1. Heard the learned Senior Counsel, Mr. P.N.Shahi assisted by Mr. Sumeet Kumar Singh, for the petitioners, learned Counsel for the State and Smt. Vagisha Pragya Vacakanavi, learned Counsel for the private respondent.

2. The present writ application has been filed by the petitioners wherein order passed by the Bihar Land Tribunal (hereinafter referred to as “Tribunal”) in BLT Case No. 240 of 2014 dated 14.03.2018 has been challenged.

3. At the outset, learned Senior Counsel, Mr. P.N. Shahi has taken this Court to I.A. No. 1 of 2022, which has been filed challenging the order dated 11.05.2012 passed in BLDR Case No. 45 of 2011 (Annexure – P/11 to the I.A.), passed by the D.C.L.R., Sadar, Munger by which the application filed by the petitioner has been dismissed and the D.C.L.R. has assumed the jurisdiction of the Additional Collector and has decided the land to be Qaisar-e-Hind land and further directed to cancel the jamabandi. In the said Interlocutory Application, the petitioner has also challenged the order dated 30.10.2013 passed by the Divisional Commissioner, Munger Division, Munger for setting aside the L.D.R. Appeal No. 165 of 2012 by which the Divisional Commissioner has dismissed the appeal preferred by the present petitioner (Annexure – P/12 to the I.A. The said I.A No.1 of 2022 is allowed as the same has been filed challenging the initial orders which ultimately merged in the final order dated 14.03.2018 of BLT, Patna.

4. The property in dispute is situated in Mauza – Binda Diyara, Mirza Bahiyar, Thana No. 386, Tauzi No. 1351, Khata No. 519, Plot No. 19 total area of 26 acre which was originally existing in the name of Late Deoki Nandan Prasad Singh in the records as Gairmajarua Malguzar. The Jamabandi existing in the name of petitioner no. 1 is Jamabandi No. 19, namely Amrendra Kumar Singh with regard to plot no. 384, area 2 Acre 50 decimal etc. The Jamabandi existing in the name of petitioner no. 2 is Jamabandi No. 20 (Old) with regard to plot no. 378, area 1 Acre 50 decimal etc. The petitioners along with one Brajesh Kumar has filed an application before the L.R.D.C., Sadar Munger (Annexure–P/13) to the I.A. The said application was filed by the petitioners on 30.11.2011 and the entire land was mentioned as of the petitioners and their family members situated in Mauza – Binda Diara, Mirza Bahiyar, Tauzi No. 1351, Thana No. 386, Pargana – Parkhiya, P.S. – Bariyarpur, District– Munger.

5. In the said BLDR Case No. 45 of 2011, private opposite party has inter alia appeared and objected the aforesaid application, but the LRDC, Munger (Sadar) has observed that the land in question is “Qaisar-e-Hind” land and thus any Bandobasti is void and directed the Circle Officer, Sadar Munger to cancel the Jamabandi existing in the name of the present petitioners and others in Mauza–Binda Diara, as the land in question is “Qaisar-e-Hind” property, any Bandobasti is void and further State was directed to appear in Title Suit No. 70 of 2011 with regard to land situated in Plot No. 378 and 384.

