Jharkhand High Court
Narendra Prakash Arya vs The State Of Jharkhand on 26 June, 2025
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
2025:JHHC:17015
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W. P. (C) No. 124 of 2005
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Narendra Prakash Arya, S/o Late Schidanand Arya, R/o Jhumri Tillaya
Ward No. 5, P.S.-Tilliya, Dist.-Koderma... .... Petitioner
Versus
1. The State of Jharkhand
2. The Deputy Commissioner, Koderma
3. Additional Collector, Koderma
4. Deputy Commissioner (Land Revenue), Koderma
5. Sub-Divisional Officer, Koderma
6. Circle Officer, Koderma
7. The Administrator, Jhumri Telaiya Municipal Council, P.O. & P.S.-
Telaiya, Dist.-Koderma ... .... Respondents
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Petitioner : Mrs. Ritu Kumar, Advocate
Mr. Ashok Kumar Sinha, Advocate
For the State : Mr. Binit Chandra, AC to AAG-III
For the Respondent-7 : Mr. Bharat Kumar, Advocate
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C.A.V ON 10.06.2025 PRONOUNCED ON 26 /06/2025
Heard the parties.
1. The instant writ petition has been filed under Article 226 of the
Constitution of India for quashing the order dated 15.10.2003 passed
by the Deputy Commissioner, Koderma (Respondent No.2) in Case
No. 01 of 2003 by which direction has been given to the Circle
Officer, Koderma to cancel the Jamabandi of the land appertaining to
Khata No. 220/534 Plot No. 5841/6432/3 measuring an area 4.22
acres. A further prayer has been made for quashing the letter no.205
dated 22.02.2021 issued to Respondent no.7 for setting up a vending
zone.
CASE OF PETITIONER
2. The land in question was recorded in the survey khatiyan as
Gairmazarua Khas land and was settled by the Raja of Ramgarh in
favour of Smt. Sumitra Devi (details of settlement not given). The
petitioner is the grandson of Sumitra Devi. After the settlement of
land, Sumitra Devi came in possession of it and started paying rent to
the State. The land was mutated in her name and rent receipts were
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issued in her favour from the year 1962-63 up-to 2003. Out of the
4.22 acres, the petitioner has already sold 4 decimals of land in favour
of one Nilli Kullu and the said land has been mutated in her name.
3. In the year 2003, when the petitioner started constructing a boundary
wall around the said land, a report was called for by the Sub Divisional
Officer, Koderma from the Circle Officer, Koderma. In the said report
dated 30.04.2003, it was stated that the Jamabandi was opened in
pursuance of the order passed in Case Nos. 35, 36 and 37 of 1962-63
dated 12.12.1962 passed by the Circle Officer, Jainagar.
4. Petitioner is aggrieved by the order of the Deputy Commissioner,
Koderma passed in Case No.01/2003-04 for cancellation of Jamabandi.
5. The main contention of the petitioner is that it was a long running
Jamabandi opened by the order passed in mutation cases and the rent is
being regularly paid by the petitioner to the State. In absence of any
order deciding the title of the property in favour of the State, the
Jamabandi cannot be cancelled by an order passed by a Revenue
Authority in view of the settled law. Purport of a "long standing
Jamabandi" has been elucidated by the Co-ordinate Bench of this Court
in W.P.(C) No. 1256 of 2019, wherein it has been held that where there
has been possession for more than thirty years, it can be deemed to be
long, and civil action will also be barred under Articles 111 and 112 of
the Limitation Act, 1963.
CASE OF THE RESPONDENTS
6. Learned counsel appearing on behalf of the respondents-State
(respondent nos.2-6) submits that indisputably, the nature of land as
recorded in the cadastral survey records of rights was Gairmazarua
Khas. All such lands vested in the State by the operation of Bihar Land
Reforms Act, 1950. Land being fallow land, as the very term
'Gairmazarua' signified, it did not fell in the category of land saved
from vesting under Section 6 of Bihar Land Reforms Act, 1950, as it
was not in the Khas cultivating possession of the landlord.
7. It is further argued that rent receipts are not a document of title or
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possession and therefore, in absence of any reliable document of
possession or settlement, it was a sham paper, and on its basis the land
which already got vested in the State, is attempted to be wrested by the
Petitioner.
