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1e94c68957a0-0 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.1091 of 2013
With
Interlocutory Application No. 1572 of 2013
In
Civil Writ Jurisdiction Case No. 1091 of 201... | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-1 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | Ms. Shashi Priya Pathak, AC to AAG 7
=========================================================== <span class="hidden_text" id="span_1"> Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014</span> CORAM: HONOURABLE THE CHIEF JUSTICE And HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH C.A.V JUDGMENT (Per: HONOURABLE THE... | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-2 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | 12. 24.06.2014 This Petition under Article 226 of the Constitution has been filed by a father and the son Maheshwar Mandal and Sanjay Mandal to challenge the order dated 27th December 2011 made by the Competent Authority-cum-Deputy Collector Land Reforms, Forbesganj, Araria in B.L.D.R. Act Case No. 91 of 2011-12 in exe... | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-3 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | One Jashoda Devi, the respondent no. 4, wife of one Gosai Mandal approached the Competent Authority under the Act of 2009 for a declaration that she is the owner of the disputed parcels of land (hereinafter referred to as "the suit land") and that she is entitled to the possession of the suit land. She complained that ... | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-4 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | The Competent Authority-cum-Deputy Collector Land Reforms, Forbesganj (hereinafter referred to as "the Competent Authority") held that the deed of cancellation of sale was not a valid document and that the plaintiff, Jashoda Devi was the lawful owner of the suit land. In view of the said finding, the Competent Authorit... | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-5 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | The Petition is contested by the State Government.
Learned advocate Mr. Ram Kishore Singh has appeared for the State Government. He has relied upon Entry 18 of the State List of Schedule VII to the Constitution of India, the Bihar Tenancy Act, 1885 and the judgment in the matter of Smt. Basmati Devi Vs. Smt. Anju Ku... | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-6 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | In view of challenge to the constitutional validity of the Act of 2009, we have heard learned Principal Additional Advocate General, Mr. Lalit Kishore on behalf of the State Government. Mr. Lalit Kishore has contested the challenge to the constitutional validity of the Act of 2009. He has taken us through the various p... | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-7 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | of construction of legal provisions does permit reference to the preamble of the enactment, but no provision can be held to be ultra vires the preamble of the enactment. Mr. Lalit Kishore has meticulously taken us through each provision particularly Section 4 and various clauses under Sub-section (1) of Section 4 of th... | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-8 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | In support of his submissions, Mr. Lalit Kishore has relied upon the judgments of the Hon‟ble Supreme Court in the matters of M/s Burrakur Coal Co. Ltd. Vs. The Union of India and Others {AIR 1961 Supreme Court 954, Mohan Lal Vs. Kartar Singh and Others {1995 Supp (4) Supreme Court Cases 684, Union of India Vs. Elphins... | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-9 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | In the matter of Mohan Lal (supra) a similar provision for summary enquiry by collector was the subject matter of challenge before the Hon‟ble Supreme Court. The Hon‟ble Court observed, "Though the enquiry is summary it is judicial in nature. .... Therefore, merely because the Collector acting under section 43 has to m... | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-10 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | True, the petitioners have not raised a specific challenge <span class="hidden_text" id="span_11"> Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014</span> to a particular provision/s. The challenge to the constitutional validity of the Act of 2009 is too general and vague. The sole reliance is placed on the F... | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-11 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | The preamble of the Act of 2009 reads as under :-
"WHEREAS, in the State of Bihar, disputes relating to record of rights, boundaries, entries in revenue records, unlawful occupation of raiyati land and forcible dispossession of allottees and settlees of public land, generate problems and cause unnecessary harassment t... | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-12 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | (4) The Bihar Bhoodan Yagna Act, 1954,
(5) The Bihar Land Reforms (Fixation of Ceiling and
Acquisition of Surplus Land) Act, 1961,