6. Aggrieved by the said order, an appeal was preferred by the present petitioners vide L.D.R No. 165 of 2012 before the Divisional Commissioner, Munger, who after hearing the parties dated 13.10.2013 held that the land in question is Government land and any Jamabandi existing in the name of the parties is illegal and thus held that the order passed by the DCLR, Sadar Munger dated 11.05.2012 is correct and Circle Officer was directed to enter the name of the government with regard to the land in question. Being aggrieved by the said order, the present petitioners thereafter approached before the Bihar Land Tribunal which the petitioners claimed that the land in question is the ancestral land and after the abolition of Zamindari, the name of the ancestors of the petitioners were recorded in Anchal record and thereafter Jamabandi have been created in the name of the petitioners and have been paying the rent to the State of Bihar. The petitioners' case was also that Jamabandi are running in the name of the petitioners since last 68 years. The case of the petitioners also that the land in question was settled by the intermediary Late Babu Deoki Nandan Prasad Singh and after vesting of the estate in the State of Bihar, the aforesaid settlee were recorded and granted Rent receipts on submission of return in their name and the name has been entered in Register – II (Tenant's Ledger), but while passing the impugned order, both the Courts have failed to appreciate the same. The petitioners' were throughout in possession of the said land after implementation of the Constitution of India and prior to vesting of estate, the intermediary Late Babu Deoki Nandan Prasad Singh had been in possession and thereafter settled the said land in favour of the present petitioner. The settlement was made prior to 01.01.1946 and the settlement cannot be questioned without initiating any lawful action, but in this case after vesting of the estate, the State of Bihar, the petitioner were recognized as tenant by the State of Bihar and had been paying rent. The petitioners also (vide Annexure – P/10) brought on record the supplementary affidavit staing therein that the Title Suit No. 70 of 2011 was filed against private opposite party no. 4 to 6, who were Amerika Singh @ Amir Chand Singh, Chandra Shekhar Singh, Indrajeet Singh and three other persons only with regard to 8 Acre of land bearing in Jamabandi No. 20 and 23, Plot No. 378 and 387, Old and Hal. Plot No. 382, 1150 and 1151 and Mauza – Binda Diyara, Tauzi No. 1351, Thana No. 386. So far the land with regard to Title Suit No. 70 of 2011 is concerned, the same was filed on 14.06.2011 by Vivekanand Singh in the Court of Sub Judge–I, Munger, against the private respondents with regard to declaration of title in his favour against the defendant and for declaration of the three Sale Deeds dated 28.07.2010 executed by defendant 2nd set in favour of defendant 1st set (opposite party) to be inoperative and not binding on the plaintiff. The said Title Suit is also part as Annexure – P/10.

7. Based on the contentions of the parties, the Bihar Land Tribunal, Patna, vide order dated 14.03.2018 in BLT Case No. 240 of 2014 has held that the matter in dispute is beyond the provision as to be decided under Section 4(5) of the BLDR Act, 2009 and therefore, there is no reason to interfere with the DCLR or by Divisional Commissioner, Munger.

8. Being aggrieved by the order passed by the BLT, Patna, the petitioners submitted that the property situated in Mauza–Binda Diyara, Mirza Bahiyar, Thana No. 386, Tauzi no. 1351, Khata No. 519 and the said land stands recorded the name of Deoki Nandan Prasad Singh and the nature of the land has been mentioned as Gairmazarua Malguzar. It is also submitted by the petitioners that there was partition in the family of Babu Deoki Nandan Prasad Singh and the petitioner got the said share somewhere before the year 1955 and accordingly the land was mutated in the name of the petitioners vesting of Zamindari and the Rent receipts have been paid by the present petitioners.

9. It is also the case of the petitioners that pursuant to the notification by Bihar land Ceiling Act, the proceeding has started with regard to the entire property of Babu Deoki Nandan Prasad Singh and the share of the present petitioners were acknowledged in the Land Ceiling Proceeding and the petitioners were left with the aforesaid land. The petitioners also submitted that one case bearing number 1 of 1934–35 was initiated and subsequently the Khatiyan has been prepared based on possession and collection of Malguzar but simultaneously, the Zamindar’s name has been recorded and stood in the name of Late Deoki Nandan Prasad Singh, Khewat No. 1. The said Khewat was prepared vide Case No. 1 of 1934 – 35 (Annexure – 1, 1/A to the writ application).

10. Further the case of the petitioners is that the Rent receipts are being issued in the name of the present petitioners since more than 60 years and the same has been brought on the record vide Annexure – 3 Series and Annexure- 4 Series. It is further the case of present petitioners that the land of the present petitioners and others mentioned in paragraph no. 16.11 of the writ application in respect to Jamabandi existing for Plot No. 378, 379, 334, 235, 238, 240, 242, 384 and 284 in Mauza– Binda Diyara, Mirza Bahiyar, Tauzi No. 1351, Thana No. 386 is existing, although in the plaint of Title Suit No. 70 of 2011, the schedule of the said Title Suit is of Mauza – Binda Diyara, Mirza Bahiyar, Pargana – Farkiyan, Thana – Muffasil, P.S. – Bariyarpur, Anchal – Jamalpur, Hal-Bariyarpur, Tauzi No. 1351, Thana No. 386, Jamabandi No. 20 (Old), 23 (New) of Khata No. 378, 384 (Old), Plot No. 382, 1150, 1151, area-8 acre. The said Jamabandi No. 20 (Old) contains large chunk of land and the dispute of 8 acres of land is totally different to the land of present petitioners and others.

