JUDGMENT
J.N. Bhatt, C.J.
Page 0144
1. By this writ application under Articles 226 and 227 of the Constitution of India, the petitioner has assailed the order passed by the Commissioner, Tirhut Division, Muzaffarpur, on 7.12.1988 in Case No. 91 Misc./1984-85, whereby, the order, dated 27.7.1984, recorded by the Additional Collector, West Champaran, Bettiah, passed in Case No. 17 of 1982-83, upholding the Rent fixation order of the Land Reforms Deputy Collector, Bettiah, dated 27.5.1980, mainly on the ground of the inspection report of the Anchaladhikari, Bettiah, in Case No. 7 of 1976-77 has been reversed.
2. A conspectus of the material and relevant facts leading to the rise of this petition may be highlighted at this juncture. The disputed lands consisting of 6.62 acres of land of plot Nos. 228, 204, 205 and 224, appertaining to Khata Nos. 255 and 256 of village Kargahia, in the district of West Champaran, are entered in the names of Laxmi Prasad and Kunji Lal in equal shares. The said property of Kunjilal came to be auctioned, which was purchased by one Shri Durga Prasad, in Execution Case No. 156 of 1923, in execution of a decree passed in Title Suit No. 50 of 1914.
3. Thereafter, the auction purchaser gave the land in possession of late Yamuna Prasad, father of the petitioner. The other half share of Laxmi Prasad also came to be auction sold in rent decree and was purchased by the Bettiah Estate (respondent Page 0145 No. 6). In course of time, trees fell down and the woods were consumed by local people and the land remained idle for some time.
4. As the petitioner’s father was in possession of the other half of the same land on behalf of Durga Prasad, he took possession of the other half as well, and amalgamated both the lands and remained in possession of the entire land measuring 6.62 acres. Late Durga Prasad sold his half land to the petitioner through a registered sale deed and the possession of the petitioner became possession in his own right over half part of the land and other half also remained in his possession openly in his own rights.
5. It is the case of the petitioner that he had occupied and enjoyed the usufruct and product of the land as he had planted mango trees. It was done within the knowledge of every one including respondent No. 6 without any obstruction from any corner.
6. Somehow or the other, the Anchal Adhikari, Bettiah, issued a notice on seeing the actual possession of the disputed land. Notice, dated 5.6.1976 (Annexure 1) was issued in the name of Laxmi Sah and Kunji Lal asking them to show cause as to how they are in possession of the land without paying any rent to the State.
7. The petitioner was, thus, prompted to file a petition on 9.6.1976 (Annexure 2) before the Anchaladhikari, Bettiah, praying for fixation of rent in respect of the disputed land expressing his desire to regularly pay the rent that may be fixed. He was prompted to do so on issuance of notice as aforesaid.
8. Upon making of such an application for fixation of rent by the petitioner in respect of the disputed land, the Anchaladhikari, Bettiah, enquired into the matter and submitted a proposal before the Deputy Collector Land Reforms, for fixation of fair rent. But it was remanded back to the Anchaladhikari for local inspection and detailed inquiry report, pursuant to which an inquiry came to be made by the Anchaladhikari on 14.3.1980 after considering all the documents and objections raised by some persons on general notice. It was recommended for rent fixation on 18.3.1980 on which the Land Reforms Deputy Collector fixed the rent by order dated 27.5.1980, passed in Record No. 7 of 1976-77. Thereafter, an appeal came to be filed by the respondents in collusion with respondent No. 6 before the Additional Collector being case No. 17 of 1982-83. Upon consideration of the facts and circumstances and the documents along with records, the Additional Collector, confirmed the order of the Anchaladhikari and dismissed the appeal by order dated 27.7.1984.
9. It will be interesting to note that respondent No. 6 Bettiah Estate preferred another appeal before the Commissioner, Tirhut Division, Muzaffarpur, against the above order which was numbered as Case No. 91 Misc./84-85, and by order dated 7.12.1988, as contained in Annexure 5, the Commissioner allowed the appeal and rent fixation in the name of the petitioner was quashed. Therefore, the writ petitioner has now come up before this Court by filing a writ application under Article 226 of the Constitution of India.
10. It has been contended on behalf of the petitioner that the order of the Deputy Collector, Land Reforms, was quite right and justified and the respondent No. 6 had no authority to file second appeal which was not maintainable before the Commissioner. It is in these context, it is vehemently urged that two concurrent findings of fact recorded by the two courts should not have been reversed by the Commissioner in the second appeal or revision. It is further submitted that the Page 0146 respondent No. 6 was not in “Khas possession” of the land on the date of vesting and, therefore, it never acquired any right in the disputed land.
11. A petition came to be filed by the petitioner before the Deputy Collector, Land Reforms, under Sub-section (2) of Section 6 of the Bihar Land Reforms Act, 1950, (“The Act”) on the premises that he is in “khas possession” over the disputed land and, therefore, he is entitled to retain the land and is ready to pay rent that may be fixed by the authority. Section 6 of the Act, specifically, provides certain other lands in “khas possession” of intermediaries to be retained by them on payment of rent as raiyats having occupancy rights. It will be interesting and material to refer to the provisions of Section 6 of the Act which reads here as under:
6. Certain other lands in khas possession of intermediaries to be retained by them on payment of rent as raiyats having occupancy rights.- (1) 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 –
(a) (i) proprietor’s private land let out under a lease for a term of years or under a lease from year to year, referred to in Section 116 of the Bihar Tenancy Act, 1885 (8 of 1885).
