Labanya Bala Devi (Smt) v. State Of Bihar Patna Secretariat, Patna And Anothers

Order

1. The appeal by special leave arises from the Appellate Decree No. 76 of 1974 dated 18-3-1982 of the Division Bench of the High Court at Patna. The appellants/plaintiffs laid the suit in the Court of the Subordinate Judge in Title Suit No. 23 of 1970 for a declaration that the appellant has a Raiyati right over Plot Nos. 1972 and 1973 i.e, the tank and tankail situated in Village Bijulia in Khata No. 61 described in Schedule B of the plaint and for confirmation of possession over the same. Though the trial court by decree dated 21-2-1972 decreed the suit holding that the appellant has the Raiyati right over the plot described in Schedule B property and for his possession on appeal the Additional District Judge Dhanbad, by judgment and decree and held that the Schedule B land stood vested in the State under Section 4 of the Bihar Land Reforms Act (30 of 1950) (for short the ‘Act’) accordingly dismissed the suit and in the second appeal it was confirmed by the High Court.

2. It is contended for the appellant that in 1943 the appellant had a settlement from the erstwhile Zamindar of the plot described in Schedule B land which was used for agricultural purposes and that, therefore, it is the raiyati land and the trial court rightly granted the decree. The High Court and the District Court had not properly considered the purpose of the settlement made to the appellant and accordingly dismissed the suit of the appellant. We find no force in the contention. Under Section 3(1) of the Act the State Government has been vested with the power to declare and get a notification published in the State Gazette that the estates or tenures of a proprietor or tenureholder specified in the notification, have ceased to and become vested in the State. On and from the date of the notification so published the consequences have been specified in Section 4 of the Act. It provides that:

“Notwithstanding anything contained in any other law for the time being in force or in any contract, on the publication of the notification under sub-section (1) of Section 3,… the following consequences shall ensue and shall be deemed always to have enured, namely:

(a) Such estate or tenure including the interests of the proprietor or tenureholder in any building or part of a building comprised in such estate or tenure and used primarily as office or cutchery for the collection of rent of such estate or tenure, and his interests in trees, forests, fisheries, jalkars, hats, bazars, (mela) and ferries and all other sairati interests as also his interest in all sub-soil including any rights in mines and minerals, whether being worked or not, inclusive of such rights of a lessee of mines and minerals, comprised in such estate or tenure (other than the interests of raiyats or under-raiyats) shall, with effect from the date of vesting, vest absolutely in the State free from all encumbrances and such proprietor or tenureholder shall cease to have any interests in such estate or tenure, other than the interests expressly saved by or under the provisions of this Act.”

3. By operation of Section 4 such estates or tenures including the interests of the proprietor or tenureholder in such estate or tenure and his interests in trees, forests, fisheries, jalkars, hats, bazars (mela) and ferries and all other sairati interests as also his interest in all sub-soil including any rights in mines and minerals etc., other than the interests of raiyats or under-raiyats shall w.e.f the date of vesting, vest absolutely in the State free from all encumbrances and such proprietor or tenureholder shall cease to have any interests in such estate or tenure other than the interests expressly saved by or under the provisions of the Act. Section 6(1)(b) is one of the savings which postulates that:

“On and from the date of vesting all lands used for agricultural or horticultural purposes which were in khas possession of an intermediary on the date of such vesting, including-lands used for agricultural… and held in the direct possession of a temporary lessee of an estate or tenure and cultivated by himself with his own stock or by his own servants or by hired labour or with hired stock … shall, subject to the provisions of Sections 7-A and 7-B be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold them as a raiyat under the State having occupancy rights in respect of such lands subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner”.

The saving by Section 6(1)(b) is only of the lands actually used for agricultural purposes in a State or a tenure of a lessee or a temporary lessee and directly in his possession and cultivated by himself with his own stock or by his own servants or by hired labour or with hired stock that the land stands excluded and raiyati rights has been confirmed statutorily subject to the terms contained therein. The tank is said to be settled by the landholder in favour of the appellant thereby the tank was not saved. Thus the tank stands vested in the State absolutely free from all encumbrances and that, therefore, the contract, even if any, was nullified by non-obstante clause in clause 4. Thereby the pre-existing rights, if any, have been extinguished and stood divested. The appellant cannot claim any rights on the basis of the said agreement which formed basis for the declaration sought for. Under those circumstances the trial court is clearly in error in granting the declaration. The District Court rightly reversed the decree, the High Court though had not gone into this question, for the reasons we set out, we confirm the decree and judgment of the High Court but in the circumstances parties are directed to bear their own costs.