11. Mr. P.N. Shahi, learned Senior Counsel, submitted that the Tribunal has made an error of the record and at the same time relegated the parties to raise the claim before the Title Suit, which is pending bearing Title Suit No. 70 of 2011, which is an error of record and at the same time questioned the order passed by the DCLR, Sadar Munger Division on the ground that the entire order passed by the DCLR declaring the land of the present petitioners as Qaisar-e- Hind is without jurisdiction. The issue of declaration of the title or possession cannot be decided in a summary proceeding. It has been submitted by the learned Senior Counsel that BLDR Act, 2009 is a summary proceeding and the findings given by the DCLR, Sadar Munger by which cancellation of existing Jamabandi of more than 68 years have been done declaring it to be Qaisar-e-Hind land is beyond the purview of the power exercised under the BLDR Act, 2009. Secondly, it has been submitted that cancellation of Jamabandi lies under Section-9 of the Bihar Mutation Act, 2011 and DCLR, Sadar Munger has no jurisdiction to cancel the Jamabandi, which was existing in the name of the present petitioners. The DCLR instead of deciding the matter, which was raised by the petitioners has gone beyond its jurisdiction and unsettled the settled Jamabandi, which was existing for more than 68 years. Thirdly, it has been urged by the learned Senior Counsel for the petitioners that if the first proceeding is bad in the eye of law, then the subsequent proceeding is itself a nullity and liable to be set aside in the light of reported Judgment passed in the case of Institute of Charted Accountant (India) Vs. L.K. Ratna & Ors. (1986) 4 SCC 537; AIR 1987 SC 71. Thus, it has been urged that the subsequent order passed by the Commissioner, Munger Division as well as the BLT, Patna is too bad in the eye of law.

12. The learned counsel appearing for the State relied on counter affidavit and submitted that the land is gairmajarua Qaisar-e-Hind Khewat No. 1, Devki Nandan Prasad and Khatiyan was prepared in 1939. It has also been submitted that any creation of Jamabandi is nothing but suspicious and ex landlord has no jurisdiction to settle the land related to Qaisar-e-Hind land. The order passed by DCLR and Divisional Commissioner are correct and the parties have rightly been directed by the BLT, Patna to raise the issue before the Civil Court in Title Suit No. 70 of 2011. The learned counsel appearing for the private respondent chooses not to file counter affidavit and agreed at the Bar that she has no objection if the matter is decided on the point of law as raised by the petitioners.

13. Coming to the merits of the case at hand, the finding given by the DCLR with regard to declaration of the land in question, vide Annexure – P/11 to the Interlocutory Application, which is under challenge, the finding very clearly spells out that existing Jamabandi of more than 60 years have been declared to be void and the land has been declared as Qaisar-e-Hind land and the Circle Officer, Sadar Munger, has been given direction to cancel the Jamabandi is itself a wrong finding. Similar issue has already been dealt by a co-ordinate bench of this Court in the case of Maya Devi Vs. State of Bihar 2014 (3) PLJR 584, whereby it has observed herein under:–

7. The next thing is whether the nature of land being as aforesaid does the law permit change In my view, State and its officials are still harbouring a misconception that once a land is recorded as Gair Mazarua Aam or such land, no settlement can be made by anyone at any point of time. The sooner this wrong impression is erased, the better it is because on this spacious plea, lot of damage is being done. It is well settled judicially that such lands can be settled. That being so, it cannot be said that as the lands were recorded as Gair Mazarua Aam, Gair Mazarua Khas or Qaisar-e-Hind, the settlements in respect thereof and the Jamabandi in respect thereof becomes suspect or becomes illegal. There cannot be any such presumption or assumption. Those assumptions and presumptions are clearly misplaced. I can here usefully refer to the judgment of this Court in the case of Chandeshwari Prasad Narain Deo and Others vs. State of Bihar and Another since reported in 1956 BLJR 24 as also to the case of Laxman Sahai and Others vs. State of Bihar and Others since reported in 1990 (1) BLJ 457.

8. We then come to the third stage. Who is to determine the validity of long standing Jamabandi created It is not one of those cases where overnight people have turned up and some papers have been manufactured. Here, the petitioners undisputedly have been in possession for over 50 years. State, in its counter affidavit itself, agrees that Jamabandis were created long back but they point out two fallacies to challenge its correctness or authenticity. In my view, it is again well settled that where there are such disputes, which involve question of title, right of possession, especially when long standing possession is not disputed, then the only forum available to the State for cancellation of Jamabandi is resort to Civil Court and not in a summary proceeding by any revenue officer of the State.

