Patna High Court
Shambhu Singh vs The State Of Bihar on 12 December, 2023
Author: Sandeep Kumar
Bench: Sandeep Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.451 of 2020
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1. Shambhu Singh.
2. Tuntun Singh.
3. Shankar Singh.
Son of late Somari Singh.
4. Gyani Singh, Son of Late Biso Singh.
5. Ranjeet Singh @ Munna Singh, Son of Late Baleshwar Singh.
6. Shomar Singh, son of Karelal Singh.
7. Ghoghal Singh, son of Karelal Singh.
8. Devendra Singh, Son of Late Bhagwat Singh.
9. Surendra Singh, son of Anandi Singh.
10. Manju Devi, Wife of Upendra Singh and D/o Late Lakshmi Singh.
11. Subhash Singh @ Subhash Chandra Singh, Son of Late Gobardhan Singh.
12. Raj Kishore Sharma, son of Late Rameshwar Sharma.
13. Subodh Sharma, Son of Chhotelal Sharma.
14. Suresh Sharma, Son of Late Paro Sharma.
15. Ramotar Rajak, Son of Late Sanju Rajak.
16. Naresh Rajak, Son of Ramdeo Rajak.
17. Vijay Pandit, Son of Late Siya Ram Pandit.
18. Suresh Pandit, S/o Late Mahadeo Pandit.
19. Awadhesh Pandit @ Awadhesh Kr. Pandit, Son of Saryug Pandit.
20. Ghanshyam Pandit, Son of Late Namdhari Pandit.
21. Ramvilash Pandit, Son of Late Shibdani Pandit.
All are resident of Village - Chakhusaini, P.S.-Mansi, District-
Khagaria.
... ... Petitioner
Versus
1. The State of Bihar.
2. The Divisional Commissioner, Munger Division, Munger.
3. The Deputy Collector, Land Reforms, Khagaria.
4. Circle Officer, Mansi, District-Khagaria.
5. Nirmal Kumar Sharma, Son of Late Nath Bihari Sharma, Resident of
Village-Chakhusaini, P.S.-Mansi, District-Khagaria.
... ... Respondents
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Appearance :
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For the Petitioner/s : Mr. Dronacharya, Advocate
For the Respondent/s : Mr. Rishi Raj Sinha (SC-19)
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CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
ORAL JUDGMENT
Date : 12-12-2023
In this case, the petitioners are challenging the
order dated 29.03.2019 passed by learned Member (Judicial),
Bihar Land Tribunal, Patna in B.L.T. Case No.177 of 2017, by
which the B.L.T. Case No. 177 of 2017 filed by the petitioners
has been dismissed by the Tribunal. The petitioners are also
challenging the order dated 21.12.2015 passed by the
Divisional Commissioner, Munger, in B.L.D.R. Appeal No.176
of 2015, by which the learned Commissioner has set aside the
order dated 20.02.2014 passed by the learned D.C.L.R.
Khagaria and directed him to make demarcation of the land in
dispute in presence of the Circle Officer.
2. In the present case, the dispute relates to
Khata No.27, Plot No.291, area 1 Bigha and 8 Dhoors as well as
Khata No.55, Plot No.317 area 8 khata situated at Mauza- Chak
Husaini, P.S.-Mansi, District- Khagarai. Initially, the respondent
no.5 filed an application before the Circle Officer, Mansi, for
demarcation of the aforesaid land and to fix boundary over the
same to resolve the boundary dispute. The Circle officer, after
notice, deputed the Anchal Amin for measurement of the land
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but the petitioners objected the same. Thereafter, the respondent
no.5 filed B.L.D.R. Case No.106 of 2014-15 before the
D.C.L.R. Khagaria, who vide order dated 20.02.2014 dismissed
the application stating there in that the matter involves complex
question of title, so the aggrieved party should go before the
competent civil Court. Being Aggrieved by the order dated
20.02.2014
passed by the D.C.L.R. Khagaria, the respondent
no.5 filed an application before the Divisional Commissioner,
Munger, which was numbered as B.L.D.R. Appeal No.176 of
2015. The Divisional Commissioner vide order dated
21.12.2015 allowed the appeal and directed for demarcation of
the land and fixing the pillar over the same in presence of Circle
Officer, Khagaria and Anchal Amin. Against the order of the
Divisional Commissioner dated 21.12.2015, the petitioners filed
B.L.T. Case No. 177 of 2017. The Tribunal vide order dated
29.03.2019 dismissed the B.L.T. Case No.177 of 2015. Hence,
this writ petition.
