Patna High Court
Dukhi DewanversusThe State of Bihar
- Decided
- Disposal
- DISPOSED
- Bench
- PURNENDU SINGH
Holding
The Court held that the Circle Officer's failure to act is a jurisdictional infirmity and directed the officer to initiate the proceeding under Section 48(D), thereby disposing of the writ petition.
Summary
Dukhi Dewan filed a writ petition seeking a mandamus directing the Circle Officer of Raxaul to initiate proceedings under Section 48(D) of the Bihar Tenancy Act, 1986, for declaration of his raiyati rights over land recorded in the name of Madarsa Ahmadia Hanfia. The land, comprising Khata No.271, Plot No.259 and Plot No.260 in Village Kaurihar, has been possessed by Dewan's ancestors for over five decades and was the subject of Title Suit No.254 of 1969, which declared the Madarsa as the Raiyat and the Dewan family as under‑raiyats. An application filed on 23‑02‑2022 with the Circle Officer remained unprocessed, prompting the petitioner to allege a breach of statutory duty and violation of his fundamental rights. The Court examined Sections 48(C) and 48(D) of the Bihar Tenancy Act and held that the Circle Officer’s inaction constituted a jurisdictional infirmity warranting judicial intervention. It ordered the issuance of notice to the Madarsa and the Bihar State Education Board and directed the Circle Officer to commence the required proceeding. Consequently, the writ petition was disposed of.
Issues considered
- Whether the Circle Officer failed to exercise jurisdiction under Section 48(D) of the Bihar Tenancy Act by not initiating proceedings on the petitioner's application.
- Whether a writ of mandamus can be issued to compel the Circle Officer to act.
- Whether the petitioner is a protected raiyat given the pending Second Appeal No.174 of 2000.
Legislation cited
Subjects
- Bihar Tenancy Act
- Section 48(D)
- mandamus
- under‑raiyat
- raiayat rights
- judicial review
- fundamental rights
- land dispute
- pending appeal
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.20722 of 2025
======================================================
Dukhi Dewan Son of Late Rahim Waqax Dewan, resident of Village-
Kaurihar, P.S. - Raxaul, District- East Champaran.
... ... Petitioner/s
Versus
1. The State of Bihar.
2. The Collector, East Champaran, Motihari.
3. The Sub-divisional Magistrate, East Champaran, Motihari.
4. The Circle Officer, Raxaul Block, East Champaran.
5. Madarsa Ahmadia Hanfia, At and P.O - Dariapur, P.S. - Sangrampur,
District- East Champaran through its Secretary-Aiyamul Haque Khan, Son
of Mazharul Haque Khan, At and P.O. - Dariapur, P.S.- Sangrampur,
District- East Champaran.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Binay Kant Mani Tripathi, Advocate.
For the Respondent/s : Mr.Government Pleader (18)
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL ORDER
2 09-01-2026 Heard learned counsel appearing on behalf of the
petitioner and learned counsel for the State.
2. The petitioner in paragraph no. 1 of the present writ
petition has sought, inter alia, following relief(s), which is
reproduced hereinafter:-
“That this is an application for issuance of writ
in nature of mandamus commanding the respondent No.4
for initiating a proceeding under section 48(D) of Bihar
Tenancy Act 1986 on an application filed by the petitioner
on 23.02.2022 and also for issuing direction to dispose of
proceeding by passing speaking order in accordance with
law on amongst other the following :-
Grounds
(i) For that the respondent No.4 is duty bound
to act in accordance with law under Bihar Tenancy Act
1986 on application dated 23.02.2022 (contained in
Annexure-I) filed by the petitioner.
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(ii) For that Khata No.271, Plot No.259, Area-
14 katha 9 dhurs and Plot No.260, Area-3 katha 2 dhurs of
land situated at Village Kaurihar, P.S.- Raxaul, District-
East Champaran was recorded in the name of respondent
No.5 and the respondent No.5 holds Raiyati interest over
the aforesaid land R.S. Khata No.271 and the aforesaid
land was let-out to Langar Dewan (fore Grandfather of the
petitioner) for Sikmi cultivation.
(iii) For that Langar Dewan had three sons
namely Bagar Dewan, Karamtoli Dewan and Rasul Dewan.
Bagar Dewan had two sons namely Abdul Rahim Dewan
and Lal Gani Dewan and one daughter namely Bibi
Hafiyan. Abdul Rahim had one son namely Manir Dewan
and widow, Most. Tetari Devi and Lal Gani Dewan died
leaving behind him one son Nathu Dewan, Karamtoli
Dewan died leaving behind him one son Rahim Baksa
Dewan. Rahim Baksa Dewan died leaving behind him, two
sons namely Gudar Dewan and Dukhi Dewan and two
daughters namely Bibi Fulbani and Bibi Rehan Bari. Rasul
Dewan died leaving behind him one daughter Bibi
Hadishan.
