Jharkhand High Court
Adhunik Power And Natural ... vs The State Of Jharkhand Through The ... on 28 February, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 2100 of 2014
With
W.P.(C) No. 2520 of 2014, W.P.(C) No. 2521 of 2014, W.P.(C) No. 2535
of 2014, W.P.(C) No. 2537 of 2014, W.P.(C) No. 2541 of 2014 , W.P.(C)
No. 2994 of 2014, W.P.(C) No. 2995 of 2014, W.P.(C) No. 2996 of 2014,
W.P.(C) No. 2997 of 2014, W.P.(C) No. 2998 of 2014 , W.P.(C) No. 2999
of 2014, W.P.(C) No. 3000 of 2014, W.P.(C) No. 3001 of 2014, W.P.(C)
No. 3002 of 2014, W.P.(C) No. 3004 of 2014, W.P.(C) No. 3005 of 2014,
W.P.(C) No. 3006 of 2014, W.P.(C) No. 3651 of 2014, W.P.(C) No. 3652
of 2014 and W.P.(C) No. 3693 of 2014
1. Adhunik Power and Natural Resources Ltd. through its General Manager
(Projects) Shri Chandra Bhushan Sharma son of Shri Rajendra Sharma,
having its Office at Village Padampur, Behind PGCIL Substation,
Adityapur-Kandra Road, P.O. & P.S-Kandra, District-Seraikella-Kharsawan.
2.Mr. Ghanshyam Das Agarwal son of Late Mahadeo Prasad Agarwal one of
the Director of Adhunik Power and Natural Resources Ltd., having its
Corporate office at 2/1A, Saraat Bose Road, Lansdowne Towers, Kolkata-
700020 and also at Village Padampur, Behind PGCIL Substation,
Adityapur-Kandra Road, P.O. & P.S-Kandra, District-Seraikella-Kharsawan
....... Petitioners (in all cases)
Versus
1.The State of Jharkhand through the Principal Secretary, Department of
Revenue & Land Reforms, having office at Jharkhand Mantralaya, Project
Bhawan, P.O. & P.S-Dhurwa, District Ranchi.
2.The Deputy Commissioner, Seraikella-Kharsawan.
3.The Land Reforms Deputy Collector, Seraikella.
4.The Circle Officer, Gamharia, P.O. & P.S-Gamharia, District-Seraikella-
Kharsawan ...... Respondents (in all cases)
---------
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
----------
For the Petitioners : Mr. Indrajit Sinha, Advocate
: Mr. Arpan Mishra, Advocate
For the Respondents : Mr. Sachin Kumar, AAG-II
: Mr. Ratnesh Kumar, S.C (L & C) I
: Mr. R.K. Shahi, A.C to S.C (L & C)I
-----------
rd
CAV on: 03 February, 2023 Pronounced on: 28/02/2023
Per: Sujit Narayan Prasad, J.
All these writ petitions have been filed against the different orders
(31.08.2010 in W.P.(C) no.2100/2014) passed by Deputy Collector Land
Reforms, Seraikella in a proceeding initiated for fixation of commercial rent
(Commercial Rent Fixation Case No.28 of 2010-11 in W.P.(C)
no.2100/2014) in different cases whereby and whereunder the rent has been
fixed annually on commercial rent for the land in question.
2. The brief facts of the case as per the pleading made in these writ
petitions are that the petitioners have set up Thermal Power Station in the
district of Seraikella-Kharsawan. For the aforesaid purposes petitioners had
entered into a memorandum of understanding with the State of Jharkhand on
31.10.2005 (W.P.(C) no.2100/2014) and in order to set up the aforesaid
power station petitioners have acquired huge tracts of lands including the
land in question from the legal heirs and the representatives of the recorded
tenants. A deed of sale was executed and consequently registered by the
legal heirs and representatives of recorded tenants in favour of the
petitioners on different dates. After execution of the sale deed, the
petitioners made an application before the Circle Officer, Gamharia for
mutation. The Circle Officer, after proper enquiry, issued a correction slip in
favour of the petitioner company with respect to the land in question by
passing an order in the mutation proceeding.
It is the further fact of the case that the petitioners had also filed an
application basis upon which the commercial rent fixation cases were
initiated and the concerned Circle Officer had passed order to issue general
notice inviting objections from the public and directed the Halka Karamchari
to cause an enquiry to be made and prepare an enquiry report and send it
through the Circle Inspector. It is further fact of the case that the petitioner
company had given an undertaking that as per the project layout, they would
be utilizing only 40% of the lands for the industrial purpose and the
remaining 60% would be developed as green belt, playground, park etc. An
affidavit was also submitted on behalf of the petitioner company to the effect
that whatever commercial rent is fixed by the respondent no.1 in the
commercial rent fixation cases, the company will pay it every year and also
that the company would never assail the said fixation in any court of law.
The Circle Officer, Gamharia based upon the report of the Circle Inspector
and the undertaking so given by the petitioner company sent the file before
the Land Reforms Deputy Collector, Seraikella for approving the
commercial rent for the land in question @ Rs.4,70,376/- per annum
(W.P.(C) no.2100/2014). The Deputy Collector Land Reforms, Seraikella on
the basis of the recommendation of the Circle Officer, Gamharia, has passed
orders on different dates fixing the commercial rent in different commercial
rent fixation cases as is evident from the tabular chart, which have been
assailed in these writ petitions:
S. Case No. Details of the impugned Land Details Rent Fixed
No. Order
1. W.P(C) Order dated 31.08.2010 Plot No.346, 351, 500, 502, 553, Rs.
2100/2014 passed by the Land 558, 541, 611, 646 and 647; Khata 4,70,376/-
Reforms Deputy Collector, Nos. 38 and 42; Thana No.47; per annum
Seraikella in Commercial Mouza Padampur, District
Rent Fixation Case Seraikella-Kharsawan, measuring
No.28/10-11 6.26 acres
2. W.P(C) Order dated 14.07.2011 Plot No.163 and 308; Khata Nos. Rs.41,439/-
2520/2014 passed by the Land 34; Thana No.76; Mouza per annum
Reforms Deputy Collector, Barahariharpur, District
Seraikella in Commercial Seraikella-Kharsawan, measuring
Rent Fixation Case 1.348 acres
No.49/10-11
3. W.P(C) Order dated 14.07.2011 Plot No.12; Khata Nos. 12; Thana Rs.18,438/-
2521/2014 passed by the Land No.77; Mouza Chhotahariharpur, per annum
Reforms Deputy Collector, District Seraikella-Kharsawan,
Seraikella in Commercial measuring 0.60 acres
Rent Fixation Case
No.43/10-11
4. W.P(C) Order dated 14.07.2011 Plot No.72, 163 and 30; Khata Rs.24,868/-
2535/2014 passed by the Land Nos. 34 and 32; Thana No.76; per annum
Reforms Deputy Collector, Mouza Barahariharpur, District
Seraikella in Commercial Seraikella-Kharsawan, measuring
Rent Fixation Case 0/809 acres
No.48/10-11
5. W.P(C) Order dated 14.07.2011 Plot No.22, 24, 26, 6, 56, 57, 58, Rs.75,942/-
2537/2014 passed by the Land 59, 127, 128, 129, 130, 131 and per annum
Reforms Deputy Collector, 132 ; Khata Nos. 19 and 32;
Seraikella in Commercial Thana No.48; Mouza Srirampur,
Rent Fixation Case District Seraikella-Kharsawan,
No.44/10-11 measuring 2.47 acres
6. W.P(C) Order dated 14.07.2011 Plot No.83, 101, 89, 90, 93/310, Rs.1,58,913/-
2541/2014 passed by the Land 102, 88, 91, 165, 166, 202, 87, 92 per annum
Reforms Deputy Collector, and 100; Khata Nos. 24 and 26;
Seraikella in Commercial Thana No.76; Mouza
Rent Fixation Case Barahariharpur, District
No.45/10-11 Seraikella-Kharsawan, measuring
5/17 acres
7. W.P(C) Order dated 21.10.2010 Plot No.5, 161 and 200; Khata Rs.1,49,194/-
2994/2014 passed by the Land Nos.7; Thana No.76; Mouza per annum
Reforms Deputy Collector, Barahariharpur, District
Seraikella in Commercial Seraikella-Kharsawan, measuring
Rent Fixation Case 4.855 acres
No.38/10-11
8. W.P(C) Order dated 21.10.2010 Plot No.596, 356, 366, 552, 542, Rs.3,78,142/-
2995/2014 passed by the Land 543, 544, 549, 67, 511, 66, 587, per annum
Reforms Deputy Collector, 174, 165, 378 and 588; Khata
Seraikella in Commercial Nos. 62, Thana No.47; Mouza
Rent Fixation Case Padampur, District Seraikella-
No.41/10-11 Kharsawan, measuring 5.0325
acres
9. W.P(C) Order dated 18.08.2010 Plot Nos.101, 394, 397, 528, 650, Rs.1,54,875/-
2996/2014 passed by the Land 667, 668, 197, 198, 138, 670, 672, per annum
Reforms Deputy Collector, 675, 666, 396, 677 and 406; Khata
Seraikella in Commercial Nos. 49, 50, 67, 68 and 71, Thana
Rent Fixation Case No.47; Mouza Padampur, District
No.24/10-11 Seraikella-Kharsawan, measuring
2/0825 acres
