sonof Late Ramji Pathak
10.Ravi Shanker Pathak, son of late Hari Shanker Pathak
11.Vijay Prakash Pathak @ Vijay Pathak, son of late Rajendra Pathak
12. Nag Narain Pandey sonof late Radha Kishun Pandey
All resident of village Pathakauli, P.S. Bagaha, District West
Champaran | https://indiankanoon.org/doc/814453/ |
c542667f83fa-1 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | Champaran
13.Jagdish Rao son of Bishwanath Rao, resident of Village
Dumawalia, P.S. Bagaha, District West Champaran
14. Abhay Narain Pathak son of late Ramakant Pathak
15. Sheo Sagar Pathak son of Kamakhya Pathak
Both resident of village Pathakauli, P.S. Bagaha, District West
Champaran
16. Gunjan Pathak son of Radheshyam Pathak, resident of village
Pathakauli, P.S. Bagaha, District West Champaran.
17. Krishna Mohan Pandey son of Sri Niwas Pandey
18. Sunil Pathak @ Sunil Kumar Pathak sonof Sadhu Saran Pathak
Both resident of village Pathakauli, P.S. Bagaha, District West
Champaran.
19. Dhruva Pandit, son of Late Bihari Pandit, resident of village
Narainpur, P.S. Bagaha, District West Champaran.
20. Umakant Pathak sonof late Kapildeo Pathak, resident of village
Pathakauli, P.S. Bagaha, District West Champaran
2 | https://indiankanoon.org/doc/814453/ |
c542667f83fa-2 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | 21. Hari Shanker Pandey son of Gena Pandey, resident of village
Pathakauli, P.S. Bagaha, District West Champaran
22. Paras Nath Tiwary son of Deo Sharan Tiwary, resident of Village
Dumawalia, P.S. Bagaha, District West Champaran
......... Appellants
Versus
1. The State of Bihar
2. The Collector, West Champaran, Bettiah
3. The District Land Acquisition Officer, Bettiah
4. The Sub-Divisional Officer, Bagaha, District West Champaran
........... Respondents
With
L.P.A. No.749 of 2010
1. Musmat Jashoda Devi wife of Late Sudama Yadav, resident of
Village Pathakauli, P.S. Bagaha, District West Champaran
2. Manorma Devi wife of Mohan Prasad Sah, resident of village
Narainpur, P.S. Bagaha, District West Champaran.
3. Ramashanker Pathak son of Late Triveni Pathak, resident of Village
Pathakauli, P.S. Bagaha, District West Champaran
4. Ramawati Devi wife of Lal Saheb Pandey, resident of Village
Pathakauli, P.S. Bagaha, District West Champaran
5. Amarnath Pathak son of Late Kapil Dev Pathak, resident of Village
Pathakauli, P.S. Bagaha, District West Champaran
6. Rameshwar Tiwary son of Tarkeshwar Tiwary, resident of Village
Narainpur, P.S. Bagaha, District West Champaran | https://indiankanoon.org/doc/814453/ |
c542667f83fa-3 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | Narainpur, P.S. Bagaha, District West Champaran
7. Brajnarain Shukla son of late Jagdeo Shukhla, resident of village
Narainpur, P.S. Bagaha, District West Champaran
8. Sabita @ Amarpati Devi wife of Brajnarain Sukhla, resident of
village Narainpur, P.S. Bagaha, District West Champaran
9. Indu Singh wife of S.P. Singh, resident of Village Narainpur, P.S.
Bagaha, District West Champaran
10. Nirmalendu Pandey son of late Nathnu Pandey, resident of village
Pathakauli, P.S. Bagaha, District West Champaran
11.Dhruvnarain Yadav, son of Rogi Yadav, resident of village
Pachhgawa, P.S. Bagaha, District West Champaran.
12.Chandrabhushan Pathak son of Data Trey, resident of village
Pathakauli, P.S. Bagaha, District West Champaran
13.Rinki Devi wife of Lal Saheb Pandey, resident of Village
Pathakauli, P.S. Bagaha, District West Champaran
14. Ghanshyam Choudhary son of late Ram Lagan Choudhary, resident
of village Pathakauli, P.S. Bagaha, District West Champaran
....... Appellants
Versus
1. The State of Bihar
3 | https://indiankanoon.org/doc/814453/ |
c542667f83fa-4 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | 2. The Collector, West Champaran, Bettiah
3. The District Land Acquisition Officer, Bettiah
4. The Sub-Divisional Officer, Bagaha, District West Champaran
........... Respondents
For the Appellants : Mr. Manan Kumar Mishra, Sr. Advocate
(in both the appeals) : M/s Veshwajeet Mishra, Awanish Kr. Pandey
For the State : Mr. Lalit Kishore, Addl. Advocate General I
Mr. Rabindra Kr. Priyadarshi, AC to AAG I
Order
6 24.11.2011 Both the appeals have been heard analogous as facts and issues are common. The instant Letters Patent Appeals under clause 10 of the High Court of Judicature at Patna are preferred against the order dated 23.3.2010, passed both in C.W.J.C.No.8653 of 2009 and C.W.J.C. No.4817 of 2010, whereby the learned Single Judge rejected the prayer of the appellants for quashing the notification issued under section 4, declaration under section 6, making of an Award dated 1.4.2009 under section 11, as well as award notices issued under section 12(2) of the Land Acquisition Act (hereinafter referred to as „the Act‟) in Land Acquisition Case No.9/2007-08. | https://indiankanoon.org/doc/814453/ |
c542667f83fa-5 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | 2. The relevant facts necessary for disposal of the appeals in short are as follows. The appellants are raiyats of lands situated in Village Pokharbhinda and Domwalia in Bagha Sub Division in the district of West Champaran, detailed in Annexure-2A of the writ petition. In view of anarchy prevailing in the region, Bagha Sub Division has been upgraded as police district. The Superintendent of Police, Bagha, vide his letter no.374 General, dated 14.3.2000, addressed to the District Magistrate, West Champaran, made a request for making available suitable land for construction of police line at Bagha. The Anchal Adhikari, Bagha, began search enquiry vide Case No.1/2000-01, and submitted his proposal regarding availability of 26.40 acres of land in Village Domwalia, Thana No.145, and an area measuring 15.87 acres of land in Village Pokharbinda, Thana no.147, both falling within Bagha P.S. (vide his letter no.364 dated 14.7.2000), to the S.D.O. Bagha. The S.D.O., Bagha, forwarded the proposal to the District Land Acquisition Officer, Bagha, which was numbered as L.R. Case No.2/2002- | https://indiankanoon.org/doc/814453/ |
