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3e4eda11ee62-0 | 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/ |
3e4eda11ee62-1 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | 4. Smt. Jashoda Devi, wife of Gosain Mandal, resident of Village Sahebganj, P.S., P.O. and Anchal- Narpatganj, Subdivision- Forbesganj, District Araria .... .... Respondent 2nd Party =========================================================== Appearance :
For the Petitioners : Mr. Yogendra Mishra &
... | https://indiankanoon.org/doc/154031036/ |
3e4eda11ee62-2 | 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/ |
3e4eda11ee62-3 | 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/ |
3e4eda11ee62-4 | 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/ |
3e4eda11ee62-5 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | suit land through a sale purportedly made by the late Bachchi Mandal on 22nd December 1995. According to the <span class="hidden_text" id="span_3"> Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014</span> petitioners, the said sale was later on cancelled on 29th February 1996. The land continued to be the join... | https://indiankanoon.org/doc/154031036/ |
3e4eda11ee62-6 | 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/ |
3e4eda11ee62-7 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | Learned advocate Mr. Yogendra Mishra has appeared for the petitioners. He has assailed the provisions contained in the Act of 2009. He has submitted that the provisions contained in the Act of 2009 divest the Civil Court of its function of adjudicating the question of title over the land. The Act of 2009 also confers u... | https://indiankanoon.org/doc/154031036/ |
3e4eda11ee62-8 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | 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 Kumari [2012 (3) PLJR 214]. He, however, concedes that i... | https://indiankanoon.org/doc/154031036/ |
3e4eda11ee62-9 | 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/ |
3e4eda11ee62-10 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | have not challenged a particular provision/s of the Act of 2009, but the challenge is general and vague. He has submitted that unless the State legislature lacks the legislative competence to make the enactment, the enactment cannot be said to be unconstitutional. He has further submitted that to challenge any provisio... | https://indiankanoon.org/doc/154031036/ |
3e4eda11ee62-11 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | 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 the A... | https://indiankanoon.org/doc/154031036/ |
3e4eda11ee62-12 | 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/ |
3e4eda11ee62-13 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | In the matter of M.s Burrakur Coal Co. Ltd. (supra) the very issue of interpretation of statute was the subject matter of consideration by the Constitutional Bench of the Hon‟ble Supreme Court. The Hon‟ble Court held, "it is one of the cardinal principles of construction that where the language of an Act is clear, the ... | https://indiankanoon.org/doc/154031036/ |
3e4eda11ee62-14 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | 2013 (12) dt. 24 .06.2014</span> fact Parliament intended that it should have a limited application." | https://indiankanoon.org/doc/154031036/ |
3e4eda11ee62-15 | 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/ |
3e4eda11ee62-16 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | In the matter of Union of India (supra) challenge was directed to the Textile Undertakings (Taking Over of Management) Act, 1983. The Court observed, "There is always a presumption that the legislature does not exceed its jurisdiction and the burden of establishing that the legislature has transgressed constitutional m... | https://indiankanoon.org/doc/154031036/ |
3e4eda11ee62-17 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | Learned advocate Ms. Kumari Ritambhara has appeared for the respondent no. 4-plaintiff. She has supported the orders of the authorities below. | https://indiankanoon.org/doc/154031036/ |
3e4eda11ee62-18 | 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/ |
3e4eda11ee62-19 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | As the Act of 2009 is under challenge before us, we shall first examine the objects and reasons of the Act of 2009 and its provisions. | https://indiankanoon.org/doc/154031036/ |
3e4eda11ee62-20 | 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/ |
3e4eda11ee62-21 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | WHEREAS, such disputes with respect to raiyati land or public land allotted in favour of different classes of allottees are unnecessarily occupying major space of Civil Courts and Hon'ble High Court and which should otherwise have been resolved by the Revenue Authorities, who may be better equipped to deal with such di... | https://indiankanoon.org/doc/154031036/ |
