Deepak Roshan, J
1. Heard learned counsel for the parties.
2. The instant writ petition has been filed, inter alia, for quashing of the order dated 11th of November 2022, passed by Respondent No. 2, whereby the representation of the petitioner that the land situated at Mouza-Dhansar, Mouza No. 52 under Khata No. 30, Plot No. 203(p) admeasuring an area of 5.53 decimal may be removed from the prohibited list of National Generic Document Registration System (hereinafter referred to as ‘NGDRS’) has been rejected. The Petitioner has further sought issuance of a direction upon the competent authority for taking steps for removing the land of the Petitioner from the prohibited list of NGDRS.
3. The brief facts of the case are that the land of the petitioner situated at Mouza-Dhansar, Mouza No. 52 under Khata No. 30, Plot No. 203(p) admeasuring an area of 5.53 decimal was purchased by the Petitioner for valuable consideration through a registered sale deed dated 31st of March 1989, based on the registered sale deed the land was settled in favour of one Hari Prasad Aggarwal vide a registered patta bearing number 1167 of 1948. After the demise of Hari Prasad Aggarwal, his legal heir namely, Lalit Kishore Agarwalla sold the land to one Lalita Bhanote, who thereafter, sold the land to the Petitioner. Pursuant to the registration of the sale deed a dakhil kharij Case No. 2339 (III) 2007-08 was filed by the Petitioner for mutation to be carried out in her favour. After a proper enquiry, the application of the mutation was allowed vide order dated 24th of December 2007 (Annexure-2). Pursuant to the order dated 24th of December 2007, corrections were made in Register-II and the Petitioner thereafter has been regularly paying rent. The last revenue receipt was issued in favour of the Petitioner on 18th of May 2021 (Annexure-3). The case of the petitioner is that she wants to dispose of the land for her personal need and as such found a purchaser for the same. However, when she approached the office of the Registrar for the purpose of executing a sale deed, she was informed that the sale of the land was ‘locked’ as the land was in the prohibited list of NGDRS. The Petitioner was informed that the nature of the land was ‘Gair Abad’ and as such the same could not be sold. As soon as, the Petitioner came to know about her land being listed in the ‘prohibited list’, she immediately filed an application being Miscellaneous Case No. 08 of 2021. The Respondent conducted an enquiry into the land and concluded that the land was ‘Gair Abad Malik’ in nature. It was further stated that though the mutation was done in the favour of the Petitioner and prior to that the mutation was also running in the name of her predecessor-in-interest i.e. Lalita Bhanote, no documents with respect to the same was available (Annexure-6). Considering the above report, the application of the Petitioner being Misc Case No. 8 of 2021 was rejected vide order dated 11th of November 2021 holding that in absence of the document of the mul jamabandi, the mutation running in the name of the Petitioner was already marked as ‘suspicious’ vide an order dated 19th of May 2012 (Annexure-6) and as land of the Petitioner could not be taken off the ‘prohibited list’. Hence this writ petition.
4. Mr. Prashant Pallav, learned Counsel for the Petitioner, in backdrop of the facts stated in the foregoing paragraph has submitted that the action of the Respondent-State to put the property in the ‘prohibited list’ in the NRDGS is a colourable exercise of power by the State. It is established law that what the State cannot do directly it cannot do indirectly. In the case at hand, the State has no authority to annul a longstanding jamanbandi which is running in the name of the Petitioner and prior to her in the name of her predecessor-in-interest. The land was settled in the name of the predecessor-in-interest in 1948 vide registered patta bearing number 1167 of 1948. He further submits that the mutation entry was created in the favour of the Petitioner in accordance with the procedure established under the Bihar Tenant's Holdings (Maintenance of Records) Act, 1973 vide order dated 24th of December 2007. By placing the Petitioner’s land in the prohibited list, the State authority has tried to circumvent the process of law and dispute the title of the Petitioner and claim its own title over the same. The State cannot become judge of its own cause if at all, State is having any claim over the land the only remedy available to the State was to approach the Ld. Civil Court of competent jurisdiction. He has placed reliance of the case of Sabitri Devi vs. The State of Jharkhand and Ors. reported in 2024 SCC OnLine Jhar 2601. The State in the garb of cancellation of jamabandi has put the land in the prohibited list of NDGRS to restrict the enjoyment of the land.
5. Learned Counsel further submits that there is no specific procedure prescribed under law to put a property in the prohibited list of NGDRS. The right of property is not only a constitutional right but also a human right which is guaranteed by the State under Article 300A of the Constitution of India and no citizen can be deprived of his or her right to enjoy the property except in accordance with the procedure prescribed under law. He has buttressed his argument by placing reliance on the case of Lachhman Dass vs. Jagat Ram and Ors., reported in 2010 10 SCC 448.
