JAGARNATH THAKUR AND ANOTHER Vs. THE STATE OF BIHAR AND OTHERS

JUDGEMENT

(1.) This writ application has been filed on behalf of the petitioners for quashing the order dated the 25th July, 1978, passed by the Deputy Director of Consolidation, a copy whereof is Annexure '7' to the writ application. The revision filed against the aforesaid order before the Director of Consolidation was dismissed on the 27th December, 1979, a copy whereof is Annexure '8' to the petition. The dispute is in respect of revisional survey plot No. 677 of khata No. 36 measuring 55 dec. The corresponding cadastral survey No. was 414 of khata No. 53. According to the petitioners, as early as on 23rd February, 1928, the then landlords settled the aforesaid land with one Gopal. As Gopal died issueless, his brother Nema came in possession of the said plot. On the 14th August, 1935, Nema Sao executed a registered sale deed in favour of one Kashi who came in possession. On the 14th December, 1939, an order under Sec. 112A of the Bihar Tenancy Act was passed in respect of the said plot in the name of kashi. A copy of that order is Annexure '5'. Thereafter Bachan and Lochan, sons of Kashi, transferred the plot in question by a registered sale deed dated the 14th April, 1949, in favour of Kunj Behari Thakur, the father of the petitioners. Since then, the case of the petitioners is that their father and they are in possession thereof. During the revisional survey the plot has been entered in the name of the petitioners. The revisional survey was finally published on the 10th June, 1970. Rent receipts are also being granted to the family of the petitioners by the then ex -landlords as well as the State of Bihar after vesting of the estates.

(2.) With the object of effecting consolidation of holdings the State Government issued a notification declaring its intention to make a scheme for consolidation of holdings in the village in question. In the year 1974 a notice under sub -section (1) of Sec. 10 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956, (hereinafter referred to as 'the Act') was published saying that the register prepared under sub -section (2) of Sec. 9 and the statement of principles prepared under Sec. 9A shall remain published between the 9th January, 1974 and the 8th February, 1974, and, any person could file an objection in respect of the said publication. A copy of the notice in respect of the plot in dispute along with other plots is Annexure '3'. It has been stated that no objection was filed and thereafter by a notice under Sec. 11(1) of the Act, the draft scheme for consolidation of the holdings, was notified. In that notice again it was stated that the aforesaid draft scheme for consolidation shall be available for inspection between the 12th January, 1976, and the 11th February, 1976, and any person can file objection in respect of the said draft scheme. A copy of this notice is Annexure '4'. From the aforesaid notice it appears that Chak No. 359 was made consisting of plot Nos. 677 and 255. No objection was filed to that draft scheme within the period prescribed before the Assistant Consolidation Officer.

(3.) On the 17th May, 1977, an objection was filed on behalf of respondents 5 to 13 before the Deputy Director of Consolidation, a copy whereof is Annexure 'C -6' to the counter affidavit filed on behalf of respondent Nos. 6, 9 and 10. In that petition it was stated that in the village in question there was ghairmazarua Pokhar in which the villagers used to take their cattle for washing and cleaning. It was further stated that for the last two years the father of the petitioners had cultivated the said Pokhar and had got it entered in his name in the records. A prayer was made that necessary orders be passed directing the petitioners from not interfering with the right of the people. On the basis of that petition the Deputy Director has passed the impugned order dated the 25th July, 1978, saying that plot No. 677 was a public land which could not have been settled by the ex -landlords. He further gave a direction that plot No. 677 should be excluded from the Chak of the petitioners and be included in the ghairmazarua -am -Khata.