3. Learned counsel for the petitioners submits
that the Tribunal in its order has noted the arguments of the
respondents that this case is squarely covered by the judgment
of this Court rendered in the case of Maheshar Mandal and
Anr. vs. The State of Bihar and Ors. reported in 2014(3) PLJR
Patna High Court CWJC No.451 of 2020 dt.12-12-2023
281 wherein it has been held that claim over a disputed property
regarding right, title and interest can only be entertained or
decided by the competent authority. The said order was
challenged before the Hon'ble Supreme Court and the Hon'ble
Supreme Court after hearing the parties has remanded the matter
before this Court for fresh consideration and upon re-
examination of the case of Maheshwar Mandal (supra), the
Division Bench of this Court reiterated its earlier view which is
reported as 2018 (3) PLJR 1007.
4. Learned counsel for the respondent no.5 has
supported the appellate order as well as the order passed by the
Bihar Land Tribunal and has submitted that the respondent no.5
had sought the relief for declaration of right and title of his land
and the same is maintainable, so the order passed by the Bihar
Land Tribunal is just and proper.
5. I have considered the submissions of the
parties and perused the materials on record.
6. A Division Bench of this Court in the case of
Maheshwar Mandal & Anr. vs. The State of Bihar & Ors.
reported in 2019 (3) PLJR 1007 had considered the various
provisions of the Bihar Land Disputes Resolution Act, 2009 in
view of the order dated 28.03.2017 passed by the Hon'ble
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Supreme Court in Civil Appeal No.4726 of 2017 (State of Bihar
& Ors. vs. Maheshwar Mandal and Ors.) and in paragraph nos.
47 to 55 has held as follows:-
"47. In the present case the Act of 2009 is not
conferring or creating a right or liability.
The Act 2009 clearly provides for
resolution of the disputes which arise
under any of the six enactments and have
been duly adjudicated under those Acts
which are mentioned in schedule-'I' of the
Act of 2009. Sub-section (4) of Section 4
of the Act of 2009 is in the nature of
curbing and curtaining a pre-existing
common law right and, in our opinion
purports to oust the jurisdiction of the
civil court in respect of the disputes
which though arise under any of the six
enactments for determination of rights of
allotees/settlee or raiyat but has not been
finally determined by the civil court of
competent jurisdiction. We find that the
preamble of the Act of 2009 does not talk
of entering into the arena of disputes
which are required to be adjudicated by
the civil courts. The preamble talks of
such disputes with respect to raiyati land
or public land allotted in favour of
different classes of allottees which should
otherwise have been resolved by the
Revenue Authorities but are pending in
the Civil Courts and the High Courts.
The preamble also takes note of the
matters connecting to the record of
rights, partition of Jamabandi, forcible
dispossession of allottees / raiyats,
boundary disputes etc. which are
administered under the six enactments,
therefore, in our opinion, the disputes
which arise under any of the six
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enactments are first required to be
adjudicated by the court, forum and the
authority prescribed under those Acts
and it is only when the dispute is
determined and then it comes to
implement the rights determined under
any of the six enactments, the competent
authority under the Act of 2009 may
entertain such disputes/complaints.
