Bishwanath Jhunjhunwala And Anr vs The State Of Bihar And Ors
2021 Latest Caselaw 5763 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                Civil Writ Jurisdiction Case No.6485 of 2000
======================================================

1. Bishwanath Jhunjhunwala.

2. Om Prakash Jhunjhunwala.

Both sons of Late Ishwari Prasad Jhunjhunwala, Residents of Lal Bazar Bettiah Town, P.S.-Bettiah, District-West Champaran.

... ... Petitioner/s Versus

1. The State of Bihar

2.Sub-Divisional Officer, Narkatiaganj, District-West Champaran.

3.Land Reforms Deputy Collector, Narkatiaganj, West Champaran.

4.Sk. Sanaullah, Son of Sk. Zahoor, R/o village-Rampur Tola, Ammaghaud, P.S.-Shikarpur, District-West Champaran.

... ... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No. 6486 of 2000 ======================================================

1. Bishwanath Jhunjhunwala.

2. Om Prakash Jhunjhunwala.

Both sons of Late Ishwari Prasad Jhunjhunwala, Residents of Lal Bazar Bettiah Town, P.S.-Bettiah, District-West Champaran.

... ... Petitioner/s Versus

1. The State of Bihar

2.Sub-Divisional Officer, Narkatiaganj, District-West Champaran.

3.Land Reforms Deputy Collector, Narkatiaganj, West Champaran.

4.Jainuddin, Son of Md. Majid, R/o village-Rampur Tola, Ammaghaud, P.S.- Shikarpur, District-West Champaran.

... ... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No. 6490 of 2000 ======================================================

1. Bishwanath Jhunjhunwala.

2. Om Prakash Jhunjhunwala.

Both sons of Late Ishwari Prasad Jhunjhunwala, Residents of Lal Bazar Bettiah Town, P.S.-Bettiah, District-West Champaran.

... ... Petitioner/s Versus

1. The State of Bihar

2.Sub-Divisional Officer, Narkatiaganj, District-West Champaran.

3.Land Reforms Deputy Collector, Narkatiaganj, West Champaran.

4.Sk. Mannan, Son of Sk. Sadique, R/o village-Rampur Tola, Ammaghaud, P.S.-Shikarpur, District-West Champaran.

... ... Respondent/s ====================================================== Patna High Court CWJC No.6485 of 2000 dt.02-12-2021

with Civil Writ Jurisdiction Case No. 6492 of 2000 ======================================================

1. Bishwanath Jhunjhunwala.

2. Om Prakash Jhunjhunwala.

Both sons of Late Ishwari Prasad Jhunjhunwala, Residents of Lal Bazar Bettiah Town, P.S.-Bettiah, District-West Champaran.

... ... Petitioner/s Versus

1. The State of Bihar

2.Sub-Divisional Officer, Narkatiaganj, District-West Champaran.

3.Land Reforms Deputy Collector, Narkatiaganj, West Champaran.

4.Sk. Soib, Son of Sk. Azim, R/o village-Rampur Tola, Ammaghaud, P.S.- Shikarpur, District-West Champaran.

... ... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No. 6493 of 2000 ======================================================

1. Bishwanath Jhunjhunwala.

2. Om Prakash Jhunjhunwala.

Both sons of Late Ishwari Prasad Jhunjhunwala, Residents of Lal Bazar Bettiah Town, P.S.-Bettiah, District-West Champaran.

... ... Petitioner/s Versus

1. The State of Bihar

2.Sub-Divisional Officer, Narkatiaganj, District-West Champaran.

3.Land Reforms Deputy Collector, Narkatiaganj, West Champaran.

4.Sk. Mojjamil, Son of Sk. Fazle Haque, R/o village-Rampur Tola, Ammaghaud, P.S.-Shikarpur, District-West Champaran.

... ... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No. 6503 of 2000 ======================================================

1. Bishwanath Jhunjhunwala.

2. Om Prakash Jhunjhunwala.

Both sons of Late Ishwari Prasad Jhunjhunwala, Residents of Lal Bazar Bettiah Town, P.S.-Bettiah, District-West Champaran.

... ... Petitioner/s Versus

1. The State of Bihar

2.Sub-Divisional Officer, Narkatiaganj, District-West Champaran.

3.Land Reforms Deputy Collector, Narkatiaganj, West Champaran.

4.Sk. Gaffar, Son of Sk. Thag, R/o village-Rampur Tola, Ammaghaud, P.S.- Shikarpur, District-West Champaran. Patna High Court CWJC No.6485 of 2000 dt.02-12-2021

... ... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No. 6511 of 2000 ======================================================

1. Bishwanath Jhunjhunwala.

2. Om Prakash Jhunjhunwala.

Both sons of Late Ishwari Prasad Jhunjhunwala, Residents of Lal Bazar Bettiah Town, P.S.-Bettiah, District-West Champaran.

... ... Petitioner/s Versus

1. The State of Bihar

2.Sub-Divisional Officer, Narkatiaganj, District-West Champaran.

3.Land Reforms Deputy Collector, Narkatiaganj, West Champaran.

4.Aras, Son of Sk. Roj, R/o village-Rampur Tola, Ammaghaud, P.S.- Shikarpur, District-West Champaran.

... ... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No. 6512 of 2000 ======================================================

1. Bishwanath Jhunjhunwala.

2. Om Prakash Jhunjhunwala.

Both sons of Late Ishwari Prasad Jhunjhunwala, Residents of Lal Bazar Bettiah Town, P.S.-Bettiah, District-West Champaran.

... ... Petitioner/s Versus

1. The State of Bihar

2.Sub-Divisional Officer, Narkatiaganj, District-West Champaran.

3.Land Reforms Deputy Collector, Narkatiaganj, West Champaran.

4.Sk. Rashid Ali, Son of Sk. Wajid Ali, R/o village-Rampur Tola, Ammaghaud, P.S.-Shikarpur, District-West Champaran.

... ... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No. 6534 of 2000 ======================================================

1. Bishwanath Jhunjhunwala.

2. Om Prakash Jhunjhunwala.

Both sons of Late Ishwari Prasad Jhunjhunwala, Residents of Lal Bazar Bettiah Town, P.S.-Bettiah, District-West Champaran.

... ... Petitioner/s Versus

1. The State of Bihar

2.Sub-Divisional Officer, Narkatiaganj, District-West Champaran.

3.Land Reforms Deputy Collector, Narkatiaganj, West Champaran. Patna High Court CWJC No.6485 of 2000 dt.02-12-2021

4.Mumtaj Alam, Son of Sri Hafijullah, R/o village-Rampur Tola, Ammaghaud, P.S.-Shikarpur, District-West Champaran.

... ... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No. 6542 of 2000 ======================================================

1. Bishwanath Jhunjhunwala.

2. Om Prakash Jhunjhunwala.

Both sons of Late Ishwari Prasad Jhunjhunwala, Residents of Lal Bazar Bettiah Town, P.S.-Bettiah, District-West Champaran.

... ... Petitioner/s Versus

1. The State of Bihar

2.Sub-Divisional Officer, Narkatiaganj, District-West Champaran.

3.Land Reforms Deputy Collector, Narkatiaganj, West Champaran.

4.Sk. Imam Hassan, Son of Sk. Murtuza Ali, R/o village- Ammaghaud, P.S.- Shikarpur, District-West Champaran.