10. W.P(C) Order dated 21.10.2010 Plot No.528, 531, 639, 533, 613, Rs.1,42,015/-
2997/2014 passed by the Land 632, and 682; Khata Nos. 49 and per annum
Reforms Deputy Collector, 50, Thana No.47; Mouza
Seraikella in Commercial Padampur, District Seraikella-
Rent Fixation Case Kharsawan, measuring 1.89 acres
No.39/10-11
11. W.P(C) Order dated 18.08.2010 Plot No.182, 421, 530, 201, 186, Rs.3,38,130/-
2998/2014 passed by the Land 192, 139, 653, 354 and 593; Khata per annum
Reforms Deputy Collector, Nos. 49, 50, 51 and 52, Thana
Seraikella in Commercial No.47; Mouza Padampur, District
Rent Fixation Case Seraikella-Kharsawan, measuring
No.23/10-11 4.50 acres
12. W.P(C) Order dated 31.08.2010 Plot No.153; Khata No.42, Thana Rs.45,084/-
2999/2014 passed by the Land No.47; Mouza Padampur, District per annum
Reforms Deputy Collector, Seraikella-Kharsawan, measuring
Seraikella in Commercial 0.60 acres
Rent Fixation Case
No.26/10-11
13. W.P(C) Order dated 18.08.2010 Plot No.523, 628, 616/693 and Rs.98,224/-
3000/2014 passed by the Land 630; Khata Nos. 31 and 35, Thana per annum
Reforms Deputy Collector, No.47; Mouza Padampur, District
Seraikella in Commercial Seraikella-Kharsawan, measuring
Rent Fixation Case 1.32 acres
No.19/10-11
14. W.P(C) Order dated 31.08.2010 Plot No.298 and 323; Khata No. Rs.18,745/-
3001/2014 passed by the Land 28, Thana No.48; Mouza per annum
Reforms Deputy Collector, Srirampur, District Seraikella-
Seraikella in Commercial Kharsawan, measuring 0.61 acres
Rent Fixation Case
No.27/10-11
15. W.P(C) Order dated 21.10.2010 Plot No.178, 179, 180, 183, 184, Rs.2,24,499/-
3002/2014 passed by the Land 185, 186, 188, 189, 191, 206, 297, per annum
Reforms Deputy Collector, 133, 156, 249, 250, 251, 252, 253,
Seraikella in Commercial 254, 255, 256, 257, 258, 259, 260,
Rent Fixation Case 261, 262, 291, 292, 293, 306, 307,
No.34/10-11 333, 334, 335, 339, 340 and 187;
Khata Nos.1, 6 and 7, Thana
No.17; Mouza Ralmara, District
Seraikella-Kharsawan, measuring
8.53 acres
16. W.P(C) Order dated 21.10.2010 Plot No.105, 90, 113, 115, 117, Rs.2,95,676/-
3004/2014 passed by the Land 589, 488, 485, 536, 538, 476, 477, per annum
Reforms Deputy Collector, 478, 479, 480, 471, 472, 474, 475,
Seraikella in Commercial 442, 448, 450, 451, 453, 454, 463,
Rent Fixation Case 465, 455, 469, 416, 422, 424, 427,
No.35/10-11 412, 380, 381, 241, 242, 244, 247,
250, 121, 129, 130, 131, 128, 116,
486, 482 and 487 ; Khata Nos.60
and 46, Thana No.47; Mouza
Padampur, District Seraikella-
Kharsawan, measuring 3.935
acres
17. W.P(C) Order dated 21.10.2010 Plot No.5, 98, 114, 157, 158, 160, Rs.1,85.456/-
3005/2014 passed by the Land 161 and 200; Khata Nos.7; Thana per annum
Reforms Deputy Collector, No.76; Mouza Barahariharpur,
Seraikella in Commercial District Seraikella-Kharsawan,
Rent Fixation Case measuring 6.035 acres
No.40/10-11
18. W.P(C) Order dated 18.08.2010 Plot No.177, 13, 199, and 605; Rs.89,987/-
3006/2014 passed by the Land Khata Nos.49 and 50; Thana per annum
Reforms Deputy Collector, No.47; Mouza Padampur, District
Seraikella in Commercial Seraikella-Kharsawan, measuring
Rent Fixation Case 1.21 acres
No.18/10-11
19. W.P(C) Order dated 18.08.2010 Plot No.174, 378, 366 and 165; Rs.43,525/-
3651/2014 passed by the Land Khata No.62; Thana No.47; per annum
Reforms Deputy Collector, Mouza Padampur, District
Seraikella in Commercial Seraikella-Kharsawan, measuring
Rent Fixation Case 0.58 acres
No.20/10-11
20. W.P(C) Order dated 18.08.2010 Plot No.181, 10, 528, 195, 85, Rs.2,
3652/2014 passed by the Land 258, 86, 89, 145, 146 and 674; 59,797/- per
Reforms Deputy Collector, Khata Nos.45 and 50; Thana annum
Seraikella in Commercial No.47; Mouza Padampur, District
Rent Fixation Case Seraikella-Kharsawan, measuring
No.22/10-11 3.4575 acres
21. W.P(C) Order dated 18.08.2010 Plot No.608, 609, 610 and 613; Rs.4,46,081/-
3693/2014 passed by the Land Khata Nos.36 and 32; Thana per annum
Reforms Deputy Collector, No.28; Mouza Pindrabera, District
Seraikella in Commercial Seraikella-Kharsawan, measuring
Rent Fixation Case 5.24 acres
No.21/10-11
The Circle Officer, Gamharia in compliance of the order passed by the
Deputy Collector Land Reforms, Seraikella issued correspondence to the
petitioner company for demanding the rent so fixed by way of annual
commercial land in question with a direction to deposit the demand. The
petitioner company has also deposited the aforesaid amount by way of
demand draft in favour of the Circle Officer, Gamharia, thereafter, the
petitioners have approached to this Court by filing writ petitions on the
ground that the circular dated 21.05.1983 basis upon which, the commercial
rent has been assessed for the land in question is absolutely illegal exercise,
since, the aforesaid circular dated 21.05.1983 has been held to be not
applicable for the raiyati land falling under the Chotanagpur Tenancy Act,
1908 (hereinafter referred to as the 'Act, 1908).
The ground has been taken that the aforesaid issue has already been
decided by the Division Bench of the Hon'ble Patna High Court in the case
of I.T.C Ltd. versus State of Bihar reported in [1994 (1) BLJR 88] as also
by this Hon'ble Court in the case of Indo Asahi Glass Company Ltd.
Hazaribagh versus State of Bihar & Ors. reported in [2005 (3) JLJR 447
(Jhr.)]. The same has also been considered by Division Bench of this Court
in the case of State of Bihar Vs. Vijay Kumar Chowdhury reported in [2002
(2) JLJR 526 (Jhr.)] wherein it has been laid down that the said circular
dated 21.05.1983 only applies to the management of Khas Mahal lands and
no other.
The writ petitioners thereafter have not paid the rent as assessed by
the respondents, in consequence thereof, the demand notices have been
issued. The petitioners against aforesaid demand notice made representation
before the Deputy Commissioner, Seraikella-Kharsawan, inter alia, stating
therein that the basis of fixation of commercial rent in question since is
illegal and as such demand notice may be recalled but having no response,
the writ petitions have been filed.
3. Mr. Indrajit Sinha, learned counsel appearing for the petitioners has
submitted that the action of the State in issuing demand notice on the basis
of fixation of commercial rent over the land in question is at all not justified
since the said fixation of rent is based upon the circular dated 21.05.1983
which is not at all applicable in view of the judgment rendered in case of
I.T.C Ltd. versus State of Bihar (supra), Indo Asahi Glass Company Ltd.,
Hazaribahgh versus State of Bihar (supra) and State of Bihar and Ors. Vs.
Vijay Kumar Chowdhury (supra) and therefore, the fixation of commercial
rent over the land in question and issuance of subsequent demand notices are
without any jurisdiction and therefore, the same is fit to be quashed and set
aside.
It has been submitted that even accepting the fact that the undertaking
to the effect that the commercial rent over the land in question will be paid
by the petitioners but that does not mean that the respondents will compel
the writ petitioners for making payment of commercial rent over the land in
question when the law has already been settled holding the circular dated
21.05.1983 as not applicable in a case of transfer of raiyati land, rather, it
has been held to be applicable in the Khas Mahal land.
4. The State has appeared and filed counter affidavit wherein, inter alia,
the ground has been taken that the commercial rent which has been fixed
since is based upon the undertaking given by the petitioners before the
authority concerned accepting to make payment of commercial rent over the
land in question and basis upon which the order has been passed by the
concerned authority and in pursuance thereto the amount has also been paid
to the State exchequer, it is not available for the writ petitioners to turn
around and make an opposition about non-payment of the commercial rent
by taking aid of the judgments rendered in the case of I.T.C Ltd. versus
State of Bihar (supra), Indo Asahi Glass Company Ltd., Hazaribagh versus
State of Bihar (supra) and State of Bihar Vs. Vijay Kumar Chowdhury
(supra).