48. On going through the entire scheme of
the Act of 2009, we find that the kind of
mischief which was noticed by the
Hon'ble Division Bench in the case of
Nand Kumar Rai (supra) has occurred in
sub-section (4) of Section 4 of the Act of
2009. At the first instance sub-section (4)
of Section 4 of the Act of 2009 is a vague
provision because in the garb of sub-
section (4) of Section 4, contention of the
learned A.A.G.IV for the State is that the
competent authority can entertain all
such complaints which are through with
respect to the matters falling under any
of the six enactments mentioned in
schedule-I, but prior to filing of the
complaint before the competent authority
the disputes involved therein have not
been adjudicated by the competent civil
court and the forums mentioned there in
those six enactments. This conferment of
power of the competent authority to
entertain a complaint in respect of
matters which are covered under any of
the six enactments mentioned in
schedule-I of the Act of 2009 would be a
kind of mischief. The preamble of the Act
of 2009 clearly provides that it is enacted
for enforcement of a right conferred by or
accrued under above referred six
enactments. In fact sub-section (5) of
Section 4 on which reliance has been
placed by learned A.A.G.-IV to save sub-
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section (4) of Section 4, makes it clear by
conferring power upon the competent
authority to close such proceedings
which appear to him involves complex
question of adjudication of title. Here the
words 'complex question of adjudication'
is a word of wider connotation and it
necessarily means that where the
competent authority is called upon to
adjudicate a question as to title of the
land, such question, in absence of any
adjudication under any of the six
enactments mentioned in schedule-I, has
to be taken as a complex question,
adjudication of title therefore would not
be within the purview of scope and ambit
of the powers conferred upon the
competent authority. Sub-section (2) and
sub-section (3) of Section 4 read with
sub-section (5) of Section 4 would make
it clear that the competent authority
cannot entertain a complaint in respect
of disputes which are covered under any
of the six enactments under schedule-'I'
of the Act of 2009 but has not been
decided by a competent civil court and
no adjudication can take place at his
hand in such matters where he is called
upon to decide the question of title.
49. To that extent Section 3 of the Act 2009 in
so far as it talks of application of the
procedure prescribed under the Act of
2009 for resolution of disputes covered
under any of the aforesaid Act has to be
read down to mean and understand that
the procedure prescribed under the Act of
2009 shall be applicable to resolve the
disputes which arise in course of
implementation of a right of a settlee/
raiyats or allotees already determined
under any of the six enactments by a
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competent civil court or forum and is
brought before the competent authority
under the Act of 2009.
50. We also find from the various clauses of
sub- section (1) of Section 4 that Clause
(e) talks of the disputes relating to
partition of land holding, Clause (g)
speaks of disputes with regard to
declaration of right of a person, Clause
(i) includes the disputes relating to
construction of unauthorized
construction and Clause (j) takes into its
hold the lis pendens transfer.
51. In view of what we have discussed
hereinabove, the aforesaid clauses
occurring under sub- section (1) of
Section 4 are to be read and understood
limited to the disputes under these heads
which have already been determined and
adjudicated by a competent civil court or
any other court or forum provided under
any of the six enactments and the claim
made by either parties has been duly
adjudicated.
52. We would, therefore, declare that Clause
(e) which reads "partition of land" has to
be read as to the disputes relating to land
allotted in a title suit between the parties
or otherwise falling in the hand of a
party by virtue of an adjudication made
by competent court under any of the six
enactments. In the garb of Clause (e) the
competent authority cannot entertain a
complaint based on a claim for partition
or share in a land dispute. The disputes
relating to partition among the co-
sharers, coparceners, and joint owners
etc. which are yet not decided by a
competent civil court would not be the
subject matter of dispute falling in the
hand of the competent authority under
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the Act of 2009. So far as Clause (g) of
sub-section (1) of Section 4 is concerned,
this provision has to be read and
understood as a provision whereunder
the competent authority would entertain
a claim for enforcement of the
declarations in favour of a person by
virtue of an adjudication made by
competent civil court or any other court
or forum under any of the six enactments.
The competent authority under the Act of
2009 being a Revenue Officer would not
create or confer a right in favour of a
person which may be duly conferred
upon a person or declared in favour of a
person by a competent civil court in an
adjudication of disputes arising under
any of the six enactments.
