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Sitaram Chaubey v. State Of Bihar
Judicial Opinion — Concise Analytical Summary
Factual and Procedural Background
The petitioners sought relief against an order dated 10-10-1991 (annexure‑7 to the writ) by respondent No. 2 cancelling the jamabandi standing in the petitioners' names. The petitioners allege that in 1944 the ex‑tenure holder granted settlement of the land in their favour and issued rent receipts; they claim occupancy rights as occupancy raiyats and say their names were entered in Register II after vesting of the ex‑tenure holder in the State of Bihar, with rent receipts being issued by the State.
A revisional survey settlement operation took place in 1970 in which the name of the State of Bihar was entered. The petitioners did not file any suit under the Bihar Tenancy Act or any civil suit challenging that entry. They did, however, obtain correction of jamabandi by an application (resulting in a fresh jamabandi per annexure‑3), and subsequently an ex‑parte order dated 15-4-1991 cancelled that jamabandi; that order was recalled during pendency of an earlier writ petition (CWJC No. 3362 of 1991) which the petitioners' counsel later described as infructuous. The impugned cancellation order dated 10-10-1991 followed after hearing.
Legal Issues Presented
- Whether the administrative cancellation of jamabandi (mutation) by the revenue authorities can, by itself, amount to cancellation of a settlement allegedly granted by an ex‑tenure holder.
- Whether cancellation of jamabandi that affects alleged settlement can be undertaken without following statutory proceedings under section 4(h) of the Bihar Land Reforms Act, 1950 (as contended by the petitioners).
- Whether entries in the revisional survey settlement record of rights operate as documentary title in favour of the person named therein, or whether such entries merely create entitlement to deposit rent.
- Whether the court should exercise writ jurisdiction under Articles 226 and 227 in the circumstances of this matter where statutory remedies under the Bihar Tenancy Act (including suit/application for correction) were available but not invoked.
Arguments of the Parties
Appellant / Petitioners' Arguments (as presented by Mr. Kamal Nayan Choubey)
- The cancellation of jamabandi would effectively cancel the settlement granted by the ex‑landlord; such cancellation cannot be effected without proceedings under section 4(h) of the Bihar Land Reforms Act, 1950.
- Relied on decisions of this Court: Harihar Singh v. Additional Collector (1978 BBCJ 323) and Khiru Gope v. Land Reforms Deputy Collector (reported 1983 PLJR 727) in support of the contention that statutory procedure is required.
- Contended that the State's assertion that the land being recorded as "gair majarua am" prevented settlement by the ex‑landlord was incorrect, relying on Brij Bhukhan Kalwar & others v. S.D.O. Siwan (AIR 1955 Patna 1) to show settlement of such land can be permissible.
- Argued that ejectment of a raiyat could only be effected under section 25 of the Bihar Tenancy Act.
- Maintained that an entry in the record of rights is not a document of title, relying on Nand Kumar Rai & others v. State of Bihar & others (1974 PLJR 27).
Respondent / State's Arguments (as presented by Mr. D. K. Sinha)
- The revisional survey settlement entries having been made in the name of the State of Bihar, the petitioners cannot be said to have been prejudiced by the impugned order cancelling the jamabandi.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Gobri Singh v. State of Bihar (AIR 1978 NOC 88) | Held that orders of mutation are administrative orders and not judicial or quasi‑judicial orders. | The Court relied on this decision to support the proposition that mutation/cancellation of jamabandi is administrative and does not decide title. |
| Harihar Singh v. Additional Collector and others (1978 BBCJ 323) | Invoked by petitioners to argue statutory procedure is required before cancelling settlement entries (as understood by petitioners' counsel). | The Court noted this decision had been cited by petitioners' counsel but observed that earlier division bench decisions such as this had not noticed Gobri Singh. |
| Khiru Gope v. Land Reforms Deputy Collector, Namui (reported 1983 PLJR 727) | Invoked by petitioners for similar propositions as Harihar Singh regarding correction/cancellation procedures. | The Court observed this decision was cited but, like Harihar Singh, did not take notice of Gobri Singh according to the opinion. |
| Brij Bhukhan Kalwar & Others v. S.D.O. Siwan & Others (AIR 1955 Patna 1) | Relied upon by petitioners' counsel for the proposition that settlement of "gair majarua am" land is permissible in law. | The Court recorded that counsel relied on this decision to counter the State's contention about non‑settlement of such land; the opinion does not expressly accept or reject the proposition beyond noting the reliance. |