c542667f83fa-6 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | 03. The proposal finally reached the office of the Commissioner, Tirhut Division, for administrative approval. The Commissioner pointed certain defects and referred the matter to the Collector, West Champaran, for rectification. The Collector in his turn endorsed the file to the Circle Officer, Bagha, for making necessary rectification. The Anchal Adhikari, Bagha, the L.R.D.C. Bagha, the S.D.O.,Bagha, along with D.I.G. Police, Tirhut Range, Muzaffarpur, visited the site whereafter a new proposal was mooted for acquisition of 12.04 acres of land in village Domwalia appertaining Thana No.145, and 33.04 acres in Village Pokharbinda, of Thana no.147. The Anchal Adhikari, Bagaha forwarded the proposal. The case record was processed and placed in the office of the Commissioner, Tirhut Division, on 8.7.2003. On 24.2.2004, the Superintendent of Police, Bagha, made a requisition to the Collector, West Champaran, to acquire 45.05 acres of land on urgent basis in village Pokharbinda and Domwalia, detailed in Appendix 1, with further request vide details contained in Appendix II, to dispense with enquiry under section 5A of the Act, and to obtain necessary order of the State Government under section 17(4) of the Act. The requisitions along with its Appendixes were considered by the Land Acquisition Officer, West Champaran, on 3.9.2006, and Collector, West Champaran, on 27.9.2006. The Collector approved the draft of the notifications under sections 4 and 6, which too was forwarded by the Commissioner, Tirhut Division, vide his recommendation dated 4.11.2006 to the Director, | https://indiankanoon.org/doc/814453/ |
c542667f83fa-7 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | Tirhut Division, vide his recommendation dated 4.11.2006 to the Director, Land Acquisition, under letter no.4999, dated 13.11.2006, for due consideration and taking approval of the Government. The matter was placed before the Government, and the Minister being satisfied gave approval to the proposal of acquisition under section 17(4) of the Act for construction of police line on 2.2.2007. Pursuant to approval of the acquisition by the State Government in terms of sub-section (4) of Section 17 of the Act, the follow-up notification under section 4 thereof, dated 9.2.2007, and declaration under section 6, dated 13.2.2007, for acquisition of 45.05 acres of land were published. The declaration under section 6 was also published in two newspapers, namely, Aaj and Farooqui Tanzeem. Both notification under section 4, and declaration under section 6, were published in the District Gazette on 15.3.2007. The Collector also caused and got published the substance of acquisition at local level on 30.3.2007. | https://indiankanoon.org/doc/814453/ |
c542667f83fa-8 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | 3. The Collector on 25.4.2007, vide letter no.48 requested the Commissioner, Tirhut Division to seek government‟s approval for taking possession of the land in question in terms of section 17(1) of the Act. The Commissioner forwarded the request to the Director, Land Acquisition, vide his letter no.2710, dated 20.6.2007, for obtaining necessary approval of the Government. The Director, Land Acquisition, placed the matter before the Government and the Hon‟ble Minister accorded approval on 4.7.2007. The Collector, West Champaran, was instructed to take immediate possession under letter no.1605, dated 11.7.2007, which finds place at page 88C of the Land Acquisition file. After ascertaining the value of the land, the Collector approved the Award on 31.3.2009 in L.A. Case No.9 of 2007-08. On 16.6.2009, the Collector issued notices under section 12(2) of the Act calling upon the appellants and other land-holders to receive the compensation amount. The District Land Acquisition Officer took possession of the land on 29.7.2009, and handed over the same to the Dy. S.P. (Hqr), Bagha, for construction of police line which the appellants have controverted. | https://indiankanoon.org/doc/814453/ |
c542667f83fa-9 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | 4. The appellants submit that the impugned land acquisition proceeding is in the teeth of various provisions of the Act. They state that there was no legal and valid ground to invoke the provisions of sections 17(1) and 17(4) of the Act to dispense with the provisions under section 5A of the Act. The proceedings commenced in the year 2000-01, and notification and declaration under sections 4 and 6 of the Land Acquisition Act were issued in the year 2007, hence there was no urgency in the matter and as such invocation of section 17(4) was totally unjustified. The appellants state that the State Government was required to consider the need to dispense with the enquiry under section 5-A inspite of existence of an urgency or unforeseen emergency. There is need for application of the mind by the appropriate government on the issue, but in the instant case the Minister has merely put his signature approving invoking of emergent provisions under section 17(4) of the Act. In support of their submissions, the appellants have relied upon decisions in the case of Union of India & Ors Vs Mukesh Hans, reported in 2004 SC 4307, Essco Fabs Private Limited & anr Vs State of Haryana & anr, reported in (2009) 2 SCC 377, Anand Singh & anr Vs State of U.P. & Ors reported in (2010)XI SCC 242. The appellants state that the impugned award is time-barred in view of section 11-A of the Act, and the whole proceeding lapsed, as the award was not prepared within a period of two years of declaration under section 6 of the Act. The appellants submit that the declaration under section 6 was published in the newspaper on 13.2.2007, and in the district gazette on | https://indiankanoon.org/doc/814453/ |
c542667f83fa-10 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | published in the newspaper on 13.2.2007, and in the district gazette on 16.3.2007. The local publication of the award was made on 30.3.2007. | https://indiankanoon.org/doc/814453/ |
c542667f83fa-11 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | 5. They further state that it is evident from perusal of Section 11A of the Land Acquisition Act and the decision of the Hon‟ble Apex Court in the case of Kunwar Pal Singh Vs State of U.P., reported in (2007)5 SCC 85, and other cases that the award is to be made within two years from the last mode of declaration of award under section 6(2) of the Act.