3e4eda11ee62-22 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | AND, WHEREAS, it has been found in analysis of data relating to nature of disputes that they mostly appertain to matters connected with the Record of Rights, partition of jamabandi, forcible dispossession of allottees/raiyats, boundary disputes etc. and in this context, the administration of the following Acts is invol... | https://indiankanoon.org/doc/154031036/ |
3e4eda11ee62-23 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | (6) The Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956, AND, WHEREAS, different forums and procedures have been provided for the resolution of disputes under the above referred Acts and it is considered expedient to provide a uniform and common forum, procedure and mechanism which would achie... | https://indiankanoon.org/doc/154031036/ |
3e4eda11ee62-24 | 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/ |
3e4eda11ee62-25 | 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/ |
3e4eda11ee62-26 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | Ceiling and Acquisition of Surplus Land) Act, 1961, (vi) The Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956. Section 4 thereof provides for the jurisdiction of the Competent Authority. Sub-section (1) thereof empowers the Competent Authority, interalia, to resolve the disputes arising out of | https://indiankanoon.org/doc/154031036/ |
3e4eda11ee62-27 | 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/ |
3e4eda11ee62-28 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | (a), (b) and (c) above appertaining of raiyati land; (e) Partition of land holding; (f) Correction of entry made in the Record of Rights including map/survey map; (g) Declaration of the right of a person; (h) Boundary disputes; (i) Construction of unauthorized structure; and (j) Lis pendens transfer. Sub-section (3) th... | https://indiankanoon.org/doc/154031036/ |
3e4eda11ee62-29 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | "(2) The Competent Authority shall not have jurisdiction to review or reopen any finally concluded and adjudicated proceeding under any of the Act contained in Schedule-1. The Competent Authority shall exercise his authority for resolving the dispute brought before him on the basis of any final order passed by any of t... | https://indiankanoon.org/doc/154031036/ |
3e4eda11ee62-30 | 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/ |
3e4eda11ee62-31 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | (4) Notwithstanding anything contained in sub- section (2) and (3) hereinabove, if no provision is made in any of the Acts contained in Schedule-1 for determination of rights of allottee/ settlee or raiyat and claimed right is yet to be determined, it shall be open to the Competent Authority to finally determine such r... | https://indiankanoon.org/doc/154031036/ |
3e4eda11ee62-32 | 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/ |
3e4eda11ee62-33 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | of the Act enjoins the Competent Authority to execute its orders. Section 16 of the Act confers power, interalia, of attachment of the standing crop upon the Competent Authority. It is apparent that the Act of 2009 has been enacted with a laudable purpose of giving quick relief to the allottees and settlees who have ea... | https://indiankanoon.org/doc/154031036/ |
3e4eda11ee62-34 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | referred six enactments. 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 t... | https://indiankanoon.org/doc/154031036/ |
3e4eda11ee62-35 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | (4) & (5) of Section 4 of the Act of 2009. The said Sub-section (4) of Section 4 of the Act of 2009 enables the <span class="hidden_text" id="span_23"> Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014</span> Competent Authority to determine the rights of allottees or settlees or raiyats which are not yet dete... | https://indiankanoon.org/doc/154031036/ |
3e4eda11ee62-36 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | the Act of 2009. 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) ... | https://indiankanoon.org/doc/154031036/ |
3e4eda11ee62-37 | 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/ |
3e4eda11ee62-38 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | of the aforesaid six enactments. It is such a claim alone which can be entertained by the Competent Authority under the Act of 2009. This opinion of mine is corroborated by Section 6 of the Act which makes it mandatory that in all such cases the State Government shall be a necessary party. The preamble of the Act is cl... | https://indiankanoon.org/doc/154031036/ |
3e4eda11ee62-39 | 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/ |