| Nand Kumar Rai & Others v. State of Bihar & Others (1974 PLJR 27) | Holds that an entry in the records of rights does not create any title in favour of the person entered. | The Court relied on this authority to support the view that cancellation of jamabandi (an entry) does not itself create title in the State or extinguish any title of the petitioners; entries are not documents of title. |
| Depta Tewari v. State of Bihar (1987 PLJR 1037) | Considered the aspect of mutation/entries and their legal consequence (as referenced in the opinion). | The Court noted this decision as one among authorities that considered the issue; the opinion references it as part of the jurisprudential landscape without a detailed exposition of its holding. |
| Sundari Devi v. The State of Bihar & Others (1993 (1) PLJR 231) | Also considered aspects relating to mutation/entries (as referenced). | The Court referenced this authority as part of prior consideration of the subject; no further specific application beyond contextual citation is described in the opinion. |
| Most Panna Kumari & Others v. The State of Bihar & Others (CWJC No. 4130 of 1992; disposed 19-3-1993) | Recent division bench consideration of the issue of entries/mutation (as referenced). | The Court mentioned this recent disposal as part of the body of decisions addressing the subject; the opinion does not extract a detailed rule beyond noting its relevance. |
Court's Reasoning and Analysis
The Court framed its analysis primarily by referencing the statutory scheme in the Bihar Tenancy Act and the nature of mutation entries:
- Statutory presumption and remedies: The Court observed that sub‑section (3) of section 103‑B of the Bihar Tenancy Act creates a strong (but rebuttable) presumption of correctness of entries made in the survey settlement records of rights. The Act is a complete code providing for filing of suits and/or applications before competent authorities for correction of entries.
- Specific statutory provisions: The Court quoted and relied on section 106 (institution of suit before a revenue officer) and section 108‑A (correction by a collector or revenue officer) to underline that the statute provides specified procedures and timelines (e.g., suits within three months after final publication; correction of bona fide or material errors within five years of final publication, subject to prescribed conditions including notice and pending proceedings).
- Facts as to publication and inaction: The Court noted that the final publication of the entries occurred in 1970 and that the petitioners did not avail themselves of statutory remedies — they did not file a proper suit or an application under the Bihar Tenancy Act nor a civil suit challenging the entries.
- Nature of mutation orders: Relying on Gobri Singh (AIR 1978 NOC 88), the Court emphasized that orders of mutation are administrative and not judicial/quasi‑judicial; consequently mutation orders are not decisions on title.
- Administrative procedure for jamabandi: The Court observed that creation or cancellation of jamabandi in practice was governed by executive instructions rather than by a specific statute in the relevant instances, and that in this case creation/cancellation was not performed under statutory provisions.
- Effect of cancellation on title: The Court reasoned that an entry in Register II merely entitles a person to deposit rent and that neither payment nor non‑payment of rent creates or extinguishes title. Thus, cancellation of jamabandi (an administrative entry) does not amount to cancellation of settlement nor does it extinguish any purported settlement interest; title can only be adjudicated in a civil suit.
- Reliance on prior authority: The Court reiterated the principle from Nand Kumar Rai that entries in records of rights are not documents of title, using that principle to show that cancellation of jamabandi cannot, by itself, vest title in the State or extinguish the petitioners' claimed rights.
- Conclusion on writ jurisdiction: Given the statutory remedies and the nature of the entries and mutations, the Court concluded it should not exercise extraordinary writ jurisdiction under Articles 226 and 227 in this matter.
Holding and Implications
Holding: Application dismissed.
Implications:
- The petition for relief against the cancellation of jamabandi was dismissed; the impugned administrative order stands as against this Court's exercise of writ jurisdiction.
- The Court made clear that mutation/cancellation of jamabandi is administrative and does not determine title; questions of substantive title or whether the petitioners derived valid rights must be adjudicated in a duly constituted civil suit.
- There will be no order as to costs in the dismissed application.
- The decision confines itself to the present facts and statutory framework; the Court applied existing authorities (including the principle that entries are not documents of title) rather than announcing a novel precedent beyond the application of those authorities to these facts.
This summary is limited to and derived exclusively from the content of the provided opinion. No facts or legal propositions have been added beyond what is present in that text.