(ii) landlord’s privileged lands let out under a registered lease for a term exceeding one year or under a lease, written or oral for a period of one year or less; referred to in Section 43 of the Chota Nagpur Tenancy Act, 1908 (Ben. Act 6 of 1908).
(b) lands used for agricultural or horticultural purposes 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, and
(c) lands used for agricultural or horticultural purposes forming the subject matter of a subsisting mortgage on the redemption of which the ‘ intermediary is entitled to recover khas possession thereof;
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.
Provided that nothing contained in this sub-section shall entitle an intermediary to retain possession of any naukarana land or any land recorded as chaukidari chakran or goraiti jagir or mafigoraiti in the record of right has already accrued to a raiyat before the date of vesting.
Explanation. – For the purposes of this sub-section, ‘naukarana land’ means land as a grant burdened with service in lieu of rent or held simply in lieu of wages for services to be rendered.
(2) If the claim of an intermediary as to khas possession over the lands referred to in Sub-section (1) or as to the extent of such lands is disputed by any person prior to the determination of rent of such lands under the said sub-section the Collector shall, on application, make such inquiry into the matter as he deems fit and pass such order as may appear to be just and proper:
Page 0147
Provided that the Collector in making such inquiry shall give due weight to the circumstances under which the area in which such lands were situated to be a disturbed area under the Police Act, 1861 (8 of 1861), after the first day of November, 1946.
12. Intermediary in “khas possession” is protected. Being a tenant direct under the State, he is entitled to retain possession after vesting of Estate. In case of ouster before vesting of estate, the benefit under Section 6 of the Act cannot be claimed. It cannot be denied that whatever may be the right of raiyat or intermediaries by virtue of compulsory acquisition under the Act, the State Government has no right to enter upon the land or settle the Hat or Mela.
13. Section 6 of the Act gives a status of an occupancy tenant upon the ex-proprietors in the form of a statutory grant and that the language of the section was unqualified and there was no reservation of any Mela right or Hat right in favour of the State Government and, therefore, the State Government had no right to enter upon the land or hold the Mela thereon, for such an act would constitute trespass. It means that a person who is an intermediary in “khas possession”, as defined in the law, is entitled to claim on payment of fixed rent, occupancy right under Section 6 after the vesting. The expression “Khas possession” has been considered within the meaning of its definition as provided in Clause (k) of Section 2 of the Act. It be noted that emphasis has been laid on two characteristic and elements, firstly, on possession, as contemplated in law, namely, juridical possession, and, secondly, on the form in which the act of possession is exercised at the time of vesting by the outgoing proprietor.
14. Section 6(1) of the Act provides 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 shall be deemed to be settled by the State and he would retain possession 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. It will be interesting to mention at this stage that the language of Section 5 of the Act in case of Homestead of intermediaries to be retained by them as tenants only refers to “possession” whereas, the language of Section 6 refers to “Khas possession”. Clause (k) of Section 2 of the Act reads here as under:
(k) “Khas possession” used with reference to the possession of a proprietor or tenure-holder of any land used for agricultural or horticultural purposes means the possession of such proprietor or tenure-holder by cultivating such land or carrying on horticultural operations thereon himself with his own stock or by his own servants or by hired labour or with hired stock;
15. The word “intermediary” has been used in Sections 2(k) and Section 6(1) of the Act by the legislature. Of course, it follows that there may be more than one intermediaries and one or all of them are in joint possession of the land in their “Khas possession” whose lands will be retained by them, as raiayts, rights with occupancy rights. Thus, “Khas possession” as defined under Section 2(k) of the Act has definite purpose and connotation.
16. It is well settled proposition of law that the full proprietor’s “khas possession” is also not disturbed. Certainly, the large land holders, whose lands have for long been tenancy, lose their lands to the State by virtue of the vesting operation. Of course, Page 0148 compensation is provided for. Nevertheless, the reform law concedes the continuance of a limited species of interest in favour of those “Zamindars”. The three classes of lands is brought into the saving bucket by including them in the “khas possession” of the proprietors. They are legislatively included in “khas possession” by an extended itemisation in Section 6(1) of the Act.
17. Upon consideration of the facts and circumstances, the profile of facts and the evidence on record and the provisions of law, this Court is of the opinion that the petitioner has, successfully, shown his “khas possession” as an intermediary. Therefore, he is fully entitled to retain possession as occupancy raiyat and the rent was rightly fixed by the Deputy Collector, Land Reforms and was correctly approved in appeal, but wrongly reversed by the Commissioner.
18. The petitioner has been paying rent as fixed eversince 1955. He has been enjoying not only possession but usufruct of the land in question. It appears that the Commissioner failed to notice that the respondent No. 6 has not even filed objection after service of general notice. In fact the petitioner had amalgamated both the parts of the lands after it was left by Bettiah Estate (respondent No. 6). He has been appropriately enjoying the fruits and usufruct of trees as well as products since long. He is intermediary holding “khas possession”, therefore, he is entitled to occupancy right and he has right to pay rent that may be fixed under the law from time to time. Again, in case No. 16 of 1970-71 filed for fixation of rent of land of Kargahia village, there does not appear to be involved disputed land. There is no mention of disputed land in that case. Therefore the impugned order of the Commissioner reversing the two earlier orders is bad in law, unjust and unreasonable. It is therefore, quashed and the writ petition stands allowed as prayed for. Rule is made absolute. No costs.