(iv) For that the then Secretary of Madarsa
(Respondent No.5) filed Title Suit No.254 of 1969 in the
court of Munsif, East Champaran in which Abdul Rahim
Dewan, the uncle of the petitioner, Nathu Dewan, cousin
brother of the petitioner and others were defendant second
set in the aforesaid suit.
(v) For that the aforesaid suit was filed for
declaration, that the plaintiff is Raiyat and the defendants
are under Raiyat with respect to the land of Khata No.271
and 272 of Village- Kaurihar, P.S.- Raxaul, District- East
Champaran and the aforesaid suit was decreed on
15.07.1977 holding that plaintiff is a Raiyat and defendant
2nd and 3rd sets are under Raiyat and against which Title
Appeal No.126/9 of 1977/1999 was filed by defendants 2nd
set which was dismissed by 7th Additional District Judge,
Motihari on 09.02.2000 against which Second Appeal
No.174 of 2000 has been filed in this Hon'ble Court which
was admitted by this Hon'ble Court on 29.11.2002 and the
same is pending in this Hon'ble Court for adjudication.
(vi) For that admittedly the petitioner and his
family are under Raiyat of the lands in question, as the land
in question, came in the share of father of the petitioner
vide Partition Suit No.210 of 1977.
(vii) For that the petitioner filed an application
under section 48(D) B.T. Act before Circle Officer, Raxaul,
East Champaran for declaration of Raiyati as petitioner
had already been declared as under Raiyat with regard to
lands in question, which was received in the office of Circle
Officer, Raxaul on 23.02.2022 but till date no order has
been passed by Circle Officer, Raxaul.
(viii) For that there is no dispute about
petitioner and his ancestor being under Raiyat for period of
more than 55 years and required period under section
48(C) or declaring Raiyat under 48(D) of B.T. Act, had
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already expired and land in dispute are still under
possession of petitioner as under Raiyat.
(ix) For that Second Appeal No.174 of 2000 has
already been admitted and substantial question as to
whether petitioner is entitled to be declared as Raiyat is
involved in the Second Appeal, hence, there will be no legal
difficulties for declaration of petitioner, as Raiyat by
respondent No.4.
(x) For that respondent No.4 has not yet
instituted any proceeding under section 48(D) B.T. Act and
neither notice has been issued nor report has been called
for from Halka Karamchari regarding possession over
disputed land.
(xi) For that non taking steps by respondent
No.4 on application received on 22.02.2022 and non action
taken infringes legal and fundamental right of petitioner
amounting to non-discharge of official duty by respondent
No.4.”
3. The brief facts of the case is that the dispute relates
to land appertaining to R.S. Khata No.271, Plot No.259
measuring 14 kathas 9 dhurs and Plot No.260 measuring 3
kathas 2 dhurs, situated at Village Kaurihar, P.S. Raxaul, District
East Champaran. The said land stood recorded in the name of
Respondent No.5, who was the Raiyat of the land. It is the
admitted case of the parties that the land was settled with
Langar Dewan, the grandfather of the petitioner, for Sikmi
cultivation. After his death, the possession continued with his
heirs, including the petitioner’s predecessors-in-interest. The
then Secretary of the Madarsa (Respondent No.5) instituted
Title Suit No.254 of 1969 before the Court of Munsif, East
Champaran, seeking declaration of Raiyati rights. By judgment
and decree dated 15.07.1977, the suit was decreed holding the
plaintiff as Raiyat and the defendants of the second and third
set, including the ancestors of the petitioner, as under-raiyats.
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Against the said judgment, Title Appeal No.126 of 1977/1999
was preferred, which came to be dismissed by the 7th
Additional District Judge, Motihari on 09.02.2000. Thereafter,
Second Appeal No.174 of 2000 was admitted by this Court on
29.11.2002 and is pending for adjudication. Pursuant to Partition
Suit No.210 of 1977, the land in question fell to the share of his
father and that the petitioner and his family have remained in
continuous possession of the land as under-raiyats for more than
five decades. On the basis of such possession, the petitioner
filed an application under Section 48(D) of the Bihar Tenancy
Act before the Circle Officer, Raxaul on 23.02.2022 seeking
declaration of Raiyati rights. It is stated that no order has been
passed on the said application and no enquiry has been initiated
till date. Aggrieved by the inaction of the Circle Officer, the
petitioner has approached this Court seeking appropriate
directions.
4. Learned counsel appearing on behalf of the
petitioner informs this Court that the petitioner is the under
Raiyat and respondent no.5 is the Raiyat and this issue has
already been decided in Title Suit No. 254 /1969 on 15.07.1977.
The concerned Circle Officer by not exercising his jurisdiction
as per the provision of Section 103 of the Bihar Tenancy Act has
harassed the petitioner.