(6) The Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956, AND, WHEREAS, different forums and procedures h... | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-13 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | Section 2 of the Act of 2009 defines various terms and phrases used in the Act. Clause (a) defines, ""Competent Authority" shall be the Deputy Collector Land Reforms or any officer assigned to discharge the function and duties of the Deputy Collector Land Reforms in the Sub-division". Clause (d) defines, ""Land" connot... | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-14 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | (f) thereof defines, ""Allottee or Settlee" connotes the person with whom land has been settled by the competent authority or the person who has acquired raiyati rights over the land, under any of the Acts contained in Schedule-1 of this Act". Clause (g) thereof defines ""Raiyat" connotes a raiyat as defined under the ... | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-15 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | (a) Unauthorised and unlawful dispossession of any settlee or allottee from any land or part thereof, settled with or allotted to him under any Act contained in Schedule-1 of this Act by issuance of any settlement document/parcha by a Competent <span class="hidden_text" id="span_17"> Patna High Court CWJC No.1091 of 20... | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-16 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | (3) The Competent Authority shall not have jurisdiction to adjudicate any fresh rights of allottee/settlee or a raiyat which is not yet determined and is required to be determined in accordance with provisons contained in any of the <span class="hidden_text" id="span_19"> Patna High Court CWJC No.1091 of 2013 (12) dt. ... | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-17 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | Section 5 of the Act confers certain powers of Civil Court upon the Competent Authority. Section 6 of the Act provides, "in all cases of civil nature, concerning a land or a portion thereof, and in which one of the parties to the case is an allottee or settlee under Section-2 of the Act, the State shall be a necessary ... | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-18 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | This intention is reinforced by Sub-section(2) of Section 4 of the Act of 2009 insofar as it expressly provides, "Competent Authority shall exercise his authority for resolving the dispute brought before him on basis of any final order passed by any of the authorities empowered to do so under the Acts contained in Sche... | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-19 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | The Act which is designed to execute the orders made or to enforce the rights accrued under any of the aforesaid six enactments, has been converted into a substantive or adjudicating enactment by Section 4(4) of the Act of 2009. The power of adjudication conferred under the aforesaid Sub- sections (4) & (5) of Section ... | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-20 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | It is apparent that the Act of 2009 has been enacted with an intention to give immediate relief to the allottees and the settlees whose rights are crystallized under any of the six enactments mentioned in Schedule-1 to the Act of 2009. It is, therefore, necessary that any person approaching the Competent Authority unde... | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-21 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | to the Act of 2009 in respect of the procedure prescribed in the above referred six enactments This seemingly unfettered and unbridled power of adjudication has been misused by the Competent Authority to resolve disputes of title to the land which traditionally are required to be resolved by a Civil Court. In the prese... | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-22 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | Incongruity in legislative drafting of sub-sections (3) & (4) of Section 4 of the Act of 2009 is evident. But then, that is the way the legislature functions. On one hand Sub-section (3) of Section 4 of the Act of 2009 expressly debars the Competent Authority from adjudicating any fresh rights of allottee, settlee or a... | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-23 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | Similarly, sub-section (5) of Section 4 of the Act of 2009 also is a mischief monger. Once jurisdiction of the Competent Authority is confined to the execution of the orders made or enforcement of rights accrued under any of the aforesaid six enactments, sub-section (5) of Section 4 of the Act of 2009, by necessary imp... | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-24 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | The said enactment was challenged on the ground that it was a fraud on the legislative power of the State and was enacted in colourable exercise of that power and that the impugned provisions were arbitrary. The Bench held that clause (d) of sub-section (1) and sub-section (2) of Section 109 of the Act introduced by Bi... | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-25 