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Judgment
D.G.R. Patnaik, J.—Heard counsel for the parties.
Challenge in this writ application is to the order passed by the Respondent No. 4 as contained in order dated 28.07.2005 (annexure-7) passed in case No. 80/2004 whereby recommendation was made to the Respondent No. 3 for annulment of the Raiyati land by cancellation of the Jamabandi which was opened in the name of the petitioners'' ancestors. Challenge also is to the order dated 20.12.2005 (Annexure-8) passed by the Respondent No. 2 in Revenue Case No. 79 /2005 passed on the basis of the recommendation of the Respondent No. 4 whereby the Jamabandi opened in the name of the petitioners'' ancestors was cancelled.
Facts of the petitioners'' case in brief are as follows :The disputed Jamabandi is in respect of the land measuring area 3.45 acres under Khata No. 153 Plot No. 884 situated in village Barhu within P.S. Ranchi now P.S. Pithoria, District Ranchi which was recorded in the cadastral Survey Records of Rights as Gairmajaruwa Khas in the name of the Ratu Maharaj.
By virtue of a Sada Hukumnana dated 08.03.1982 granted by the Manager, Chhotanagpur Raj, the land was settled with Seikh Tahir, who was the grandfather of the present petitioners and possession of the land was delivered to the settlee followed by issuance of rent receipt along with the map of the settled land.
Such settlement, according to the petitioners, was in accordance with the provisions and customs of Chhotanagpur Raj and accordingly mentioned in Khatian Part-II of the village.
After taking the settlement, said Seikh Tahir converted the settled land into paddy land and remained in continuous possession over the same till his life time along with his only son namely Mubarak Hussain and grandsons namely, the petitionrs and had also being paying rent to the State of Bihar, now Jharkhand.
After vesting of the Jamindari in the State of Bihar, Mubarak Hussain, the father of the petitioners was served with a notice by the Land Reforms Deputy Collector to justify the settlement of the Gairmajurwa Khas land in favour of his father. On producing the relevant documents including the Sada Hukumnama and after conducting an enquiry, the Land Reforms Deputy Collector, Sadar, Ranchi recognized Seikh Tahir as the settled Raiyat fixing the annual rent for the land and also allowing mutation of the name of Seikh Tahir in respect of the land in the Sarista of the State and entered in Register-II of the revenue records.
The original settlee Sheikh Tahir died in the year 1961 and his son Mubarak Hussain died sometime in the year 1970 whereafter the petitioners continued to remain in possession of the entire land paying rent to the Government which used to be accepted by the State.
Prior to his death, Mubarak Hussain was served with another notice on 25.06.1969 by the Anchal Adhikari, Kanke in Settlement Case No. 5/68-69 to explain as to how he has acquired possession over Gairmajurwa land measuring area 0.39 acres. The show cause reply was filed along with all the relevant documents disclosing the manner of settlement made earlier in favour of his father. The explanation was accepted whereafter the proceeding was dropped.
In the recent survey operations, a draft khatian was also prepared in the name of Mubarak Hussain under the provisions of Section 83 of the C.N.T. Act. Inspite of the factual position that the petitioners have been coming in possession of the land ever since the date of settlement in the year 1942 in favour of their ancestors, the Respondent No. 4 once again initiated a Miscellaneous Proceeding vide M.S. Case No. 80/2004-05 and issued notice on 29.04.2005 in the name of the deceased Seikh Tahir calling upon him to appear and produce relevant documents concerning the opening of the Jamabandi in his name in respect of the aforesaid land. The notice was issued on the allegation that the demand running in the name of Seikh Tahir appeared to be suspect.
On the ground that the land in question was recorded in Khatian as Junglejhari and there was no basis for creation of Jamabandi and further, that the land in question comes within the category of forest land and as such, without prior permission of Government of India no non-forest work was permissible under the law in view of the Forest Conservation Act, 1980.
The petitioners challenged the recommendation made by the Respondent No. 4 for cancellation of the Jamabandi and for acquisitioning of the lands by the State Government by preferring an appeal before the Respondent No. 2 vide R.R. No. 79/2002. However, the Respondent No. 2 rejected the petition on the ground that it was time barred and also on the ground that in Khatian the nature of the land has been recorded as Junglejhari.
Thus, the gist of the ground for cancellation of the Jamabandi is that the Jamabandi could not have been created in favour of the petitioners'' ancestor on account of the fact that the land in question was shown in the Khatihan as forest land and no prior permission was obtained from the Central Government.
Learned Counsel for the petitioners would assail the impugned order on the following grounds:
(i) That the impugned recommendation of the L.R.D.C. and the impugned order of cancellation of Jamabandi is totally illegal and beyond jurisdiction. Learned Counsel explains that the settlement of the land having been made by the ex-landlord in favour of the petitioners'' ancestor sometime in the year 1942, this itself should have restrained the Commissioner from exercising any jurisdiction to annul the settlement under the provisions of Section 4(h) of the Bihar Land Reforms Act.