8. Respondent no. 7 was impleaded as party during pendency of the writ
petition. As per the case of respondent no. 7, the land of 1.47 acres was
handed over to respondent no. 7 out of the schedule land, by the letter
of the Secretary, Department of Urban Development and Housing dated
31.12.2021, for construction of vending zone and to hand it over to the
Urban Development and Housing Department. The said land was
allotted vide Letter No. 847 dated 26.08.2021 and thereafter Jhumri
Telaiya Municipal Council had invited tender notice for establishment
of minimum 40 to 50 pie pad per minute capacity affordable sanitary
pad manufacturing unit and waste paper/waste cloth recycling plant. In
pursuance of the tender notice, agreement was executed on 13.10.2024
with M/s Deepika Enterprises for both the units and plants separately.
9. Learned counsel further submits that the said work of the project has
almost been completed and preliminary training has started for the
female SHG groups as per the report of the Junior Engineer and Nodal
Officer, Jhumri Telaiya Municipal Council dated 04.02.2025. Learned
counsel further submits that as per the instruction, the said project is
now completed. It is argued that these facts go to show that Petitioner is
not in physical possession of the land.
FINDING
10. Petitioner is aggrieved by order for cancellation of Jamabandi passed by
the Deputy Commissioner, Koderma in Case No. 01 of 2003-04.
11. Case of the Petitioner hinges on Case Nos. 35, 36 and 37 of 1962-63
and the correction slip issued by the Circle Officer, Jainagar, on
12.12.1962 on the basis of which Jamabandi was opened and he was
accepted as tenant and rent was taken by the State. Order passed in
these cases have not been filed by either of the side, but reference to it
is found in the order of the Circle Officer, Koderma dated 12.09.2003
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(Annexure-4). Therefore, it can be assumed that Jamabandi was opened
and rent was accepted by the order passed in these cases.
12. What is commonly called opening of Jamabandi, refers to entry of the
name of the tenant being made in Register II. Object of the mutation
proceeding is to update the revenue record. They are in the nature of
fiscal enquiries for the purpose of ascertaining the possession of the
party as tenant from whom the rent is to be received.
13. Entries in revenue records are not evidence of title, but are evidence of
possession. Their evidentiary value of possession is rebuttable, and
mere issuance of rent receipt cannot be accepted to be conclusive
evidence of possession.
14. In the present case Petitioner does not appear to be in actual physical
possession of the land as the possession was asserted as per the
petitioner for the first time in 2002-03, when it was objected to by the
public at large leading to cancellation of Jamabandi. As per counter
affidavit filed on behalf of the State on 01.03.2005, a proceeding under
Section 145 Cr.P.C being Case No.-5/2003 was initiated at the instance
of Uday Prakash Dwivedi, convenor of Mukti Wahini, Gandhi Maidan
Bachao Samiti before the Sub-Divisional Magistrate, Koderma. In view
of the tension between both sides the land was attached under Section
146(1) of the Cr.P.C. These facts have not been disputed on behalf the
Petitioner.
15. The question arises whether the Jamabandi was a sham paper
transaction, opened in collusion with revenue authorities over a land
that had got vested in the State and was being used by the public at
large?
16. Nature of land and the manner in which it is dealt after coming into
force of Bihar Land Reforms Act,1950 (BLR Act) holds key to
understand the claim that Jamabandi was validly opened and the party
concerned was in possession of the said land.
17. Vesting of intermediary interest took place by virtue of the notification
issued in 1956 under the BLR Act 1950, and rent rolls (M Forms) were
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issued under Rule 7-I of the Bihar Land Reform Rules, 1951 after rent
fixation on the basis of the return filed in form K by the ex-landlord. A
detailed procedure has been laid down for determination of fair and
ground rent from Rules 6 to 7-I of the Bihar Land Reforms Rules, 1951.
18. Admitted facts that emerge from the pleading of the parties is that land
in question was recorded in the record of right as Gairmazarua Khas
land before the coming into force of the BLR Act, 1950.