S.B.Sinha, J.:-
(1) This application is directed against an order dated 10 - 10 - 1991 passed by the respondent no. 2 as contained in annexure - 7 to the writ application whereby and whereunder the jamabandi standing in the name of the petitioners have been directed to be cancelled.
(2) Shortly put the fact of the matter is as follows : - in the year 1944 the ex - tenure holder allegedly granted settlement of the land in question in favour of the petitioners and issued rent receints in relation thereto.
(3) According to the petitioners they being occupancy raiyat of the village acquired occupancy right in relation to the land in question. After vesting of the state of the ex - tenure holder in the state of bihar the petitioner's name was entered into register ii (annexure - 1) and rent receipts had all along been issued by the state of bihar.
(4) Admittedly revisional survey settlement operation took place in the year 1970 wherein the name of the state of bihar was entered,
(5) It is also accepted that the petitioners did not file any suit under the provisions of bihar tenancy act or any civil suit questioning the aforementioned entry in the revisional survey record of rights.
(6) The petitioners however, filed an application for correction of jamabandi which was allowed purported to be on a consideration that the petitioners had been in possession thereof and by reason of annexure - 3 to the writ application, fresh jamabandi was created.
(7) Allegedly, however by reason of the order dated 15 - 4 - 1991 an ex - parte order was passed cancelling the aforementioned jamabandi.
(8) The petitioners filed a writ application in this court being cwjc no. 3362 of 1991 and during the pendency of the said writ application the aforementioned order dated 15 - 4 - 1991 was recalled and notice was given to one of the petitioners. The said writ petition is said to be pending but according to mr. Chaubey, the learned counsel appearing on behalf of the petitioners, the same has become infructuous. Thereafter upon hearing the parties, the impugned order dated 10 - 10 - 1991 as contained in annexure - 7 has been passed.
(9) Mr. Kamal nayan choubey, the learned counsel appearing on behalf of the petitioners inter alia submitted that the order of cancellation of jamabandi will have the effect of cancellation of settlement which cannot be done in the absence of the proceeding under section 4 (h) of the bihar land reforms act, 1950.
(10) The learned counsel in support of his contention relied upon a decision of this court in harihar singh v. Additional collector and others, reported in 1978 bbcj 323 and khiru gope v. Land reforms deputy collector, namui reported in 1983 pljr 727.
(11) The learned counsel next contended that the state of bihar, in its counter affidavit has wrongly taken the stand that the land in question having been recorded as gair majarua am land could not have been given in settlement by the ex - landlord.
(12) According to the learned counsel in view of the decision of this court in brij bhukhan kalwar and others v. S. D. O. Siwan and others, reported in air 1955 patna 1, even the settlement of the gair majarua am land is permissible in law.
(13) The learned counsel further submitted that the impugned order would have the effect to eject the raiyat which could only be done in terms of section 25 of the bihar tenancy act.
(14) It was also submitted that in any event, the entry in the record of rights cannot be considered to be a document of title. The learned counsel in this connection has relied upon a decision of this court in nand kumar rai and others v. The state of bihar and others, reported in 1974 pljr 27.
(15) Mr. D. K. Sinha, the learned standing counsel no. 4 appearing on behalf of the state, on the other hand, submitted that the entries having been made in the name of the state of bihar in the revisional survey settlement records of right the petitioners cannot be said to have been prejudiced by reason of the impugned order.
(16) In view of the point involved in this case, it is not necessary to go into all the contention raised by mr. Choubey. In terms of the provisions contained in sub - section 3 of section 103 - b of the bihar tenancy act a strong presumption of correctness of the entry made in the survey settlement records of right arises. Such a presumption is however, rebuttable. Bihar tenancy act is a complete code in itself. It provides for filing of suit and/or application before the competent authorities for correction of the entries made in the survey settlement records of right.
