MD ABDUL GHANI Vs. STATE OF BIHAR

JUDGEMENT

(1.) The validity of the Bihar Act 11 of 1990 called the Bihar Land Reforms (Amendment) Act, 1989 has been challenged in these four writ applications. By this Amending Act the definition of the word "estate" in the Bihar Land Reforms Act, 1950 has been amended. Prior to the amendment, the definition was as follows :-

(2.) C.W.J.C. Nos. 3236, 5623 and 3262 of 1990 relate to the fishery right of the petitioners. The petitioners of C.W.J.C. No. 3262 of 1990 and the petitioner of C.W.J.C. No. 3236 of 1990 are lessees from Tarak Nath Ghosh whereas the petitioners of C.W.J.C. No. 5623 of 1990 are the family deities and have filed this application through the Sebaits Mahashay Rabindra Nath Ghosh, Mahashay Mahesh Ghosh, Mahashay Alikh Nath Ghosh and sons of Late Mahashay Amir Nath Ghosh and sons of Late Mdhashay Jitendra Nath Ghosh. According to the petitioners, the Moghals in ancient past in exercise of their imperial rights had granted several fishery rights to the ancestors of Mahashay Tarak Nath Ghosh. The grant is a lost-grant. The grantee and his successor-in-interest continued to hold the said Jalkars Gangapanth and Chanan free from revenue from generation to generation. The validity of the grant was approved and confirmed by the Board of Revenue in the years 1808 and 1810 under the Regulations of 1793. Under the orders of the Governor-General in Council, two Parwanas dated 18-11-1808 and 14-7-1810 were issued on the advice of the Member, Board of Revenue. The Parwanas upheld the claims of tne ancestors of Mahashay Tarak Nath Ghosh and declared that the revenue-free grant of soms lakhraj land and tne Jalkar in question was valid. The lakhraj lands were recorded under separate Tauzi No. 786-B which was later included under Tauzi No. 984-C. But no entry, however, was made with respect to Jalkars Gangapanth and Chanan in any register prepared under the Bengal Land Registration Act. Mahashay Tarak Nath Ghosh, by a deed of endowment dated 6-6-1930 endowed certain properties including Jalkars Gangapanth and Chanan to the petitioner-deities of C. W. J. C. No. 5623 of 1990. Mahashay Tarak Nath Ghosh became the first shebait and after him, his son Amar Nath Ghosh. Amar Nath Ghosh is also dead and the present shebaits of the trust have already been mentioned above through whom the deities have filed C. W. J. C. No. 5623 of 1990. The petitioners of C.W.J.C. No. 3262 of 1990 claim right to exclusive and several rights of fishing in the tidal water of the public navigable river Ganges between Kuppaghat in Mahaganj known as Dargah Hazrat Pir Shah Kamal near Pirpainty. This right they claim on the basis of lease executed by the successor-in-interest of Mahashay Tarak Nath Ghosh. Likewise the petitioner of C. W. J. C. No. 3236 of 1990 also claims fishery right on the basis of a deed of lease dated 8-8-1947 making permanent settlement of Maksoodpur at an annual rental of Rs. 1950/- with the father of the petitioners. The fourth application, namely, C. W. J. C. No. 4673 of 1990 relates to the ferry right known as Rajghat ferry. The ferry rights claimed by the petitioners also relate back to the lost grant conferred by the Moghals in exercise of their imperial right on the ancestor of the petitioners.

(3.) There is no dispute with regard to the area covered by the lost grant There is also no dispute, inter se, between the petitioners of the different writ applications. All of them were operating within their defined sub-areas as per different deeds. They say that in the year 1961, the Additional Collector of Bhagalpur, incharge of revenue, purporting to act under Section 4-B of the Bihar Land Reforms Act issued notices to Mahashay Amar Nath Ghosh and others to show cause as to why the State of Bihar should not resume direct possession of the said Jalkar. The matter was contested and this Court decided the dispute in M. J. C. Nos. 708 and 713 of 1961 in the case of Shree Thakur Basudeo Rai v. State of Bihar & others, 1965 BLJR 150. I shall have occasion to refer to this decision at later stages also but for the present it may be said that this Court held that where the exclusive right of fishery, severed trom the subjacent soil, are granted in navigable rivers, it must be held that they are not land within the meaning of 'estate' as defined in the Act and, as such, they did not vest in the estate of Bihar by special or genral notification. The petitioners say that after this decision which was given in the year 1964, they were enjoying the right of fishery without any interference from the State and its authority. It is also said that the case reported in 1965 BLJR 150 (Supra) was affirmed by the Supreme Court in Civil Appeal No. 2039-40 of 1972 on 4-1-1989. It is further said that on account of political pressure and threat of unsocial elements, Bihar Act 11 of 1990 was passed amending the definition of 'estate'. It is said that according to the amended definition several fishery and ferry rights have also been included in the definition of 'estate' under the Bihar Land Reforms Act The petitioners say that under the amended definition the State is trying to take possession of the fishery right in the area covered by the lost grant. It is said that at the beginning of the British rule, Roy Kripa Nath Chaudhury was the ancestor of these petitioners. He possessed a ferry called Rajghat Kasba Colgong which was in possession of the family since time immemorial and was recognised by the British Government also in the beginning of its administration. It is said that the petitioners were enjoying the right as their revenue-free property and were plying boats as of right in the river Ganges and its branches within the boundary of Barari ferry on the south and Pakarthalla ferry on the north, the river Sowing there from south to north. There was, however, some trouble in the year 1935 with one Babu Naresh Mohan Tbakur and others. The ancestors of the petitioners, therefore, had to file Title Suit No. 2 of 1947 in the court of the Additional Subordinate Judge, Bhagalpur. The Additional Subordinate Judge, Bhagalpur by his judgment and decree dated 2-1-1951 decreed the suit holding as follows :-