It has been submitted by making reference of the circular dated
21.05.1983 that it is incorrect on the part of the writ petitioners to take the
ground that the said circular is not applicable in the raiyati land falling under
the Chotanagpur Tenancy Act. It is also incorrect on the part of the
petitioners to take the ground that the said circular is only applicable for the
Khas Mahal Land. It has been submitted that the reference of the judgment
have been made by the learned counsel for the petitioners but if the aforesaid
judgment will be considered, particularly the judgment of the Hon'ble Patna
High Court rendered in the case I.T.C Ltd. versus State of Bihar (supra)
wherefrom it is evident that the said order has been passed on the basis of
the concession of the learned Advocate General appearing for the State who
has conceded before the Court that fair rent have been fixed by the LRDC,
who is not the competent authority, the impugned order/demand is fit to be
quashed on this ground alone. He has also conceded that the circular
contained in Annexure-7-A to the writ application, has no application. The
submission has been made that the order passed by the Patna High Court
since is based upon the concession of learned Advocate General of the State
and as such it cannot be said that any ratio has been decided by the Patna
High Court. Even accepting that there is concession of the learned Advocate
General appearing for the State but the Patna High Court, while accepting
the concession so made by the learned Advocate General appearing for the
State, since, has not interpreted the circular dated 21.05.1983 and as such the
requirement herein is the scrutiny of the aforesaid circular as to whether the
said circular is applicable only for the Khas Mahal Land or the land falling
under the other tenancy act including the Chotanagpur Tenancy Act, 1908.
5. According to the learned State counsel, as would appear from the
circular dated 21.05.1983 that it is nowhere mentioned that the said circular
will be applicable only with respect to the land falling under Khas Mahal
rather the Government has taken decision, in absence of any statutory
provision contained in the Chotanagpur Tenancy Act by bringing into effect
the circular dated 21.05.1983 by putting an embargo on non-conversion of
land from its use for the agricultural purposes to that of its use for the
industrial purposes. It has further been stipulated therein that if the land so
converted from agricultural purposes to that of industrial purposes, two
options have been made therein, first, the land be again restored to its
original nature by dispossessing the transferee and second, for the purpose of
regularizing an appropriate rent be fixed on the basis of the provision of
Rule 9 (iii) of the Bihar Government Estate Manual.
Therefore, it has been submitted that from the content of the circular
dated 21.05.1983 it is evident that the only stipulation has been made that
the rent is to be fixed on the basis of the Rule 9 (iii) of the Bihar
Government Estate Manual and it has nowhere been referred therein in the
aforesaid circular that the rent is to be fixed only for the purpose of the Khas
Mahal Land. Therefore, since the learned Advocate General has given
concession without taking into consideration the intent basis upon which the
decision has been taken for fixing the rent after conversion of the land on the
basis of Rule 9 (iii) of the Bihar Government Estate Manual, the concession
so given, cannot be said to be a binding effect. The reason being that the
content of the circular is required to be considered but the same having not
been considered in the judgment passed by the Hon'ble Patna High Court
rendered in the case of I.T.C Ltd. versus State of Bihar (supra) and as such
the said judgment is not binding.
6. We have heard learned counsel appearing for the parties, perused the
documents available on record as also the finding recorded by the authority
who has passed the impugned order.
7. It appears from the orders impugned (dated 31.08.2010 W.P.(C)
No.2100 of 2014) that the order fixing commercial rent has been passed on
the basis of circular dated 21.05.1983 but the learned counsel appearing for
the petitioners has not apprised this Court about the existence of the said
circular dated 21.05.1983 as on the day when the impugned order was
passed, however, this Court has found from going through the order passed
by a Co-ordinate learned Single Judge, passed by the Ranchi Bench of the
Patna High Court in Bijoy Kumar Choudhury vs. Member, Board of
Revenue, Bihar Patna reported in 1998 SCC Online Patna 149 that the
circular dated 21.05.1983 has been recalled by another circular being
Circular No.8/Kha. Ma. Ankechak 2/90-611 RA dated 07.03.1991 on the
advice of the Advocate General and as such the impugned order has been
passed by the authority although is based upon the circular dated 21.05.1983
which were not in existence on or after 07.03.1991 and as such the fixation
of commercial rent on the basis of circular dated 21.05.1983 cannot be said
to be just and proper. But, this Court, is not on the issue of the fixation of the
commercial rent rather on the broader issue as to whether the nature of land
can be allowed to be changed from cultivation to that of another and
therefore, is now proceeding to examine the aforesaid aspect of the matter.
8. This Court on appreciation of the ground agitated on behalf of the
parties, has found therefrom that the petitioners have raised the very issue of
jurisdiction in issuing demand notices against the petitioners on the basis of
the commercial rent fixed of the raiyati land which has been transferred by
the Raiyat in favour of the petitioners.
9. The fact herein is that the writ petitioners have got the title over the
land in question by virtue of sale deed executed by the Raiyats who are
having their lands falling in the non-schedule area in the district of
Saraikella-Kharsawan which were exclusively been used as a raiyati land.
10. Since the issue pertains to the tenancy law applicable in the State of
Jharkhand which is governed by Chotanagpur Tenancy Act, 1908 and as
such it requires to refer herein the very object and intent of the Act, 1908.
The Chotanagpur Tenancy Act, 1908, is a land rights legislation that was
created to protect the land rights of the tribal population of the Jharkhand
instituted by the British. Major feature of the C.N.T. Act is that it prohibits
the transfer of land to non-tribals to ensure community ownership. The areas
of North Chotanagpur, South Chotanagpur and Palamau Division are
included in the jurisdiction of C.N.T. Act. The Act is listed in the 9th
Schedule of the Constitution.
11. The sale and purchase of the tribal land are regulated by the provision
of Section 46 proviso (a) (b) and 49 of the C.N.T. Act. Proviso (a) of
Section 46 of the C.N.T. Act allows the transfer of tribal land to another
tribal member who is a resident within the area of the police station of the
situated holding can be done with the permission of the Deputy
Commissioner. Proviso (b) of Section 46 of the C.N.T. Act allows S.Cs and
Backward Classess to transfer their land to community member within the
district area with the permission of the Deputy Commissioner. A transfer of
land from tribals to non-tribals is allowed under Section 49 only for
industries or any other purposes. Permission of such land transfer is given by
the revenue department.
12. The other underlying scope and intent of the Act is that the nature of
land has strictly been restricted to be changed from the cultivation to that of
any other use which is for the purpose not to impair the value of the land
materially or to render it unfit or purposes of the tenancy as would appear by
considering the provision of Section 6 and 21 together. Therefore, it would
be evident by taking into consideration the Act in entirety. There are two
underlying object, the first is, that the nature of land is not to be changed
from the purpose of cultivation to that of any other use like that of for the
use of industrial purposes, establishment of school etc. While the second
object is to protect the occupancy right of the tribal living in the
schedule/non-schedule area. For securing the nature of land not to be
changed from cultivable land to that of to be used for any other purposes is
evident from the provision of Section 6 and 21 wherein it has been provided
that the nature of land is not to be changed from cultivation to that of any
other purposes.
Particularly, sub-section (2) of Section 21 provides the nature of land
is not to be changed so to impair the value of the land materially or to render
it unfit for purposes of the tenancy, namely, -
(a) the manufacture of bricks and tiles for the
domestic or agricultural purposes of the Raiyat and his
family;
(b) the excavation of tanks or the digging of wells or
the construction of bandhs and ahars intended to provide
a supply of water for drinking, domestic, agricultural or
piscicultural purposes of the Raiyat and his family; and
(c) the erection of buildings for the domestic or
agricultural purposes or for the purposes of trade or
cottage industries of the Raiyat and his family.
It is, thus, evident that if the lands are being used for the purposes as
mentioned under Section 21(2) (a), (b) and (c) it will not be treated to impair
the value of the land, meaning thereby, that save and except the land to be
used for the purposes as mentioned in sub-section (a), (b) and (c) of Section
21(2) the land if allowed to be used for the other purposes other than
referred in the aforesaid provision, the same will be impliedly deem to
impair the value of the land materially. For ready reference, the provision of
Sections 6 and 21 of the C.N.T. Act, 1908 is being referred, which reads as
under:
"6. Meaning of "Raiyat" - (1) "Raiyat" means primarily a
person who has acquired a right to hold land tor the purpose
of cultivating it by himself or by members of his family, or by
hired servants or with the aid of partners; and includes the
successor-in-interest of persons who have acquired such a
right, but does not include a Mundari-khunt-kattidar."
"21. Rights of occupancy-Raiyat in respect of use of land. -
[(1)] When a Raiyat has a right of occupancy in respect of
any land, he may use the land,-
(a) in any manner which is authorised by local custom
or usage, or
(b) irrespective of any local custom or usage, in any
manner which does not materially impair the value of the
land or render it unfit for the purposes of the tenancy.
[(2) Notwithstanding anything contained in any entries
in the record-of-rights or any local custom or usage to the
contrary, the following shall not be deemed to impair the
value of the land materially or to render it unfit for purposes
of the tenancy, namely,-
(a) the manufacture of bricks and tiles for the domestic
or agricultural purposes of the Raiyat and his family;
(b) the excavation of tanks or the digging of wells or
the construction of bandhs and ahars intended to provide a
supply of water for drinking, domestic, agricultural or
piscicultural purposes of the Raiyat and his family; and
(c) the erection of buildings for the domestic or
agricultural purposes or for the purposes of trade or cottage
industries of the Raiyat and his family.
(3) If an occupancy-Raiyat, who pays for his holding
rent in any of the ways specified in sub-section (1) of Section
61, excavates a tank on such holding for any purpose
mentioned in clause (b) of sub-section (2), the landlord's
share shall be nine-twentieths and the Raiyats share shall be
eleven-twentieths in the produce of such tank.]"