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | The Bench held, "It is difficult to conceive how complicated title suits would be speedily and summarily disposed of by Revenue Courts and how the under-raiyats would be benefited thereby. I can take judicial notice of the fact that a large number of title suits have been filed throughout the State of Bihar wherever Re... | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-26 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | In my opinion, a similar mischief is found in the Act of 2009 where the competent authority is allowed to entertain and summarily decide the rights which are not crystallized under any of the aforesaid six enactments and to entertain and decide complex issues of title to the land under sub-sections (4) & (5) of Section... | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-27 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | In my opinion, clause (e) of Sub-section (1) of Section 4 of the Act of 2009 which reads, "Partition of land" has to be read as the dispute relating to the land allotted or settled under any of the above referred six enactments and the claim made by an allottee/ a settlee or a Raiyat. The said clause (e) will not cover... | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-28 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | (1) of Section 4 of the Act of 2009 is clearly outside the purview of the any of the above referred six enactments. The principle of lis pendence transfer is necessarily applicable to a civil litigation. If at all, its reference in the Act of 2009 would necessarily mean the transfer of the land of a Raiyat or a settlee... | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-29 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | In my opinion, Sub-section (4) of Section 4 of the Act of 2009 brings a complete anachronism as it has the effect of encompassing in its folds any real or imaginary right an allottee or a settlee or a Raiyat can claim which is not conferred by any of the aforesaid six enactments. That would necessarily mean that the <s... | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-30 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | For the aforesaid reasons, this Petition is allowed. Clauses (e), (g), (i) and (j) of Sub-section (1) of Section 4 of the Act of 2009 are read down to the extent indicated hereinabove. Sub- section (4) of Section 4 of the Act of 2009 is held to be arbitrary and ultra vires Article 14 of the Constitution and unconstitut... | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-31 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | Interlocutory application stands disposed of.
(R.M. Doshit, CJ) As per Ashwani Kumar Singh, J I have had the privilege and advantage of perusing the judgment of Hon‟ble the Chief Justice. Since Hon‟ble the Chief Justice has extensively dealt with the facts and law involved in the matter, I need not repeat the same. ... | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-32 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | However, I am unable to resist from adding some of my own observations in the context of the provisions of Sub-section (5) of Section 4 of the Act of 2009. Sub-section (5) of Section 4 of the Act of 2009 reads as follows :
"(5) The Competent Authority, wherever it appears to him that the case instituted before him inv... | https://indiankanoon.org/doc/154031036/ |
1e94c68957a0-33 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | In above view of the matter, I am of the considered opinion that Sub-section (5) of Section 4 of the Act of 2009 strictly forbids the Competent Authority to entertain matters involving questions of adjudication of title. I am of the view that the Competent Authority, irrespective of nature of cases involving issues of ... | https://indiankanoon.org/doc/154031036/ |
32be51b91e2b-0 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | IN THE HIGH COURT OF JUDICATURE AT PATNA
MA No.38 of 2004
1.SRI ASHOK GOENKA son of late Kedarnath Goenka and
Proprietor M/S Premier Synthetics, Patna, resident
of Mohalla Laxmi Bhawan, Munger, P.S.Kotwali Town,
District Munger, at present residing at B-9,
Greater Kailash, New Delhi
... | https://indiankanoon.org/doc/44290554/ |
32be51b91e2b-1 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | -----Respondents II set
(in M.A.No.38 of 2004)
1.Sri Sukhnandan Rai son of late Ganga Bishun Rai
resident of Haripur Colony, Digha, P.S.Digha Town
District Patna
2.Smt.Neelam Devi D/o late Ram Prasad Yadav,
resident of village Bishunpur, P.S.Akhilpur,
District Patna
At p... | https://indiankanoon.org/doc/44290554/ |
32be51b91e2b-2 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | M.A.No.38/04 is directed against the order dated 24.11.2003 passed by the Ist Sub- Judge, Danapur in Title Suit No.24 of 2003 by which he has allowed the petition dated 17.4.2003 filed by the plaintiffs-respondents Ist Set under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure and directed th... | https://indiankanoon.org/doc/44290554/ |
32be51b91e2b-3 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | The defendant-appellant no.2 and defendant-appellant no.1 are the firm and proprietor of the said firm which is the owner of the suit land in both the cases.