(ii) The fact that since the date of settlement is 1942, the petitioners along with their ancestors have been continuously coming in possession over the land for more than 60 years and having converted the land into paddy land, the Commissioner, by his impugned order could not have proceeded to unsettle the petitioners from the land by cancellation of the Jamabandi in their names.
(iii) When controversy regarding the genuineness of the Jamabandi, opened in the name of the petitioner''s ancestor was raised on as many as two occasions, the concerned authorities were satisfied from the documents produced on behalf of the settlee that the Jamabandi was rightly opened in his name and thereafter, the State Government used to accept rent from the petitioners regularly against receipts issued.
(iv) The respondents have illegally invoked the provisions of Forest Conservation Act, 1980 by applying it with retrospective effect though the Act came into force with effect from 25th October, 1980.
A counter affidavit has been filed on behalf of the respondents. The only stand taken by the respondents in support of the impugned order is that the land in dispute is recorded as Gairmajurwa Malik land mentioned as Majhola Jungle in the Revisional Survey Record of Rights. It is further sought to be explained that upon verification made by the Circle Officer, Kanke, it was detected that the Jamabandi of the land in question has been created in the new Register-II on the basis of the Case No. 37 R 27/XVI of 1957 dated 20.03.1958 in the name of Seikh Tahir son of Late Seikh Kamaluddin. Yet, on examination of the revenue records it was found that in the old Register-II, the basis for opening the Jamabandi of Gairmajurwa land in the name of Seikh Tahir son of Late Seikh Kamaluddin has been mentioned as Hukumnama of Chhotanagpur Raj. Thus, there appeared a contradiction with regard to the opening of Jamabandi of the Gairmajurwa Malik land in the present Register-II and the old Register-II. This contradiction gave rise to a suspicion regarding the genuineness of the opening of the Jamabandi. As such, a proceeding for annulment of said Jamabandi was initiated in the court of Circle Officer, Kanke vide case No. 80 /04 and the same was forwarded to the Additional Collector, Ranchi for annulment of the said Jamabandi of the land in question. The Additional Collector, Ranchi, after examining the entire matter and after hearing the parties, had observed that the land in question is recorded as Junglejhari in the Revisional Survey Record of Rights and comes within the category of forest land u/s 20 of the Forest Protection Act, 1980 and scuch land cannot be used for non-horticulture work without prior permission of Government of India. Since no prior permission from the Government of India has been obtained, therefore, the settlement of the land in favour of the petitioners'' ancestor was rightly annulled. On the same grounds the order of the Commissioner passed in the revision application preferred by the petitioners has been sought to be justified.
From the rival submissions, the following significant aspects do emerge:
(i) Undisputedly the land was settled by the Chhotanagpur Raj in favour of the petitioners'' grandfather Seikh Tahir by virtue of a Sada Hukumnama on 08.03.1942.
(ii) Upon vesting of the land in favour of the State, the settlee Seikh Tahir was recognized by the concerned revenue authorities of the State as a settled Raiyat indicating thereby that the Sada Hukumnama was accepted and the manner of settlement was never challenged.
(iii) Since the date of settlement, the settlee Seikh Tahir came into possession of the land and converted the land into paddy land and he along with his son and grandsons have been coming in continuous occupation and possession of the land for over 60 years and have also been paying rent to the State Government against receipts granted to them.
In view of the fact that the State Government had been accepting rent from the date of vesting of Jamindari from the settlee and that the settlement was made prior to 1st January, 1946, the Commissioner must be held to have no jurisdiction to take steps for annulment of such settlement under the provisions of Section 4(h) of the Bihar Land Reforms Act. As such, the impugned order annulling the settlement and cancelling the Jamabandi which was opened in the name of Seikh Tahir and later, in the name of his son Mubarak Hussain, is beyond jurisdiction of the Commissioner and cannot be sustained.
The impugned order is also bad on account of the fact that by reference to the Record of Rights, wherein the disputed land has been recorded as part of forest land the concerned authorities of the respondents had sought to invoke the provisions of the Forest Conservation Act, 1980 with retrospective effect which cannot be permissible.
Even otherwise, there is no specific finding, either of the Respondent No. 4 or of the Respondent No. 2, that the acquisition of land in question was made in contravention of any law or that the transfer was made to defeat the provisions of Bihar Land Reforms Act.
It is well settled that a long running Jamabandi cannot be cancelled unless fraud and misrepresentation is established in opening the Jamabandi. The creation of Jamabandi gives a valuable right of possession to the Raiyat over the land and the cancellation of the Jamabandi with the consequential effect of dispossession of the Raiyat can be made only in accordance with the procedure established by law and only in exercise of powers vested under the authority.
In the light of the discussions made above and the reasons stated, I find merit in this application and the same is accordingly allowed. The impugned orders vide Annexure-7 and Annexure-8 are hereby set aside.