6. They submit that the last mode of declaration of award was made on 30.3.2007, with its local publication. The award made on 1.4.2009 is after a lapse of 2 years. The appellants submit that the aforesaid facts would clearly show that the award has not been prepared within two years and the entire land acquisition proceedings had lapsed. In support of their submissions, the appellants have relied upon decisions in the case of Kunwar Pal Singh (supra), Ashok Kumar & Ors Vs State of Haryana & anr, reported in (2007)3 SCC 470 and Mohan & anr Vs State of Maharashtra & Ors, reported in 2007(2) PLJR 163 SC. | https://indiankanoon.org/doc/814453/ |
c542667f83fa-12 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | 7. The appellants also submit that no possession worth the name under section 17(1) of the Act or 80% compensation was paid which was necessary for taking possession under section 17(1) of the Act. The appellants state that the learned Single Judge while hearing the writ petition have passed the interim order on 25.7.2009, restraining the respondents from dispossessing the petitioners. However, in complete violation of the order, the respondents have claimed to have taken possession on 29.7.2009 on paper, though in fact as per the appellants, the possession is still with them. They state that so called taking-over of possession on 29.7.2009 would not be valid possession in the eyes of law.
8. The appellants next contended that prior approval of the government was taken by the Collector before making an award, hence the so-called award is illegal and without jurisdiction and no-nest in the eyes of law. In support of their submissions, the appellants have relied upon the decision in the case of Krishnandan Prasad Singh Vs State of Bihar & anr, reported in 2001(3) PLJR 50.
9. The appellants lastly contend that the impugned action was visited with malafide as the respondents could have utilized over 12 acres of land of Kaisre Hind lying in the near vicinity. They submit that the factum of extremely low valuation has not been even touched by the learned Single Judge. | https://indiankanoon.org/doc/814453/ |
c542667f83fa-13 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | 10. Mr. Lalit Kishore, learned Addl. Advocate General No.1, submits that the Bagha Sub-Division in West Champaran is very vulnerably situated, surrounded partially by forests which provides easy hide-out to the miscreants both in the forest and across the Nepal. In order to meet such an alarming situation, the Bagha Sub-Division has been upgraded into a police district with posting of an officer of the rank of Superintendent of Police. He submits that maintenance of public order is a constitutional obligation of the government as provided under Entry 1 and 2 of List II, of the 7th Schedule of Constitution of India. He submits that the government after considering the requisition of Superintendent of Police, Bagha, the recommendation of the Collector, West Champaran, the Commissioner, Tirhut Division, the Director, Land Acquisition, and on being satisfied approved acquisition under section 17(4) of the Land Acquisition Act, dispensing requirement of giving notice under section 5-A of the Act. Similarly after considering the proposal of various authorities, the government granted approval to take possession under section 17(1) of the Act. He submits that the acquisition under section 17(1) and 17(4) of the Act is a matter of subjective satisfaction and it is better left to the discretion of the government. It is merely to be seen whether all materials were placed before the government or not and the decisions are not malafide and based on no material. In support of his submission, the State has relied upon decisions in the case of First Land Acquisition Collector & Ors Vs Nirodhi Prakash Gangoli & anr, reported in (2002)4 SCC 160. He submits that the award under section 11 was made on 31.3.2009, within two years of declaration under section 6 of the Act. According to him, the award was filed in the | https://indiankanoon.org/doc/814453/ |
c542667f83fa-14 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | of declaration under section 6 of the Act. According to him, the award was filed in the Collector‟s office on 1.4.2009, and the notice for payment under section 12(2) of the Act was made on 25.5.2009 and 16.6.2009, and thereafter symbolic possession was taken on 29.7.2009. He thus submits that section 3A of Section 17, which requires tendering of payment of 80% of the compensation for land acquired, was duly complied with. He lastly submits that many land owners have already received their compensation. He submits that the action of the government is not accentuated with malafide, but rather steps for acquisition has been taken in great public interest in view of the anarchy and turbulent situation prevalent in Bagha Sub Division. | https://indiankanoon.org/doc/814453/ |
c542667f83fa-15 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | 11. The appellants in reply submitted that mere saying that there was urgency would not be sufficient in absence of valid ground for the same. The police line was sought to be constructed only 1 ½ K.M. away from town which would cause inconvenience to the residents particularly the ladies. He submits that noting of the Deputy Secretary or the Director, Land Acquisition, do not refer to section 17(4) or dispensation of enquiry under section 5A of the Act. This shows that the Hon‟ble Minister was not apprised of all necessary and relevant facts and there has been no proper application of mind. The so-called possession was taken before handing over the award money and even in case where possession is taken under section 17(1), the award has to be prepared within two years.
12. We have heard learned counsel for the parties, and perused the records of land acquisition proceeding which had also been perused and referred in detail by learned Single Judge in the impugned order. One of the issues raised by the appellants is that the award is barred by section 11-A of the Act. The provision is quoted hereinblow:
"11-A. Period within which an award shall be made- (i) The Collector shall make an award under Section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse.
Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984, the award shall be made within a period of two years from such commencement". | https://indiankanoon.org/doc/814453/ |
c542667f83fa-16 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | 13. The appellants have asserted that the last mode of declaration under section 6 was made on 30.3.2007, and award was made on 1.4.2009 beyond the period of two years and as such the entire land acquisition proceeding lapsed. The appellants in support of their submissions have referred to decisions reported in Kunwar Pal Singh (supra), Ashok Kumar (supra), Mohan (supra), Eugenio Misquita & Ors Vs State of Goa & Ors reported in (1997) 8 SCC 47.