3e4eda11ee62-40 | 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/ |
3e4eda11ee62-41 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | finally determine the rights of allottee, settlee or raiyat not yet determined. It is this sub-section (4) which is the mischief monger. Although it refers to the rights of allottee, settlee or raiyat, the broad language used by the legislature is largely misused to usurp the power not conferred by the Act of 2009 and ... | https://indiankanoon.org/doc/154031036/ |
3e4eda11ee62-42 | 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/ |
3e4eda11ee62-43 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | A Full Bench of this Court in the matter of Nand Kumar Rai (supra) had the occasion to examine the constitutional validity of Section 109 of the Bihar Tenancy Act, 1885 as it stood after its amendment under the Act 6 of 1970. It appears that under the said amendment the legislature barred the jurisdiction of the Civil ... | https://indiankanoon.org/doc/154031036/ |
3e4eda11ee62-44 | 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/ |
3e4eda11ee62-45 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | (2) Suit for declaration of title to or recovery of possession of or confirmation of possession over any holding or tenancy or part thereof, in which correctness of any entry in any record-of-rights or <span class="hidden_text" id="span_31"> Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014</span> Settlement R... | https://indiankanoon.org/doc/154031036/ |
3e4eda11ee62-46 | 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/ |
3e4eda11ee62-47 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | its constitutional validity. In procedural matter suits of lighter vein have been allowed to be brought to the High Court and complicated suits <span class="hidden_text" id="span_33"> Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014</span> are to be finally disposed of by the Revenue authorities. I also do no... | https://indiankanoon.org/doc/154031036/ |
3e4eda11ee62-48 | 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/ |
3e4eda11ee62-49 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | may still require to be adjudicated/enforced. No claim to a property or a dispute relating to a property can be entertained or decided by the Competent Authority under the Act of 2009 to resolve disputes other than the ones arising from the above referred six enactments. | https://indiankanoon.org/doc/154031036/ |
3e4eda11ee62-50 | 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/ |
3e4eda11ee62-51 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | also requires to be read down. Again the right referred to in the said clause (g) has to be a right conferred by or accrued under any of the aforesaid six enactments and none other. „A person‟ would mean an allottee/ a settlee of a land or a Raiyat as defined in clause (f) of Section 2 of the Act of 2009. No person oth... | https://indiankanoon.org/doc/154031036/ |
3e4eda11ee62-52 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | 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 all... | https://indiankanoon.org/doc/154031036/ |
3e4eda11ee62-53 | 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/ |
3e4eda11ee62-54 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | abused. It is not possible to save the said Sub-section (4) of Section 4 of the Act of 2009 by employing the principle of harmonious interpretation. The said Sub-section (4) requires to be held to arbitrary and to that extent unconstitutional. | https://indiankanoon.org/doc/154031036/ |
3e4eda11ee62-55 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | Sub-section (5) of Section 4 of the Act of 2009 empowers the Competent Authority to allow the parties to approach the Civil Court for adjudication of complex issues of title. Although the said Sub-section (5) is directory, should be read as mandatory. It shall be the duty of the Competent Authority to refer the complex... | https://indiankanoon.org/doc/154031036/ |
3e4eda11ee62-56 | 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/ |
3e4eda11ee62-57 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | The impugned order dated 27th December 2011 made by the Competent Authority-cum-Deputy Collector Land Reforms, Forbesganj in B.L.D.R. Act Case No. 91 of 2011-12 is quashed and set aside. Consequently, the appellate order made on 8th August 2012 made by the Divisional Commissioner, Purnea in Land <span class="hidden_tex... | https://indiankanoon.org/doc/154031036/ |
3e4eda11ee62-58 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | It is clarified that this order shall not preclude the respondent no. 4, the plaintiff, from asserting her right to the disputed parcels of land before the Civil Court.
Interlocutory application stands disposed of.
