RANI PROBHABATI DEVI AND OTHERS Vs. THE ADDL. COLLECTOR AND ORS.

JUDGEMENT

(1.) The petitioners in this writ application have prayed for a writ of prohibition restraining the respondents from with holding ad interim payment over the entire approximate compensation payable to them and also for a writ of mandamus directing the respondents to make forthwith ad interim payment to the petitioners on 100% basis of the approximate compensation payable to them. They have further prayed that the respondents be prohibited from issuing bonds in their favour until preparation of the final compensation assessment roll and to forbear from issuing bonds to the claim -decree holder, namely, the Bihar Bank, for the full claim decreed until the finalization of the final compensation assessment roll and to make ad interim payment on the entire approximate compensation without deducting the amount covered by the claim decree in favour of the Bihar Bank and to quash the instructions contained in the circular under memo no. 4312 -E. -8 -P -77 -61 L.R. dated the 3rd May, 1961 and Rules 25A to D of the Bihar Land Reforms Rules, 1951. The relevant facts of the case may briefly be stated. The petitioners owned and possessed -/8/ - share in the Zamindari estate, popularly known as 'the Banaili Raj', extending over several districts of Bihar including the districts of Purnea, Monghyr, Santhal Parganas, Saharsa, Bhagalpur and Darbhanga. Kumar Krishnanand Sinha, one of the co -sharers in the said Banaili Raj, filed a suit for partition of his -/3/6 share impleading the petitioners and others as defendants. The said suit is still pending for final disposal. However, during the pendency of that suit, substantial portion of the property in suit was amicably partitioned and separate parties were carved out for each set of the proprietors and the parties got their own nominees appointed receivers in respect of their respective patties. Accordingly, Kumar Taranand Sinha, petitioner no. 8, was appointed receiver for -/8/ - patti of those petitioners in the Banaili Raj. In the year 1950, the Bihar Land Reforms Act (Bihar Act 30 of 1950), hereinafter referred to as 'the Act' was passed by the State Legislature. A notification under Sec. 3 of the Act was published in the Bihar Gazette dated the 14th June, 1952, for vesting of a portion of the estate of the petitioners in the State of Bihar. In July 1952, the State of Bihar filed an application in the said partition suit for issue of direction to the receiver, Kumar Taranand Sinha, to hand over the charge of the notified touzies to the State of Bihar. Objections were raised on behalf of the petitioners challenging the validity and legality of the said notification. The learned Subordinate Judge upheld the objections in part. Against the order of the learned Subordinate Judge, the State of Bihar preferred an appeal before this Court which was registered as Miscellaneous Appeal No. 392 of 1952. On the 22nd January, 1953, another notification bearing No. 304 LP -ZAN dated the 16th October, 1952 was published in the Bihar Gazette (Extraordinary) in respect of a large number of touzies appertaining to -/8/ - patti of the petitioners. The State of Bihar again filed an application on the 26th February, 1953, before learned Subordinate Judge for a direction to the receiver to make over the possession of the touzies so notified to the Collector of the respective districts. The petitioners filed objections, but the learned Subordinate Judge rejected the objections and directed the petitioners to obtain stay order from this Court within three weeks. The petitioners filed a civil revision application which was numbered as Civil Revision No. 457 of 1953 as also a miscellaneous appeal numbered as Miscellaneous Appeal No. 160 of 1953 against the order of the learned Subordinate Judge, Bhagalpur. Thereafter, two notifications dated the 14th August, 1954, were published on the 20th August, 1954, in the Bihar Gazette (Extraordinary) purporting to be errata of the said notifications. Thereafter the Act was amended and Sec. 3A was inserted by Sec. 5 of Bihar Act 20 of 1954. The new Sec. empowers the State Government to issue notification in respect of intermediary interest of all the intermediaries in the whole of the State or in respect of the intermediary interests situate in a part of the State specified in the notification. The notifications issued under this Sec. are commonly known as 'area notifications'. A general notification was published on the 26th January, 1955 in the Bihar Gazette (Extraordinary) to the effect that all estates and tenures in the districts of Monghyr, Saharsa, Purnea and Darbhanga and some other districts would vest in the State of Bihar with immediate effect. Another similar notification was published on the 1st January, 1956, in the Bihar Gazette (Extraordinary) in respect of the estates and tenures in the districts of Bhagalpur, Santhal Parganas and some other districts.

(2.) The aforesaid miscellaneous appeals and civil revisions were placed for final disposal before a Bench of this Court. In view of the notifications for general vesting dated the 26th January, 1955 and 1st January, 1956, without deciding the controversy between the parties as to whether the estate had vested in the year 1952 or 1953, this Court issued a direction to the receiver to hand over the possession of the estates concerned to the State of Bihar as they had undoubtedly vested in the State since after the publications of the aforesaid notifications dated the 26th January, 1955 and 1st January, 1956. A copy of the order of this Court dated the 30th January, 1958, is Annexure 2 to the writ application. It is stated in the writ application that in pursuance of the said order the receiver made over the possession of the estate of the petitioners in February, 1958. The receiver, after handing over the charge, made over all relevant papers and collection registers and further submitted a jamabandi return to the Additional Collector, Bhagalpur. It is claimed that the petitioners are entitled to receive an interim compensation under Sec. 33(1) of the Act at the rate 2 1/2 per cent per annum of the total approximate amount of compensation payable to the outgoing intermediary.

(3.) The Bank of Bihar had obtained a decree against the petitioner for a sum of Rs. 6 lacs and odd. On the 20th September, 1968, a petition was moved on behalf of the Bank of Bihar Ltd. stating that they had a claim decree under Sec. 14 of the Act amounting to Rs. 6,59,644/3/6 against the - -/8/ - - proprietors of Banaili estate recoverable from the compensation amount payable to the petitioners as per order dated the 27th January, 1954 passed by the Board constituted under Sec. 18 of the Act in claim appeal nos. 52 and 61 of 1957, and prayer was made for an early payment of the amount under Sec. 24, Clause (5) of the Act. It may be noted that the Bank had also filed a petition for payment earlier on the 9th of April, 1964, along with the aforesaid order of the Board.