13. The second object is to protect the right of the tribals by putting
embargo and transfer of the land in favour of non-tribals. To protect such
right of the tribals several provisions have been made, i.e., Section 46,
Section 49, Section 72 and Section 73. The reference of provisions of
C.N.T. Act, 1908 is required to be made herein, which reads hereunder as:
"[46. Restrictions on transfer of their right by Raiyat. - (1)
No transfer by a Raiyat of his right in his holding or any
portion thereof,-
(a) by mortgagte or lease for any period expressed or
implied which exceeds or might in any possible event exceed
five years, or
(b) by sale, gift or any other contract or agreement,
shall be valid to any extent:
Provided that a Raiyat may enter into a 'bhugut
bundha' mortgage of his holding or any portion thereof for
any period not exceeding seven years or if the mortgagee be a
society registered or deemed to be registered under the 'Bihar
and Orissa Co-operative Societies Act, 1935 (B&O Act VI of
1935) for any period not exceeding fifteen years:]
Provided further that,-
(a) an occupancy-Raiyat, who is [a member of the
Scheduled Tribes] may transfer with the previous sanction of
the Deputy Commissioner his right in his holding or a portion
of his holding by sale, exchange, gift or will to [another
person, who is a member of the Scheduled Tribes and], who is
a resident within the local limits of the area of the police
station within which the holding is situate;
(b) an occupancy-Raiyat, who is a member of the
[Scheduled Castes or Backward Classes] may transfer with
the previous sanction of the Deputy Commissioner his right in
his holding or a portion of his holding by sale, exchange, gift,
will or lease to another person, who is a member of the
[Scheduled Castes or, as the case may be, Backward Classes]
and who is a resident within the local limits of the district
within which the holding is situate;
[(c) any occupancy-Raiyat may, transfer his right in
his holding or any portion thereof to a society or bank
registered or deemed to be registered under the 'Bihar and
Orissa Cooperative Societies Act, 1935 (Bihar and Orissa Act
VI of 1935), or to the State Bank of India or a bank specified
in column 2 of the First Schedule to the Banking Companies
(Acquisition and Transfer of Undertakings) Act, 1970 (5 of
1970) or to a company or a corporation owned by, or in
which less than fifty-one per cent of the share capital is held
by the State Government or the Central Government or partly
by the State Government, and partly by the Central
Government, and which has been set up with a view to
provide agricultural credit to cultivators; and
(d) any occupancy-Raiyat, who is not a member of the
Scheduled Tribes, Scheduled Castes or Backward classes,
may, transfer his right in his holding or any portion thereof
by sale, exchange, gift, will, mortgage or otherwise to any
other person.]
(2) A transfer by a Raiyat of his right in his holding or
any portion thereof under subsection (1) shall be binding on
the landlords.
(3) No transfer of contravention of sub-section (1),
shall be registered or shall be in any way recognised as valid
by any Court, whatever in exercise, of civil, criminal or
revenue jurisdiction.
[(3-A) Notwithstanding anything contained in any
other law for the time being in force, the Deputy
Commissioner shall be a necessary party in all suits of a civil
nature relating to any holding or portion thereof in which one
of the parties to the suits is a member of the Scheduled Tribes
and the other party is not a member of the Scheduled Tribes.]
(4) At any time within three years after the expiration
of the period or which a Raiyat has under clause (a) of sub-
section (1) transferred his right in his holding or any portion
thereof, the Deputy Commissioner shall on the application of
the Raiyat put the Raiyat into possession of such holding or
portion in the prescribed manner.
[(4-A) (a) The Deputy Commissioner may, of his own
motion or on an application filed before him by an
occupancy-Raiyat, who is a member of the Scheduled Tribes,
for annulling the transfer on the ground that the transfer was
made in contravention of clause (a) of the second proviso to
sub-section (1), hold an inquiry in the prescribed manner to
determine if the transfer has been made in contravention of
clause (a) of the second proviso to sub-section (1):
Provided that no such application be entertained by
the Deputy Commissioner unless it is filed by the occupancy-
tenant within a period of twelve years from the date of
transfer of his holding or any portion thereof:
Provided further that before passing any order under
clause (b) or clause (c) of this subsection, the Deputy
Commissioner shall give the parties concerned a reasonable
opportunity to be heard in the matter.
(b) If after holding the inquiry referred to in clause (a)
of this sub-section, the Deputy Commissioner finds that there
was no contravention of clause (a) of the second proviso to
sub-section (1) in making such transfer, he shall reject the
application and may award such costs to the transferee to be
paid by the transferor as he may, in the circumstances of the
case, deem fit.
(c) If after holding the inquiry referred to in clause (a)
of this sub-section, the Deputy Commissioner finds that such
transfer was made in contravention of clause (a) of the
second proviso to sub-section (1), he shall annul the transfer
and eject the transferee from such holding or portion thereof,
as the case may be and put the transferor in possession
thereof:
Provided that if the transferee has constructed any
building or structure, such holding or portion thereof, the
Deputy Commissioner shall, if the transferor is not willing to
pay the value of the same, order the transferee to remove the
same within a period of six months from the date of the order,
or within such extended time not exceeding two years from
the date of the order as the Deputy Commissioner may allow
failing which the Deputy Commissioner may get such
building or structure removed:
Provided further that where the Deputy Commissioner
is satisfied that the transferee has constructed a substantial
structure or building on such holding or portion thereof
before the commencement of the Chota Nagpur Tenancy
(Amendment) Act, 1969 (President's Act 4 of 1969) he may,
notwithstanding any other provisions of this Act, validate
such a transfer made in contravention of clause (a) of the
second proviso to sub-section (1), if the transferee either
makes available to the transferor an alternative holding or
portion of a holding, as the case may be, of the equivalent
value, in the vicinity or pays adequate compensation to be
determined by the Deputy Commissioner for rehabilitation of
the transferor."
49. Transfer of occupancy-holding or Bhuinhari-Tenure for
certain purposes - [(1) Notwithstanding anything contained
in Sections 46, 47 and 48 any occupancy Raiyat or any
member of a Bhuinhari family, who is referred to in Section
48 may transfer his holding or tenure or any part thereof for
the following purposes,-
(a) in any case, the use of the land for any industrial
purposes or for any other purposes which the State
Government may, by ratification declare to be subsidiary
thereto or for access to land used or required for any such
purpose.
(b) in any case, the use of the land for the purpose of
mining or for any other purposes which the State Government
may, by notification, declare to be subsidiary thereto or for
access to land used or required for any such purpose.
(2) The transferee in such cases shall not be entitled to
use the land so transferred for any other purpose except for
which it was transferred.]
(3) Every such transfer must be made by registered
deed, and before the deed is registered and the land
transferred, the written consent of the Deputy Commissioner
must be obtained to the terms of the deed and to the transfer.
(4) Before consenting to any such transfer, the Deputy
Commissioner shall satisfy himself that [adequate
compensation is tendered to landlord for the loss (if any)
caused to him by the transfer], and, where only part of a
holding or tenure is transferred, may, if he thinks fit,
apportion; between the transferee and the original tenant the
rent payable for the holding or tenure.
[(5) The State Government may, at any time within a
period of twelve years from the date on which written consent
is given by the Deputy Commissioner in regard to the transfer
of any holding or part thereof belonging to an occupancy-
Raiyat, who is a member of the Scheduled Tribes either on its
own motion or on an application made to it in this behalf set
aside such written consent and annul the transfer, if after
holding an inquiry in the prescribed manner and after giving
reasonable opportunity to the parties concerned to be heard it
finds that the consent had been obtained in contravention of
the provisions of sub-sections (1) and (2) by
misrepresentation or fraud, and in case any holding or part
thereof has been transferred on the basis of such written
consent direct the Deputy Commissioner to take further
necessary action under clause (c) of subsection 4-A of Section
46.]
72. Surrender of land by Raiyat - (1) A Raiyat not bound by
a lease or other agreement for a fixed period may, at the end
of any agricultural year surrender his holding [with the
previous sanction of the Deputy Commissioner in writing].
(2) But, notwithstanding the surrender, the Raiyat
shall be liable to indemnify the landlord against any loss of
the rent of the holding for the agricultural year next following
the date of the surrender, unless he gives to his landlord, at
least four months before he surrenders, notice of his intention
to surrender.
(3) The Raiyat may, if he thinks fit, cause the notice to
be served through the Court of the Deputy Commissioner
within whose jurisdiction the holding or any portion of it is
situate.
(4) When a Raiyat has surrendered his holding the
landlord may enter on the holding and either let it to another
tenant or to take it into cultivation himself.
(5) Nothing in this Section shall affect any
arrangement by which a Raiyat and his landlord may arrange
for a surrender of the whole or a part of the holding [with the
previous sanction of the Deputy Commissioner in writing.]
73. Abandonment of land by Raiyat - (1) If a Raiyat
voluntarily abandons the land held or cultivated by him,
without notice to the landlord and ceases either himself or
through any other person to cultivate the land and to pay his
rent as it falls due, the landlord may at any time after the
expiration of the agricultural year in which the Raiyat so
abandons and ceases to cultivate, enter on the holding and let
it to another tenant or take into cultivation himself.