... ... Respondent/s ====================================================== Appearance :

(In Civil Writ Jurisdiction Case No. 6485 of 2000) For the Petitioner/s : Mr.Ganpati Trivedi, Sr. Adv For the Respondent-State : Mr.Aditya Nath Jha, A.C. to S.C.18

(In Civil Writ Jurisdiction Case No. 6486 of 2000) For the Petitioner/s : Mr.Ganpati Trivedi, Sr. Adv For the Respondent-State : Mr.Aditya Nath Jha, A.C. to S.C.18

(In Civil Writ Jurisdiction Case No. 6490 of 2000) For the Petitioner/s : Mr.Ganpati Trivedi, Sr. Adv For the Respondent-State : Mr.Aditya Nath Jha, A.C. to S.C.18

(In Civil Writ Jurisdiction Case No. 6492 of 2000) For the Petitioner/s : Mr.Ganpati Trivedi, Sr. Adv For the Respondent-State : Mr.Aditya Nath Jha, A.C. to S.C.18

(In Civil Writ Jurisdiction Case No. 6493 of 2000) For the Petitioner/s : Mr.Ganpati Trivedi, Sr. Adv For the Respondent-State : Mr.Aditya Nath Jha, A.C. to S.C.18

(In Civil Writ Jurisdiction Case No. 6503 of 2000) For the Petitioner/s : Mr.Ganpati Trivedi, Sr. Adv For the Respondent-State : Mr.Aditya Nath Jha, A.C. to S.C.18

(In Civil Writ Jurisdiction Case No. 6511 of 2000) For the Petitioner/s : Mr.Ganpati Trivedi, Sr. Adv For the Respondent-State : Mr.Aditya Nath Jha, A.C. to S.C.18

(In Civil Writ Jurisdiction Case No. 6512 of 2000) For the Petitioner/s : Mr.Ganpati Trivedi, Sr. Adv For the Respondent-State : Mr.Aditya Nath Jha, A.C. to S.C.18 Patna High Court CWJC No.6485 of 2000 dt.02-12-2021

(In Civil Writ Jurisdiction Case No. 6534 of 2000) For the Petitioner/s : Mr.Ganpati Trivedi, Sr. Adv For the Respondent-State : Mr.Aditya Nath Jha, A.C. to S.C.18

(In Civil Writ Jurisdiction Case No. 6542 of 2000) For the Petitioner/s : Mr.Ganpati Trivedi, Sr. Adv For the Respondent-State : Mr.Aditya Nath Jha, A.C. to S.C.18 ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR ORAL JUDGMENT Date : 02-12-2021 In all the above writ applications, the petitioners

have sought for issuance of a writ in the nature of certiorari

quashing entire orders passed subsequent to order dated

07.01.1999 at Annexure-3 in different Bataidari cases.

2. A brief fact of this case is that father of the

petitioners, namely, Late Ishwari Prasad Jhunjhunwala was

admitted "Proprietor" as defined in Section 3(2)of the Bihar

Tenancy Act, 1885. He was owner with possession in respect of

lands in Mauja-Rampur Tola, Ammaghaud, P.S.-Shikarpur,

District-West Champaran fully detailed in para-4 of the writ

petitions. The private respondent No.4, in different writ

petitions referred above, brought separate Bataidari cases under

Section 48-D of the Bihar Tenancy Act, claiming to be

Sikmidar (Bataidar) in respect of different plots or its portions

which are detailed in para-4 of the writ applications.

Respondent No.4 of CWJC No.6485 of 2000 had filed

Bataidari Case No.89 of 1998-99, respondent No.4 of CWJC

No.6486 of 2000 had filed Bataidari Case No.85 of 1998-99, Patna High Court CWJC No.6485 of 2000 dt.02-12-2021

respondent No.4 of CWJC No.6490 of 2000 had filed Bataidari

Case No.90 of 1998-99, respondent No.4 of CWJC No.6492 of

2000 had filed Bataidari Case No.80 of 1998-99, respondent

No.4 of CWJC No.6493 of 2000 had filed Bataidari Case

No.83 of 1998-99, respondent No.4 of CWJC No.6503 of 2000

had filed Bataidari Case No.87 of 1998-99, respondent No.4 of

CWJC No.6511 of 2000 had filed Bataidari Case No.84 of

1998-99, respondent No.4 of CWJC No.6512 of 2000 had filed

Bataidari Case No.82 of 1998-99, respondent No.4 of CWJC

No.6534 of 2000 had filed Bataidari Case No.86 of 1998-99.