The case of both the sets plaintiffs was that the defendants-appellants had entered into an agreement with them and executed in both the cases an agreement for... | https://indiankanoon.org/doc/44290554/ |
32be51b91e2b-4 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | The defendants-appellants appeared in the suits and filed their written statements in which, inter alia, apart from raising the plea of maintainability it was alleged that the agreement for sale is most fabricated, sham, without consideration and a document prepared by means of practicing fraud. The statement regarding... | https://indiankanoon.org/doc/44290554/ |
32be51b91e2b-5 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | Learned counsel for the appellants submits that the unregistered agreement for sale dated 27.3.2002 under which the plaintiffs-respondents claim part performance having been put in possession of the suit land is barred by the provisions of Section 17(1-A) of the Registration Act read with Section 53A of the Transfer of... | https://indiankanoon.org/doc/44290554/ |
32be51b91e2b-6 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | "7. An order of injunction restraining the defendant in a suit for specific performance of contract from making repairs or construction on the suit premises, as may be necessary, does not fall in any of the three categories. It is well established that an agreement to sale does not create any interest in the property. ... | https://indiankanoon.org/doc/44290554/ |
32be51b91e2b-7 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | It is further submitted by learned counsel that since legal title in the suit land continues in favour of the appellants from the very beginning the same could not have been given to the plaintiffs and the plaintiffs being further debarred from raising the plea of part performance in view of the amended provisions of R... | https://indiankanoon.org/doc/44290554/ |
32be51b91e2b-8 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | "10. We have also been addressed on the question whether the appellant can be sufficiently compensated by money in respect of any loss suffered before specific performance of the contract. The learned Advocate General has drawn our attention to S.12, Expln. And Ss. 54 and 56, Specific Relief Act. He has also drawn our ... | https://indiankanoon.org/doc/44290554/ |
32be51b91e2b-9 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | Learned counsel for the appellants has vehemently argued that there is no factual basis for the court below to come to the conclusion that the plaintiffs were in possession over the land in question and the reliance upon Clause 5 of the alleged agreement for sale for the said purpose was completely uncalled for and bar... | https://indiankanoon.org/doc/44290554/ |
32be51b91e2b-10 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | Learned counsel for the respondent nos. 3 to 5 has supported the stand of the appellants on the aforesaid grounds and further sought support from a decision of this Court in the case of Ramashish Rai vs. Baijnath Mishra & 11 another : 1998(3) PLJR 862, in paragraph-5 of which it has been laid down as follows : | https://indiankanoon.org/doc/44290554/ |
32be51b91e2b-11 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | "5. Be that as it may, admittedly, the plaintiff's case is that there was an oral agreement to sell of the suit land and on payment of consideration money the plaintiff was put in possession. There is no dispute that a suit for Specific Performance of Contract can be filed on the basis of oral agreement. The question f... | https://indiankanoon.org/doc/44290554/ |
32be51b91e2b-12 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | "I have heard learned counsel for the parties and have gone through the orders passed by both the courts below. In my opinion, both the courts below have committed serious illegality and material irregularity in granting temporary injunction in the facts and circumstances of the case. The courts below have over- looked... | https://indiankanoon.org/doc/44290554/ |
32be51b91e2b-13 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | Learned counsel for the respondent nos. 1 and 2, on the other hand, submits that the court below has rightly granted injunction in view of the fact that subsequent to the filing of the suit the registered sale-deed was executed in favour of the respondent nos. 3 to 5 on 24.3.2003 and an attempt was made to dispossess t... | https://indiankanoon.org/doc/44290554/ |
32be51b91e2b-14 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | In support of the aforesaid stand learned counsel relies upon a decision of the Supreme Court in the case of Ashwinkumar K.Patel vs.Upendra J.Patel and others : AIR 1999 SC 1125, paragraphs 11 and 12 of which are quoted below :
"11. A reading of the judgment of the trial Court shows that though the agreement of sale e... | https://indiankanoon.org/doc/44290554/ |
32be51b91e2b-15 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | I have considered the rival submissions of the parties and the materials on the record. It is evident from the impugned orders that the court below has not at all taken into account the effect of Section 17(1-A) of the Registration Act, 1908 as inserted by the amending Act 48 of 2001. The said provision is quoted below... | https://indiankanoon.org/doc/44290554/ |