(2) Before a landlord enters under this Section, he
shall send a notice to the Deputy Commissioner in the
prescribed manner, stating that he has treated the holding as
abandoned and is about to enter on it accordingly; and the
Deputy Commissioner shall cause a notice of the fact to be
published in the prescribed manner 1[and if an objection is
preferred to him within one month of the date of publication
of the notice shall make a summary inquiry and shall decide
whether the landlord is entitled under sub-section (1) to enter
on the holding. The landlord shall not enter on the holding
unless and until such objection has been decided in his
favour, or if no objection is preferred, until the expiration of
one month from the date of publication of the notice.
(3) When a landlord enters under this Section, the
Raiyat shall be entitled to apply to the Deputy Commissioner
for the recovery of possession of the land at any time not later
than the expiration of three years in the case of an
occupancy-Raiyat or in the case of a non-occupancy Raiyat
one year, from the date of the publication of the notice; and
thereupon, the Deputy Commissioner may on being satisfied
that the Raiyat did not voluntarily abandon his holding,
restore him to possession in the prescribed manner on such
terms (if any) with respect to compensation to person injured
and payment of arrears of rent as to the Deputy
Commissioner may seem just."
Section 46 strictly put restriction in transfer of tribal lands in favour
of non-tribal by sale, gift or any other contract or agreement. However, the
land can be transferred by the occupancy raiyat with the previous sanction of
the Deputy Commissioner in favour of another person who is a member of
Schedule Tribe and resident within the local limits of the police station
within which the holding is situate. The other provision (proviso (b) of sub-
section 1 of Section 46) is that an occupancy raiyat who is member of
Schedule Caste or Backward classes may transfer with the previous sanction
of the Deputy Commissioner his right in his holding or a portion of his
holding by sale, exchange, gift, will or lease to another person, who is a
member of the Scheduled Castes or, as the case may be, Backward Classes
and who is a resident within the local limits of the district within which the
holding is situate. The another provision (proviso (c) of sub-section 1 of
Section 46) that any occupancy-Raiyat may, transfer his right in his holding
or any portion thereof to a society or bank registered or deemed to be
registered under the Bihar and Orissa Co-operative Societies Act, 1935, or to
the State Bank of India or a bank specified in column 2 of the First Schedule
to the banking companies or to a company or a corporation owned by, or in
which less than fifty one per cent of the share capital is held by the State
Government or the Central Government or partly by the State Government,
and partly by the Central Government, and which has been set up with a
view to provide agricultural credit to cultivators. It has been stipulated in the
Section 46 (3) that no transfer of contravention of subsection 1 of Section
46, shall be registered or shall be in any way recognized as valid by any
Court, whatever in exercise, of civil, criminal or revenue jurisdiction.
Section 49 (1) provides that notwithstanding anything contained in
Section 46, 47 and 48 any occupancy raiyat or any member of a Bhuinhari
family, who is referred to in Section 48 may transfer his holding or tenure or
any part thereof for the following purposes-
"(a) in any case, the use of the land for any industrial
purposes or for any other purposes which the State
Government may, by ratification declare to be subsidiary
thereto or for access to land used or required for any such
purpose.
(b) in any case, the use of the land for the purpose of
mining or for any other purposes which the State Government
may, by notification, declare to be subsidiary thereto or for
access to land used or required for any such purpose."
Sub-section 2 thereof provides that the transferee in such cases shall
not be entitled to use the land so transferred for any other purpose except for
which it was transferred. Sub-section 3 thereof provides that every such
transfer must be made by registered deed, and before the deed is registered
and the land transferred, the written consent of the Deputy Commissioner
must be obtained to the terms of the deed and to the transfer.
Section 49, therefore, provides for transfer of holding or tenure only
for the restricted purposes that has been mentioned under Section 49 (1) (a)
(b) subject to the condition that the land so transferred cannot be allowed to
be used for any other purpose except for which it was transferred. Here also
the Section 49 speaks that the nature of land is to be protected, however, the
same can be used for industrial purpose or any other purposes which the
State Government may, by ratification declare to be subsidiary thereto or for
access to land used or required for any such purpose.
Section 72 is also for protecting the rights of the tribals in a case of
surrender of land by Raiyat while Section 73 pertains to the process as to
what could be done if the Raiyat has abandoned the land.
14. The reason for making reference of the provision of Sections 6 and 21
is for the purpose that the underlying object of the Act is not to change the
nature of land so that its value may be impaired as would be evident from
the provision of Section 21 of the Act, 1908 while on the other hand the
provision as contained under Sections 46, 49, 72 and 73 have been inserted
to protect the rights of the Raiyats.
15. Herein, in the given facts of the cases, the Raiyats have transferred
their raiyati land in favour of the petitioners by virtue of registered sale deed.
The petitioners have filed application before the Circle Officer for getting
their name entered in the Register-II by issuance of correction slip. Names
have been entered into the Register-II after issuance of due correction slip in
a regular proceeding initiated under the Bihar Maintenance of Record Act,
1973. The application has been filed by the petitioners for fixation of rent by
filing an appropriate application before the Circle Officer where an affidavit
has been filed giving therein undertaking of making payment of commercial
rent over the land in question, the aforesaid undertaking is required to refer
herein, which reads hereunder as:
"To,
Circle Officer,
Gamharia
Sub: Undertaking
Dear Sir
We have purchased 6.26 acres of land vide Deed
No.3750, Dated-16.07.2010 form villagers of village
Padampur. This land has been mutated in our favour vide
mutation case no.492/2010-11.
We would like to submit, that as per our project layout,
we will be utilizing 40% of the land for industrial purpose.
Balance 60% land will be developed as greenbelt, park,
playground, roads etc.
Kindly change the nature of land accordingly and
oblige.
Thanking you
Yours Faithfully
For Adhunik Power & Natural Resources Ltd.
Jagmohan Sharma
GM-Liaison & Land"
The Circle Officer, Gamharia has called upon the report from the
Circle Inspector based upon which the recommendation has been made for
fixation of commercial rent over the land in question. The said
recommendation has been accepted by the Land Reforms Deputy Collector,
Seraikella by passing orders in different commercial rent fixation cases basis
upon which commercial rent has been paid over the land in question by the
petitioners by way of demand draft. But, thereafter, the rent has not been
paid, therefore, the demand notices have been issued for making payment of
the rent at that stage and contrary to the undertaking basis upon which the
commercial rent over the land has been fixed, the objection has been filed by
submitting representation before the Deputy Commissioner, Seraikella-
Kharsawan on 06.02.2014 (W.P.(C) No.2100/2014) for recall of the order
passed in commercial rent fixation cases. The grievance having not been
redressed, therefore, these writ petitions have been filed.
The reliance has been put by the petitioners in the order/ judgment
passed by the Hon'ble Patna High Court in the case of I.T.C Ltd. versus
State of Bihar (supra) followed by this Court in the case of Indo Asahi
Glass Company Ltd., Hazaribagh versus State of Bihar (supra) and as also
in the case of State of Bihar Vs. Vijay Kumar Chowdhury (supra).