14. The case reported in Mohan &another (supra) is on different issues, wherein the Hon‟ble Apex Court was considering the jurisdiction of the District Judge to hear appeal against order passed by the Land Acquisition Judge/ Subordinate Judge in matters of compensation under the Act. In the other decisions relied upon by the appellants, the issue under section 17(1) and 17(4) was not under consideration vis-à-vis under section 11A of the Act. It is being respectfully stated that in the above mentioned cases, the Apex Court was not considering the land acquired under emergent provisions. The Apex Court in the circumstances held that the award has to be made within two years of publication of declaration under section 6 of the Act in view of Section 11-A. | https://indiankanoon.org/doc/814453/ |
c542667f83fa-17 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | 15. On the other hand, the Hon‟ble Apex Court in the case of Awadh Bihari Yadav and Ors Vs State of Bihar & Ors heard analogous with Sita Ram Gope & Ors Vs State of U.P. & Ors, reported in (1995) 6 SCC 31 held that section 11-A does not apply to cases of acquisition under section 17. In view of the decisions of Hon‟ble Apex Court on the point, we hold that the limitation under section 11A would not come into play where acquisition is made under section 17(1) and 17(4) of the Land Acquisition Act. Even assuming that the award was made after two years, the same would not lapse in view of pronouncement of the Hon‟ble Apex Court referred to above in the case of Awadh Bihari Yadav (supra). | https://indiankanoon.org/doc/814453/ |
c542667f83fa-18 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | 16. The contention of the appellants is that there was no legal and valid ground for invoking section 17(1) and 17(4) of the Act and dispensation of provisions under section 5A of the Land Acquisition Act. There was no extra-ordinary urgency for invoking section 17(4), as the proceeding was initiated in the year 2000-01, and notification under section 4 and declaration under section 6 were made in the year 2007. It was mandatory that the State Government was to further consider the need for dispensing with section 5-A, in spite of existence of unforeseen emergency. The appellants have placed strong reliance in case of Mukesh Hans (supra). In the aforesaid case, the Hon‟ble Apex Court observed that right to representations and hearing contemplated under section 5A are very valuable right of a person whose property is sought to be acquired and he should have an appropriate opportunity for persuading the authorities that the acquisition of his property should not be made. The Hon‟ble Court further observed that sub-section (4) of Section 17 requires the appropriate Government to further consider the need of dispensing with section 5-A of enquiry inspite of existence of unforeseen emergency. The appellants have also referred to the case of Anand Singh (supra). In the aforesaid case, the Hon‟ble Apex Court observed that urgency provision of section 17 to eliminate enquiry under section 5-A should be invoked only in cases of real emergency. The Government should apply its mind to the factum of urgency and should be able to justify that urgency is based on consideration, which has a reasonable nexus with the purpose for which it is to be exercised. Mere use of phraseology of urgency in notification is not enough. The Hon‟ble Apex Court further observed that pre-notification and post- notification delay would have material bearing on the issues, particularly when | https://indiankanoon.org/doc/814453/ |
c542667f83fa-19 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | further observed that pre-notification and post- notification delay would have material bearing on the issues, particularly when no material justifies invoking urgency provision necessitating elimination of an enquiry by the government. In case of Babu Ram Vs State of Haryana, reported in (2009) X SCC 115, the Hon‟ble Apex Court exercised that great care have to be taken by the authority before resorting to section 17(4) of the Act that there was an urgency of such nature which could brook no delay whatsoever. | https://indiankanoon.org/doc/814453/ |
c542667f83fa-20 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | 17. It would appear that the Superintendent of Police, Bagha, made a revised requisition dated 24.2.2004, requesting the Collector, West Champaran, to acquire 45 acres of land in village Pokharbhinda and Dimwalia, detailed in Appendix I of the requisition. A further request was made to dispense with enquiry under section 5-A of the Act vide Appendix II and to obtain approval of the State Government under section 17(1) of the Act for immediate taking of suitable possession of lands to establish a police line to check unruly situation prevailing in the area. The requisition was considered by the Land Acquisition Officer, West Champaran, on 3.9.2006, and by the Collector, West Champaran, on 27.9.2006, while approving the draft of the notification under section 4 and declaration under section 6. The Draft notification was forwarded to the Commissioner on 4.11.2006, who after considering the same forwarded it to the Director, Land Acquisition, under letter no.4999, dated 13.11.2006, for obtaining the appropriate approval of the Government. The Minister before whom all the material facts were placed, approved the notification/declaration. Similarly, on the request of the Collector, West Champaran, contained in letter no.48, dated 25.4.2007 (at page 51/C of file), as well as the Commissioner dated 20.6.2007, the government granted permission to take possession of the land. In the case of First Land Acquisition Collector (supra), the Hon‟ble Apex Court observed that acquisition under section 17(1) and 17(4) is a matter of subjective satisfaction and the matter regarding urgency is to be left to the discretion of the government and it is only to be seen whether all materials were placed before the government. In case of Anand Singh | https://indiankanoon.org/doc/814453/ |
c542667f83fa-21 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | is only to be seen whether all materials were placed before the government. In case of Anand Singh (supra), the Hon‟ble Apex Court was examining acquisition for Housing colony. In the instant case, it is respectfully stated that the acquisition was being made for establishing a police line for combating anarchy perpetrated by different gangs operating under the cover of forest as well as recluse to the bordering Nepal. The emergent provision was invoked for the security and safety of the people of the area and the State. | https://indiankanoon.org/doc/814453/ |
c542667f83fa-22 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | 18. All such materials beginning from requisition made by the Superintendent of Police, Bagha to the recommendation of the Commissioner, Tirhut Division, and Director, Land Acquisition, were placed before the government which approved the same. In view of the emergent situation arising in Bagha, invoking of section 17(4) in the facts and circumstances of the case was not unjustified.
19. The appellants also contended that neither possession was taken pursuant to order under section 17(4), nor 80% compensation amount was paid. It would appear from Annexure-5 series that notice for payment of compensation was tendered on 8.6.2009 & 16.6.2009, under section 12(2) calling upon the appellants and others to receive compensation amount and only thereafter symbolic possession was taken after following due procedure. Thus, the argument of the appellants that 80% of the compensation amount was not tendered, prior to taking possession is unfounded. On the other hand, it was contended by the learned Addl. Advocate General No.1 that many land owners whose lands were acquired had come forward and received compensation.
20. The appellants have contended that the government could easily have taken over 12 acres of Kaisre Hind land, situated in the nearby vicinity. What land would be suitable for establishing a police line is to be best left on the administrative and executive side, as they are the best person to judge the suitability, until it is shown that the action is perverse and arbitrary.
21. The appellants next contended that the acquisition is manifest with malafide as it was done at the behest of a powerful local leader. It is apparent that the lands of many persons have been acquired and it has not been specifically contended whether the local leader bore malice against all the land holders and the accompanying cause for holding such malice. | https://indiankanoon.org/doc/814453/ |
c542667f83fa-23 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | The appellants have also contended that the factum of compensation has not been considered by the authorities as well as by the learned Single Judge. This court is of the view that the government should reconsider the aspect of quantum of compensation with interest as lands which in case of majority of the land-holders, can be the only source of their livelihood. The State Government would also reconsider the case of quantum of compensation with interest as well of those land-holders who have already received the award amount.