14. Thus, it can easily be concluded that the State Government sooner the better realize that the nature of the land changes over the period of time and long standing Jamabandi has not been created overnight and the same is not a manufactured one. If the DCLR was so eager in protecting the land of the State, then a Title Suit ought to have been preferred for protecting the land, but in the present case, instead of doing so, the Jamabandi created in the name of the petitioners have been declared to be void and further direction was given to cancel the Jamabandi is absolutely without jurisdiction and beyond the purview of Bihar Land Dispute Resolution Act, 2009. Further cancellation of Jamabandi lies under the Mutation Act, 2011 and under Section-9 of the said Act empowers the Additional Collector who can cancel the Jamabandi but too in a summary proceeding, long standing Jamabandi cannot be cancelled. In the present case, it has been done in a summary manner by the DCLR, Sadar Munger and thus such cancellation is nullity in the eye of law.

15. In the case of Vijay Kumar Prasad Vs. State of Bihar; 2017 (1) PLJR 818,it has been held as follows:–

"5. I completely fail to understand as to how such plea could be decided by the Collector in a summary proceeding. The information given to the petitioner under Right to Information Act, a copy of which has been appended as Annexure-3, indicates in clear terms that the concerned part of the constructed road was never entered in any survey map as road or lane rather the entry is as Gair Mazarua Malik which could have well been settled as a Raiyati land by the Jamindar. That apart the Hon'ble Supreme Court in Gauri Shanker v. Ram Singhasan (AIR 1952 Patna 472) has held that the entry in the record of rights though has a presumptive value but it weakens or wanes through passage of time. The Collector must be indicating towards entry of Gair Mazarua in cadastral survey of right which must have been prepared between the year1906 to 1911. After 30-40 years, there was a possibility that the nature of land might have changed from Gair Mazarua and could have been settled. However, it was unfair on part of the Collector to direct the petitioner to produce that Sada Pattta which was executed in the year 1940 to the ancestor of his vendor without explaining as to why the Jamabandi was created in the name of Kamli Devi, Kunti Devi and Sheo Dulari Devi and was never questioned. If a person or even State has some reason to question the manner in which Jamabandi was created in 1950 after several decades then onus would be upon it or such person to prove that such Jamabandi was created wrongly. That apart, after such a long time after creation of Jamabandi and, thereafter, further mutation after purchase in the year 1977 by the petitioner, it cannot be held in the year 2013 by the Collector that Jamabandi was created fraudulently as the fraud would have to be proved before a Court of competent jurisdiction. Thus, the option before the State of Bihar would be to file a suit before the competent court for getting such declaration. It cannot be done even under Section 9 of the Bihar Mutation Act in the facts and circumstances of the case. He cannot become a factotum i.e. a party and the judge and would decide the matter and annul such Jamabandi which is standing for several decades. A reference in this regard is made to a decision of a Coordinate Bench of this Court rendered in C.W.J.C. No. 22052 of 2013 & analogous cases (Shyam Mohan Shahi & Anr. v. The State of Bihar and Ors.) holding that only option open in such matters to the State would be to file a suit and get a decree from the Civil Court of Competent Jurisdiction. The aforesaid judgment was upheld by a Division Bench of this Court in State of Bihar v. Harendra Nath Tiwary reported in 2015(1) PLJR 606. Apart from the above, this is also intriguing as to under which authority, the Collector has himself recorded a positive finding as if deciding and declaring title in favour of the State and, thereafter, directed the Circle Officer to initiate a proceeding for cancellation of Jamabandi. The Circle Officer does not have power to cancel the Jamabandi when such power has been vested in the Additional Collector under Section 9 of the Bihar Land Mutation Act, 2011. Even if it assumed that he has such power then again if the Collector, being a superior authority, has already applied his mind as he had practically decided a title suit, it would be unwise to think that an authority who is lower in the rank to the Collector would have courage to take a decision contrary to the findings which have been recorded by his superior authority. In my view such action is wholly arbitrary and undesirable.