(17) Section 106 of the bihar tenancy act and section 108 - a thereof read thus:
"106. Institution of suit before a revenue officer - in proceedings under this part, a suit may be instituted before a revenue - officer at any time within three months of the date of the certificates of the final publication of the record of rights under sub - section (2) of section 103 - a of this act, by presenting a plaint on stamped paper, for the decision of any dispute regarding any entry which a revenue - officer has made in, or any omission which the said officer has made from the record. Whether such dispute be between landlord and tenant, or between landlord of the same or of neighbouring estates, or between tenant, and tenants, or as to whether the relationship of landlord and tenant exists, or as to whether land held rent free is properly so held, or as to any other matter, and revenue - officer shall hear and decide the dispute : provided (**) that in any suit under this section the revenue officer shall not try any issue which has been, or is already, directly, and substantially in issue between the same parties, or between parties under whom they or any of them claim, in proceedings for the settlement of rents under this part, where such issue has been tried and decided, or is already being tried, by a revenue officer under section 105 - a. 108 - a. Correction by a collector or revenue - officer of mistakes in record of rights. In case of discovery of bona fide or material error in record - of - rights within a period of five years from the date of the certificate of its final publication under sub - section (2) of section 103 - a, the collector or any revenue officer specially empowered by the state government in this behalf, may, on his own motion, or on an application made to him within the said period, after holding an enquiry in the prescribed manner, by order in writing direct that such error shall be corrected in the manner specified in the order : provided that in respect of record - of - rights final publication of which took place in the year 1957 or 1958 the said period shall extend till the 31st march, 1965 : provided further that no such correction shall be made. - (i) until reasonable notice has been given to the parties concerned to appear and be heard in the matter ; (ii) if a proceeding or suit under any, of the sections 105 to 108 (both inclusive) or an appeal under section 109 - a, affecting such an entry is pending)."
(18) Admittedly the entries in the survey settlement records of right had been finally published as far back as in the year 1970. The petitioner did not take any step questioning the correctness of the said entry either by filing a proper suit or an application under the bihar tenancy act or by filing a duly constituted suit in the civil court.
(19) The mutation authorities while exercising their jurisdiction are normally bound by the entries made in the survey settlement records of right.
(20) So far (torned) the matter relating to creation of jamabandi or cancellation thereof is concerned, the same used to be governed by the executive instructions issued by the state from time to time. Creation of jamabandi or cancellation thereof has not been done in this case under the provisions of any statute.
(21) In gobri singh v. State of bihar, reported in air 1978 noc page 88, a division bench of this court has held that orders of mutation are administrative orders and not judicial or quasi - judicial orders.
(22) The said decision of the division bench which had a vital bearing on the subject was not even noticed by this court in the subsequent division benches namely in harthar singh v. Additional collector and others, reported in 1978 bbcj 323 and khiru gope v. Land reforms dy. Collector, reported in 1983 pur 727.
(23) This aspect of the matter has been considered by one of as in depta tewari v. State of bihar, reported in 1987 pljr 1037 and sundari devi v. The state of bihar and others, reported in 1993 (1) pljr 231.
(24) This aspect of the matter has again recently been considered by a division bench of this court in cwjc no. 4130 of 1992, most panna kumari and others v. The state of bihar and others, disposed of on 19 - 3 - 1993.
(25) By reason of an entry in register ii, a person merely becames entitled to deposit rent. It is, therefore, difficult to comprehend as to how cancellation of jamabandi would amount to cancellation of settlement, as it is well known neither payment of rent creates title nor non - payment extinguishes any.
(26) An administrative order of mutation passed by the revenue authorities is not and cannot be a decision on the question of title. Such a decision can only be taken by a civil court in a duly constituted civil suit. It is. Therefore, not correct to contend that the effect of the impugned order would be cancellation of settlement by itself resulting in extinguishment of the settlement purported to have been made in favour of the petitioners by the ex - landlord.
(27) Mr. Choubey, himself has relied upon a full bench decision of this court in nand kumar rai and others v. State of bihar and others, reported in 1974 pljr 27 where in it has clearly been held that an entry in the records of right does not create any title in favour of any person. If an entry in the records of right is not a document of title, it is, in my opinion wholly incomprehensible as to how cancellation of jamabandi of the petitioner would amount to creation of title in favour of the state of bihar and extinguishment there of so far as the petitioners are concerned.
(28) The question as to whether the petitioners have therefore, derived valid right title in respect of the land in question or not has to be adjudicated upon in a duly constituted civil suit by the civil court.
(29) For the reasons aforementioned, in our opinion this is not a case where this court should exercise its jurisdiction under articles 226 and 227 of the constitution of india.
(30) This application is, therefore, dismissed, however, in the facts and circumstances of the case, there will be no order as to costs. Application dismissed.
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