(R.M. Doshit, CJ) As per Ashwani Kumar Singh, J I have had the privilege and advantage of perusing ... | https://indiankanoon.org/doc/154031036/ |
3e4eda11ee62-59 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | I fully concur with the view of Hon‟ble the Chief Justice with regard to Sub-sections (1) and (4) of Section 4 of The Bihar Land Disputes Resolution Act, 2009 (for short „the Act of 2009‟). The Hon‟ble Chief Justice has held that the Act of 2009 is an enactment for execution of the orders made under the six enactments ... | https://indiankanoon.org/doc/154031036/ |
3e4eda11ee62-60 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | the Act of 2009. I am in <span class="hidden_text" id="span_41"> Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014</span> complete agreement with the aforesaid view of Hon‟ble the Chief Justice. I also agree with the view that Sub-section (5) of Section 4 of the Act mandatorily requires the Competent Authority... | https://indiankanoon.org/doc/154031036/ |
3e4eda11ee62-61 | 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/ |
3e4eda11ee62-62 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | The group of words "complex question of adjudication of title" which form part of the sentence in Sub-
section (5) of Section 4 of the Act of 2009 has been used as a phrase in the said provision. While incorporating the aforesaid group of words as a phrase in Sub-section (5), the legislature itself says that all cases... | https://indiankanoon.org/doc/154031036/ |
3e4eda11ee62-63 | Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014 | In other words, the said phrase occurring in sub-section (5) of Section 4 of the Act of 2009 envisages that no sooner than a question of adjudication of title which is inherently a complex one is involved, the Competent Authority is required to invariably close the proceeding. The word „complex‟ has not been used in <s... | https://indiankanoon.org/doc/154031036/ |
3e4eda11ee62-64 | 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/ |
1c1465c12ea2-0 | 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/ |
1c1465c12ea2-1 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | Versus
1.Chandra Bhushan Singh son of Permanand Singh
2.Manoj Kumar Rai son of Sri Permanand Singh
Both resident of village Bishunpur, P.S.Akhilpur
District Patna--Plaintiffs- Respondents 1st set
3.Smt. Gulabia Devi W/o Sri Rambabu Rai
4.Smt.Fulpatia Devi W/o Sri Jagat Rai
5.Smt.Malwa Devi W/o ... | https://indiankanoon.org/doc/44290554/ |
1c1465c12ea2-2 | 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/ |
1c1465c12ea2-3 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | All resident of village Puranapunnapur, P.S.Akhilpur
District Patna---Defendants IIset,Respondents II set | https://indiankanoon.org/doc/44290554/ |
1c1465c12ea2-4 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | (in M.A.No.39 of 2004)
------
For the Appellants in both the appeals :M/S S.S.Dwivedi,Sr.Advocate Praveen Kumar,Advocate Arunjay Kumar,Advocate For Respondents 1 & 2 in both the appeals :M/S Devendra Kr.Sinha,Sr.Advocate Nikesh Sinha,Advocate For Respondents 3-5 in both the appeals :Mr.Manoj ... | https://indiankanoon.org/doc/44290554/ |
1c1465c12ea2-5 | 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/ |
1c1465c12ea2-6 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | The defendants-appellants and the defendants-respondents II set nos. 3 to 5 are common in both the appeals. | https://indiankanoon.org/doc/44290554/ |
1c1465c12ea2-7 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | Both the suits had been filed by the plaintiffs-respondents nos. 1 and 2 in the respective appeals for a direction upon the defendants-appellants to execute a registered sale-deed in favour of the plaintiffs in respect of Schedule-I property and if the defendants fail to do so within the time fixed by the court the sal... | https://indiankanoon.org/doc/44290554/ |
1c1465c12ea2-8 | 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. | https://indiankanoon.org/doc/44290554/ |
1c1465c12ea2-9 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | 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 sale on 27.3.2002 for the sale of the respective suit lands and as per the terms and conditions of the agreement for sale 5 kathas of land in each of the case w... | https://indiankanoon.org/doc/44290554/ |
1c1465c12ea2-10 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | sale-deed would be executed and registered in between 27.3.2002 and 31.1.2003. However, the request by the plaintiffs for such registration was not paid heed to and even the legal notice sent on 16.12.2002 in each of the cases had no effect and the defendants-appellants failed and neglected to perform their part of con... | https://indiankanoon.org/doc/44290554/ |
1c1465c12ea2-11 | 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/ |