32be51b91e2b-16 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | It is evident from the said provision that any document containing contracts to transfer for consideration, any immoveable property for deriving the benefit under Section 53A of the Transfer of Property Act must be registered if it has been executed after the commencement of the Amending Act of 2001 and in case such do... | https://indiankanoon.org/doc/44290554/ |
32be51b91e2b-17 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | Even otherwise this Court does not find that apart from the said Clause 5 of the unregistered agreements for sale there was any material before the court on the basis of which it could have come to the conclusion regarding the plaintiffs being in possession over the suit land. Thus the finding of prima facie case in fa... | https://indiankanoon.org/doc/44290554/ |
32be51b91e2b-18 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | So far as the case of Sm. Muktakesi Dawn (supra) is concerned the only issue decided therein is that an injunction restraining the pendente lite transfer can be granted in an appropriate case where relief for specific performance is sought. There can be no dispute with the said proposition. However, in the present matt... | https://indiankanoon.org/doc/44290554/ |
c542667f83fa-0 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | IN THE HIGH COURT OF JUDICATURE AT PATNA
LPA 681 of 2010
1.Mt. Prabhawati widow of Late Madan Mishra, resident of village-
Pathakauli, P.S. Bagaha, District West Champaran
2. Kamlawati Devi @ Kalawati Devi wife of Chhedi Singh
3. Geeta Devi wife of Anirudh Singh
Both resident of Village... | https://indiankanoon.org/doc/814453/ |
c542667f83fa-1 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | Champaran
13.Jagdish Rao son of Bishwanath Rao, resident of Village
Dumawalia, P.S. Bagaha, District West Champaran
14. Abhay Narain Pathak son of late Ramakant Pathak
15. Sheo Sagar Pathak son of Kamakhya Pathak
Both resident of village Pathakauli, P.S. Bagaha, District West
Champaran
16. Gunjan Pathak s... | https://indiankanoon.org/doc/814453/ |
c542667f83fa-2 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | 21. Hari Shanker Pandey son of Gena Pandey, resident of village
Pathakauli, P.S. Bagaha, District West Champaran
22. Paras Nath Tiwary son of Deo Sharan Tiwary, resident of Village
Dumawalia, P.S. Bagaha, District West Champaran
......... Appellants
... | https://indiankanoon.org/doc/814453/ |
c542667f83fa-3 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | Narainpur, P.S. Bagaha, District West Champaran
7. Brajnarain Shukla son of late Jagdeo Shukhla, resident of village
Narainpur, P.S. Bagaha, District West Champaran
8. Sabita @ Amarpati Devi wife of Brajnarain Sukhla, resident of
village Narainpur, P.S. Bagaha, District West Champaran
9. Indu Singh wife of S.P. S... | https://indiankanoon.org/doc/814453/ |
c542667f83fa-4 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | 2. The Collector, West Champaran, Bettiah
3. The District Land Acquisition Officer, Bettiah
4. The Sub-Divisional Officer, Bagaha, District West Champaran
........... Respondents
For the Appellants : Mr. Manan Kumar Mishra, Sr. Advocate
... | https://indiankanoon.org/doc/814453/ |
c542667f83fa-5 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | 2. The relevant facts necessary for disposal of the appeals in short are as follows. The appellants are raiyats of lands situated in Village Pokharbhinda and Domwalia in Bagha Sub Division in the district of West Champaran, detailed in Annexure-2A of the writ petition. In view of anarchy prevailing in the region, Bagha... | https://indiankanoon.org/doc/814453/ |
c542667f83fa-6 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | 03. The proposal finally reached the office of the Commissioner, Tirhut Division, for administrative approval. The Commissioner pointed certain defects and referred the matter to the Collector, West Champaran, for rectification. The Collector in his turn endorsed the file to the Circle Officer, Bagha, for making necess... | https://indiankanoon.org/doc/814453/ |
c542667f83fa-7 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | Tirhut Division, vide his recommendation dated 4.11.2006 to the Director, Land Acquisition, under letter no.4999, dated 13.11.2006, for due consideration and taking approval of the Government. The matter was placed before the Government, and the Minister being satisfied gave approval to the proposal of acquisition unde... | https://indiankanoon.org/doc/814453/ |
c542667f83fa-8 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | 3. The Collector on 25.4.2007, vide letter no.48 requested the Commissioner, Tirhut Division to seek government‟s approval for taking possession of the land in question in terms of section 17(1) of the Act. The Commissioner forwarded the request to the Director, Land Acquisition, vide his letter no.2710, dated 20.6.200... | https://indiankanoon.org/doc/814453/ |