Besides the aforesaid, one Seikh Imam Hassan had

filed Bataidari Case No.81 of 1998-99, Seikh Saiful Hasan had

filed Bataidari Case No.88 of 1998-99, Seikh Anwar had filed

Bataidari Case No.91 of 1998-99, Seikh Arman had filed

Bataidari Case No.92 of 1998-99 and Seikh Wasi Ahmad had

filed Bataidari Case No.93 of 1998-99. Total 14 Bataidari cases

were filed claiming Bataidari right on the property of the

petitioners mentioned in para-4 of the writ applications. All the

Bataidari cases were heard by the Sub Divisional Magistrate,

Narkatiaganj, "Collector" under Section 3(16) of the Bihar

Tenancy Act and the Collector passed operative order in

Bataidari Case No.88 of 1998-99 Saiful Hasan Vs. Ishwhari Patna High Court CWJC No.6485 of 2000 dt.02-12-2021

Prasad Jhunjhunwala whereby all the Bataidari cases were

dismissed. A copy of the order is at Annexure-2. It would be

relevant to reproduce English translation of the said order.

"07.01.1999:-

Attendance has been filed by the petitioner.

Attendance has been filed through lawyer by

the opposite party.

Heard learned counsels for both the parties.

Applicant-Saiful Hasan, son of Seikh Noor

Hasan of village Rampur Tola Ammaghaud,

P.S.-Shikarpur and other 13 persons, in their

applications, have claimed that they are

Bataidars on the land of Ishwari Prasad

Jhunjhunwala. The land owner wants to

dispossess them from their respective land.

Hence, the applicants claimed for

protection from their dispossession. The

opposite parties were noticed to file show

cause and they have filed show cause. (I)

The defence of opposite party is that

applicants have wrongly placed claim of

Bataidari. The land on which they claim to Patna High Court CWJC No.6485 of 2000 dt.02-12-2021

be Bataidar are under cultivating possession

of the opposite party through their own

labour. (II) The defence of opposite party is

that the applicants have no evidence of

sharing of crop or ploughing the field. On

the same property, Md. Ayub and Abdul

Qaum also claim to be Bataidars vide

Bataidari Case No.98 of 1998-99 and 99 of

1998-99. Further defence of opposite party

is that the land on which the applicants

claim to be Bataidar were subject matter of

Bataidari cases bearing No.1370 of 1975-

76, and 1379 of 1975-76 but the court

dismissed the wrong claim of the Bataidars

at that time. In the year 1997-98 also, a

Bataidari case was instituted but was

dismissed by the court.

Heard learned counsels for both the

parties and perused the documents

available on record, which revealed that the

land on which applicants claim Bataidari,

were the same for which Md. Ayub and Patna High Court CWJC No.6485 of 2000 dt.02-12-2021

Abdul Qyum had brought Bataidari Case

of 1998-99 which are pending before the

same court.

In Bataidari Case No.1370 of 1975-76,

the then Deputy Collector Land Reforms,

Bettiah, by order dated 20.12.1977, had

constituted a Batai Board under

Chairmanship of Circle Officer,

Narkatiaganj and on their report, all the

Bataidari cases of year 1975-76 were

dismissed.

In Bataidari Case No.09 of 1997-98 Seikh

Bijali Vs. Ishwari Prasad Jhunjhunwala, the

Land Reforms Deputy Collector,

Narkatiaganj passed order on 11.09.1997

dismissing the claim of Seikh Bijali on the

basis of compromise on which the present

applicant and 13 other applicants have

claimed their Bataidari right.

On the basis of aforesaid materials and

discussions, the claim of the applicants of Patna High Court CWJC No.6485 of 2000 dt.02-12-2021

Bataidari appears to be wrong and baseless

and just to harass the opposite party and

grab his land.