19. The very term Gairmazarua Khas implies, that land in question was a
fallow and not an agricultural land. It logically follows that it was not a
raiyati land of the tenant, but was part of the interest of the tenure
holder. Such lands vested in the State by the notification under Section
3 of the Bihar Land Reforms Act,1950. Such land being not agricultural
in nature, was not protected under Section 6 of the BLR Act, and vested
with the State, except in those cases where it had been settled in favour
of a raiyat and rent was fixed, changing its nature to agricultural land.
20. There is absolutely no details of the settlement, as there is no pleading
about the date of said settlement, and no document is produced in prove
of settlement made in favour of the predecessor-in-interest of the
Petitioner. In order to buttress the claim that it was settled in favour of
the petitioner, it was incumbent on their part to produce any document
with regard to settlement of the land, Jamindari return filed under
Form-K, rent fixation after filing of return and the rent roll under Form
M. None of these documents has been filed.
21. As discussed above claim of the Petitioner rests on the settlement of
land in favour of Sumitra Devi, by ex-landlord before vesting. Claim
hinges on the elusive case no Case Nos. 35, 36 and 37 of 1962-63 on
the basis of which Jamabandi was opened in her favour. This order has
also not seen the light of the day and not produced.
22. As discussed above mutation proceeding is primarily concerned with
possession for the purpose of revenue collection. Questions of title are
beyond the scope of consideration, which can be looked into in a
properly instituted title suit. Nonetheless, there must be some cogent
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and credible evidence of possession to warrant the initiation or
continuation of a Jamabandi in favour of a party. If there is no evidence
of possession post-vesting, mere intermittent issuance of rent receipts
cannot be a ground for continuation of Jamabandi.
23. Where the Jamabandi appears to have been opened without any formal
order, and there exist prima facie doubts regarding its validity and the
party's actual possession is also under cloud, allowing its continuation
would amount to perpetuating an illegality.
24. In the present case there is no material to show that the land in question
was ever settled by the ex-landlord, or that after the said settlement,
return was filed and the rent was fixed, or that Jamabandi was opened
immediately after BLR Act, 1950 came into force in 1956. Claim of
payment of rent is from 1962-63 onwards.
25. There is no material to show that after vesting, rent rolls were prepared,
rent was fixed and rent was received from the setllee. In the absence of
any plea or evidence of rent fixation after settlement, claim of opening
of Jamabandi in a mutation proceeding is flawed to the core.
26. Furthermore, Petitioner is not even in physical possession of the land,
which will be evident from the fact that attempt of raising boundary
wall was made in the year 2003 which was opposed by the public at
large as it was being used as a sports field by the public.
27. Further, a portion of land was handed over to respondent no. 7, out of
the schedule land, on which manufacturing unit and waste paper/waste
cloth recycling plant has already been established.
28. Matter for consideration is if the order of cancellation of Jamabandi is
sustainable in the facts and circumstance of the case where there is no
evidence of opening of Jamabandi or possession of the Petitioner?
29. Main contention of the Petitioner is that Additional collector is
denuded of power to cancel Jamabandi in view of the Judgments of this
Court. Reliance in this regard is placed on the judgment passed by this
Court in L.P.A. Nos. 142 of 2010 with L.P.A. No. 307 of 2009, L.P.A.
No. 855 of 2019 and L.P.A. No. 786 of 2018.
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30. Facts of the case at hand is distinguishable from the authorities relied
upon, inasmuch as there is no evidence of physical possession of the
petitioner over the land in question, whereas in those cases petitioners
were in settled possession of the land and the plots had changed hands
by registered sale deeds followed by mutation.
31. From the plain reading of the authorities relied upon by the petitioner,
what can be safely gathered is that, where Jamabandi has been opened
by a formal order, rent is being accepted by the State and there is actual
physical possession of the parties, Jamabandi cannot be cancelled by
revenue authorities without a formal order of the civil court. It does not
remotely imply that once a Jamabandi has been opened wrongly
without any formal order of a competent authority, once discovered, the
same cannot be revisited even if prima facie there is material to show
fraud or collusion of the revenue authorities. To accept such a
proposition will be against the very grain of justice and fair play, which
informs adjudicatory process.
32. In order to appreciate the law on the point it will be desirable to
understand the nature of mutation proceeding. Division Bench of the
Patna High Court in Sitaram Choubey and Ors. v. State of Bihar and
Ors., 1993 SCC OnLine Pat 88 held that orders of mutation are
administrative orders and not judicial or quasi-judicial orders. In this
case the ratio laid down by the Division Bench in Gobri Singh v. State
of Bihar reported in AIR 1978 NOC page 88 was followed.
