Biswanath Sao vs State Of Bihar
2023 Latest Caselaw 3726 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.2843 of 1998
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Biswanath Sao, S/o Late Jagdeo Sao, Village - Khanijadpur, P.O. Jamala Bad (Daudchapra) P.S. - Minapur, Muzaffarpur.

... ... Petitioner/s Versus

1. State of Bihar

2. D.M. Muzaffarpur At/P.S. and Distt. Muzaffarpur.

3. A.D.M. Muzaffarpur At/P.S. and Distt. Muzaffarpur.

4. D.C.L.R. At/P.S. and Distt. Muzaffarpur.

5. Anchal Adhikari, Muzaffarpur At/P.O. Minapur, Distt. Muzaffarpur.

6. Baidnath Sah, S/o Late Jagdeo Sah Village - Khanjadpur, P.O. Jamalabad P.S. Minapur, Distt .- Muzaffarpur.

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

     For the Petitioner/s   :      Mr. Rajesh Kumar, Amicus Curiae
     For the State          :      Mr. Prabhakar Jha, GP-27
                                   Mr. Umesh Narain Dubey, AC to GP-27
     For the Respondent No.6:      Mr. Gaurav Kumar, Amicus Curiae

====================================================== CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN

CAV JUDGMENT

Date : 16th-08-2023

In pursuance to the order dated 03.07.2023 passed by

this Court, Mr. Rajesh Kumar, Advocate, and Mr. Gaurav

Kumar, Advocate are appearing as Amicus Curiae on behalf of

the petitioner and the private respondent respectively whereas

Mr. Prabhakar Jha, learned GP -27, assisted by Mr. Umesh

Narain Dubey, learned AC to GP-27 is appearing on behalf of

the State-respondents.

2. The present writ petition has been filed for setting Patna High Court CWJC No.2843 of 1998 dt. 16-08-2023

aside the orders dated 29.12.1997 (Annexure-1), 02.05.1997

(Annexure-2), and 01.11.1993 (Annexure-3) passed by

respondent No.3, namely, the Additional Collector, Muzaffarpur,

respondent No.4, namely, the Deputy Collector Land Reforms,

Muzaffarpur and respondent No. 5, namely, the Circle Officer,

Minapur respectively in connection with Mutation Revision

Case No. 13 of 1997-98, Mutation Appeal No. 29 of 29/96-97

and Mutation Case No. 347 of 93-94 respectively.

3. Learned Amicus Curiae for the petitioner submits

that the petitioner has sold his land appertaining to Khata Nos.

367 & 176, Plot Nos. 413 and 178 total area 2 katha to private

respondent No.6, namely, Baidnath Sah through registered sale

deed No. 11154 dated 05.06.1989. He further submits that upon

registration of the sale deed, respondent No. 6 did not pay the

consideration amount to the petitioner and, therefore, the

petitioner has executed another deed dated 23.06.1989 by which

he has cancelled the earlier sale deed dated 05.06.1989. As a

result of which, private respondent No.6 could not acquire title

in his favour but filed Mutation Case No. 347/1993-94 for the

land appertaining to Khata No. 367, Plot No. 134 situated at

Village -Khanejadpur in which final order has been passed on

01.11.1993 and on the basis of the said sale deed No.11154 Patna High Court CWJC No.2843 of 1998 dt. 16-08-2023

dated 05.06.1989 mutation was allowed in favour of the private

respondent and subsequently, Jamabandi was opened in his

name.

4. Being aggrieved and dissatisfied with the order

dated 01.11.1993, the petitioner has preferred Mutation Appeal

No. 29/1996-97. In the said mutation appeal, the final order had

been passed on 02.05.1997 which was dismissed after hearing

both the parties holding that the purchased land through

registered sale deed No. 11154 dated 05.06.1989 is still valid,

till not cancelled by the Court of competent jurisdiction. In the

said appeal, the petitioner has pleaded that the mutation case has

been decided without any information to the petitioner.

Therefore, it should be dismissed. Whereas, respondent No.6

had taken the plea that prior to registration, he has already paid

the entire consideration amount. Respondent No.6 had also

pleaded that in the registered sale deed, there is no such entry

mentioned that money has not been paid. It has also been

pleaded at the appellate level that the petitioner is in possession

of the land after purchase and it can be cancelled only by the

Court of competent jurisdiction.

5. The Appellate Court upon hearing both the parties

has affirmed the order passed by the Circle Officer in Mutation Patna High Court CWJC No.2843 of 1998 dt. 16-08-2023

Case No. 347/19993-94. The appellate Court also held that the

registered deed shall be a valid document until not cancelled by

a Court of competent jurisdiction. Being aggrieved and

dissatisfied with the said order, the petitioner had preferred

mutation revision on which the final order has been passed by

the Additional Collector affirming the order passed by the

original Court (Circle Officer, Minapur) and appellate Court

(Deputy Collector Land Reforms, Muzaffarpur).

5. Learned Amicus Curiae for the petitioner has raised

one legal issue in this case that the said order of mutation has

been passed by the Additional Collector whereas according to

the then law passing an order in revision under Section 16 of the

Bihar Tenants' Holdings (Maintenance of Records) Act 1973

(hereinafter referred to as 'the Act of 1973'), the Collector of the

District has been empowered to pass an order under Section 16.

He further submits that here in the present case, the said order

was passed by the Additional Collector and, therefore, the order

passed by the revisional authority is bad in law and should be

set aside.

