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PATNA HIGH COURT
V.Ramaswami, B.P.Jamuar and Choudhary JJ.
Sheo Narayan Chaudhury
Versus
State Of Bihar
Miscellaneous Judicial Case No. 193 of 1955 ;
Decided On : JANUARY 04, 1957
LAND REFORMS - VESTING OF ESTATES - INTERPRETATION OF SECTIONS 3, 4(A) AND 4(G) OF THE BIHAR LAND REFORMS ACT, 1950 - HAT RIGHTS - OCCUPANCY RIGHTS - TENANCY-AT-WILL - WRIT OF QUASH.
Fact of the Case:
Petitioners claimed ownership and possession of a holding known as "Bitori" in village Kasba, which included a hat known as Gudari Hat. They alleged that they had been collecting tolls from the hat and using the income for the upkeep of temples and deities. The Additional Collector of Purnea settled the hat with a third party without notice to the petitioners.
Finding of the Court:
1. The petitioners did not have occupancy rights in the land where the hat was held, as they did not have arable land in the village and did not carry on agricultural operations from their residence in the village. 2. The hat did not vest in the State of Bihar under Section 4(a) of the Bihar Land Reforms Act, 1950, as it was not held on land in direct possession or control of the proprietor or tenure-holder. 3. The petitioners were mere tenants-at-will and had no valid objection to the vesting of the hat in the State.
Issues: 1. Whether the petitioners had occupancy rights in the land where the hat was held. 2. Whether the hat vested in the State of Bihar under Section 4(a) of the Bihar Land Reforms Act, 1950. 3. Whether the petitioners had a valid objection to the vesting of the hat in the State.
Ratio Decidendi: 1. The conditions for the applicability of Section 182, Bihar Tenancy Act, 1885, are that the tenant must be a raiyat at the time, that is to say, have arable lands and must be using the other land for his residence. The co-existence of these two elements brings in the section. If the aforesaid two elements do not exist, Section 182 can have no application. 2. The words "estate, tenure or tenure-holder" referred to lands. Hence, the words "trees, forests, fisheries, jalkars, hats, bazars, and ferries and all other sairati interests" occurring in Section 4(a) must also have reference to lands which, by virtue of the Act, vested in the State. 3. The petitioners, therefore, can claim no right to the above Gudari Hat on the ground that it has not vested.
Final Decision: The application for a writ of quash was dismissed.
Jamuar, J.
1. This is an application under Article 296 of the Constitution for the issue of an appropiate writ to quash an order of a settlement of a hat known as Gudari Hat made by opposite party No. 2 with opposite party No. 3 and to restrain the latter from interfering with the peaceful possession of the petitioners.
2. The facts giving rise to this application are these. The petitioners claim to own and (SIC) a holding known as a "Bitori" holding measuring about five bishas in village Kasba the boundary of which has been given in paragraph I of the petition. Village Kasba was under the zamindari of Choti Kothi of which the proprietor was Mahipal Bahadur Singh of Purnea. This holding of the petitioners stood recorded in the landlords sherista in the names of their ancestor. Dular Chaudhury and Kantu Chaudhury at a rent of Rs. 2-10-8 and this was payable to the Choti Kothi.
On a portion of the aforesaid holding, there are some pucca and kutcha houses having been constructed by the ancestors of the petitioners, and it is stated in the petition that the petitioners have been "carrying on business in these houses. On an area of about two bighas, out of the five bighas of the holding, the petitioners have their houses, while on another area of about two bighas there stand temples and a hat is held on a portion of this land. The remaining one bigha is parti land.
It is then alleged that the petitioners are settled raivats of an adjoining village named Bahura Phulwari and that this they have acquired occupancy rights in the Bitori holding in village Kasba. With regard to the hat, it is stated that every morning and evening a hat, known as Gudari Hat, is held, and the income from this hat is realised by the petitioners and spent over the upkeep of the temples and the deities. The landlord is stated to have had nothing to do with the realisation of the toll from this hat, the roll having been realised by the petitioners and their ancestors from time immemorial,
3. In 1954, the Zimindari of Choti Kothi of Mahipal Bahadur Singh vested in the State of Bihar and the State, it is stated, has been granting receipts with respect to the Bitori holding since then, and no toll has been realised by the State in respect of the hat. The petitioners say that they came to know that the Additional Collector of Purnea was going to hold a settlement of the hat by public auction and filed an objection before him stating that the holding belonged to them as also the hat and that the State had no right to make a settlement of it. The Add tional Collector of Purnea, however, held a public auction and settled the hat with opposite party No. 3 on the 16th of March, 1955 for a sum of Rs. 2,200/-without notice to the petitioners.
4. It was in these circumstances that the petitioners filed the present application on the ground that the aforesaid settlement of the hat made by the Additional Collector infringed the fundamental right guaranteed to the petitioners under Clauses (f) and (g) of Article 18 of the Constitution and it further contravened Art, 31 of the Constitution, as the hat is the tenancy land of the petitioners and had not vested in the State of Bihar with the result that the Additional Collector had no jurisdiction to pass any order in respect of it.
5. The argument advanced in support of this application was that the Bihar Land Reforms Act (Act XXX of 1950) does not apply to the hat in question, and that this hat must be held not to have vested in the State of Bihar. For this proposition the case of Chaudhary Mohammad Afaque V/s. State of Bihar ILR 35 Pat 119: (AIR 1956 Pat 283) (At was cited.
6. In reply, the learned Government Advocate contended on behalf of the State. that, in the first place, on the facts of the present case, the petitioners can claim no right to the holding in question and in the second place the decision in Mohammad Afaques case (A) finds no support from the various provisions of the Land Reforms Act, and ought not
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