16. The State has filed affidavit substantiating their stand that on the basis
of the undertaking of making deposit of the commercial rent over the land in
question the order has been passed for making payment of commercial rent
and the competent authority after taking into consideration the Circular
dated 21.05.1983 has taken such decision asking the writ petitioners to
deposit the commercial rent over the land in question, therefore, the
reference of the circular dated 21.05.1983 is necessary to be made herein,
which reads hereunder as:
^^fo"k;&Hkwfe ds Lo:i esa ifjorZu ds QyLo:i lykeh ,oa yxku olwyh ds
lEcU/k esaA
mi;qZDr fo"k; dh vksj vkidk /;ku vkd`"V djrs gq, dguk gS fd
ljdkj dks fofHkUu Lrjksa ls tkudkjh fey jgh gS fd jS;r viuh d`f'k Hkwfe dk
Lo:i cny dj okf.kT;kad ,oa vU; iz;kstuksa esa O;ogkj dj jgs gSa vkSj LFkkuh;
inkf/kdkjh bl vfu;fer dkjZokbZ ds lEcU/k esa fu;ekuqlkj vko';d dkjZokbZ
ugha dj jgs gSaA fcgkj dk'rdkjh vf/kfu;e] 1885 vkSj fcgkj Hkwfe lq/kkj
vf/kfu;e] 1950 ds lkFk ifBr NksVkukxiqj dk'rdkjh vf/kfu;e] 1908 ds
vUrxZr jS;r dks d`f'k iz;kstu ds fy;s Hkwfe j[kus dk vf/kdkj iznku fd;k x;k
gSA jS;r dks Hkwfe ds ,sls mi;ksx esa ykus dk vf/kdkj ugha gS ftlls tehu ds
ewY; esa HkkSfrd deh gks tk; ;k og dk"rdkjh ds iz;kstuksa ds fy;s vuqi;qDr gks
tk;A d`f'k vU; Hkwfe dks okf.kfT;d iz;kstuksa ds fy;s mi;ksx djkuk] d`f'k vU;
vk;ksx vf/kdkj ds mica/kksa dk mYya?ku gS vkSj ,slh gkyr esa micaf/kr fu;e ds
}kjk ljdkj dks ;g vf/kdkj izkIr gks tkrk gS fd ,sls jS;r dks ftlds }kjk
tehu ds Lo:i esa ifjorZu dj fn;k tkrk gS vk;ksx vf/kdkj ls csn[ky dj ns
;k fcgkj ljdkj lEink eSuqvy ¼bLVsV eSuqvy½ ds fu;eksa [fu;e 9 ¼iii½] ds
vuqlkj mfpr yxku fu/kkZfjr dj mls fu;fer dj nsaA rnuqlkj ;fn okf.kfT;d
iz;kstuksa ds fy, mi;ksx djus ij d`f'k vU; Hkwfe ds ewY; esa ifjorZu gksrk gS
rc lykeh dh jde cktkj esa izpfyr tehu dh dherksa ds lerqY; vkSj okf'kZd
yxku ,slk lykeh dk chloka Hkkx iwoZ fu/kkZfjr yxku dh txg ns; gksxkA
egkys[kkdkj fcgkj us fofHkUu vapyksa ,oa ftyk dk;kZy; ds vads{k.k
izfrosnu esa Hkh bl izdkj dh fVIi.kh nh gS tks fu;ekuqdwy lgh gSA
2- mijksDr of.kZr fLFkfr esa vuqjks/k gS fd izkosf/kr ljdkjh fu;eksa dks
dBksjrk ls vuqikyu djus dh d`ik djsaA mijksDr ¼dafMdk&1 of.kZr½ fu;eksa dk
fdrus ekeyksa esa mYya?ku fd;k x;k gS bldk vfHk;ku rkSj ij ,d eghus ds
vUnj losZ{k.k djk;k tk;A lHkh vapykf/kdkfj;ksa dks funsZ'k nsa fd ,sls ekeyksa dk
os Lo;a LFky fujh{k.k ,oa leh{kk dj iw.kZ fooj.k izLrqr djsAa fooj.k izkfIr
i'pkr~ ftyk dk;kZy; }kjk izkoSf/kd fu;ekuqlkj vko';d dkjZokbZ lEiUu
djk;k tk;A
3- bl ekeys dk izxfr izfrosnu izR;sd eghus ljdkj dks fu;fer :i
ls Hkstus dk d"V djsaA
[*fcgkj ljdkj] jktLo ,oa Hkwfe lq/kkj foHkkxA i= la[;k&8&[kk0
e0&uhfr&[email protected]&1452,@jk0 fnukad 21-05-1983]
17. It is, thus, evident that the aforesaid circular has been issued by the
Revenue and Land Reforms Department of the erstwhile State of Bihar with
respect to the subject pertaining to recovery of salami and rent on account of
conversion of the nature of land. It is evident from the aforesaid circular that
the Raiyats are converting the nature of land from agricultural land to that of
commercial and for different purposes and the local officers are not taking
any legal action for restraining such conversion. It has been referred therein
that the Raiyats have been conferred with the power to keep the land for the
cultivating purpose under the Bihar Tenancy Act, 1885 and Bihar Land
Reforms Act, 1950 read with Chotanagpur Tenancy Act, 1908. It has further
been referred therein that the Raiyats are having no power to reduce the
physical value of the land or the land become non-useful for the agricultural
purposes. It has been stipulated therein that the agricultural land if are being
used for the commercial purposes then the provision of the tenancy laws are
being violated and in such circumstances the Government has got power to
dispossess the transferee from such land or to regularize such transfer on the
basis of the Rule 9 (iii) as contained in the Bihar Government Estate
Manual.
It is, thus, evident that the aforesaid circular has been issued by way
of policy decision by the State to validate such transfer by fixing the
appropriate rent on the basis of Rule 9 (iii) as contained in the Bihar
Government Estate Manual. It is nowhere been stipulated therein that the
rent is only to be recovered from the Khas Mahal Land, rather, there is
reference of the land falling under Bihar Tenancy Act, 1885 and Bihar Land
Reforms Act, 1950 read with Chotanagpur Tenancy Act, 1908.
18. Now coming to the order passed by Patna High Court the issue of
consideration of the circular dated 21.05.1983 was one of the issues and it
appears from paragraph 15 of the aforesaid judgment that on the basis of the
concession of the learned Advocate General of the State the circular as
contained in Annexure-7 (a) i.e., the circular dated 21.05.1983 has no
application. The aforesaid judgment has been followed by this Court in the
case of Indo Asahi Glass Company Ltd, Hazaribagh. versus State of Bihar
& Ors. (supra). It appears from the judgment passed by this Court in the case
of Indo Asahi Glass Company Ltd. versus State of Bihar & Ors. (supra) as
under paragraph 11 and 12 wherein the observation has been made that the
provision of Chotanagpur Tenancy Act does not confer any power to the
revenue authority to demand salami or commercial rent in the event of
raiyati holding used for the commercial purposes wherein it has been held as
under paragraph 11 and 12, which reads hereunder as:
"11. From the rival contention of the parties, it is, therefore,
apparent that the respondents have proceeded entirely on the
assumption that the land is a khas mahal land. Now from a perusal
of Annexure 1, which the deed of lease, it is apparent that such a
presumption/assumption was totally misconceived inasmuch as the
land in question was a "Gair Mazurva Khas Land" as has been
specifically mentioned in the schedule appended to the indenture of
lease.
12. "Gair Mazurwa Khas Lands" are uncultivated lands which
were in the possession of the landlords prior to their vesting. So far
as khas mahal lands are concerned, they can be created only in the
manner laid in Rule 2, Part I of the Bihar Government Estates (Khas
Mahal) Manual, 1953. This land, therefore, could never be said to be
a khas mahal land. That being the position, the instruction relied
upon by the respondents, i.e. letter/instruction dated 21.05.1983 is
totally and completely misconceived. In fact, this letter/instruction
cannot be made applicable on lands which are not khas mahal lands.
In the case of I.T.C. Ltd. vs. State of Bihar & Ors., reported in
1994(1) BLJR 1988, it has, inter alia been held that a fair and
equitable rent has to be determined in terms of the provisions of the
Bihar Land Reforms Act and not in terms of the directives issued by
the State of Bihar from time to time under the Khas Mahal Manual.
In the said judgment it has also been held that the circular dated
21.5.1983 applies only the management of Khas mahal land. The
aforementioned judgment of the Division Bench in the case referred
to above was delivered and it was held that the aforementioned
circular applies only to Khas mahal estates and therefore, it cannot
be said that in relation to fixation of rent in all other lands, the
provisions of Bihar Land Reforms Act must necessarily be taken into
consideration. In other words, all that is necessary, is that the
respondents must necessarily act fairly and reasonably in matters
relating to fixation of rent. So far as charging of salami in the
present case is concerned, the same cannot be sustained inasmuch
as there is no provision nor the respondents have brought any such
provision on record to satisfy this Court, that they had the right or
that they had the authority to fix salami of Rs.1,72,500/-."
The judgment passed by this Court while interpreting the circular
dated 21.05.1983 has been pleased to hold that there cannot be any
imposition of salami or commercial rent on the basis of the Bihar
Government Estates (Khas Mahal) Manual, 1953 and therefore, the fixation
of commercial rent on the basis of the aforesaid circular dated 21.05.1983
has been held to be without jurisdiction.
19. The issue although involved in these writ petitions about the authority
of the respondents in demanding the commercial rent over the land in
question. The contention has been raised basis upon the judgment rendered
by Hon'ble Patna High Court in the case of I.T.C Ltd. versus State of Bihar
(supra) and by this Court in the case of Indo Asahi Glass Company Ltd.
versus State of Bihar (supra) and as also in the case of State of Bihar and
Ors. Vs. Vijay Kumar Chowdhury (supra) that the commercial rent over the
land in question is not permissible in view of the stipulation made in the
circular dated 21.05.1983. This Court has already taken note of the circular
dated 21.05.1983 and from its scrutiny it is evident that the circular is in two
parts, first to direct the revenue authorities not to allow the change of the
nature of land and in case the nature of land has been changed, the same be
restored and second is that in case of any difficulty in changing the nature of
land, the same may be validated by charging the rent on the basis of Rule 9
(iii) as contained in the Bihar Government Estate Manual. The fact
demonstrates that the Land Reforms Deputy Collector has passed an order
for charging the commercial rent over the land in question, although, on the
basis of the undertaking by way of an affidavit as was given by the
petitioners.
20. The question which is required to be considered by this Court that
when the Chotanagpur Tenancy Act put a restriction in change of nature of
land from cultivation to any other purposes like industry and to that effect
the Government has taken a conscious decision in the circular dated
21.05.1983 in its first part wherein it has been stipulated that the nature of
land, in any case, pertaining to the Bihar Tenancy Act, 1885 and Bihar Land
Reforms Act, 1950 read with Chotanagpur Tenancy Act, 1908 is not to be
changed. If the nature of land has been changed, the same may be restored.
The first part of the circular asking the revenue authorities not to
allow the change of nature of land and if the nature of land has been changed
the same be restored, according to the considered view of this Court, is
strictly on the basis of the object and intent of the Chotanagpur Tenancy Act
as per the provision of Sections 6 and 21 of the Chotanagpur Tenancy Act as
has been discussed and referred hereinabove.
But the second part, i.e., the imposition of commercial rent in a
situation where there is no possibility of restoration of the nature of land for
cultivation then the commercial rent is to be paid is concerned, the same,
according to the considered view of this Court, cannot be said to be in terms
of the object and intent of the Chotanagpur Tenancy Act. Since the
provision of Chotanagpur Tenancy Act strictly put restriction in change of
nature of land from cultivation to any other purposes like for the purpose of
industry then where is the question of validating it by imposition of
commercial rent, that is the question, which is core of issue in the instant
cases.
