Patna High Court
Rina Devi vs The State Of Bihar on 11 January, 2024
Author: Prabhat Kumar Singh
Bench: Prabhat Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.19368 of 2021
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Rina Devi W/o Sri Sudhir Prasad A resident of Ashok Nagar, Road no. 11,
P.S.- Sampatchak, District- Patna.
... ... Petitioner/s
Versus
1. The State of Bihar Through Collector, Patna.
2. The Additional Collector Patna.
3. The Anchal Adhikari Sampatchak, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Nitesh Kumar, Advocate
For the Respondent/s : Mr. Md. Khurshid Alam (AAG-12)
Mrs.Nutan Sahay, AC to AAG-12
======================================================
CORAM: HONOURABLE MR. JUSTICE PRABHAT KUMAR SINGH
ORAL JUDGMENT
Date : 11-01-2024
This writ application has been filed for quashing the
initiation of jamabandi cancellation proceeding which was
registered as Jamabandi Cancellation Case No. 25/2021-22 and
further to quash the notice dated 13.07.2021 issued to the
petitioner by the respondent no. 2 as the notice itself is beyond
jurisdiction since the notice does not disclose the reason which is
the mandatory requirement, as contemplated under section 9 of the
Bihar Land Mutaion Act, 2011 (hereinafter referred to as the 'Act,
2011') and also to grant any other relief/reliefs to which the
petitioner is found entitled to including the cost of this proceeding.
Patna High Court CWJC No.19368 of 2021 dt.11-01-2024
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2. The case of the petitioner, in short, is that the land
appertaining to Khata no. 616, Survey Plot no. 314 (in part) area
ad-measuring 10 dhur which is equivalent to 1.5625 decimal of
land situated at Mauza - Manpur Bairiya, Thana Code no. 174,
Tauzi no. - 360 has been purchased by the petitioner through
absolute sale-deed dated 11.03.2015 from Ranjan Kumar and
Chandan Kumar both sons of Sri Surendra Prasad Sinha. After the
purchase of aforesaid land through the registered sale-deed, the
petitioner applied for mutation before the respondent no. 3 which
was registered as, Mutation Case No. 2338/04 / 2014-15 and after
verification the name of the petitioner is mutated and jamabandi
has been created in favour of the petitioner. But all of a sudden, the
petitioner received a one page notice i.e. Annexure - 1 from the
court of Additional Collector (respondent no. 2) that jamabandi
cancellation proceeding has been initiated against her (petitioner)
and petitioner has to appear on 02.09.2021 and to contest the
matter otherwise ex-parte order will be passed.
3. Learned counsel for the petitioner submits that the
notice itself is beyond jurisdiction, since the notice does not
disclose the mandatory requirement, as contemplated under
section 9 of the Bihar Land Mutation Act, 2011 for initiation of an
action for cancellation of jamabandi. The notice is completely
Patna High Court CWJC No.19368 of 2021 dt.11-01-2024
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vague, cryptic and does not disclose any application of mind. No
ground has been mentioned on which the initiation of cancellation
of jamabandi proceeding has been initiated and as such, notice is
required to be quashed.
4. On the other hand, learned counsel appearing on
behalf of State, while opposing the prayer made on behalf of
petitioner and referring to different paragraphs made in the counter
affidavit, submits that in the weekly meeting for redressal of the
grievances of the people jointly by the concerned police station
and Circle Officer, one Vijay Kumar Sinha has filed complaint
against Ranjan Kumar, Anil Mehta, Sunil Kumar Sinha and Bali
Rai that they are creating dispute over his land. In this regard, the
Revenue Karmachari was directed to submit his report with regard
to the land in question and in compliance thereof, he submitted
report pertaining to the land under Mauza-Bairiya, Thana no.-122,
Khata no.-616. Plot no.-314, area-13 dismil and Plot no.- 350,
area-17 dismil along with the of name the raiyats and jamabandi
number created over the said lands. Thereafter, notice was issued
to all the concerned persons, in which, it was found that the Plot
no.-314 and 350 are vacant land and there is dispute between both
the parties with regard to possession over the land. The Circle
Officer, Sampatchak, after considering all facts on record, has
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observed that there is serious dispute with regard to the claim
made by the parties over the land in question and the jamabandies
created in their favour without verification proper and without the
possession of the land by the concerned persons. Thus order dated
26-03-2021
has been passed by the then Circle Officer,
Sampatchak, whereby recommendation has been made for
cancellation of the jamabandi which has been created without any
basis. Thus, the matter has been referred to the Additional
Collector, Patna for needful in the matter.
5. It is next submitted on behalf of the State that
petitioner, instead of approaching this Court, ought to have
appeared and filed show-cause annexing all the documents in
support of her claim before the Additional Collector. It has been
argued that the petitioner ought not to have approached this Court
against issuance of notice itself, which cannot be said to be lacking
in jurisdiction. It has also been argued that since the petitioner has
alternative / statutory remedy, this writ petition under Article 226
of the Constitution of India should not be entertained.