33. Opening of Jamabandi being administrative in nature can be reviewed,
where it is without any order or it has been passed without jurisdiction
or ex facie it is collusive or fraudulent in nature. [Refer to Mahabir
Kanshi Vs. State of Jharkhand JCR 2008 (4) 429, (2010)2 JCR
170(Jhr) Yubraj Tiwary & Ors. Vs State of Jharkhand & Ors.)]. It
was observed in Abdul Jabbar v. State of Bihar and Ors., 1992 SCC
OnLine Pat 22:
4. In my opinion as a general proposition it cannot be said
Jamabandi once created can never be cancelled. In Khiru Gope's
case this Court merely has held following the earlier decisions of
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this Court in Harihar Singh's case and Jamaluddin Ahmad's
case that if cancellation of Jamabandi amounts to cancellation of
settlement; such power cannot be exercised. However, it may be
mentioned that another Division Bench of this court in Gobind
Singh v. The State of Bihar, reported in 1978 NOC 88 has held that
orders of mutation are administrative orders and thus the same can
be reviewed. Unfortunately the aforementioned Division Bench of
this Court in Gobind Singh's CaseAIR 1978 NOC 88 was not
brought to the notice of this Court deciding Khiru Gope's case. In
this situation in my opinion, it cannot be said as a general
proposition of the law that a Jamabandi created can never be
cancelled.
It was reiterated in 2009(2)JCR 153(Jhr) Jagdeo Mahto Vs
Commissioner North Chotanagpur Division, Hazaribagh that
mutation proceeding is not held before a court of law and are not
judicial proceeding but are administrative in nature. Thus, there is
no bar under law in cancelling the same. It was held that jamabandi
standing in the name of a particular person can be cancelled in
appropriate cases, where it is brought to the notice of the revenue
authorities that the order of opening of jamabandi is without
jurisdiction.
Cancellation of jamabandi on the ground of fraud was upheld in
Shakuntala Patodia VS State of Jharkhand & Ors., 2015 2
JCR 281.
34. In view of the above authorities, the contention that the revenue
authorities have no power under any circumstance to cancel a
Jamabandi, cannot be accepted. As discussed above, if a Jamabandi has
been opened without a formal order, or pursuant to an order passed
without jurisdiction, or obtained through fraud or collusion, it is well
within the authority of the revenue officials to revisit and cancel the
same. Fraud vitiates all proceedings and renders them a nullity. It has
been held in "Meghmala & Ors. Vs. G. Narasimha Reddy & Ors.",
(2010) 8 SCC 383, Hon'ble Supreme Court in "Fraud is an intrinsic,
collateral act, and fraud of an egregious nature would vitiate the most
solemn proceedings of the courts of justice. Fraud is an act of deliberate
deception with a design to secure something, which is otherwise not
due".
35. The State, after all, is but an abstract juristic entity that discharges its
obligations and asserts its rights through its instrumentalities and
appointed functionaries. As the trustee of public property, it bears a
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solemn fiduciary duty to safeguard the same in the larger public
interest. If those entrusted with this responsibility--agents of the
State--act in collusion with private parties, actuated by extraneous
considerations, and thereby alienate or compromise public property, can
it then be said that the competent authority is precluded from reopening
such transactions and rectifying the illegality? The question assumes
great constitutional and public importance, particularly in view of the
recurring instances where custodians of public assets have, regrettably,
at times assumed the role of its predators.
36. In the present case as discussed above, nature of land was Gairmazarua
Khas land, and in the absence of any pleading about the details of
settlement claimed to be made by the ex-landlord, or any evidence in
support of it, or even physical possession of the land, it vested in the
State and the Jamabandi opened appears to be without any basis.
Under the circumstance and for the reasons as discussed
above, this Court is of the view that the impugned order warrants
no interference. Petitioner will, however, be at liberty to assert his
right, title over the land in question in a civil suit.
Writ Petition, accordingly, stands dismissed. Pending I.A., if
any, stands disposed of.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated the 26th June, 2025
AFR / AKT/Satendra