21. With the aforesaid observations and directions, these appeals are dismissed.
(S.P. Singh,J) I agree S.K. Katriar,J (S.K. Katriar,J) KHAN | https://indiankanoon.org/doc/814453/ |
a5ef268abef8-0 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.2 of 2014
In
Civil Writ Jurisdiction Case No. 4270 of 2006
======================================================
Md. Nizamuddin, Advocate, Ex - Government Pleader, Patna, son of Late Moizul Haque, Resident of Sharf Apartment, Flat No. 105, Frasar Road, Police Station - Gandhi Maidan, District - Patna .... .... Appellant Versus
1. The State of Bihar.
2. The Secretary, Law Deptt., Govt. of Bihar, Patna.
3. The Secretary, Finance Deptt., Govt. Of Bihar, Patna.
4. The Collector, Patna.
.... .... Respondents ====================================================== Appearance : For the Appellant : Mr. Nawal Kishore Singh,
with
Mr. Binay Kumar &
Mr. Manoj Madhav, Advocates | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-1 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | For the Respondent/s :
Mr. Lalit Kishore, PAAG &
Mr. Ajay Behari Sinha, S.C.-19
with
Mr. Suryakant Kumar,
A.C. to S.C.-19
====================================================== CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI and HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH CAV ORDER (Per: HONOURABLE MR. JUSTICE I. A. ANSARI) 10 15-05-2014 This Letters Patent Appeal has arisen out of the judgment and order, dated 11.09.2013, passed in C.W.J.C.No.4270 of 2006, whereby the writ petitioner- appellant's application, made under Article 226 of the Constitution of India, seeking issuance of appropriate writ or writs commanding the respondents to pay the admitted dues/fees of the petitioner-appellant for the work, which the petitioner- <span class="hidden_text" id="span_1"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> appellant had done, in his capacity as the then Government Pleader, Civil Court, Patna, stands rejected.
2. We have heard Mr. Nawal Kishore Singh, learned counsel for the appellant, and Mr. Lalit Kishore, learned Principal Additional Advocate General, appearing for the State. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-2 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 3. The facts, which have given rise to the present appeal, may, in brief, be set out as under:
(i) The appellant herein, as petitioner, in CWJC No.4270 of 2006, was appointed, on 23.08.1996, as a Government Pleader for the Civil Court, Patna, and conducted cases, on behalf of the State Government, in the civil courts accordingly. When the bills, which the petitioner-appellant had raised and submitted, for payment, to the Collector, Patna, were turned down by the respondents, the appellant came to this Court, as a petitioner, with an application, made under Article 226 of the Constitution of India, seeking, as already indicated above, issuance of writ or writs commanding the respondents to make payment of the appellant's dues/fees.
(ii) The respondents opposed the writ petition. While, however, opposing the writ petition, it was not the case of the respondents that the appellant had not discharged his duties and performed his functions as the Government Pleader in the cases, <span class="hidden_text" id="span_3"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> wherein bills were raised by the appellant. The dispute was, in fact, confined to the question as to what would be the basis for payment of the fees of a Government Pleader at Patna. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-3 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | (iii) It has been the contention of the appellant that he ought to be paid his fees in terms of the provisions of Rule 426 of the Civil Court Rules of the High Court of Judicature (hereinafter referred to as "the Rules"); whereas the respondents' contention has been that the payment to the Government Pleader depends on the conditions of appointment of an Advocate, as a Government Pleader, read with the fees, which a Government Pleader is entitled to receive in terms of Rule 118 embodied in the Bihar Practice and Procedure Manual, 1958.
(iv) As the learned single Judge could not bring the parties concerned to a reconciliation, it was observed in the order, dated 11.09.2013, aforementioned, that since there was a dispute as to what rates would govern the claim of the fees of a Government Pleader, the dispute raised by the writ petitioner involved disputed questions of fact, which required taking of evidence, both oral as well as documentary, and, hence, it would be civil court of competent jurisdiction, which can declare the law applicable to the case and adjudicate upon the disputed questions. With the grounds, as indicated hereinbefore, the writ <span class="hidden_text" id="span_5"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> petition has been dismissed on 11.09.2013. Aggrieved by the dismissal of his writ petition, the petitioner is, in appeal, before us, as the appellant. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-4 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 4. Resisting the writ petition, at the very threshold, Mr. Lalit Kishore, learned Principal Additional Advocate General, has submitted that this appeal is misconceived inasmuch as the exercise of power by a High Court, under Article 226 of the Constitution of India, is discretionary in nature and if a single Judge declines to exercise jurisdiction under Article 226 of the Constitution on the ground that the writ petition involves disputed question of facts, a letters patent appeal may not, ordinarily, be entertained inasmuch a writ appeal is really not a statutory appeal preferred against the judgment and order of an inferior to the superior court; such an appeal is, rather, an intra- court appeal and, in such an appeal, a Division Bench would not interfere with an order of single Bench unless there is a patent error or the judgment is against established or settled principle of law. This apart, points out by the learned Principal Additional Advocate General, in a given case, if two views are possible and a view, which is reasonable and logical, has been taken by a single Judge, the other view would not be adopted by the Division Bench and it is the view, taken by a single Judge, which <span class="hidden_text" id="span_7"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> should, normally, be allowed to prevail. It is the contention of the learned Principal Additional Advocate General that since the writ petition has been dismissed on the ground that the writ petition involves disputed question of facts and, therefore, a writ proceeding is not an appropriate proceeding, this issue may not be overridden in appeal. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-5 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 5. We are wholly in agreement with the principle governing the ambit of power exercisable in Letters Patent Appeal and reiterate that a writ appeal is really not a statutory appeal preferred against the judgment and order of an inferior to the superior Court. An intra-court appeal in a High Court, from one Court to another, is really an appeal from one Bench to another Bench and it is for this reason that a writ cannot be issued by one Bench of the High Court to another Bench of the High Court.