21. The reference of these judgment is required to made herein, since, the
action of the authority concerned is required to be tested as to whether the
fixation of rent taken on the basis of the circular dated 21.05.1983 can be
said to be in consonance with the statutory provision in absence of any such
provision available under the Act for the basic reason of non-insertion of the
said provision of making payment of commercial rent, since, the conversion
of the nature of land itself is restricted and as such the law is well settled in
this regard that the authorities concerned are required to take decision on the
basis of the statutory mandate and not on the basis of the Government
circular which is in the teeth of the provision of the statutory mandate.
22. It is settled position of law that it is underlying principle that a thing is
to be done strictly in accordance with statutory mandate as has been held by
Hon'ble Apex Court in the case of Babu Verghese v. Bar Council of
Kerala, reported in (1999) 3 SCC 422 at paragraphs 31 and 32, which reads
as under:
31. It is the basic principle of law long settled that if the
manner of doing a particular act is prescribed under any
statute, the act must be done in that manner or not at all. The
origin of this rule is traceable to the decision in Taylor v.
Taylor which was followed by Lord Roche in Nazir Ahmad v.
King Emperor who stated as under:
"[W]here a power is given to do a certain thing in a certain
way, the thing must be done in that way or not at all."
32. This rule has since been approved by this Court in Rao
Shiv Bahadur Singh v. State of V.P. and again in Deep Chand
v. State of Rajasthan These cases were considered by a three-
Judge Bench of this Court in State of U.P. v. Singhara Singh
and the rule laid down in Nazir Ahmad case was again upheld.
This rule has since been applied to the exercise of jurisdiction
by courts and has also been recognised as a salutary principle
of administrative law.
23. The position of law is well settled that there cannot be any alteration
or modification or supersession of the Act either enacted by the Parliament
or the State Legislature by a circular issued by the State Government by way
of executive instruction.
The Hon'ble Apex Court in the case of Ratan Kumar Tandon v. State
of U.P. reported in (1997) 2 SCC 161, has been pleased to hold that the
subordinate legislation do not have any overriding effect on operation of
statutory provision of law as has been held at paragraph 12, which reads as
under:
12. The contention of Shri Satish Chandra is that once the
notification under Section 4(1) was published, the Land
Acquisition Officer was enjoined to pass an award for entire
land under Section 11. Since possession was already taken
and it vested in the State free from all encumbrances, the
acquired land is situated within agglomeration and is found to
be in excess of the ceiling limit. The appellants are entitled to
full compensation. In support thereof, he placed reliance on
Majas Land Development Corpn. v. State of Maharashtra1;
State of M.P. v. Surendra Kumar and Govt. of A.P. v. H.E.H.,
The Nizam, Hyderabad. The question, therefore, is whether the
Land Acquisition Officer is enjoined to pass award in respect
of the excess land? This controversy was considered in
H.E.H., Nizam case3 after surveying the relevant provisions of
the Ceiling Act. It is not necessary to traverse the ground once
over. It was held that it is not necessary for the Government to
determine the compensation under Section 23(1) of the Act in
respect of the excess land found under the Ceiling Act since
Ceiling Act is a special Act, notwithstanding any contrary law.
In that case, it was noticed that the Government have
exempted the acquired land from the purview of the Ceiling
Act, the determination of the compensation in respect of that
land by civil court was upheld with modification. Far from
helping the appellants, the ratio therein is against the
appellants. This question was also considered in another
judgment of this Court in State of Gujarat v. Parshottamdas
Ramdas Patel. It was held therein that the provisions of the
Ceiling Act have overriding effect on all other lands. In
Surendra Kumar case, the purchase of vacant land within
ceiling limit pending determination by competent authority
came up for consideration. Therein this Court had pointed out
the procedure to be adopted in dealing with the situation. The
Bombay case, with due respect, was not correctly decided. The
principle of withdrawing notification under Section 48(1) of
the Act need not be followed for the reason that compensation
for the land within ceiling limit be determined under Section
23(1) and excess land is covered by Section 11(6) of the
Ceiling Act. Until ceiling area and excess land are
determined, it would be difficult to postulate as to what extent
of excess vacant land would be available to pay compensation
either under Section 23(1) of the Act or Section 11(6) of the
Ceiling Act. The excess urban land covered under the Ceiling
Act is not required to be denotified as it statutorily stands
vested in the Government and the Government cannot be
compelled to acquire the excess urban vacant land covered
under the provisions of the Ceiling Act, and compensation
paid under the provisions contained in the Land Acquisition
Act. Shri Satish Chandra also referred to us instructions
issued by the Government of U.P. dated 31-1-1986. He placed
reliance on para 6 of the instructions. It is seen that the
Government has given instructions to the respective
authorities under Section 35 of the Ceiling Act that where the
authorities were not able to dispose of the matter under the
Ceiling Act and land is required for public purpose, it would
be necessary to drop the proceedings under the Ceiling Act
and to proceed under the Land Acquisition Act. These are only
administrative instructions. They do not have any statutory
effect on the operation of law. In case of yearning gaps, they
may guide the officers. In view of the law laid down by this
Court, the instructions do not have any overriding effect on the
operation of the Ceiling Act and the law declared by this
Court under Article 141. Therefore, it is not necessary for the
State to proceed with the determination of the compensation
under Section 23(1) of the Act to the extent of the excess land
found under the Ceiling Act. Compensation shall be paid only
as per Section 11(6) of the Ceiling Act.
The executive instruction can be issued by the Government in order to
supplement the statutory provision but not to supplant as has been held by
Hon'ble Apex Court in the case of S. Sivaguru vs. State of Tamil Nadu and
Ors. reported in (2013) 7 SCC 335 wherein at paragraph 60 it has been held,
which reads as under:
"49. The qualifications prescribed under the aforesaid
Rules for the basic post of Health Inspector Grade II, were: (a)
SSLC Pass Certificate; (b) one year long-term Multipurpose
Health Worker (Male) Training Certificate; or (c) Sanitary
Course Certificate with short-term Multipurpose Health
Worker (Male) Training Certificate. The aforesaid provision
contained in the Rules framed under Article 309 of the
Constitution of India could not be amended by executive
instructions. We have no hesitation in accepting the first
submission of Mr Rao that the executive instructions cannot
supplant the statutory rules, in view of the ratio of law laid
down in Sant Ram Sharma4. The aforesaid ratio has been
reiterated by this Court on numerous occasions. It is not
necessary to make a reference to any of the subsequent
decisions as it would be a mere repetition of the accepted ratio,
noticed above. We are, however, of the opinion that the ratio of
law laid down in Sant Ram Sharma case4 would not be
applicable in the facts and circumstances of this case.
52. From the above, it becomes apparent that GOMs No.
320 dated 27-6-1997 did not have the effect of amending the
Rules. It is also clear that the aforesaid G.O. did not supplant
the statutory provisions. It is also further clear that there was
no relaxation of the qualifications on the post of Multipurpose
Health Assistant (Health Inspector Grade II) or on the post of
Multipurpose Health Supervisor (Health Inspector Grade I).
Therefore, in our opinion, upon integration of Leprosy
Inspectors into the cadre of Multipurpose Health Supervisors,
the further categorisation into Health Inspector Grade IA and
Health Inspector Grade IB was wholly unjustified. It had no
rational nexus with any object sought to be achieved, and
therefore, violated Articles 14 and 16 of the Constitution of
India.
72.2. The aforesaid GOMs No. 320 dated 27-6-1997 did not
bring about an amendment in the statutory services rules
contained in GOMs No. 1507 dated 16-8-1989. The GOMs was
supplementary to the aforesaid Rules and did not supplant the
same."
The Hon'ble Apex Court again in the case of Public Service
Commission, Uttaranchal vs. Jagdish Chandra Singh Bora and Anr.
reported in (2014) 8 SCC 644 has laid down that the executive instruction
cannot supplant rules, reference in this regard may be made to paragraph 28,
which reads hereunder as:
"28. However, we find substance in the submission made by
Mr C.U. Singh that 2004 clarification would not have the effect
of amending the 2003 Rules. Undoubtedly, 2004 clarification is
only an executive order. It is settled proposition of law that the
executive orders cannot supplant the Rules framed under the
proviso to Article 309 of the Constitution of India. Such
executive orders/instructions can only supplement the Rules
framed under the proviso to Article 309 of the Constitution of
India. In spite of accepting the submission of Mr C.U. Singh
that clarification dated 29-4-2004 would not have the effect of
superseding, amending or altering the 2003 Rules, it would not
be possible to give any relief to the respondents. The criteria
under the 2003 Rules govern all future recruitments. We have
earlier already concluded that no vested right had accrued to
the respondents, the trained apprentices, under the 2001 Rules.
We do not accept the submission of Mr C.U. Singh that the
claim of the respondents (trained apprentices) would be
covered under the 2001 Rules by virtue of the so-called
amendment made by the 2003 Rules. We are of the opinion that
the High Court committed an error, firstly, in holding that the
2003 Rules are applicable, and secondly, not taking into
consideration that all the posts had been filled up by the time
the decision had been rendered."
24. The further settled position of law is that any subordinate legislation
or the executive instruction can be said to have its effect to the extent of its
consistency with the statutory mandate and so far as the inconsistent part is
concerned, the same will be said to be not applicable, otherwise the same
will be in the teeth of the statutory provision and will lead to supplanting the
statutory provision. The reference in this regard may be made to the
judgment rendered by Hon'ble Apex Court in the case of Smt. K.A.
