Sheo Kumar Pandey and Others vs The State of Bihar and Others

Birendra Prasad Verma, J.—Heard the parties. The dispute in the present proceeding under Articles 226 and 227 of the Constitution of India relates with respect to a parcel of land bearing khata No. 146, khasra No. 2096, area 2 acres, out of total area being 5.29 acres, situate at Mauja Mohanpur, Anchal Rajgir, District Nalanda (Biharsharif).

According to the claims of the petitioners, the lands under dispute were settled in favour of their ancestor by the Ex-landlord through Hukumnama of 1332 Fasli. A photocopy of Hukumnama in question has been brought on record as Annexure-14 to the writ petition. It is further case of the petitioners that they purchased some other parts of the lands under dispute through register deeds of sale as contained in Annexures-16,17 and 18 from the private respondents, who or their ancestors were also settlees from the Ex-landlord.

A counter affidavit has been filed on behalf of the respondent Nos. 1 to 7 disputing the correctness and bona fide of the claims raised on behalf of the petitioners with respect to the lands under dispute. According to the respondent State of Bihar and its functionaries, the Hukumnama of 1332 Fasli, brought on record as Annexure 14 to the writ petition, is a forged and manufactured document and, therefore, on that basis the petitioners cannot claim their right and title over the lands under dispute. It is also the case of the respondent State that the lands under dispute have been recorded as Gair-Mazrua Parti Kadim in the survey records of right and that vested in the State of Bihar after abolition of Zamindari.

In the present proceeding, the petitioners are aggrieved by the orders/communications dated 27.7.1990 (Annexure-11) issued by the respondent No. 3, letter/communication dated 17.8.1990 (Annexure 11/A) issued under the signature of the respondent Additional collector, Nalanda (Biharsharif) as also letter/communication dated 29.8.1990 (Annexure-12) issued under the signature of the respondent Anchal Adhikari, Rajgir, whereby a proposal has been made to hand over 2 acres of land of aforesaid plot No. 2096 for construction of a Tourist Bungalow. Grievance of the petitioners is that unless and until the lands under dispute are taken to be the lands belonging to the State of Bihar, the impugned orders/communications could not have been issued by the respondent authorities.

In paragraph 27 of the writ petition, it has been stated that from the plot in question, one acre of land was sought to be settled in favour of one Nand Kishore Prasad by the respondent District Collector, Nalanda (Biharsharif), whereafter the original petitioner No. 1-Sheo Kumar Pandey filed his objection giving rise to Misc. Case No. 1977 of 1989. By an order dated 20.7.1989, the respondent District Collector, Nalanda(Biharsharif) directed the respondent Additional Collector, Nalanda, to consider all the documents filed by the petitioner No. 1 and come to his own conclusion and, if necessary, initiate a proceeding u/s 4(h) of The Bihar Land Reforms Act, 1950. It has been admitted in the aforesaid paragraph itself that the petitioner No. 1 had challenged that order before this Court in C.W.J.C. No. 9805 of 1989 but the challenge made by petitioner No. 1 had failed and the petitioner No. 1 was permitted to withdraw the aforesaid C.W.J.C. No. 9805 of 1989 by an order dated 21.2.1990 by a Division Bench of this Court. Thereafter, the petitioner No. 1 filed his show cause and the matter is still pending for final adjudication.

From the facts pleaded by the parties, it is apparent that there is a serious dispute of facts with respect to the lands under dispute. According to the petitioners, the lands in question were settled in favour of their ancestor prior to 1.1.1946 or they had purchased the lands through different sale deeds from the private respondents in whose favour or in favour of their ancestors lands were settled by the Ex-land lord prior to 1.1.1946. However, according to the respondent State of Bihar and its functionaries, the document of settlement of lands in question by the Ex-land lord is a forged and fabricated document and the lands under dispute had vested in the state of Bihar after abolition of Zamindari. According to them, the lands in question belonged to the State of Bihar. Therefore, it is submitted by the learned Additional Advocate General No. 10 that the orders/communications as contained in Annexures-11, 11/A and 12 cannot be faulted.

It is to be noted that if settlement of the lands in question was made by the Ex-land lord prior to 1.1.1946 in favour of ancestor of the petitioners or in favour of their vendors or their ancestors, then in that case the respondent State of Bihar and its functionaries cannot question the validity and correctness of such settlement. However, if document of settlement is found to be forged and fabricated, then no right shall accrue to the settlees. But, these are issues of facts, which have not been brought before the competent authority and which have not been examined and conclusively decided by them. The claims raised on behalf of the petitioners with respect to the lands under dispute are required to be appropriately examined by the competent authority. In the present proceeding under Articles 226 and 227 of the Constitution of India, on the basis of disputed question of facts, no writ can be issued.

After having heard the parties at great length and on consideration of the materials available on the record, this Court is of the opinion that the entire matter should be examined afresh by the respondent District Collector, Nalanda(Biharsharif) by looking into all the documents in favour of the petitioners or in favour of the respondent State of Bihar. He may also examine different provisions of The Bihar Land Reforms Act, 1950, which may be applicable with respect to the claims of the petitioners for settlement of the lands under dispute by the Ex-land lord. He may further examine that as to whether the lands in question have actually been vested with the State of Bihar or not, and thereafter he shall pass an appropriate speaking final order with respect to the lands under dispute.

The parties shall be at liberty to raise all the issues of facts and law involved with respect to the lands under dispute, which shall be gone into by the respondent District Collector, Nalanda (Biharsharif) before coming to a final conclusion with respect to the lands under dispute.

In order to expedite the matter, the petitioners are directed to appear before the respondent District Collector, Nalanda (Biharsharif) with a certified copy of the present order within a period of six weeks from today, whereafter the respondent District Collector, Nalanda (Biharsharif) shall proceed to decide the matter in accordance with law, after giving an opportunity of hearing to all concerned including the petitioners and the respondents.

It is admitted case of the parties that in view of order of stay passed by this Court Tourist Bungalow has not been constructed over the lands in question, though according to the respondent State, the land in question is still in possession of the State Government.

Be that as it may, though the interim order of stay dated 29.4.1991 passed by this Court is vacated, but till the matter is finally decided afresh by the respondent District Collector, Nalanda (Biharsharif) the orders/communications as contained in Annexures-11, 11/A,12 and 13 shall not be given effect to.

Since the matter has become very old and has remained pending before this Court for a quite long time, the respondent District Collector, Nalanda (Biharsharif) shall make all endeavours to decide the present dispute at an early date, preferably within a period of six months from the date of appearance of the petitioners, as indicated above, by a reasoned and speaking order. The writ petition stands finally disposed of with the observations and directions made above, but without costs.