6. Thus, unlike an appeal, in general, a writ appeal is an appeal on principle and, that is why, unlike an appeal, in an ordinary sense, such as, a criminal appeal, where the whole evidence on record is examined anew by the appellate Court, what is really examined, in a writ appeal, is the legality and validity of the judgment and/or order of the single Judge and it can be set aside or should be set aside only when there is a patent <span class="hidden_text" id="span_9"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> error or an error on the face of the record or the judgment is against the established or settled principle of law and/or the findings reached are wholly against the materials on record or without considering any relevant material on record. If two views are possible and a view, which is reasonable and logical, has been taken by a single Judge, the other view--howsoever appealing such a view may be to the Division Bench--would not normally be allowed to supersede the view taken by a single Bench. In other words, the view, taken by the single Judge, should, ordinarily, be allowed to prevail. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-6 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 7. Hence, the judgment of the learned Single Judge, impugned in the present appeal, cannot be completely ignored and this Court has to consider the judgment and order in the proper perspective and if this Bench, sitting as an appellate Bench, is of the view that the decision has been arrived at by the learned Single Judge without any material error of fact or law, then, the judgment, in question, should be allowed to prevail.
8. In the case at hand, however, we find that the dispute is essentially of interpretation of the law inasmuch as there was no dispute that the appellant had performed the functions of the Government Pleader in the cases, wherein he had raised his bills. The dispute was with regard to the question as to what would be <span class="hidden_text" id="span_11"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> the legal basis for payment of the fees of a Government Pleader, in Civil Courts, including the Civil Court, at Patna.
9. Since the basic question, which arose in the writ petition, was pure question of law, we are of the view that merely because a question has been reached as to what would be the appropriate law in a given set of facts, it cannot be held that such a question shall be regarded as a disputed question of fact; rather, as indicated hereinbefore, what was really in dispute was the correct application of law to the given set of facts.
10. We may, however, hasten to point out that the question whether a writ petition at all lies if the undisputed bill of a Government Pleader or an Advocate is not paid has been answered in the affirmative in the writ petition. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-7 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 11. Even the proposition that admitted bills of a Government Pleader must be directed, in a writ petition, made under Article 226 of the Constitution, to be paid, has been seriously resisted by the learned Principal Additional Advocate General by referring to, and relying upon, the decision of the Supreme Court in Improvement Trust v. S.Tejinder Singh Gujral [1995 Supp(4) SCC 577].
12. Coming to the merit of the present appeal, it is important to bear in mind that Mr. Nawal Kishore Singh, learned <span class="hidden_text" id="span_13"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> counsel, appearing on behalf of the appellant, has submitted that it has been the practice that the fee of the Government Pleader, conducting cases, in the Civil Courts, at Patna, is paid in terms of Rule 426 of the Rules and since, in the past, there had been instances of making of payment of the bills of Government Pleader, in the Civil Court, at Patna, on the basis of Rule 426 of the Rules, the learned single Judge ought not to have dismissed the writ petition; rather, the writ petition ought to have been allowed, with direction to make payment, as had been sought for by the appellant herein, in his writ petition, as writ petitioner, particularly, when the learned single Judge has taken the view that Government can be directed by High Court, by invoking extra-ordinary jurisdiction of the High Court, under Article 226 of the Constitution of India, to make payment of the admitted bill of an Advocate.
13. Let us, now, determine the merits of the rival submissions made before us. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-8 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 14. We notice, as has been pointed out by the learned Principal Additional Advocate General, that the appellant was appointed as a Government Pleader, vide letter, dated 23.08.1996, issued under the signature of the Secretary to the Government of Bihar, Law Department. This appointment letter <span class="hidden_text" id="span_15"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> shows, as has rightly been pointed out by the learned Principal Additional Advocate General, that the letter of appointment stated to the effect that the appointment had been made for a period of 3 (three) years on retainership fees of Rs.250/- and, apart from retainership fees of Rs.250/-, the appellant, as Government Pleader, would receive professional fees in terms of Bihar Practice and Procedure Manual, 1958.
15. It is also not in dispute that by various Circulars, issued from time to time, the retainership fee as well as daily fees for appearance of a Government Pleader, in the districts of Bihar, has been enhanced from time to time by the State Government. Some of the fee enhancements, which form part of the record of the writ petition as annexures, may, now, be noticed. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-9 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 16. By Circular/Letter, dated 01.10.1996, issued under the signature of the Secretary to the Government of Bihar, Law (Judicial) Department, the retainership fee of the Government Pleaders was enhanced to Rs.300/- from earlier sum of Rs.250/- and, accordingly, the daily fee, for appearance, was also raised to Rs.90/- from Rs.60/-. This was followed by another Circular/Letter, dated 02.09.2000, whereunder the retainership fee for the Government Pleader was raised to Rs.500/- and the daily fee, for appearance, was accordingly raised to Rs.150/-. <span class="hidden_text" id="span_17"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> Thereafter, vide Circular/Letter, dated 14.08.2008, the retainership fee was raised to Rs.1,500/- and the daily fee, for appearance, was raised to Rs.300/-. By yet another Circular/Letter, dated 2.3.2010, the retainership fee was enhanced to Rs.3,000/- and the daily fees, for appearance, was increased to Rs.500/-.
17. Thus, various Circulars/Letters, which have been issued by the State Government from time to time, indicate increase in the retainership fee and also in the daily fee for appearance of the Government Pleader at the district level. In this regard, no distinction has been made between the Government Pleader, appointed for the Civil Court, at Patna, and a Government Pleader appointed for the Civil Courts in the other districts of the State of Bihar. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-10 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 18. The terms and conditions of appointment of the present appellant, vide appointment letter, dated 23.08.1996, aforementioned, clearly show that the contract/engagement of the appellant, as Government Pleader, was to be governed by terms of the retainership fee and the daily fee, which may be fixed by the Government, and also by what is incorporated in Bihar Practice and Procedure Manual, 1958. The acceptance of appointment, as a Government Pleader, by an Advocate binds <span class="hidden_text" id="span_19"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> him by the terms of his appointment, which includes his retainership fee as well as his daily fee.
