Lakhi Bauri @ Lakhi Devi vs The State Of Jharkhand
2023 Latest Caselaw 2570 Jhar

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      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 W.P.(C) No. 4278 of 2020

1. Lakhi Bauri @ Lakhi Devi
2. Duryodhan Bauri                        ...      ...    Petitioners
                                 Versus
1. The State of Jharkhand, through the Chief Secretary, Government
   of Jharkhand, Ranchi
2. The Principal Secretary, Department of Revenue, Registration and
   Land Reforms, Government of Jharkhand, Ranchi
3. The District Land Acquisition Officer, Bokaro
4. The Deputy Commissioner, Bokaro
5. The Circle Officer, Chas, Bokaro
6. M/s Bharat Petroleum Corporation Limited, through its Chairman,
   Mumbai
7. The Area Manager-cum-Side-In-Charge, Bharat Petroleum
   Corporation Limited, Radhanagar, Bokaro ... ...      Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioners : Mr. Baibhaw Gahlaut, Advocate For the Respondent-State : Mr. Ranjan Kumar, AC to Sr. SC-I For the Respondent-BPCL : Mr. Mrinal Kanti Roy, Advocate

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Order No. 10 Dated: 03.08.2023

The present writ petition has been filed for issuance of direction upon the respondents to make payment of compensation for the land appertaining to Khata No. 136, Plot No. 432, measuring an area of 2 acres of Mauza Radhanagar, Thana No. 36/201, Halka No. 13, Circle-Chas, District-Bokaro (hereinafter referred to as "the said land") which has been acquired for construction of Petroleum, Oils and Lubricants (POL) depot along with railway siding for Bharat Petroleum Corporation Limited at Radhanagar. Further prayer has been made for issuance of direction upon the respondents to make payment of interest @ 15% from the date of acquisition and other consequential benefits accruing thereof. The petitioner has also prayed for issuance of direction upon the respondents to pay damages to the petitioners for illegal use and occupation of the said land.

2. Learned counsel for the petitioners submits that the said land was settled in favour of the petitioner no. 1, who is a widow of about 60 years, under the Scheme of allotment of land to SC/ST & Backward Class, vide Settlement Case No. 18(XIII) of 1988-89. The

petitioner no. 2 is the son of the petitioner no. 1. Jamabandi of the said land has been opened in the name of the petitioner no.1 which is recorded at Page No. 509, Part II of Register II concerning with Halka No. XIII, Circle-Chas, District-Bokaro. The petitioner no. 1 has been in continuous and peaceful possession of the said land by paying land revenue of the same. The respondent no. 5 - the Circle Officer, Chas, Bokaro served a notice to the petitioner no. 1 in Case No. 5630/2016-17 under section 4(h) of the Bihar Land Reforms Act, 1950 (hereinafter referred to as "the Act, 1950") stating that the jamabandi with respect to the said land appeared to be suspicious and thus the petitioner no. 1 was asked to appear before the said respondent on 24.11.2016 at 11 a.m. along with the original/certified copies of the relevant documents such as Hukumnama related to settlement of the said land, rent receipts earlier issued by the concerned landlord, Form 'M' as well as rent receipts issued by the government after vesting of Zamindari and to produce any other concrete evidences in support of her claim over the said land. The petitioner no. 1 filed reply to the said notice of the respondent no.5 on 10.12.2016 stating that settlement of the said land was done in her favour after thorough inquiry made by the Land Reforms Deputy Collector, Sub-Divisional Officer, Circle Officer and Circle Inspector, Chas, Bokaro. Thereafter, a public notice dated 28.04.2017 was issued under the signature of the respondent no. 5 declaring that an 'Aam Sabha' was going to be held on 03.05.2017 for the purpose of land acquisition for construction of 'POL' depot along with railway siding for BPCL.

3. It is further submitted that the foundation stone of the said depot of BPCL was laid by the then Chief Minister of Jharkhand and the Union Minster of Petroleum and Natural Gas on 11.08.2019. The BPCL started construction work over the said land without payment of compensation to the petitioners as mandated under the law and thus the petitioner no. 1 wrote a letter to the Land Reforms Deputy Collector, Chas, Bokaro and the respondent no. 5 on 26.08.2019 and 06.09.2019 respectively requesting them for payment of compensation for the said land. Subsequently, the respondent no.