c542667f83fa-9 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | 4. The appellants submit that the impugned land acquisition proceeding is in the teeth of various provisions of the Act. They state that there was no legal and valid ground to invoke the provisions of sections 17(1) and 17(4) of the Act to dispense with the provisions under section 5A of the Act. The proceedings commen... | https://indiankanoon.org/doc/814453/ |
c542667f83fa-10 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | published in the newspaper on 13.2.2007, and in the district gazette on 16.3.2007. The local publication of the award was made on 30.3.2007. | https://indiankanoon.org/doc/814453/ |
c542667f83fa-11 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | 5. They further state that it is evident from perusal of Section 11A of the Land Acquisition Act and the decision of the Hon‟ble Apex Court in the case of Kunwar Pal Singh Vs State of U.P., reported in (2007)5 SCC 85, and other cases that the award is to be made within two years from the last mode of declaration of awa... | https://indiankanoon.org/doc/814453/ |
c542667f83fa-12 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | 7. The appellants also submit that no possession worth the name under section 17(1) of the Act or 80% compensation was paid which was necessary for taking possession under section 17(1) of the Act. The appellants state that the learned Single Judge while hearing the writ petition have passed the interim order on 25.7.2... | https://indiankanoon.org/doc/814453/ |
c542667f83fa-13 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | 10. Mr. Lalit Kishore, learned Addl. Advocate General No.1, submits that the Bagha Sub-Division in West Champaran is very vulnerably situated, surrounded partially by forests which provides easy hide-out to the miscreants both in the forest and across the Nepal. In order to meet such an alarming situation, the Bagha Su... | https://indiankanoon.org/doc/814453/ |
c542667f83fa-14 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | of declaration under section 6 of the Act. According to him, the award was filed in the Collector‟s office on 1.4.2009, and the notice for payment under section 12(2) of the Act was made on 25.5.2009 and 16.6.2009, and thereafter symbolic possession was taken on 29.7.2009. He thus submits that section 3A of Section 17,... | https://indiankanoon.org/doc/814453/ |
c542667f83fa-15 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | 11. The appellants in reply submitted that mere saying that there was urgency would not be sufficient in absence of valid ground for the same. The police line was sought to be constructed only 1 ½ K.M. away from town which would cause inconvenience to the residents particularly the ladies. He submits that noting of the... | https://indiankanoon.org/doc/814453/ |
c542667f83fa-16 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | 13. The appellants have asserted that the last mode of declaration under section 6 was made on 30.3.2007, and award was made on 1.4.2009 beyond the period of two years and as such the entire land acquisition proceeding lapsed. The appellants in support of their submissions have referred to decisions reported in Kunwar ... | https://indiankanoon.org/doc/814453/ |
c542667f83fa-17 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | 15. On the other hand, the Hon‟ble Apex Court in the case of Awadh Bihari Yadav and Ors Vs State of Bihar & Ors heard analogous with Sita Ram Gope & Ors Vs State of U.P. & Ors, reported in (1995) 6 SCC 31 held that section 11-A does not apply to cases of acquisition under section 17. In view of the decisions of Hon‟ble... | https://indiankanoon.org/doc/814453/ |
c542667f83fa-18 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | 16. The contention of the appellants is that there was no legal and valid ground for invoking section 17(1) and 17(4) of the Act and dispensation of provisions under section 5A of the Land Acquisition Act. There was no extra-ordinary urgency for invoking section 17(4), as the proceeding was initiated in the year 2000-0... | https://indiankanoon.org/doc/814453/ |
c542667f83fa-19 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | further observed that pre-notification and post- notification delay would have material bearing on the issues, particularly when no material justifies invoking urgency provision necessitating elimination of an enquiry by the government. In case of Babu Ram Vs State of Haryana, reported in (2009) X SCC 115, the Hon‟ble ... | https://indiankanoon.org/doc/814453/ |
c542667f83fa-20 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | 17. It would appear that the Superintendent of Police, Bagha, made a revised requisition dated 24.2.2004, requesting the Collector, West Champaran, to acquire 45 acres of land in village Pokharbhinda and Dimwalia, detailed in Appendix I of the requisition. A further request was made to dispense with enquiry under secti... | https://indiankanoon.org/doc/814453/ |
c542667f83fa-21 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | is only to be seen whether all materials were placed before the government. In case of Anand Singh (supra), the Hon‟ble Apex Court was examining acquisition for Housing colony. In the instant case, it is respectfully stated that the acquisition was being made for establishing a police line for combating anarchy perpetr... | https://indiankanoon.org/doc/814453/ |