19. The appointment of the appellant, therefore, in the present case, would be governed by the terms and conditions of his appointment as a Government Pleader and the terms and conditions would include application of Bihar Practice and Procedure Manual. Conversely speaking, the appellant cannot claim retainership fee and/or daily fee contrary to, or inconsistent with, the terms and conditions embodied in the letter of appointment, dated 23.08.1996, aforementioned, unless the terms and conditions of his appointment are impugned by the appellant, which the appellant has, admittedly, not impugned. The respondents, therefore, cannot, in the light of the terms and conditions of appointment, be directed to pay to the appellant retainership fee and/or daily fee contrary to the terms and conditions incorporated in the appellant's letter of appointment. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-11 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 20. The appellant's letter of appointment, dated 23.08.1996, aforementioned clearly shows that his fees would be governed, apart from the terms of appointment, by the provisions of Bihar Practice and Procedure Manual, 1958, and it is Rule 118 of Bihar Practice and Procedure Manual, which, according to the respondents, is applicable to the present case. Rule 118 of Bihar <span class="hidden_text" id="span_21"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> Practice and Procedure Manual is, therefore, reproduced below :
"118. Scale of fees in Legal Remembrancer's Office.--The following scale of fees has been adopted in the office of the Legal Remembrancer:--
Rs. Rs.
Drawing plaints and written
statements and memoranda
of appeals. 5 to 85
Setting appeals ... ... 5 to 85
Do-petitions ... ... 5 to 85
Opinion ... ... 5 to 85
Compromise ... ... 20 to 85
Consultation ... ... 20 to 85
Motion ... ... ... ... 85"
21. There is no dispute before us that Rule 118 embodies the scale of fee payable to a Government Pleader by the office of the Legal Remembrancer. The payment, which is required to be made in terms of Rule 118, is in addition to the contracted fees, which a Government Pleader is entitled to receive in terms of his letter of appointment. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-12 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 22. Let us, now, consider Rule 426 of the Rules. This Rule reads as under :
"426. (i) The advocates' and pleaders' fees shall be in the discretion of the Court.
The following scale of advocates' and pleaders' fees shall ordinarily be allowed to the successful party--
_____________________________________ Amount or value of the claim fee decreed or dismissed _____________________________________ Not exceeding Rs.5,000 ...5 per cent to 10 per cent.
Exceeding Rs.5,000 but not exceeding Rs.20,000 ...5 per cent to 10 per cent on Rs.5,000 and 2 per cent to 3 per cent on the balance.
Exceeding Rs.20,000 but not exceeding Rs.50,000 ... As above on Rs.20,000/-
and 1 per cent to 2 per cent on the balance.
Exceeding Rs.50,000 ... As above on Rs.50,000
and ½ per cent, to 1 per
on the balance"
_____________________________________________ Provided that the minimum fee to be allowed shall be Rs.10 in contested cases and Rs.5 in uncontested cases. For the purpose of this proviso, suits tried together may be regarded as one suit, unless the Court otherwise directs."
23. While considering the applicability of Rule 426 of the Rules, it needs to be noted that this Rule has been framed by Patna High Court in exercise of its rule-making power under Section 122 of the Code of Civil Procedure. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-13 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 24. What is, however, of immense importance to note, while analyzing the intent and import of Rule 426, is that Rule 426 makes it clear that the scale of fees, indicated therein, shall, ordinarily, be allowed to the successful party. The use of expression "shall, ordinarily, be allowed to the successful party" is in tune with Section 35 of the Code of Civil Procedure, which embodies the provisions with regard to payment of cost.
25. It is imperative, therefore, that Section 35 of the Code <span class="hidden_text" id="span_25"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> of Civil Procedure be, now, taken note of. Section 35 of the Code of Civil Procedure, which embodies the provision of cost, reads as under :
"35. Costs--(1) Subject to such
conditions and limitations as may be
prescribed, and to the provisions of any law for the time being in force, the costs of and incident to all suits shall be in the discretion of the Court, and the Court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. The fact that the Court has no jurisdiction to try the suit shall be no bar to the exercise of such powers.
(2) Where the Court directs that any costs shall not follow the event, the Court shall state its reasons in writing." | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-14 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 26. From a bare reading, as a whole, of the provisions, embodied in Section 35 of the Code of Civil Procedure, what clearly transpires is that ordinarily, a Court shall allow cost and if the cost is not allowed, the Court shall assign its reasons in writing. In other words, cost shall be allowed, ordinarily, to the successful party in a civil court and it is, therefore, imperative that when a civil court does not allow cost, it assigns its reasons, <span class="hidden_text" id="span_27"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> in writing, therefor.
27. In consonance with the provisions of Section 35 of the Code of Civil Procedure, Rule 426 of the Rules, too, lays down that ordinarily, successful party shall be given the decree for the Advocates' fees and the scale of the Advocates' fees shall be what has been mentioned in Rule 426 of the Rules.
28. Logically interpreted, Rule 426 of the Rules conveys that while granting decree, the Court shall, ordinarily, allow to the successful party decree for the Advocate's fees, in the form of cost, on the scale, which has been mentioned in Rule 426.
29. The cost, which is given by a civil court, includes the fees of the Advocate and, therefore, the fee is allowed to be incorporated in the decree. More explicitly speaking, a decree for the Advocates' fee is a part of the cost payable to a decree-holder by the judgment-debtor. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-15 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 30. Hence, if a suit, filed against the State, is decided in favour of the plaintiff, the plaintiff will receive Advocates' fee in terms of Rule 426. If the Government wins a suit, the court may allow cost including the fee of the Government Advocate. The fee to be included, as a cost of an Advocate, in a decree, will include not only a Government Pleader, but also an Advocate specially engaged. While drawing the decree for the Advocates' <span class="hidden_text" id="span_29"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> fees, the civil court is required to bear in mind the fees, which may have been fixed by the Government for its appointed Advocates as Government Pleaders.
