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PATNA HIGH COURT
V.Ramaswami and Raj Kishore Prasad JJ.
Bhola Mian
Versus
Sri.S.M.Islam
Miscellaneous Judicial Case No. 397 of 1956 ;
Decided On : AUGUST 14, 1957
BIHAR LAND REFORMS ACT - SECTION 4(A), 4(H) - INCUMBRANCE - SETTLEMENT OF HAT RIGHTS - VESTING OF ESTATE IN STATE GOVERNMENT - INTERPRETATION OF STATUTORY PROVISIONS.
Fact of the Case:
The petitioner, Bhola Mian, held the right to hold a bazar on certain plots of land under a registered lease for seven years, starting from November 1951. In January 1956, the zamindari vested in the State Government under the Bihar Land Reforms Act. The petitioner challenged the orders of the Sub-divisional Officer and the Collector, who directed that the settlement made with him was not recognizable and that the right to hold the hat vested in the State Government.
Finding of the Court:
The court held that the settlement made with the petitioner was an "incumbrance" within the meaning of Section 4(a) of the Bihar Land Reforms Act and was automatically cancelled upon the issue of the notification under Section 3-A in 1956. The court interpreted Section 4(h) of the Act as applying only to transfers that were not incumbrances within the meaning of Section 4(a).
Issues: 1. Whether the settlement made with the petitioner was an "incumbrance" within the meaning of Section 4(a) of the Bihar Land Reforms Act? 2. Whether Section 4(h) of the Act applied to the settlement made with the petitioner?
Ratio Decidendi: 1. The court interpreted the term "incumbrance" in Section 4(a) of the Bihar Land Reforms Act by referring to the definition of "incumbrance" in Section 161 of the Bihar Tenancy Act and the decision of the Calcutta High Court in Kartick Chandra Mallik V/s. Harsha Mukhi Dasi. The court held that the settlement made with the petitioner was an "incumbrance" because it created a right or interest in limitation of the landlord's own interest. 2. The court interpreted Section 4(h) of the Act in the context of Section 4(a) and held that Section 4(h) applied only to transfers that were not incumbrances within the meaning of Section 4(a). The court reasoned that if a transfer was an incumbrance within the meaning of Section 4(a), then it was automatically cancelled upon the issue of the notification under Section 3 or Section 3-A and Section 4(h) could not apply to such a transfer.
Final Decision: The court dismissed the petitioner's application for a writ under Article 226 of the Constitution, holding that the petitioner had made out no case for grant of a writ against the respondents.
1. In this case the petitioner, Bhola Mian, has taken by a registered lease, dated the 10th November, 1951, the right of holding bazar on plots Nos. 689 and 690, which were orchard or bakasht land of the proprietors of the zamindari. The lease was for a period of seven years ending with December, 1957, but by virtue of a notification under Sec.3-A of the Bihar Land Reforms Act the zamindari vested in the State Government in January, 1956.
The petitioner alleges that on the 2nd of April, 1956, the Sub-divisional Officer, opposite party No. 1, ordered that the settlement made with the petitioner by the ex-landlords free of rent could not be recognized and that the right of holding the hat on the disputed plots had vested in the State Government by virtue of the notification made under Sec.3-A of the Bihar Land Reforms Act. By a subsequent order dated the 2nd of April, 1956, the Collector of Bhagalpur directed that steps should be taken for settlement of the hat and the orchard. Against these orders, the petitioner has sought a writ in the High Court under Article 226 of the Constitution for calling up and quashing these orders.
2. The argument addressed on behalf of the petitioner is that the settlement made with the petitioner On the 10th November, 1951, fell within the purview of Section 4 (h) of the Bihar Land Reforms Act, and unless suitable proceeding was taken by the Collector for annulling the settlement the State Government is not entitled to take possession of the property or to hold bazar thereon. The opposite view point was presented by the learned Government Advocate on behalf of the respondents.
It was submitted that the settlement made with the petitioner was for a period of seven years for non-agricultural purpose, that is, for holding a hat, and there is no raiyati right or tenure right created in favour of the petitioner and, therefore, the transaction was an "incumbrance" within the meaning of Section 4 (a) of the Bihar Land Reforms Act, and as soon as a notification was issued by the State Government under Sec.3-A the zamindari interest vested in the State Government and the settlement was automatically cancelled and the right of the petitioner to hold the hat in the dispute plots was abrogated. It is necessary at this stage to reproduce the relevant portions of the registered lease dated the 10th November, 1951. The amount of consideration was Rs. 4000.00 and the lease was executed for, a period of seven years. The specification of property is as follows :-
- "Specification of property :-- Ten annas zamindari proprietary interest in the Kalambag land, constituting khas kamat, within Jagir Hulas Rai Subedar, bearing tauji No. 3460, situate in mauza Joalapur, as per specification given below, thana Pirpainty. Paragana and Sub-Registry office Colgong, district Bhagalpur, khewat No. 23, khata No. 352, khesra No. 692, measuring 1 acre -- 56 decimals, having 8 annas share in the said fruits, thana No. 144.
North South East West Gopalisahu, Darbari Sahu Dhanuk. Ritan Sahu. Raghu and others.
3 Ten annas zamindari proprietary interest in the Kalambag land, constituting khas kamat, within Jagir Mir Salamat, situate in mauza Joala pur, as per specification given below, thana Pir painty, paragana and Sub-registry office Coigcng, district Bhagalpur, bearing khata No. 366, khesra Nos. 690 and 689, khewat No. 14, thana No. 144, tauzi No. 4606, having eight annas share in the said fruits.
KhesraA.D.North.South.EastWest No. 6890.60.Darbari Sahu and others.Suraj Narain Shukul.Raghu Sahu.Lachhmi Prasad Potdar and others.
690.2.66.
3.26.Gopali Sahu.Raghu Sahu.Gopali Sahu & others.Kali Prasad Sahu Potdar."
There is also a clause in this document that the petitioner would not pay any rent to the landlords for any portion of the said period of settlement. There is a further clause stating that the petitioner would construct sheds and walls etc. and hold a hat en the disputed plots without payment of rent for the period of s
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