c542667f83fa-22 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | 18. All such materials beginning from requisition made by the Superintendent of Police, Bagha to the recommendation of the Commissioner, Tirhut Division, and Director, Land Acquisition, were placed before the government which approved the same. In view of the emergent situation arising in Bagha, invoking of section 17(... | https://indiankanoon.org/doc/814453/ |
c542667f83fa-23 | Mt.Prabhawati & Ors vs The State Of Bihar & Ors on 24 November, 2011 | The appellants have also contended that the factum of compensation has not been considered by the authorities as well as by the learned Single Judge. This court is of the view that the government should reconsider the aspect of quantum of compensation with interest as lands which in case of majority of the land-holders... | https://indiankanoon.org/doc/814453/ |
a5ef268abef8-0 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.2 of 2014
In
Civil Writ Jurisdiction Case No. 4270 of 2006
===================================================... | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-1 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | For the Respondent/s :
Mr. Lalit Kishore, PAAG &
Mr. Ajay Behari Sinha, S.C.-19
with
Mr. Suryakant Kumar,
A.C... | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-2 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 3. The facts, which have given rise to the present appeal, may, in brief, be set out as under:
(i) The appellant herein, as petitioner, in CWJC No.4270 of 2006, was appointed, on 23.08.1996, as a Government Pleader for the Civil Court, Patna, and conducted cases, on behalf of the State Government, in the civil courts ... | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-3 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | (iii) It has been the contention of the appellant that he ought to be paid his fees in terms of the provisions of Rule 426 of the Civil Court Rules of the High Court of Judicature (hereinafter referred to as "the Rules"); whereas the respondents' contention has been that the payment to the Government Pleader depends on... | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-4 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 4. Resisting the writ petition, at the very threshold, Mr. Lalit Kishore, learned Principal Additional Advocate General, has submitted that this appeal is misconceived inasmuch as the exercise of power by a High Court, under Article 226 of the Constitution of India, is discretionary in nature and if a single Judge decl... | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-5 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 5. We are wholly in agreement with the principle governing the ambit of power exercisable in Letters Patent Appeal and reiterate that a writ appeal is really not a statutory appeal preferred against the judgment and order of an inferior to the superior Court. An intra-court appeal in a High Court, from one Court to ano... | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-6 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 7. Hence, the judgment of the learned Single Judge, impugned in the present appeal, cannot be completely ignored and this Court has to consider the judgment and order in the proper perspective and if this Bench, sitting as an appellate Bench, is of the view that the decision has been arrived at by the learned Single Ju... | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-7 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 11. Even the proposition that admitted bills of a Government Pleader must be directed, in a writ petition, made under Article 226 of the Constitution, to be paid, has been seriously resisted by the learned Principal Additional Advocate General by referring to, and relying upon, the decision of the Supreme Court in Impr... | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-8 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 14. We notice, as has been pointed out by the learned Principal Additional Advocate General, that the appellant was appointed as a Government Pleader, vide letter, dated 23.08.1996, issued under the signature of the Secretary to the Government of Bihar, Law Department. This appointment letter <span class="hidden_text" ... | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-9 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 16. By Circular/Letter, dated 01.10.1996, issued under the signature of the Secretary to the Government of Bihar, Law (Judicial) Department, the retainership fee of the Government Pleaders was enhanced to Rs.300/- from earlier sum of Rs.250/- and, accordingly, the daily fee, for appearance, was also raised to Rs.90/- f... | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-10 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 18. The terms and conditions of appointment of the present appellant, vide appointment letter, dated 23.08.1996, aforementioned, clearly show that the contract/engagement of the appellant, as Government Pleader, was to be governed by terms of the retainership fee and the daily fee, which may be fixed by the Government,... | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-11 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 20. The appellant's letter of appointment, dated 23.08.1996, aforementioned clearly shows that his fees would be governed, apart from the terms of appointment, by the provisions of Bihar Practice and Procedure Manual, 1958, and it is Rule 118 of Bihar Practice and Procedure Manual, which, according to the respondents, ... | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-12 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 22. Let us, now, consider Rule 426 of the Rules. This Rule reads as under :