31. There is no dispute before us that the Government Pleaders, all over the State, have been receiving payments in terms of their letters of appointment of the kind, which the petitioner-appellant holds, coupled with the provisions contained in the Bihar Practice and Procedure Manual, 1958. It is only in the Civil Court, at Patna, that the controversy has arisen with regard to the fee of a Government Pleader inasmuch as Government Pleader, in the Civil Courts, at Patna, had, in some cases, in the past, received fees in terms of the provisions of Rule 426 of the Rules. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-16 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 32. In the light of the discussions, which we have held above, there can be no escape from the conclusion, and we do conclude, that the fee payable to a Government Pleader, in the State of Bihar, shall be governed by the terms of his appointment and also by Rule 118 of the Bihar Practice and Procedure Manual, 1958, and that Rule 426 of the Rules deals with the power of the courts to pay fee of a Government Pleader and empowers the civil courts to include in a decree, while allowing a decree, Government Pleader's fee, as cost, and if question arises <span class="hidden_text" id="span_31"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> as to what would be the fee of a Government Pleader, the civil court is required to bear in mind the terms and conditions of the appointment of the Government Pleader. Merely because a Government Pleader had received, in the past, fee by applying Rule 426 of the Rules, would not, in the light of the discussions held above, permit a Court to issue a direction to make payment to the Government Pleader, in the Civil Court, at Patna, when such a direction would be palpably against the law governing the rights/obligations of the parties to the writ petition. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-17 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 33. Coming to the question as to whether a writ petition, in the facts and circumstances of the present case, was entertainable, we may point out that Improvement Trust v. S.Tejinder Singh Gujral (supra) is case, wherein the High Court had allowed the writ petition filed by an Advocate for recovery of his professional fees from his client. The Supreme Court, in emphatical terms, laid down, in Improvement Trust v. S. Tejinder Singh Gujral (supra), that no writ petition can lie for recovery of an amount under a contract and the High Court was clearly wrong in allowing the petition. The Supreme Court further pointed out, in Improvement Trust v. S.Tejinder Singh Gujral (supra), that there is no separate law for Advocates, and when they seek recovery of an amount under a contract. <span class="hidden_text" id="span_33"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span>
34. We would come to the question as to whether a contractual amount, if admitted, has to be, in every case, directed to be paid in a writ petition made under Article 226 of the Constitution of India a little later; suffice it, however, to point out that in the case at hand, the dispute was with regard to the application of the appropriate provisions of law. The willingness of the respondents to make payment, in terms of the letter of appointment of the appellant, as a Government Pleader read with Bihar Practice and Procedure Manual has never been in dispute. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-18 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 35. We are, therefore, clearly of the view that the writ petition, in the present case, was entertainable. What was in dispute was the determination of the appropriate provisions of law applicable to the facts of the present case and we have, therefore, decided per force the question of law with the conclusions as have been reached above.
36. Reverting to the question as to whether a contractual amount, if admitted, has to be, in every case, treated as recoverable by filing a writ petition under Article 226 of the Constitution of India, it may be pointed out that this question brings us to yet another vital question and the question is: whether every breach of governmental obligation to pay its dues, under a contract, falls outside the purview of Article 226 ? <span class="hidden_text" id="span_35"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-19 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 37. To put a little differently, the question is: Will the constitutional remedy of Article 226 never be available against a State even if the State refuses to carry out its contractual obligations with ulterior motives, mala fide, irrationally, arbitrarily, unreasonably, unfairly, whimsically or when the State, demonstratively discriminates, while making payment of its dues? Shall the writ court withdraw its hand resignedly and helplessly by saying that a writ of mandamus is a public law remedy and no writ of mandamus would be issued to any State directing it not to discriminate or act irrationally, arbitrarily, unreasonably, unfairly, whimsically, mala fide or with ulterior motives, while refusing or omitting to make payment of its dues arising out of contracts? Can a breach of contract ever give rise to any constitutional obligation of the State to make payment of its dues? Made it clear a Three Judge Bench, in Radhakrishna Agarwal v. State of Bihar, reported in MANU/SC/0053/1977:[1977]3 SCR 249, that every breach of contract by the State or by its officers is not a breach of public duty, for, such a proposition would make every breach of contract by the State or its agents subject of interference by the High Court in its extra-ordinary jurisdiction under Article 226 and, hence, remedy of a writ of mandamus cannot be had for <span class="hidden_text" id="span_37"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> every breach of contract. The relevant observations made, in this regard, in Radhakrishna Agarwal (supra) run thus: | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-20 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | "Learned Counsel contends that in the cases before us breaches of public duty are involved. The submission made before us is that, whenever a State or its agents or officers deal with the citizen, either when making a transaction or, after making it, acting in exercise of powers under the terms of contract between the parties, there is a dealing between the State and the citizen which involves performance of "certain legal and public duties". If we were to accept this very wide proposition, every case of a breach of contract by the State or its agents or officers would call for interference under Article 226 of the Constitution. We do not consider this to be a sound proposition at all."
38. What is, now, of immense importance to note is that the case of Radhakrishna Agarwal (supra) was a case of 'pure and simple' breach of contract. In such cases of breach, remedy of payment of damages is available to the person, who suffers alleged breach of contract. It is in such fact situation that the law with regard to invoking of the High Court's extraordinary jurisdiction, under Article 226 was discussed in Radhakrishna Agarwal (supra). The law, laid down in Radhakrishna Agarwal (supra) cannot, therefore, be extended to cases, which are not <span class="hidden_text" id="span_39"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> cases of mere breach of contract, but much more than that. This is clear from the fact that in paragraph 2 of Radhakrishna Agarwal (supra),the Supreme Court observed: | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-21 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | "...Primarily, the case of the petitioners is that of a breach of contract for which the State would be liable, ordinarily, to pay damages if it had broken it." | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-22 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 39. What emerges from the above discussion is that the remedy, available under Article 226, is an extraordinary remedy and is not intended for the purpose of declaring private rights of the parties. For the purpose of enforcing contractual rights and obligations, the remedy of filing of a civil suit is available to the aggrieved party and, hence, a High Court will not exercise its prerogative writ jurisdiction to enforce such contractual rights or obligations. A writ or direction in the nature of mandamus would not, therefore, lie to enforce private rights or contractual rights or obligations or even to avoid such obligations or rights. Contracts, which are non-statutory, and the rights, which are purely contractual and governed only by the terms of the contract, cannot be enforced by any writ or order under Article 226 of the Constitution of India. There is formidable array of authorities, which may be referred to in this regard. See Lekhraj Sathramdas Lalvani v. N.M. Shah, Deputy Custodian-Cum- <span class="hidden_text" id="span_41"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> Managing Officer, Bombay MANU/SC/0010/1965: [1966]1SCR120; Radhakrishna Agarwal v. State of Bihar (supra); Divisional Forest Officerv. Biswanath Tea Co. Ltd. MANU/SC/0045/1981 : [1981]3SCR662 ; State of Haryana v. Jage Ram AIR 1980 SC 2018; Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. v. Sipahi Singh MANU/SC/0060/1977: [1978]1SCR 375 ; Bareilly Development Authority v. Ajai Pal Singh MANU/SC/0058/1989: | https://indiankanoon.org/doc/173691638/ |
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