6. Learned Amicus Curiae for the private respondent

No.6 submits that the original as well as the appellate both

orders had been passed by the Court of competent jurisdiction as Patna High Court CWJC No.2843 of 1998 dt. 16-08-2023

per the then law and the revisional order has been passed by the

Additional Collector, Muzaffarpur. He further submits that as

per the then law, order of revision under Section 16 of the Act of

1973 has to be passed by the Collector of the District, but the

petitioner has preferred the writ petition in the year 1998 which

was admitted in the year 1999 and presently final hearing, in

this matter, is going on in the year 2023. He further submits that

during the pendency of the present writ petition, the then

mutation law, namely, Bihar Tenants' Holdings (Maintenance of

Records) Act 1973 has been repealed by The Bihar Land

Mutation Act, 2011 (Act 23 of 2011) (hereinafter referred to as

'the Act of 2011'). He further submits that in the new Act of

2011, there is a repealing and saving clause inserted, being

section 23. According to which, anything done or any action

taken in exercise of the powers conferred by or under the said

Act shall be deemed to have been done or taken in exercise of

the power conferred by or under this Act as if this Act were in

force on the day on which such thing or action was done or

taken.

6.1. He further submits that under the new law, i.e. the

Act of 2011, the power to hear the revision has been vested

under Section 8(1) in the Collector/Additional Collector of the Patna High Court CWJC No.2843 of 1998 dt. 16-08-2023

District under the Act. Therefore, the order passed by revisional

authority is valid and fit to be sustained. He also submits that

there is a consistent finding of the fact that the mutation has

been made on the basis of a valid sale deed.

7. Learned counsel for the State submits that there are

concurrent findings of all three courts; the original Court, the

appellate Court, and the revisional court in favour of the private

respondent. Therefore, the writ petitioner may be entertained in

this case only on the question of law and not on the facts. To

decide this case, the issue involved is; whether the revisional

order which has been passed under Section 16 of the Act of

1973 shall be treated as valid in light of the Act of 2011 or not ?

7.1. With a view to answering the above question, it is

necessary to quote three provisions, Section 16 of the Act of

1973, Sections 8(1) and 23 of the Act of 2011, which are as

follows :-

"16. Revision- The Collector of the

district may, on an application made to him in this

behalf or for the purpose of satisfying himself as to

the legality or propriety of any order made under

this Act or the rules made thereunder by any

authority or officer call for and examine the record Patna High Court CWJC No.2843 of 1998 dt. 16-08-2023

of any case pending before or disposed of by such

authority or officer and pass such order as he

thinks fit.

Provided that the Collector shall not

entertain any application from any person,

aggrieved by any order, unless it is made within

thirty days from the date of the order;

Provided further that no order modifying, altering, or setting aside, any order made by such authority or officer shall be passed by the Collector unless the parties concerned have been given a reasonable opportunity of being heard."

8. Revision.-- (1) The Collector/ Additional Collector of the district under this Act may, on an application made to him on this behalf or for the purpose of satisfying himself as to the legality or propriety of any order made under this Act or the rules made thereunder by any officer or authority, call for and examine the records of any case pending before or disposed of by such officer or authority and pass such order as he deems fit.

23. Repeal and Savings.--(1) The Bihar Tenants Holdings (Maintenance of Records) Act, 1973 (Bihar Act 28 of 1975) is hereby repealed. (2) Notwithstanding such repeal anything done or any action taken in exercise of the powers conferred by or under the said Act shall be deemed to have been Patna High Court CWJC No.2843 of 1998 dt. 16-08-2023

done or taken in exercise of power conferred by or under this Act, as if this Act were in force on the day on which such thing or action were done or taken."

8. From the bare reading of section 23(2) of the Act of

2011, it is clear that any action taken in exercise of the powers

conferred by or under the said Act (Act of 1973) shall be

deemed to have been done or taken in exercise of the power

conferred by or under this Act (Act of 2011) as if this Act (Act

of 2011) were in force on the day on which such thing or action

was done or taken.

8.1. The implied meaning of these provisions is that the

order which was passed by the Additional Collector in the year

1997 shall be treated to be passed under the Act of 2011 whereas

Section 8(1) of the Act of 2011 empowers the

Collector/Additional Collector to pass the order of revision and

hence due to protection made by the saving clause 23 of the Act

of 2011, the order passed by the Additional Collector in

Mutation Revision Case No. 13 of 1997-98 dated 29.12.1997

shall be treated to be a valid order and revisional order is fit to

be sustained. So far as the question of the validity of the sale

deed is concerned, the term sale has been defined in Section 54

of The Transfer of Property Act 1882, i.e. "Sale" is a transfer of Patna High Court CWJC No.2843 of 1998 dt. 16-08-2023

ownership in exchange for a price paid or promised or part-paid

and part-promised.

9. In this background, the sale deed cannot be said to be

a forged and fabricated document and it shall be cancelled only

by a Court of competent jurisdiction, i.e. Civil Court. Hence,

this Court held that this writ petition has no merit and,

accordingly, it is dismissed.

10. This Court appreciates the assistance rendered by

both the Amicus Curiae in the disposal of this case. Learned

Amicus Curiae shall be entitled to remuneration by the Patna

High Court Legal Services Committee as per norms.

(Dr. Anshuman, J) Ashwini/-

AFR/NAFR
CAV DATE                08.08.2023
Uploading Date          16.08.2023
Transmission Date       NA