In the result, application of all the applicants

stands dismissed. The same order would be

applicable in the matter of other 13

Bataidari cases."

3. In the individual records of other Bataidari cases

referred above, order was recorded, as follows:

"07.01.1999:-

Attendance has been filed on behalf of the

applicant. Learned counsel for opposite

party is present, as per order passed in Case

No.88 of 1998-99.

(Sd/-)

S.D.O.

Since the operative order was passed in Bataidari

Case No.88 of 1998-99, Saiful Hassan Vs. Ishwari Prasad

Jhunjhunwala, Saikh Saiful Hassan remained silent, however,

applicants of other Bataidari cases filed a petition before

Deputy Collector Land Reforms, Narkatiaganj purportedly

under Section 48-E of the Bihar Tenancy Act stating therein Patna High Court CWJC No.6485 of 2000 dt.02-12-2021

that since order was not signed on their respective records.

Hence, no order would be deemed to be passed by the S.D.O.

in their matters. The Land Reforms Deputy Collector by order

dated 23.12.1999, ordered for constitution of a Board in

exercise of power under Section 48-E of the Bihar Tenancy Act

and further directed that the said order would be applicable in

the matter of other Bataidari cases, as referred above. The

petitioners herein on being noticed appeared and filed petition

dated 31.05.2000 stating therein that in fact all the Bataidari

cases were dismissed on merit and that order got finality.

Hence, order dated 23.12.1999 is not according to law. The

prayer of the petitioners to review was rejected on 14.06.2000

on the ground that the authority had no power to review the

order dated 23.12.1999. Hence, these writ applications.

4. Mr. Ganpati Trivedi, learned senior counsel

appearing for the petitioners in all the writ applications,

contends that the petitioners have stated in para-4 of the

petition that their father Ishwari Prasad Jhunjhunwala was

owner with possession of the referred land. The respondents

No.4 have filed their separate counter affidavits in separate writ

applications but all have admitted that statement made in para-

4 of the writ petition are correct. Therefore, by necessary Patna High Court CWJC No.6485 of 2000 dt.02-12-2021

implication, they have admitted possession of the petitioners on

the land on which they claimed to be Bataidars. Unless the

Bataidars are in possession, they cannot get any protection

under Section 48-E of the B.T.Act. Moreover, the impugned

order has been passed without hearing the petitioners and in

arbitrary manner without application of judicial mind that

records of all Bataidari cases would show that the individual

case was disposed of in the light of detailed and reasoned order

passed in Bataidari Case No.88 of 1998-99 on 07.01.1999 by

the competent authority.

5. The private respondents No.4 have filed their

counter affidavits but no one appears at the time of hearing of

these writ applications.

6. The private respondents does not deny in their

counter affidavits that order dated 07.01.1999 was passed in

Case No.88 of 1998-99 and other Bataidari cases after hearing

them on the same day rather they had raised a technical issue

that since order drawn in other Bataidari cases does not bear

signature of the S.D.O. it cannot be said that any order has

been passed in those cases and only on that ground, the private

respondents sought for interference by the Land Reforms

Deputy Collector who ventured to proceed under Section 48-E Patna High Court CWJC No.6485 of 2000 dt.02-12-2021

of the B.T.Act. Provision reads as follows:

"48-E. Prevention of threatened ejectment

of under raiyat and restoration to

possession of under-raiyat unlawfully

ejected:-(1) if an under-raiyat is threatened

with unlawful ejectment from his tenancy or

any portion thereof by his landlord or if

there is a dispute between them over the

possession of land crop or produce thereof

either on the ground of non-existence of

relationship of landlord and tenant between

them or otherwise or if an under-raiyat is or

has been ejected from his tenancy or any

portion thereof within twelve years before

the commencement of proceeding under this

section in contravention of the provisions of

section 89 the Collector may, of his own

motion or on application made in this behalf

by the under-raiyat, initiate a proceeding for

preventing the landlord from ejecting the

under-raiyat or for settlement of the said

dispute or for restoration of possession to Patna High Court CWJC No.6485 of 2000 dt.02-12-2021

under-raiyat unlawfully ejected from his

tenancy or portion thereof.