5. Heard the parties.
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6. For proper adjudication of the case, I find it apt to
reproduce Section 48 C and 48 D of the Bihar Tenancy Act,
1885, which are reproduced as under:
48C. Acquisition of right of occupancy by under-
raiyats :
Every person who, for a period of twelve years,
whether wholly or partly before or after the
commencement of the Bihar Tenancy (Amendment)
Act, 1938 (Bihar Act 11 of 1938), has continuously
held land as an under-raiyat in any village, whether
under a lease or otherwise, shall be deemed to have
acquired, on the expiration of that period a right of
occupancy in the land which he has so held for the
said period:
1[Provided that an under-raiyat shall not,
irrespective of the duration of his holding any land
as an under-raiyat acquire any right of occupancy--
(i) in such area of the land to be selected and
declared by his landlord in the prescribed manner
as together with the area of land already held by the
landlord under his cultivation does not exceed the
following limits, namely:--
(a) five acres of land irrigated by flow irrigation
work, lift irrigation work or tube well owned,
constructed, maintained, improved or controlled by
the Central or the State Government or by a body
corporate constituted under any law or by tube well
owned or maintained by the landlord or;
(b) ten acres of other land; or
(ii) in the land within the ceiling area fixed by law of
a landlord who is a widow or a person suffering
from blindness, leprosy or paralysis or is a person
of unsound mind or a person on the service of the
Army, Navy or Air Force of the Union of India
during the period the landlord remain a widow or
suffers from blindness, leprosy or paralysis or
remains of unsound mind or remain in the service of
the Army, Navy or Air Force of the Union of India.
Explanation 1.--A land shall be deemed to be
irrigated by such flow irrigation work, lift irrigation
work or tube well if it is ordinarily capable of being
irrigated from such source notwithstanding that
such irrigation is not enjoyed owing to any action or
inaction on the part of the landlord of such land.
Explanation 2.--For the purpose of this section one
acre of land mentioned in clause (i) (a) shall be
deemed to be equivalent to two acres of land
mentioned in clause (i) (b).
Explanation 3.--If there are more than one under-
raiyat under a landlord, the area of land to be
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selected and declared by the landlord in the
prescribed manner shall be in preparation to the
area of land held by different under-raiyats.
Explanation 4.--A member of an undivided Hindu
family having or being entitled to a share in land
shall be deemed to be a landlord for the purpose of
this section as if there has been partition in the
family.]
48D. Acquisition of raiyati right by occupancy
under-raiyat :-
1[(1) An occupancy under-raiyat shall if he makes
an application in this behalf in the prescribed
manner, be entitled to acquire the right of a raiyat
subject to the payment to be made as may be
prescribed by the State Government and the right of
the land-holder in such land shall
extinguish:
Provided that the land on which he acquires such
right along with other land held by him anywhere in
the State does not exceed the area he may hold
under the Bihar Land Reforms (Fixation of Ceiling
Area and Acquisition of Surplus Land) Act, 1961
(Bihar Act XII of 1962).
(2) The remaining area, if any, in which the under-
raiyat does not acquire the right of a raiyat shall
continue to be held by the raiyat under whom the
under-raiyat held the land.
(3) The land owner in respect of whose land the
under-raiyat acquires the right of a raiyat under
sub-section (1) shall be paid as compensation an
amount equivalent to twenty four times the rent of
the holding in the manner prescribed in this behalf.
7. Before deciding the acquisition of the raiyati right
of the occupancy under- raiyat under Section 48D, the
competent authorities are required to follow the procedure
prescribed under Section 48C of the Act.
8. The courts inherently have the power of judicial
review in cases involving a fundamental jurisdictional
infirmity, as an action taken without proper jurisdiction is
considered a nullity or void ab initio as held by the Hon'ble
Supreme Court in case of T.C Bassappa v. T. Nagappa, reported
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in AIR 1954 SC 440, laid down that certiorari is granted when
the Court has acted without jurisdiction or in excess of its
jurisdiction. It was also held that a writ of certiorari may also be
issued if the Court or Tribunal acted in flagrant disregard of the
rules or procedure or in violation of principles of natural justice
where no particular procedure is prescribed. It has also been
held that an error in the decision or determination may also be
amenable to a writ of certiorari subject to the fact that the error
is manifest and apparent on the face of the proceedings i.e when
it is based on clear ignorance or disregard of the provisions of
law but a mere wrong decision is not amenable to a writ of
certiorari.
9. The authority vested with power is required to
follow the statutory provisions prescribed under the Act. In the
present case, I find that there is complete abrasion of the
procedure prescribed calling this Court to interfere with the
action, inasmuch as not taking any action in accordance with
law.
10. The issue whether the petitioner is a protected
Raiyat is also required to be decided in the background of the
pending Second Appeal No. 174 of 2000 after issuing notice to
the respondent no.5 Madarsa Ahmadia Hanfia, P.O. - Dariapur,
P.S.-Sangrampur, District – East Champaran through its duly
appointed Secretary and also to the Chairman, Bihar State
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Madarsa Education Board, Patna and other interested parties,
within one week from the date of communication of this order.
11. The writ petition, accordingly, stands disposed of.
(Purnendu Singh, J)
mantreshwar/-
U
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