He went on to assert that the Respondent-State has not brought any document to show that there is a prescribed procedure for making entries in the prohibited list of NGDRS. In absence of any such procedure, the entire action left to the whims of the official, who are acting in the most arbitrary and illegal manner. He has also placed reliance on the judgement of this Court rendered in the case of Pashupati Narayan Singh v. State of Jharkhand and Anr reported in 2008 SCC OnLine Jhar 946. In the said case the State-Respondent has refused to register the sale deed on the ground that the land was ‘Gair Abad’. This Court however rejected the stand taken by the State and directed registration of the sale deed.
6. Learned Counsel lastly submits that the action of the RespondentState to put the land in the ‘prohibited list’ has civil consequences and no such right can be taken away without giving an opportunity of being heard.
7. Mr. Gaurav Raj, learned AC to AAG-II, on the basis of Para-10 of counter affidavit submits that the land forming subject matter of instant writ was recorded as ‘Gair Abad’ in the cadastral survey. It has been further submitted that the jamabandi of the Petitioner and the predecessorin-interest of the Petitioner is suspicious and is liable to be cancelled under Section 4(h) of the Bihar Land Reforms Act, 1950. It has further been submitted that as the nature of the land is ‘Gair Abad’ accordingly cannot be sold out.
He further submits that since no documents pertaining to the creation of the jamabandi could be found during inspection and as such the creation of jamabandi is suspicious. Allowing an illegal jamabandi to continue would allow perpetuation of an illegal action. It has been further stated that the entry of the land of the Petitioner in the prohibited list has been done in accordance with law. The State is contemplating to take recourse of Section 4(h) of the Bihar Land Reforms Act, 1950 for cancellation of the jamabandi of the Petitioner.
8. In rebuttal, learned Counsel for the Petitioner emphatically submits that the Respondent-State is acting as a judge of their own cause. There is no declaration by any competent court holding jamabandi to be illegal. He has further stated that there are no proceedings under Section 4(h) under the Bihar Land Reforms Act, 1950 and even if any such action is initiated, the same would be contrary to the law. The settlement vide registered patta bearing number 1167 of 1948 i.e. more that 78 years ago and at this stage the land has change several hands and the State cannot simply under the grab of Section 4(h) of the Bihar Land Reforms Act, 1950 (which is anticipated) the State cannot disturb the bonafide purchaser of a property which is having long standing jamabandi and from whom the State has been realizing rent and mutations are carried in their favour. There is no statute governing the field to place the individual land in ‘prohibited list’ that too without affording the opportunity to an individual having right, title and interest over the property. From the submission made by the Respondent show that even the principle of natural justice was not adhered to while putting the land of the Petitioner in the prohibited list.
9. Before delving deep into the matter, it would be appropriate to examine the important issues involved in the instant writ petition:
(I) Whether the entry of the land in the prohibited list of NGDRS has civil consequences ?
(II) Whether the Respondent-State can put the land in the prohibited list under NGDRS without following due procedure of law and the principles of natural justice ?
10. Having gone through the records of the case and after hearing the rival contention of the parties across the bar, it is an admitted fact that the land forming subject matter of the instant case was settled in the favour of the predecessor-in-interest of the Petitioner, namely Hari Prasad Agarwal in the year 1948 through a registered patta bearing number 1167 of 1948. The land was thereafter sold one to another individual namely Lalita Bhanote vide a registered sale deed dated 31st of March 1989. The Petitioner purchased the land in the year 2007 vide a registered sale deed dated 30th of November 2007. After the Petitioner purchased the land, she filed an application for mutation which was allowed vide order dated 24th of December 2007 and revenue rent receipts was issued in the favour of the Petitioner.
11. A bare perusal of the impugned order dated 11th of November 2022 will show that the land was marked as ‘suspicious’, and it was only on the basis of the same that the land forming subject matter of the instant writ petition was put in the prohibited list. The Respondent-State has not countered the fact that notices were not issued to the Petitioner prior to the jamabandi of the Petitioner being marked as ‘suspicious’ or before the land was entered in the prohibited list of NGDRS.
12. It is trite law that right to property and its enjoyment is not only a constitutional right but also a human right. The Hon’ble Apex Court in the case of Lachhman Dass vs. Jagat Ram and Ors. reported in 2007 10 SCC 448 has held that the right to property is a constitutional right guaranteed under Article 300A of the Constitution of India and if there is any entity claiming a superior right, then such right has to be enforced in accordance with the procedure prescribed under law. The relevant portion of the judgement is as under:-
“16…His right, therefore, to own and possess the suit land could not have been taken away without giving him an opportunity of hearing in a matter of this nature. To hold property is a constitutional right in terms of Article 300A of the Constitution of India. It is also a human right. Right to hold property, therefore, cannot be taken away except in accordance with the provisions o a statute. If a superior right to hold a property is claimed, the procedures therefore must be complied with.”