53. Further, the word 'A person' would mean
an allottee/settlee of land or of raiyat as
defined in Clause (f) of Section 2 of the
Act of 2009. No person other than an
allottee/settlee or raiyat can have an
excess to the remedy under the Act of
2009. Similarly Clause (i) of sub-section
(1) of Section 4 of the Act of 2009 which
talks of "construction of unauthorized
structure" should mean and understand
only such constructions of unauthorized
structure which are standing on the land
of a raiyat allotted or settled under any
of the above referred six enactments and
no other land or structure. So far as
unauthorized construction on public land
are concerned, those are governed by a
specific statute namely, Bihar Public
Land Encroachment Act. Clause (j) of
sub- section (1) of Section 4 of the Act of
2009 talks of 'lis pendens transfer' which
is governed by Section 47 of the Transfer
of Property Act and is applicable to a
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civil litigation. In our opinion, the
reference of the words 'lis pendens
transfer' would mean only such transfer
of land of a raiyat or a settlee allotted or
settled under any of the aforesaid six
enactments pending the adjudication
under the concerned Act. The competent
authority, in exercise of his power under
the Act of 2009 cannot in the garb of
Clause (j) entertain a complaint and
decide on the legality and validity of a
transfer of land during the pendency of a
suit or proceedings before the civil court
of a competent jurisdiction under any of
the six enactment which are all related to
land reforms.
54. We finally conclude that Clause (e), (g),
(i) & (j) under sub-section (1) of Section
4 of the Act of 2009 are to be read down
in the manner stated hereinabove. So far
as sub-section (4) of Section 4 of the Act,
2009 is concerned, in view of the
discussions made hereinabove, since we
find that sub-section (4) of Section 4 has
an effect of taking in its fold any real or
imaginary right which may be claimed by
a allottee or a settlee or a raiyat not
conferred by any of the aforesaid six
enactments, the wide powers conferred
upon the competent authority is found to
be unbridled, unfettered, uncanalized and
unguided, hence, they are being grossly
abused. It is, therefore not possible to
save sub-section (4) of Section 4 of the
Act of 2009 by applying the principles of
harmonious construction of the statute.
Sub-section (4) of Section 4 of the Act of
2009 is therefore held to be arbitrary and
unconstitutional.
55. In the light of the discussions which we
have made hereinabove, it is also
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declared that sub-section (5) of Section 4
of the Act of 2009 has to be read in
consonance with sub-section (2) and sub-
section (3) of Section 4 of the Act of
2009. Sub-section (5) of Section 5 has to
be taken as a mandatory provision. It
shall be the duty of the competent
authority to close the proceeding which
involve question of title and rights and
are in the nature of disputes covered
under any of the six enactments
mentioned under schedule-'I' of the Act of
2009 which have not been adjudicated by
a competent civil court. In all such cases
the competent authority shall while
closing the proceeding leave it open to
the parties to seek their remedies before
the competent civil court."
7. From reading the law laid down in the
aforesaid judgment, it is clear that the competent authority is
duty bound to close the proceeding which involve the question
of right and title and are in the nature of disputes covered under
any of the six enactments mentioned in Schedule-1 of the Bihar
Land Disputes Resolution Act, 2009, which have not been
adjudicated by a competent Civil Court and in all such cases, the
competent authority shall while closing the proceeding leave it
open to the parties to seek their remedies before the competent
civil Court. In my opinion, in the present case also, until and
unless the right, title and interest of the respondent no.5 is
decided by a competent civil Court, he cannot move the
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competent authority under the Bihar Land Disputes Resolution
Act, 2009 for any relief.
8. In view of the aforesaid discussions, this
application is allowed. Accordingly, the order dated 29.03.2019
passed by the Bihar Land Tribunal, Patna in B.L.T. Case No.
177 of 2017 and order dated 21.12.2015 passed by the
Divisional Commissioner, Munger, in B.L.D.R. Appeal No.176
of 2015 are set aside. The order dated 20.02.2014 passed by
learned D.C.L.R. Khagaria, in B.L.D.R. Case No. 106 of 2014-
15, by which the respondent no.5 was directed to approach the
competent civil Court, is restored.
(Sandeep Kumar, J)
pawan/-
AFR/NAFR N.A.F.R.
CAV DATE N/A.
Uploading Date 12.12.2023
Transmission Date
