Ansar Ali and Others vs State of Bihar and Others

S.B. Sinha, J.—This writ petition is directed against the order dated 28.4.1988 passed by the Additional Deputy Commissioner, Sahebganj in Revenue Misc. Revision No. 23 of 1987-88 as contained in Annexure 12 to the writ application as also the order dated 29-5-1989 passed by the Commissioner, Santhal Pargana in Revenue Misc. Case No. 24 of 1988-89 as contained in Annexure 13 thereof.

The fact of the matter lies in a narrow compass.

The lands in question involved in this writ application are plot number 1445 which is a Tank measuring 16 bigha, 3 kathas and 13 dhurs and plot No. 1445/1789 which has been recorded as puratan patit measuring 3 bigha, 5 kathas and 9 dhurs; thus in total measuring 14 bighas 19 kathas 12 dhurs. The Petitioners contend that their predecessor in interest were Zambandi Raiyats of Mauza Chanchi, Sitesh Nagar. According to the Petitioners, Rani Jyotirmay Devi who was one of the landlords granted settlement to one Nand Lal Ghosh in respect of plot No. 1445. One Binayandra Chandra Pandey and Amrendra Chandra Pandey purchased Lakhraj plot No. 1445. It is also stated that the aforementioned Binayanchandra Pandey and Amrendra Chandra Pandey took settlement of plot Nos. 1445/1789, the ridge or ''Bhind'' of ''tank'' of Plot No. 1445 from Rani Jyotirmay Devi. The said lands ultimately, devolved upon Prasunendra Chandra Pandey, son of Binayandra Chandra Pandey as allegedly Amrendra Chandra Pandey died issueless. The Petitioners purchased the lands in question by reason of a deed of sale dated 22-2-1974 as contained in Annexure 1 to the writ application.

The Petitioners have contended that the aforementioned plots were wrongly recorded under Anawali Khata No. 647 and an objection to the said errors was filed by the recorded tenant before the revenue authorities. By an order dated 26-7-1929 the Assistant Settlement Officer, Pakur, directed that necessary corrections be made. The relevant orders are contained in Annexures 4/A and 5/A to the writ application.

The Petitioners have further contended that their names were mutated in the office of the State of Bihar and rent was also fixed by the Revenue authorities.

The Respondents 4 and 8 purported to have filed an application against the Petitioners for cancellation of the said deed of sale before the Sub-divisional Magistrate, Pakur, purported to be u/s 35 of the Santhal Parganas Tenancy (Supplementary Provisions) Act on 10-5-1982 on their behalf as also on behalf of 16 annas raiyats on the ground that the lands had been recorded as Anawali Khata. By reason of an order dated 8-11-1985 the Sub-divisional Magistrate, Pakur, rejected the claim of the said Respondents in Revenue Misc. case No. 38 of 1982-83.

Against the said order, the aforementioned Respondents filed a revision application purported to be in terms of Section 59(1) of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949, for cancellation of the aforementioned deed of sale. By the impugned order dated 28-4-1984 as contained in Annexure 12 to the writ application, the said revision application was allowed. The Petitioners filed a revision application in the Court of learned Commissioner who by reason of his order dated 29-5-1989 dismissed the same.

The Petitioners in this writ application have contended that they have never objected to the raiyats using the water of the tank for irrigation, bathing or drinking purposes. Further, in the supplementary affidavit it has been contended that the land in question is a raiyati land and has never been used for agricultural, bathing and drinking purposes for the last over hundred years. It has been contended that the lands in question are transferable and saleable lands as would be evident from the report of the Karmachari which is contained in Annexure 24 to the supplementary affidavit.

In the counter-affidavit filed on behalf of the Respondents, however, it has been contended that the lands in question belonged to the State of Bihar having vested in it under the provisions of Bihar Land Reforms Act, 1950. It has been accepted that plot No. 1445 of Mauza Anjani in Mr. Gangzer''s Settlement corresponds to plot No. 1109 of Macpherson''s settlement in the district of Santhal Pargana and the same had been recorded as ''Lakhraj land'' but according to the Respondents, there is nothing to show that the same had been purchased by Pandey BrOrs. and it has been stated that Pandeys had no raiyati interest in the lands in question. It has also been contended that the sale deed dated 9-4-1974 is a collusive document which has been prepared only for the purpose of laying false claim over the disputed lands as the registration of the said deed was illegally made at Calcuta.

It has further been stated that the Petitioners are not in possession of the Tank in dispute and the private Respondents had been taking yearly settlements thereof which had been made after publication of general notices. The Respondents 5 to 7 and 9, in their counter-affidavit have annexed the documents of settlement which are contained in Annexures B, C and D thereof.

Learned Counsel appearing on behalf of the Petitioners has raised a short question in support of this application. Learned Counsel submits that the Respondents 2 and 3 had no jurisdiction to pass the impugned order purporting to annul the deed of sale dated 22-2-1974 in exercise of the power u/s 35 of the said Act. Learned Counsel submitted that Respondent No. 2 held that the tank in question has been recorded in their favor but he proceeded to pass the impugned order on the ground that the same was in violation of Section 35 of the Act.