13. ‘Civil consequence’ has been defined by the Hon’ble Apex Court in the case of Nirma Industries Ltd. and Ors. vs. Securities and Exchange Board of India reported in (2013) 8 SCC 20. The relevant portion of the judgement is reproduced as under: -
“28….Here again, this Court has reiterated that even an administrative order, which involved civil consequences, must be consistent with the rules of natural justice. The expression "civil consequences" encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In other words, anything which affects the rights of the citizen in ordinary civil life.”
14. In the given facts of the case and the law laid down by the Hon’ble Apex Court there is no doubt that inclusion of the land into the ‘Prohibited List’ affects the right of enjoyment of the property of an individual which includes right of transfer. The said person can be deprived of various rights such as right to lease the property, right to develop the property or as in the case at hand, the right to alienate/sell the property. As such, this Court has no hesitation in holding that the inclusion of any land in the prohibited list has ‘civil consequences.’ The first issue stands answered accordingly.
15. Coming onto the second issue, it is trite law that any action, including administrative law, which has civil consequences must adhere to the principles of natural justice and non-adherence to the same would be fatal to such action. In the case at hand, the State has not countered the fact that the no notice(s) were issued to the Petitioner prior to the land being included in the prohibited list of NDGRS. This Court fails to understand that despite having ample opportunity to file a reply, the StateRespondent did not bring any procedure on record for the inclusion or exclusion of any property in the prohibited list of NGDRS. Having already observed that inclusion of a property in the prohibited list has civil consequences and as such a Petitioner cannot be deprived of the same without following the due process of law. The action of the RespondentState fails on this ground as well.
16. It is trite law that ‘no person can be judge in his own cause’. The fact that neither there is any order by the competent court nor there is any proceeding pending against the Petitioner with respect to cancellation of jamabandi. The contention of the Respondent that the land is of the nature ‘Gair Abad’ and jamabandi appears to be suspicious cannot be ground to cancel the long standing jamabandi as has been held in the case of Pashupati Narayan Singh v. State of Jharkhand and Anr reported in 2008 SCC OnLine Jhar 946, the relevant portion of which is as under:-
“8. Learned counsel, appearing on behalf of the petitioner, submitted that while; refusing to grant ‘No Objection Certificate’ to the petitioner, the learned Additional Collector, Dhanbad has delved into the question of right and ownership of the petitioner over the land, in question, which is beyond his jurisdiction. The name of the petitioner and predecessor-in-interest had been mutated long ago and they have been paying rent to the State, the State-respondent has already accepted the petitioner as raiyat of the said land. However, in the impugned order learned Additional Collector has observed that the land is a Gair Abad of Ex-landlord and that the petitioner has got no right over the same and he has no legal basis. The action of the Additional Collector recommending annulment of the settlement of the said land is in violation of the provisions of Section 4(h) of the Bihar Land Reforms Act, that too without holding any enquiry required under law, is also perverse, arbitrary and illegal. The said order, thus, cannot stand. I find much substance in the contentions of learned counsel for the petitioner.”
17. It is also no more res integra that long standing jamabandi cannot be looked into by the revenue court and it is only the civil court of competent jurisdiction which can interfere with such right on an individual.
18. The State’s submission that it is contemplating of initiation of proceedings under 4(h) of the Bihar Land Reforms Act, 1950 therefore the Petitioner’s property was placed in prohibited list of NGDRS. This submission of the State is devoid of merit because it will be illegal and arbitrary on part of the State to take decision based on anticipation. The proceedings under Section 4(h) of the Bihar Land Reforms Act, 1950 does not provide any limitation prescribed but in the judgment of Antardhari Sao vs. The State of Jharkhand and Ors., reported in 2024 SCC OnLine Jhar 513, the co-ordinate bench of this Court has held that even if there is no prescribed period of limitation, the authorities are under obligation to initiate proceeding within a reasonable period of time. The relevant portion of the judgment is reproduced as under for ready reference: -
“20. Section 4(h) of the Act does not provide for any period of limitation. When there is no period of limitation prescribed in the statute to initiate the proceeding, it does not mean that this proceeding can be initiated at any time as per the wish of the authority and person, who is initiating the proceeding. In absence of any prescribed period for limitation, the proceeding should be initiated within a reasonable time frame.”
19. In the present case almost 76 years have passed since the settlement was carried out vide registered patta bearing number 1167 of 1948. The recourse available to the State in the instant case is to approach the Ld. Civil Court of competent jurisdiction and not by becoming judge of its own cause and adopting circuitous process by placing the property of the individual under ‘prohibited list’. In sequitur, the impugned order dated 11th of November 2022 passed in Misc Case No. 8 of 2021 is hereby quashed. Respondent No. 2 is hereby directed to ensure that the land of the petitioner is removed from the prohibited list of NGDRS within a period of 2 weeks from the date of receipt/production of copy of this order and the concerned Respondent is further directed to issue the demand of “Rent” so that that the petitioner would be able to pay the same.
20. Accordingly, the instant writ petition stands allowed. Pending I.A.s, if any, also stands closed.