5 sent the records of Case No. 5630/2016-17 to the Land Reforms Deputy Collector, Chas, Bokaro vide letter no. 351 dated 19.02.2020 recommending cancellation of jamabandi of the said land under Section 4(h) of the Act, 1950. Thereafter, the petitioner no. 1 was served with a notice under Section 4(h) of the Act, 1950 in Case No. 5630/2016-17 by the Land Reforms Deputy Collector, Chas, Bokaro, whereby she was asked to explain her case in the light of recommendation made by the respondent no. 5 for cancellation of jamabandi of the said land. The petitioner no. 1 filed her reply stating that the Circle Officer did not have jurisdiction to make recommendation for cancellation of Jamabandi of the said land under Section 4(h) of the Act, 1950. Subsequently, the record of the said case was sent to the Additional Collector, Bokaro and the case was re-registered as Misc. 4(h) Case No. 116/2020-21. Thereafter, a notice was issued to the petitioner no. 1 to appear before the said authority on 25.06.2020 to explain her case. The petitioner no. 1 filed her reply to the said notice on 29.06.2020. She also filed an application under the Right to Information Act, 2005 before the Additional Collector, Bokaro seeking certified copies of the orders passed by the respondent no. 5, the Land Reforms Deputy Collector, Chas, Bokaro and the Additional Collector, Bokaro. However, the Additional Collector, Bokaro replied that the case records related to the aforesaid proceeding under Section 4(h) was sent to the Commissioner, North Chotanagpur Division, Hazaribagh. According to learned counsel for the petitioners, the whole process under Section 4(h) of the Act, 1950 has been carried out in a very surreptitious manner and the petitioners have not even been provided the copies of orders passed by the Circle Officer, Chas and the Land Reforms Deputy Collector, Chas, Bokaro.

4. On the contrary, learned counsel for the State respondents submits that the said land is 'gair mazarua' in nature as mentioned in the last cadastral survey and during the acquisition it was found that the same was settled in favour of the petitioner no. 1 under a scheme for allotment of land to SC/ST & Backward Class and her name was also entered in Register-II. However, the actual fact is that the

petitioners never came in possession of the said land since the date of settlement and as such, the said land remained in bonafide possession of the State Government.

5. It is further submitted that when the process of transferring the said land to BPCL was started, the petitioners tried to encroach the said land and claimed compensation thereon. Accordingly, notices were issued to the petitioner no. 1 under Section 4(h) of the Act, 1950 in Case No. 5630/2016-17 as well as in Miscellaneous Case No. 116/2020-21 for cancellation of jamabandi of the said land and on the basis of recommendation made by the Circle Officer, Chas, Land Reforms Deputy Collector, Chas, Bokaro and Additional Collector, Bokaro, the record of the same was sent to the Commissioner, North Chhotanagpur Division, Hazaribagh for cancellation of jamabandi of the petitioner no. 1.

6. Learned counsel for the respondent-BPCL submits that the said land has permanently been allotted to the BPCL by the State Government for construction of POL depot of BPCL along with railway siding/track at Mouza-Radhanagar, Circle-Chas, Bokaro. During the period the said land was allotted to the BPCL, the petitioners were not in possession over the same and there was neither any structure nor any farming/agricultural activity was being done over the same. Now, the railway siding work is also complete along with boundary wall and all necessary civil structure. The BPCL has already made payment to the State of Jharkhand for acquisition of the said land in terms with the order as contained in memo no. 3333 dated 04.09.2019 issued under the signature of the Joint Secretary to the Government, Department of Revenue, Registration and Land Reforms, Government of Jharkhand, Ranchi.

7. Heard the learned counsel for the parties and perused the materials available on record. The contention of the petitioners is that the said land has been settled in the name of the petitioner no. 1 vide Settlement Case No. 18(XIII) of 1988-89 under the scheme for allotment of land to SC/ST & Backward Class and jamabandi of the said land has also been opened in the name of the petitioner no. 1. The factum of settlement and opening of jamabandi of the said land

in the name of the petitioner no. 1 has not been controverted by the respondents, rather they have claimed that the petitioners had never been in possession of the said land since the date of settlement and as such, the same remained with the State and at present, the State is in possession of the said land.

8. I do not find any substance in the said claim of the respondents. Even if it is assumed that the petitioners were not in physical possession of the said land, the legal possession of the same remained with them, as the petitioner no. 1 was paying rent of the said land which was duly accepted by the State without any objection. Moreover, the respondents have failed to show any order to the effect that the settlement of the land in question made in favour of the petitioner no. 1 has subsequently been cancelled by a competent authority in accordance with law. The respondents have also failed to show any rule or regulation which provides for automatic cancellation of settlement if the same is not used by the settlee.