Mr. J.P. Karn, learned Standing Counsel No. 5, however, drew my attention to paragraph 11 of the writ application and submitted that as the title of the Petitioners in respect of the lands in question is itself doubtful, this Court should not exercise its extraordinary jurisdiction.

Mr. S.S. Dwivedi, learned Counsel appearing on behalf of the private Respondents submitted that although his clients do not claim any title in respect of the lands in question but they have an interest in the property as the State has settled the right to catch fish in the said tank in their favor. Learned Counsel, however, submitted that the deed of sale although could not have been cancelled u/s 35 of the said Act but this Court should not exercise its jurisdiction in favor of the Petitioners as the deed of sale is void in view of Section 20 of the said Act.

The only question, which therefore, arises for consideration in this writ application is as to whether in the facts and circumstances of the case, Section 35 of the said Act could have been taken recourse to by Respondents 2 and 3 for passing an order of annulling the deed of sale dated 22-2-1974.

Section 35 of the said Act reads as follows :

Water reservoirs and channels for irrigation, etc. not to be cultivated or converted to other purposes. -(1) Bandhs, aharas, tanks and other water reservoirs or channels, which are used either for the purposes of protection from flood or for irrigation, bathing, washing or drinking, shall not be settled for or converted to any other purpose without the consent of the raiyats and the village headman or mulraiyat, or the landlord in khas village, and the approval of the Deputy Commissioner. No one shall bring under cultivation any such water reservoir or channel.

(2) No proprietor or landlord shall be entitled to levy any charge for the use of water reservoirs and channels mentioned in Sub-section (l) for irrigation, bathing, washing or drinking purposes.

From a plain reading of the aforementioned provision, it is evident that Section 35 puts two embargoes viz.(a) no settlement shall be made in respect of bandhs, aharas, tanks and other water reservoirs or channel and the same cannot be converted to any other purposes without the consent of the raiyats and the village headman or mulraiyat of the landlord in Khas village and the approval of the Deputy Commissioner; and (b) such water reservoir or channel cannot be brought under cultivation by any person.

The Respondent No. 2 in his impugned order noticed that the plot No. 1789 has been recorded as puratan Patti. He observed :

It admits the fact that plot No. 1445 is still being used by the sixteen-anna raiyats of the village for irrigation purposes and I find the transfer through sale deed in the name of the Respondents bearing plot No. 1445 completely violates the provisions of Section 35 of the S.P.T. Act. As to plot No. 1789 it was recorded as puratan Patti. The executor of the sale deed had no legal right to sell the disputed land.

He thereafter held :

I find the transfer of these two disputed plots have been made against the provision laid down u/s 35 of the S.P.T. Act debarring the sixteen-anna raiyats to use the water of the tank for irrigation and drinking purposes. As regards the cancellation of these sale deeds, the Appellants may file a proper suit in the relevant Court but with this observation that the transfer in the name of the Respondents has been made in utter violation of the S.P.T. Act and is illegal and void transfer.

14-A. Respondent No. 2 evidently had no jurisdiction to decide a complicated question of title while exercising his jurisdiction u/s 35 of the said Act. The Respondents have contended that no sale of a tank can be made by a raiyat.

What is noticed hereinbefore, is prohibited under the said provision inter alia, is to make settlement i.e. no settlement shall be made by the landlord in favor of anybody. However, the tank in question, as noticed hereinbefore, had already been settled and as has been admitted is recorded as Lakhraj land. Even from the perusal of Annexure 24 to the writ application, it is clear that officer of the Revenue department admitted that the land in question is saleable.

The Respondent 2 and 3 have not held that the said report was incorrect or the deed of sale was executed in utter violation of the provisions of Section 20 of the said Act. The said question was never raised before Respondents 2 and 3 and thus it cannot be allowed to be raised for the first time in the Court.

Respondent No. 2, further has committed an illegality in holding that the deed of sale was void being hit by Section 35 of the said Act although, he himself held that the same cannot be annulled in terms of the aforementioned provisions and himself having held that in order to decide the question of title, a suit may be filed by the Petitioners. The Respondent No. 2, therefore, exceeded his jurisdiction in passing the impugned order. The Respondent No. 2 further committed an illegality in, purporting to hold that by reason of the said deed of sale a right of 16-anna raiyats of taking water for drinking, bathing, irrigational facility from the said tank had been interfered with although the Petitioners categorically stated before the, said authority that such rights of the villages have not been interfered with by them, It is, thus, clear that Respondent No. 2 by reason of the impugned order made an attempt to establish the title of the State over the lands in question indirectly which he could not do directly while exercising his purported jurisdiction u/s 35 of the said Act.

For the reasons aforementioned, the impugned orders as contained in Annexures 12 and 13 to the writ applications cannot be sustained.

Before parting with this case, I must observe that if the tank is converted for the use of any other purpose or brought under cultivation, it would be open to the affected raiyats or the State to initiate an appropriate legal action against the Petitioners. It is further made clear that the disputed question of title of the Petitioners in respect of the aforementioned tank may be decided in an appropriate proceeding.

This application is therefore, allowed and the impugned order as contained in Annexures 12 and 13 to the writ application are quashed with the aforementioned observations.

In the facts and circumstances, there shall be order as to costs.