1c1465c12ea2-12 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | The plaintiffs thereafter filed the aforesaid petitions dated 17.4.2003 under Order 39 Rules 1 and 2 read with Section 151 CPC with the prayer for ad-interim injunction restraining the defendants from executing and registering the sale-deed in favour of any other persons with respect to the suit land or in any manner d... | https://indiankanoon.org/doc/44290554/ |
1c1465c12ea2-13 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | that the land in question had been sold to the defendants- respondents nos. 3-5 who were the bonafide purchasers and have been put in actual physical possession over the suit land. | https://indiankanoon.org/doc/44290554/ |
1c1465c12ea2-14 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | The learned trial court, however, upon hearing the parties passed the aforesaid impugned orders in the terms as mentioned above. | https://indiankanoon.org/doc/44290554/ |
1c1465c12ea2-15 | 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/ |
1c1465c12ea2-16 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | Learned counsel further submits that even otherwise the law is well established that an agreement for sale does not create any interest in the property but only entitles a party to bring a suit claiming the equitable right of purchase on the basis of Section 53A of the Transfer of Property Act and thus the order of inj... | https://indiankanoon.org/doc/44290554/ |
1c1465c12ea2-17 | 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/ |
1c1465c12ea2-18 | 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/ |
1c1465c12ea2-19 | 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/ |
1c1465c12ea2-20 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | the question of compensation will remain whether an order of injunction is or is not passed. It cannot surely be urged that in a suit for specific performance the plaintiff is entitled to ask, during the pendency of litigation, that the defendant in whom the legal title still vests should be restrained from using the p... | https://indiankanoon.org/doc/44290554/ |
1c1465c12ea2-21 | 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/ |
1c1465c12ea2-22 | 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/ |
1c1465c12ea2-23 | 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/ |
1c1465c12ea2-24 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | 120 (Lallan Prasad vs. Parmeshwar Singh). The ratio decided by me in that judgment does not help the petitioner rather it totally goes against the petitioner. In the said judgment this Court observed:- | https://indiankanoon.org/doc/44290554/ |
1c1465c12ea2-25 | 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/ |
1c1465c12ea2-26 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | till, therefore, a decree of specific performance is obtained the vendor or a purchaser from him is not entitled to full enjoyment of the property even if a decree for specific performance of contract is obtained and no sale deed is actually executed, it cannot be that any interest in the property is passed. Consequent... | https://indiankanoon.org/doc/44290554/ |
1c1465c12ea2-27 | 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/ |
1c1465c12ea2-28 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | as supported by evidence as indicated by the plaintiffs. It is further submitted by learned counsel for the plaintiffs-respondents that the appellants have sold their lands to respondent nos. 3 to 5 and they cannot claim any further interest in the matter and it is not open to them to challenge the injunction order by ... | https://indiankanoon.org/doc/44290554/ |
1c1465c12ea2-29 | 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/ |
1c1465c12ea2-30 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | 12. Therefore, without going into the validity of the agreements executed by the owners in favour of the plaintiff or defendants 15 to 28, or the validity of the sale deed executed by defendants 15 and 28, we are of the view that the trial Court was right in coming to the conclusion that the plaintiff has made out a pr... | https://indiankanoon.org/doc/44290554/ |
1c1465c12ea2-31 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | Learned counsel relies upon paragraphs 4 and 5 of a Division Bench decision of the Calcutta High Court in the case of Sm. Muktakesi Dawn and others vs. Haripada Mazumdar and another: AIR 1988 Calcutta 25, for the proposition that an injunction restraining pendente lite transfer can be granted in such suits so as to pre... | https://indiankanoon.org/doc/44290554/ |
1c1465c12ea2-32 | 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/ |
1c1465c12ea2-33 | 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/ |
1c1465c12ea2-34 | Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009 | Act. That being the position, it is not open to the courts of law to permit any such plea of possession or right to continue in possession on the basis of any unregistered document. In the present matter despite the legal provision being to the contrary, by the impugned orders of injunction the court below has put a st... | https://indiankanoon.org/doc/44290554/ |
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