9. I am of the view that unless an order in accordance with law is passed cancelling the settlement by giving due opportunity of hearing to the settlee, he cannot be evicted from the settled land.

10. Otherwise also, it appears that the respondent authorities initiated a proceeding under Section 4(h) of the Act, 1950 for cancellation of jamabandi of the said land. On bare perusal of Section 4(h) of Act, 1950, it would be evident that the collector has been empowered to make enquiry as to whether the transfer of the land has been made after 01.01.1946 with an object to defeat the provisions of the Act, 1950 or for causing loss to the State or for obtaining higher compensation and the said authority, after giving reasonable opportunity to the parties, may pass an order for annulment of transfer and dispossession of a person. In the present case, the said land was settled by the respondent authorities themselves in favour of the petitioner no. 1 under a government scheme and the possession thereof was also given to the petitioner no. 1 and as such, the proceeding for cancellation of jamabandi of the petitioner no. 1 under section 4(h) of the Act, 1950 was itself not

maintainable.

11. Learned counsel for the petitioners puts reliance on the judgment of this Court rendered in the case of "Niwaran Marandi Vs. The State of Jharkhand" reported in 2022 (1) JLJR 11. In the said case, the petitioner-Niwaran Marandi had challenged the notice under Section 4(h) of the Act, 1950 for cancellation of jamabandi of the land in question. During pendency of the writ petition, the final order under Section 4(h) of the Act, 1950 was passed by the Additional Collector, Bokaro and the Deputy Commissioner, Bokaro cancelling the jamabandi of the petitioner. The said case was disposed of with following observation and direction:

12. It has also been held in the aforesaid judgment that Jamabandi can be created under the provisions of Bihar Tenants Holdings (Maintenance of Records) Act, 1973 wherein no provision has been made, conferring power to any authority of the State to cancel the Jamabandi. In absence of any such power conferred by Statute upon any of the revenue authority, the Jamabandi cannot be cancelled. If any decision is taken by the revenue authority in absence of any such provision in the statute, the same will be nullity in the eye of law being without jurisdiction. Moreover, long running Jamabandi cannot be cancelled, except by filing a suit in the competent Court of Civil Jurisdiction, as has been held by Patna High Court in the case of Ramayan Yadav v. State of Bihar, reported in (2013) 3 PLJR 533.

13. In the present case, the proceeding under Section 4(h) of the Act, 1950 was initiated to cancel the jamabandi of the petitioners/their predecessors in interest over the said land which was not the scope of the said section. None of the authorities, who had the occasion to deal with the matter, has observed a single line on the issue as to whether the transfer of the said land was effected after 01.01.1946 with an object of defeating any provisions of Act, 1950 or causing loss to the State or for obtaining higher compensation. Moreover, the manner in which the respondent authorities initiated the proceeding under Section 4(h) of the Act, 1950 which ultimately resulted in passing of the impugned orders of cancellation of jamabandies of the respective land manifests that the same was mere an eyewash just to somehow legalize their action with regard to transfer of the said land to BPCL. The obligation on the part of the State authorities to act fairly is to ensure the rule of law and to prevent failure of justice. This doctrine is complementary to the principles of natural justice which the administrative/quasi-judicial authorities are

bound to observe. It is a well-known principle that the justice must not only be done, rather it must also be seen to be done.

14. In the case of Asha Sharma v. Chandigarh Administration, reported in (2011) 10 SCC 86, the Hon'ble Supreme Court has held as under:

"14. Action by the State, whether administrative or executive, has to be fair and in consonance with the statutory provisions and rules. Even if no rules are in force to govern executive action still such action, especially if it could potentially affect the rights of the parties, should be just, fair and transparent. Arbitrariness in State action, even where the rules vest discretion in an authority, has to be impermissible. The exercise of discretion, in line with principles of fairness and good governance, is an implied obligation upon the authorities, when vested with the powers to pass orders of determinative nature. The standard of fairness is also dependent upon certainty in State action, that is, the class of persons, subject to regulation by the Allotment Rules, must be able to reasonably anticipate the order for the action that the State is likely to take in a given situation.

Arbitrariness and discrimination have inbuilt elements of uncertainty as the decisions of the State would then differ from person to person and from situation to situation, even if the determinative factors of the situations in question were identical. This uncertainty must be avoided."