"426. (i) The advocates' and pleaders' fees shall be in the discretion of the Court.
The following scale of advocates' and pleaders' fees shall ordinarily be allowed to the successful party--
_____________________________________ Amount or... | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-13 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 24. What is, however, of immense importance to note, while analyzing the intent and import of Rule 426, is that Rule 426 makes it clear that the scale of fees, indicated therein, shall, ordinarily, be allowed to the successful party. The use of expression "shall, ordinarily, be allowed to the successful party" is in tu... | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-14 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 26. From a bare reading, as a whole, of the provisions, embodied in Section 35 of the Code of Civil Procedure, what clearly transpires is that ordinarily, a Court shall allow cost and if the cost is not allowed, the Court shall assign its reasons in writing. In other words, cost shall be allowed, ordinarily, to the suc... | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-15 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 30. Hence, if a suit, filed against the State, is decided in favour of the plaintiff, the plaintiff will receive Advocates' fee in terms of Rule 426. If the Government wins a suit, the court may allow cost including the fee of the Government Advocate. The fee to be included, as a cost of an Advocate, in a decree, will ... | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-16 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 32. In the light of the discussions, which we have held above, there can be no escape from the conclusion, and we do conclude, that the fee payable to a Government Pleader, in the State of Bihar, shall be governed by the terms of his appointment and also by Rule 118 of the Bihar Practice and Procedure Manual, 1958, and... | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-17 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 33. Coming to the question as to whether a writ petition, in the facts and circumstances of the present case, was entertainable, we may point out that Improvement Trust v. S.Tejinder Singh Gujral (supra) is case, wherein the High Court had allowed the writ petition filed by an Advocate for recovery of his professional ... | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-18 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 35. We are, therefore, clearly of the view that the writ petition, in the present case, was entertainable. What was in dispute was the determination of the appropriate provisions of law applicable to the facts of the present case and we have, therefore, decided per force the question of law with the conclusions as have... | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-19 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 37. To put a little differently, the question is: Will the constitutional remedy of Article 226 never be available against a State even if the State refuses to carry out its contractual obligations with ulterior motives, mala fide, irrationally, arbitrarily, unreasonably, unfairly, whimsically or when the State, demons... | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-20 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | "Learned Counsel contends that in the cases before us breaches of public duty are involved. The submission made before us is that, whenever a State or its agents or officers deal with the citizen, either when making a transaction or, after making it, acting in exercise of powers under the terms of contract between the ... | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-21 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | "...Primarily, the case of the petitioners is that of a breach of contract for which the State would be liable, ordinarily, to pay damages if it had broken it." | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-22 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 39. What emerges from the above discussion is that the remedy, available under Article 226, is an extraordinary remedy and is not intended for the purpose of declaring private rights of the parties. For the purpose of enforcing contractual rights and obligations, the remedy of filing of a civil suit is available to the... | https://indiankanoon.org/doc/173691638/ |
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