Added by Act 8 of 1987[Explanation.--If in

the midst of the proceeding it is found that

the landlord has during or before the

initiation of the proceeding transferred the

land to any other person who is not a party

to the proceeding initiated under sub-section

(1), the Collector shall make such transferee

a party to the proceeding.]

(2) The Collector may, after hearing the

parties, about which due notice shall have

been given to them or ex-parte, in cases of

emergency by an order in writing prevent the

landlord from ejecting the under-raiyat until

disposal of the proceeding or until further

orders and if he is of opinion that any crop

or produce of the land which is subject-

matter of dispute in the proceeding under

this section is liable to-speedy and natural

decay, he may., if the situation so warrants

and in similar manner as aforesaid direct the Patna High Court CWJC No.6485 of 2000 dt.02-12-2021

proper custody or harvesting or sale, as the

case may be, of such crop or produce or the

sale proceeds thereof.

(3) When a proceeding is initiated under

sub-section (1) the Collector may refer the

matter (hereinafter referred to as "dispute")

to a Board to be appointed by him, for

promoting the settlement of the dispute

between the under-raiyat and the landlord.

(4) A Board to be appointed by the Collector

in the prescribed manner under sub-section

(3) shall consist of a Chairman; who shall

be unconnected with the dispute referred to

such Board or with any party directly

affected by such dispute and two members to

represent the parties to the dispute and the

person appointed as a member to represent

any party shall be appointed on the

recommendation of that party:

Provided that if any party does not nominate

any person to represent him in the Board or

nominates a person who is not available Patna High Court CWJC No.6485 of 2000 dt.02-12-2021

within such time as the Collector considers

reasonable, the Collector may appoint such

person as he thinks fit to represent that

party."

Rest provisions of the Section are not relevant.

7. Under B.T. Act, there is no alternative remedy

to the petitioners against order passed under Section 48-E. The

order has been passed without giving any opportunity of

hearing to the petitioners in whose favour earlier order in

different Bataidari cases were there. Hence, there is violation of

principles of nature justice. The Land Reforms Deputy

Collector has acted in defiance of the fundamental principles of

judicial procedure as he failed to go through the main order

passed in respect of all the Bataidari cases in Bataidari Case

No.88 of 1998-99 on 07.01.1999 because records of individual

Bataidari cases show that they have been disposed of in the

light of order dated 07.01.1999. Moreover, the Land Reforms

Deputy Collector was conscious that such common order can

be passed in one case because he had also passed similar order

while constituting Boards under Section 48-E in different

Bataidari cases by passing a single order in Bataidari case

No.89 of 1998-99 on 23.12.1999 and making it applicable in Patna High Court CWJC No.6485 of 2000 dt.02-12-2021

the matter of other Bataidari cases also.

8. Mr. Aditya Nath Jha, learned A.C. to S.C.-18

appearing for the State-respondents, does not dispute the legal

issue that the order dated 23.12.1999 passed by Deputy

Collector Land Reforms, Narkatiaganj was without hearing the

petitioners and without examining the main order passed in

Bataidari Case No.88 of 1998-99 whereby all the 14 Bataidari

cases stood dismissed on merit.

9. Since the impugned order dated 23.12.1999 has

been passed in flagrant violation of the principles of natural

justice as well as in arbitrary manner without applying ordinary

judicial prudence leading to miscarriage of justice, hence, the

same is fit to be quashed. Consequently, all orders passed in

different Bataidari cases referred above after 07.01.1999

contrary to the effect of order dated 07.01.1999 stands hereby

quashed and all the writ applications stand allowed. However,

no costs in the facts and circumstances of the case.

(Birendra Kumar, J) Nitesh/-

AFR/NAFR                 NAFR
CAV DATE                 NA
Uploading Date           06.12.2021
Transmission Date