Annamma vs. Secretary, Cochin Co-operative Hospital Society Ltd.
reported in AIR 2018 SC 422 wherein it has been held that in a situation
arising in any case if any inconsistency/repugnancy noticed between the
provisions of the Central and the State Act, if the State Act has received the
accent of the President will prevail over the Central Act in the concerned
State by virtue of Article 254 (2) of the Constitution. But if the State Act has
received the accent of the Governor then the Central Act would prevail over
the State Act by virtue of Article 254(1) of the Constitution.
However, as would appear from the discussion made hereinabove that
the circular dated 21.05.1983 basis upon which decision has been taken for
making payment of commercial rent even though had been recalled by the
erstwhile State of Bihar way back in the year 1991 then question arises that
on what basis decision has been taken by the authority concerned for making
the payment of rent.
Therefore, the law is well settled about the binding effect of the
statute. But here it is not a case of any State legislation, rather, here the issue
involved is a circular issued by the State Government and as such admittedly
the inconsistent part of the circular, i.e., validating the change of nature of
land from cultivation to that of industry on the payment of commercial rent
will certainly be said to be inconsistent with the object and intent of the Act
and therefore, that part of the circular, according to the considered view of
this Court, is held to be inconsistent and as such having no validity.
25. The case of the writ petitioners herein is, that the petitioners are not
liable to make payment of commercial rent over the land in question since
the same is based upon the policy decision as contained in circular dated
21.05.1983, i.e., the second part which is in the case when the nature of land
if not restored for the cultivation purpose.
Since this Court has come to the conclusion that the second part of the
circular dated 21.05.1983 being inconsistent to the object and intent of the
C.N.T Act which permits validating the change of nature of land from
cultivation to the industrial purposes or for any other use impairing the value
of the land has been held to be inconsistent and thereby invalid and
therefore, the question arises that whether the fixation of commercial rent
over the land in question on the basis of the aforesaid stipulation made in the
circular dated 21.05.1983 can be said to be a valid decision taken on the part
of the revenue authority.
The second question would be that if this Court in exercise of power
conferred under Article 226 of the Constitution of India if takes a decision
by holding the power exercised by the Deputy Collector Land Reforms,
Seraikella in inflicting the commercial rent over the land in question to be
improper or if it is being held as proper, in both the cases, the consequence
would be to validate the conversion of land so made from the cultivation to
that of industry.
The underlying principle to exercise the power conferred under
Article 226 of the Constitution of India is to look into the issue of
fundamental right or the issue of legal vested right if conferred under the
Constitution and the citizens are being deprived of the same by its
infringement or in case of violation of any legal vested right, reference in
this regard may be made to the judgment rendered in the case of
Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, reported in (2013)
4 SCC 465 at paragraph 9 which reads as under:
"9. It is a settled legal proposition that a stranger cannot be
permitted to meddle in any proceeding, unless he satisfies the
authority/court, that he falls within the category of aggrieved
persons. Only a person who has suffered, or suffers from legal
injury can challenge the act/action/order, etc. in a court of law.
A writ petition under Article 226 of the Constitution is
maintainable either for the purpose of enforcing a statutory or
legal right, or when there is a complaint by the appellant that
there has been a breach of statutory duty on the part of the
authorities. Therefore, there must be a judicially enforceable
right available for enforcement, on the basis of which writ
jurisdiction is resorted to. The Court can, of course, enforce the
performance of a statutory duty by a public body, using its writ
jurisdiction at the behest of a person, provided that such person
satisfies the Court that he has a legal right to insist on such
performance. The existence of such right is a condition
precedent for invoking the writ jurisdiction of the courts. It is
implicit in the exercise of such extraordinary jurisdiction that
the relief prayed for must be one to enforce a legal right. In
fact, the existence of such right, is the foundation of the
exercise of the said jurisdiction by the Court. The legal right
that can be enforced must ordinarily be the right of the
appellant himself, who complains of infraction of such right
and approaches the Court for relief as regards the same. [Vide
State of Orissa v. Madan Gopal Rungta, Saghir Ahmad v. State
of U.P., Calcutta Gas Co. (Proprietary) Ltd. v. State of W.B.,
Rajendra Singh v. State of M.P. and Tamilnad Mercantile Bank
Shareholders Welfare Assn. (2) v. S.C. Sekar.]"
26. This Court since has come to the conclusion that the very basis of
fixation of commercial rent over the land in question which is based upon
the circular dated 21.05.1983 to be invalid and as such the payment of rent
over the land in question where the land is being used other than the
cultivation purpose, the same cannot be accepted whether at normal rent or
the commercial rent. The rent is only to be accepted as per the provision
made under the C.N.T Act for the land which is only being used for the
cultivation purpose and not being used for other purposes like commercial
purposes.
The Deputy Collector Land Reforms, Seraikella, however, has not
taken conscious decision in this regard, rather, merely on the basis of
undertaking given by the petitioners accepting to pay the commercial rent
over the land in question has passed the order for making payment of
commercial rent over the land in question. The Deputy Collector Land
Reforms, Seraikella ought to have considered the legal issues by taking into
consideration the very object and intent of the Act and the part of the
circular dated 21.05.1983 which is inconsistent with the mandate of the
Chotanagpur Tenancy Act before taking such decision asking the writ
petitioners to make payment of commercial rent over the land in question.
27. This Court, therefore, is of the view that any declaration pertaining to
payment of rent either on normal rent or commercial rent for the land in
question have been changed from cultivable to industrial purposes impairing
the value of the land. Therefore, this Court, is of the view that in such
circumstances the extraordinary jurisdiction conferred under Article 226 of
the Constitution of India is not fit to be exercised by giving any finding with
respect to the payment of rent either on normal rent or commercial rent over
the land in question, reason being that any finding on the issue will
ultimately validate the change of nature of land from cultivation to that of
industry, in such a situation, such declaration will be contrary to the object
and intent of the Chotanagpur Tenancy Act as per the discussion made
hereinabove. Further, such declaration cannot be given by the High Court in
exercise of power conferred under Article 226 of the Constitution of India
wherein the very issue itself is touching the object and intent of the Act
being contrary to it.
It requires to refer herein that the issue of conversion of nature of land
is not the issue having been agitated, rather, the fixation of commercial rent
on the basis of conversion of the nature of land from cultivation to that of
industry is the issue. But the question herein is that when a thing goes to the
root then the Court exercising power under Article 226 of the Constitution
of India cannot shut its eyes to exercise the jurisdiction conferred under
Article 226 of the Constitution of India, it is for the reason that the basic
principle of Article 226 is to look into that the statutory authority is
discharging their duty strictly in accordance with law.
The jurisdiction conferred in exercise of power under Article 226 of
the Constitution of India not to validate any action of the State if it is
contrary to the statutory mandate merely on the basis of a decision of the
Government as the case of the fact herein. The further question will be that
when the fact about the action of the Deputy Collector Land Reforms, in
validating the change in the nature of land from cultivation to that of
industry has been brought to the notice of this Court, can High Court shut to
exercise the jurisdiction conferred under Article 226 of the constitution of
India
The position of law is well settled that the power conferred to the
High Court under Article 226 of the Constitution of India is meant for
maintaining the rule of law. The Hon'ble Apex Court in the case of
Common Cause versus Union of India reported in (1999) 6 SCC 667 has
been pleased to hold that under Article 226 of the Constitution of India the
High Court has been given the power and jurisdiction to issue appropriate
writs in the nature of mandamus, certiorari, prohibition, quo-warranto and
habeas corpus for the enforcement of fundamental rights or for any other
purpose. As a result, the High Court can issue relief not only for the
enforcement of fundamental rights but also for any other reason which might
include the enforcement of public responsibility by public authorities,
reference in this regard may be made to paragraph 39 which reads as under:
"39. Under Article 226 of the Constitution, the High Court has
been given the power and jurisdiction to issue appropriate
writs in the nature of mandamus, certiorari, prohibition, quo
warranto and habeas corpus for the enforcement of
fundamental rights or for any other purpose. Thus, the High
Court has jurisdiction not only to grant relief for the
enforcement of fundamental rights but also for "any other
purpose" which would include the enforcement of public duties
by public bodies. So also, the Supreme Court under Article 32
has the jurisdiction to issue prerogative writs for the
enforcement of fundamental rights guaranteed to a citizen
under the Constitution."
28. This Court, therefore, is of the view that the facts of these given cases
also pertains to the enforcement of the duties which is to be exercised by the
authority conferred power under the C.N.T. Act, 1908 wherein as per
discussions made hereinabove, the power in accordance with Act, 1908 has
not been exercised, said to be in consonance with the Act, 1908, by allowing
the change in the nature of the land.
29. This Court, therefore, is of the view that the matter is required to be
considered by the Deputy Commissioner for taking decision with respect to
the permissibility of change of nature of land in view of the provision of
Chotanagpur Tenancy Act, 1908 so as to maintain the very object and intent
of the Chotanagpur Tenancy Act, 1908 as discussed above.
As such, the matter is remitted to the Deputy Commissioner to take
decision in accordance with law, preferably within a period of two months
from the date of receipt of copy of the order.
30. Accordingly, all these writ petitions stand disposed of.
31. Consequently, pending interlocutory application(s), if any, also stands
disposed of.
(Sujit Narayan Prasad, J.)
Saket/-
N.A F.R.