6. Accordingly, the order impugned is quashed and set aside and it is held that unless the State of Bihar obtains a decree in its favour with respect to land in dispute from a civil court of competent jurisdiction, the Jamabandi would stand as it is and the same cannot be questioned in a summary proceeding after lapse of such a long period and in a manner it has been done."

16. Thus, under this background, the State ought to have filed a suit before the competent forum for cancellation of Jamabandi, and unless obtains a Decree in their favour with respect to the land in question from a Civil Court of competent jurisdiction, the Jamabandi would stand as it cannot be questioned in a summary proceeding after the lapse of such a long period and in the manner as has been done in the present case.

17. So far the issue which has been raised by the present petitioners before the LRDC were not decided and in fact a different route has been taken by the LRDC for declaring the land to be Qaisar-e-Hind and cancelling long standing Jamabandi which was subsequently challenged before the Divisional Commissioner, Munger and before the BLT, Patna. Since the initial order passed by the authority concerned is bad in the eye of law, therefore, the subsequent order will also not stand in the eye of law. In the case of Institute of Chartered Accountant (India) Vs. L.K. Ratna & Ors. (supra) at paragraph no-18 which is reproduced as under:-

“18. But perhaps another way of looking at the matter lies in examining the consequences of the initial order as soon as it is passed. There are cases where an order may cause serious injury as soon as it is made, an injury not capable of being entirely erased when the error is corrected on subsequent appeal. For instance, as in the present case, where a member of a highly respected and publicly trusted profession is found guilty of misconduct and suffers penalty, the damage to his professional reputation can be immediate and far-reaching. "Not all the King's horses and all the King's men" can ever salvage the situation completely, notwithstanding the widest scope provided to an appeal. To many a man, his professional reputation is his most valuable possession. It affects his standing and dignity among his fellow members in the profession, and guarantees the esteem of his clientele. It is often the carefully garnered fruit of a long period of scrupulous, conscientious and diligent industry. It is the portrait of his professional honour. In a world said to be notorious for its blase attitude towards the noble values of an earlier generation, a man's professional reputation is still his most sensitive pride. In such a case, after the blow suffered by the initial decision, it is difficult to contemplate complete restitution through an appellate decision. Such a case is unlike an action for money or recovery of property, where the execution of the trial decree may be stayed pending appeal, or a successful appeal may result in refund of the money or restitution of the property, with appropriate compensation by way of interest or mesne profits for the period of deprivation. And, therefore, it seems to us, there is manifest need to ensure that there is no breach of fundamental procedure in the original proceeding, and to avoid treating an appeal as an overall substitute for the original proceeding.”

18. Another fact which has been raised by the present petitioners with regard to error of record in the finding given by the Tribunal, the same need not be decided as the present case is being allowed on the first ground.

19. In my considered view after perusing the records of the case, any long standing Jamabandi cannot be cancelled in a summary proceeding as also been decided by the Division Bench of this High Court in the case of Harendra Nath Tiwari Vs. The State of Bihar, 2015 (1) PLJR 606 at paragraph no.14 which is reproduced herein under:--

“Further, the suo motu powers, whenever conferred, are required to be exercised within a reasonable time. Such a power cannot be taken recourse to, unsettle the things which have assumed finality over the decades, in the instant case, more than seven decades. Another important aspect is that the Act came into force in the year 2011; whereas the Jamabandi was of the year 1946. Valuable rights accrued to the parties and they cannot be unsettled nearly after three generations. There was no allegation of fraud, at any point of time.”

20. The legal issues now boil down to two parts, i.e. with regard to the nature of land and secondly, with regard to the jurisdiction, which has been exercised by the DCLR, Munger Sadar while cancelling the Jamabandi and declaring the to be Qaisar-e-Hind land. Nature of land does change over the period of time and, long standing Jamabandi cannot be cancelled in a summary proceeding and at the same time, DCLR has no jurisdiction to cancel the Jamabandi. Thus, in my considered view the orders passed by the DCLR, Sadar Munger, dated 11.05.2012 (Annexure-P/11 to the I.A.) passed in BLDR Case No. 45 of 2011 is quashed and subsequent orders passed by the Divisional Commissioner, Munger Division, Munger dated 30.11.2013 (Annexure-P/12 to the I.A.) and also the order passed by the Tribunal dated 14.03.2018 in BLT Case No. 240 of 2014 (Impugned Order) are quashed.

21. It is made clear, that the consequence of the setting aside of the order will follow.