15. It appears to this court that even during the pendency of the proceeding under section 4(h) of the Act, 1950, the said land were transferred to BPCL. After filing of the present writ petition, this court vide order dated 02.03.2020 observed that the land in question was transferred by the respondent no. 2 in favour of the respondent nos. 5 and 6 without cancelling the Jamabandi running in favour of the petitioners and as such the balance of convenience lied in favour of the petitioners. Only thereafter, the respondent no. 2 and the Additional Collector, Bokaro passed the impugned orders, recording inter alia that the land had already been transferred to BPCL and 50% work had been completed. Thus the said authorities were apparently influenced by the said transfer of the land. It has been recorded in the impugned orders dated 29.06.2020 that the jamabandi was not opened before 01.01.1946 and the Jamindari receipt as well as government receipts were not issued from 01.01.1946 to 1955-56. However, on perusal of the contents of the copies of the sale deeds filed by the petitioners, it appears that the said land was settled in favour of the settlee in Falgun month of Bangala year 1352 (February-March of 1946 of English

Calendar). Thus, there was no question of opening the jamabandi before 01.01.1946 or payment of rent to the jamindar before that period. The petitioners have also filed copies of jamindari receipts issued by the jamindar after settlement.

19. It is true that the prescribed authority has the power to initiate a proceeding under section 4(h) of the Act, 1950 to verify if any transfer was made after 01.01.1946 just to defeat the provisions of the said Act or for causing loss to the State or for obtaining higher compensation, however, not at all transfers made after 01.01.1946 are to be cancelled unless the ingredients under section 4(h) are fulfilled and the authority has given ample opportunity of hearing to the affected persons and has recorded its reasons for arriving at such a conclusion. This Court is of the view that in the present case, the respondent authorities by wrongly construing the provisions of Section 4(h) of the Act, 1950 initiated the proceeding under the said provision to somehow cancel the jambandies of the petitioners over the said land.

20. In view of the aforesaid discussion, this Court finds that the State respondents before transferring the said land in favour of BPCL and subsequently cancelling the petitioner's Jamabandi over the same completely ignored the long possession of the petitioners/their predecessors in interest existing upon the said land without even bothering to verify the right of the petitioners before finalizing the lease. The entire proceeding in purported exercise of the power under section 4(h) of the Act, 1950 so as to cancel the jamabandi of the said land, which led to passing the impugned orders all dated 29.06.2020 in Misc. 4(h) Case No. 33 of 2020-2021, Misc. 4(h) Case No. 101 of 2020-2021, Misc. 4(h) Case No. 110 of 2020-2021, Misc. 4(h) Case No. 111 of 2020-2021 and Misc. 4(h) Case no. 115 of 2020-2021 by both the Additional Collector, Bokaro and the respondent no. 2 having been initiated in colourable exercise of power is quashed. The order dated 22.03.2021 passed by the Joint Secretary, Department of Revenue, Registration and Land Reforms, Govt. of Jharkhand, confirming the cancellation of the petitioners' jamabandies is also quashed.

25. Though this court has found that the respondent authorities have wrongly exercised the power under section 4(h) of the Act, 1950 while passing the impugned orders in respect of the petitioners, this Court is of the view that relegating the respondent authorities to take appropriate recourse in the competent court of civil jurisdiction will not serve the ends of justice, as the project of BPCL is in advance stage and the disputed land is integral part of the same.

26. Thus, to balance the interest of the petitioners

vis-a-vis the BPCL as well as to subserve the ends of justice, this Court directs the State Government to determine appropriate compensation of the said land forthwith and deliver possession of the same to BPCL on payment of proportionate compensation to the petitioners.

12. In the present case also, on the one hand, the proceeding under Section 4(h) of the Act, 1950 for cancellation of jamabandi was pending before the Commissioner, North Chotanagpur Division, Hazaribagh (though such proceeding was itself not maintainable) and on the other hand, the said land was transferred to BPCL, which clearly reflects that the proceeding under Section 4(h) of the Act, 1950 was merely an eye wash to somehow evict the petitioners from the said land without payment of due compensation to them for acquisition of the same.

13. The stand of the BPCL is that the compensation for the said land has already been deposited with the State Government and as such, the State Government is directed to determine appropriate compensation of the said land under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and pay the same to the petitioner no. 1 within eight weeks from the date of receipt/production of a copy of this order.

14. The writ petition is accordingly allowed with the aforesaid observation and direction.

(Rajesh Shankar, J.) Manish/AFR