6. In reply thereof, learned counsel for the petitioner, by
referring to I.A. No. 1 of 2022, submits that petitioner already
appeared on 02.09.2021 before the Additional Collector/
respondent no. 2 through her counsel and asked for the papers,
Patna High Court CWJC No.19368 of 2021 dt.11-01-2024
which she has to answer and also asked the reason for initiation of
jamabandi cancellation proceeding, on which, it was informed that
on the recommendation of the Anchal Adhikari, the present
proceeding has been initiated, but no chit of paper was supplied to
this petitioner.
7. Heard learned counsel for the parties and perused the
materials available on record. I have also carefully examined the
impugned notice dated 13.07.2021 (Annexure - 1 to the writ
petition), issued by the Additional Collector. In the said notice, he
has simply indicated the date, which has been fixed for hearing in
this regard. On the said date, petitioner has been directed to appear
alongwith necessary documents.
8. Section 9 of the Act, 2011 contemplates that the
Additional Collector, either suo motu or on an application, shall
have the power to make inquiries in respect of any jamabandi,
which has been created in violation of any law for the time being
in force or in contravention of any executive instruction issued in
this behalf. It would be better to quote Section 9(1) of the Bihar
Land Mutation Act, 2011, which is as follows:-
"9. Cancellation of jamabandi -- (1) The
Additional Collector, either suo motu or on an
application, shall have the power to make inquiries in
respect of any jamabandi, which has been created in
Patna High Court CWJC No.19368 of 2021 dt.11-01-2024
violation of any law for the time being in force or in
contravention of any executive instruction issued in
this behalf. The Additional Collector, in whose
jurisdiction the land is situated, may, after giving
reasonable opportunity to the parties concerned to
appear, adduce evidence and be heard, cancel such
jamabandi, dispossess the person claiming under it
and deliver the possession to the legitimate
owner/custodian, on such terms as may appear to the
Additional Collector to be fair and equitable."
9. In the show-cause notice, which is under-challenge,
no ground has been assigned. The notice dated 13.07.2021 is
quoted here-in-below:-
"जापांक 408/m. 13/7/21
नयायालय अपर समाहरार, पटना
जमाबं दी रद वाद सं खया :- 25/2021-22
रं जना दे वी बनाम सु रेनद्र Á साद ससनहा एवं अनय
नोसटस बनाम
5. रीना दे वी, पसर - सु धीर Á साद
बजसरये नोसटस सूसचर सकया जारा है सक उकर वाद मे सु नवाई
की सरसथ 02.09.2021/ 2/9/21 सनधारसरर की गई है ।
अरः उकर वाद मे सनधारसरर सरसथ को अदोहसराकरी के
नयायालय मे उपससथर हो कर पै रवी करे , अनयथा एक पकीय सु नवाई कर
आदे श पासरर कर सदया जाएगा।
इसे रासकद जाने ।
अपर समाहरार, पटना"
Patna High Court CWJC No.19368 of 2021 dt.11-01-2024
10. From bare perusal of impugned notice, it is apparent
that no ground has been mentioned as to why jamabandi
cancellation proceeding has been initiated against the petitioner. It
is settled law that the existence of an alternative remedy is not a
bar for this Court to entertain a writ application. If an order is
absolutely beyond jurisdiction, this Court must interfere with at the
stage of issuance of notice itself, else it will cause serious
prejudice. In this regard, reference can be made to a Supreme
Court decision, reported in (1998) 8 S.C.C. 1 (Whirlpool
Corporation vs. Registrar of Trade Marks Mumbai and Others).
11. In the opinion of this Court, a notice under Section 9
of the Act, 2011 for cancellation of jamabandi must disclose
specific prima facie opinion of the Additional Collector that the
jamabandi created in favour of a person is in violation of any law
or is in contravention of any executive instruction. The notice
apparently does not indicate as to which law has been violated and
which instruction has been contravened while creating jamabandi
in favour of the petitioner. The notice is completely vague, cryptic
and does not disclose the ground, on which proceeding for
cancellation of jamabandi has been initiated against the petitioner.
It cannot be said to have issued in conformity with the provision
contained in Section 9(1) of the Bihar Land Mutation Act, 2011
Patna High Court CWJC No.19368 of 2021 dt.11-01-2024
and as such, the same deserves to be set aside and is, accordingly,
set aside.
12. In the facts and circumstances of the case, the
Additional Collector, Patna is directed to issue a fresh show cause
notice to the petitioner, disclosing the materials, which are the
basis for him to form an opinion that jamabandi created in the
name of the petitioner deserves to be cancelled. Such a notice must
be issued within two months from today. The Additional Collector,
Patna shall proceed in the matter in accordance with law.
13. The writ petition is allowed with the aforesaid
observation and direction.
(Prabhat Kumar Singh, J)
Anay
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 16.01.2024
Transmission Date N/A
