2024 Supreme(Pat) 91

IN THE HIGH COURT OF JUDICATURE AT PATNA
K. VINOD CHANDRAN, CJ. and HARISH KUMAR, J.
CWJC No.16494 of 2018
(10.4.2024)
Ramowtar Lakhotia ... Petitioner
vs.
State of Bihar & Ors. ... Respondents

Headnote:

Bihar Land Mutation Act, 2011 – Section 9(1) – Bihar Land Mutation Rules, 2012 – Rules 13(11) and 13(12) – Vires of – Cancellation of Jamabandi – Entries in revenue record does not create any title in respect of land in dispute – Constitutionality of impugned provision of the Act and Rules have been challenged due to pending Jamabandi case in which petitioner is a party and his apprehension of being dispossessed cannot be ruled out – Proceeding under Act, 2011 is a summary proceeding – Impugned Section 9(1) of Act, 2011, only empowers Additional Collector 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, clearly confining power of Additional Collector – Power conferred to carry out summary enquiry adopting same procedure as a Civil Court would do; is not a conferment of powers of Civil Court as such – Such exercise is only confined to decide issue of mutation and Jamabandi or its cancellation but for dispossession, applicant will have to approach Civil Court in which event Jamabandi or its cancellation will be a strong evidence – Also, Court on finding title could set aside order of cancellation of Jamabandi – It is requirement under law that even after cancellation of Jamabandi and affirmed by appellate and revisional authority, legitimate owner/custodian is obligated to get his right, title and interest adjudicated and get order of decree of eviction for dispossession of person who has been successful to get Jamabandi in his favour – Otherwise, title would be decided from mutation. (Paras 20, 33 to 37)

Bihar Land Mutation Act, 2011 – Section 9(1) – Bihar Land Mutation Rules, 2012 – Rules 13(11) and 13(12) – Vires of – Mutation/Jamabandi enabling a person in whose favour order of mutation/Jamabandi is passed to only pay land revenue of land in question, restoration/delivery of possession by holding or treating that person as legitimate owner/custodian of land basing upon Jamabandi alone, would in the opinion of this Court be ultra vires Articles 300A and 21 of Constitution of India – Possession though only a semblance of title/ownership, that cannot be interfered with in such a casual and cavalier manner – This Court would strike down impugned Section 9(1) of Bihar Land Mutation Act, 2011 to the extent it confers power upon Additional Collector to dispossess person whose Jamabandi has been cancelled and to put in possession legitimate owner/custodian on such land on such terms as may appear to Additional Collector to be fair and equitable and Rules 13(11) and 13(12) of Bihar Land Mutation Rules, 2012 for being ultra vires Article 300A of Constitution of India, apart from being beyond scope and ambit of Entry 45 of List II of Schedule VII – Power conferred under Section 9(1) of Act, 2011 to the extent it empowers Additional Collector to cancel such Jamabandi would be perfectly in order – However, conferment of power of dispossession to Additional Collector in case of cancellation of Jamabandi is, prima facie, an excess of power conferred on legislature under Entry 45-List II-VII Schedule and is beyond scope and ambit of Act, 2011. (Paras 42, 43, 48 and 49)

Land Laws – Title and Possession – Possession as a good title of right against anyone who cannot show a better one – Possession gives a right to continue unless displaced and even a wrongdoer who is deprived of his possession, can recover it from any person whoever, simply on the ground of his possession – True owner who has taken over possession may be forced in this way to restore it to wrongdoer and would not be permitted to set up his own superior title, till restoration is effected – He must first give up possession and then proceed in due course of law for the recovery of land on the ground of his ownership – Intention of law is that every possessor shall be entitled to retain and recover his possession, until deprived of it by a Judgment in accordance with law – Law respects possession even if there is no title to support it. It will not permit any person to take the law into his hands and to dispossess a person in actual possession without having recourse to a Court – No person can be allowed to become a Judge in his own cause. (Paras 21, 22 and 23)

Constitution of India – Article 300A – Right to acquire, hold and dispose of property continues to be a legal right that no person shall be deprived of save and except by and in accordance with law – Possession which a trespasser is entitled to defend against rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by true owner – A casual act of possession would not have effect of interrupting possession of rightful owner. (Paras 40 and 45)