RAMOWTAR LAKHOTIA Vs. STATE OF BIHAR

JUDGEMENT

(1.) We have heard Mr. Gautam Kumar Kejriwal, learned advocate for the petitioner and Md. Khurshid Alam, learned AAG-12 for the respondents.

(2.) The challenge in the present writ petition under Article 226 of the Constitution of India is to the vires of Sec. 9(1) of the Bihar Land Mutation Act, 2011 (hereinafter referred to as 'the Act, 2011') and Rules 13(11) and 13(12) of the Bihar Land Mutation Rules, 2012 (hereinafter referred to as 'the Rules, 2012'). What is challenged is the power conferred upon the Additional Collector 'to dispossess a person from the land in question, whose Jamabandi has been cancelled and to put in possession the legitimate owner/custodian of such land on such terms as may appear to the Additional Collector to be fair and equitable", alleged to be ultra vires the Constitution of India, as such part of the legislation is beyond the scope and ambit of Entry 45 of List II of Schedule VII of the Constitution of India.

(3.) The petitioner seeks a declaration that Sec. 9(1) of the Act, 2011 and Rule 13(11) and 13(12) of the Rules, 2012 to the extent it confers power upon the Additional Collector to dispossess a person from such land, on cancellation of jamabandi, so as to put in possession the person found legitimately entitled; would be in excess of the scope of Entry 45, which is confined to determination and collection of revenue, survey to enable that purpose and maintenance of records. It is argued that it is further unsustainable in the eyes of law since it has the effect of denuding the civil courts of competent jurisdiction, from their powers to decide the issues of right, title and possession of a person in an immovable property. The power conferred by the impugned provisions is in excess of the jurisdiction and authority, beyond the scope of Entry 45 of List II of Schedule VII of the Constitution of India. The Additional Collector being a revenue authority has been bestowed with the jurisdiction of a civil court to decide the right, title and possession of a person in an immovable property which is impermissible in terms of the language of the said Entry.