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1984 DIGILAW 215 (PAT)

Rajendra Prasad Choudhary v. State of Bihar

1984-05-22

S.S.SINHA

body1984
JUDGMENT : Choudhary Sia Saran Sinha, J. - The prayer made in this writ application under Articles 226 and 227 of the Constitution of India is to quash Annexure-5, an ORDER :dated 12.9.1980 of the Anchaladhikari Tarapur. by which he cancelled the parcha (Annexure 3) granted to the petitioner, in pursuance of his earlier ORDER :dated 5.9.1970 as contained in Annexure 2 as also for quashing the notice Annexure 4 intimating this cancellation to the petitioner. 2. In respect of 11 decimals of land containing a house and sahan in village Rajguru in Tarapur Anchal, the petitioner was granted the parcha (Annexure 3) under the Bihar Privileged Persons Homestead Tenancy Act, 1947 (hereinafter referred to as 'the Act'). This land along, with the house thereon, as alleged by Respondent no. 3 Smt. Arun Devi, belonged to her. When she came to know about the parcha being granted to the petitioner, she made an application on which a report was called for and ultimately, the impugned ORDER :as contained in Annexure 5 was passed. The stand taken by the petitioner in paragraph 27 of the writ application is that Annexures-5 and 4 are without jurisdiction and they are violative of the principles of natural justice as well as the different provisions of the Act and the. Rules made thereunder. The further stand taken by the petitioner is that no notice in connection with the prayer of. Respondent no. 3 for cancellation of the parcha was issued to him and the impugned ORDER :(Annexure 5) was passed behind his back without allowing him an opportunity of being heard. The stand taken in paragraph 16 of the counter affidavit, filed on behalf of Respondent no. 2, namely, the Anchaladhikari, Tarapur, was that the notice of the proceeding started for cancellation of the parcha granted to the petitioner at the instance of Respondent no. 3 was given to him vide Notice No. 1225 dated 29.4.1976 which was received by his father Narayan Prasad on his behalf on 29.4.1976. Respondent no. 3 filed show cause. In paragraph 20 of the show cause, she stated that notice of the cancellation case was issued to the petitioner vide memo no. 1225 dated 29.4.1976 which was received by Sri Narayan Prasad on 29.4.1976, the father of the petitioner with whom the petitioner was residing. Respondent no. 3 filed show cause. In paragraph 20 of the show cause, she stated that notice of the cancellation case was issued to the petitioner vide memo no. 1225 dated 29.4.1976 which was received by Sri Narayan Prasad on 29.4.1976, the father of the petitioner with whom the petitioner was residing. In paragraph 12 of the reply to the counter affidavit and the show cause, the petitioner denied to have received any notice. The notice itself has not been produced by Respondent no. 2 to show as to in whose name this notice was issued, what was the contents thereof and in what circumstances it was served on the father of the petitioner. It is nowhere stated in the counter affidavit or the show cause that the father of the petitioner was authorised to received any notice on behalf of the petitioner or that the notice was served on the father of the petitioner in presence of any witness. In such a situation, it has to be found that the ORDER :, as contained in Annexure 5, reviewing the earlier ORDER :as contained in Annexure 2 was passed without any notice to the petitioner in violation of the principles of natural justice. 3. It is not in dispute that the ORDER :s as contained in Annexures 2 and 5 were passed by Respondent no. 2 under the Act in his capacity as 'Collector' as defined under section 2 (b) of the Act.' There is no provision for appeal and revision much less for reviewing in the Act. On the other hand section 18 of the Act provides that 'all ORDER :s passed by the Collector in any proceeding under this Act shall be final, and no suit shall lie in any Civil Courts to vary or set aside any such ORDER :except on the ground of fraud or want of jurisdiction. Section 19 of the Act goes a step further and provides, inter alia, that the provisions of this Act shall have effect notwithstanding anything contained in any other law or anything having the force of law; and anything in any such law or anything having the force of law, which is inconsistent with any of the provisions of this Act, shall, to the extent of inconsistency, be deemed to have been repealed. This being the position under the law, the ORDER :as contained in Annexure-5 cannot but be regarded as violative of the provisions of the Act. 4. Submission of Sri S.C. Ghose, learned counsel for Respondent no. 3, was that the ORDER :, as contained in Annexure-2, was not a judicial ORDER :and hence it could be reviewed and recalled by the Anchaladhikari. This contention has no force and is rejected. 5. His further submission was that Case no. 48/70-71 was initiated not on the application of the petitioner but on the report of the Kramchari and lie referred to paragraph-4 of the counter affidavit. In paragraph-17 of the show cause filed on behalf of Respondent no. 3, also it was stated that the petitioner never applied to the Anchal Office for grant of parcha nor did he appear before the Revenue authority concerned in ORDER :to obtain the parcha. It is not in dispute that case no. 48/70-71 was initiated on the report of the Kramchari. Submission of Sri Shreenath Singh, learned counsel for the petitioner was that if the Collector can initiate a proceeding under the Act suo motu there was nothing wrong if case no. 48/70-71 was initiated on the report of the Kramchari. He referred, in this connection to sub-section (2) of section 5 of the Act but section 5 of the Act deals with the ejectment of a privileged tenant and not to a proceeding initiated for grant of parcha. No provision either in the Act or in the Rules framed under the Act was pointed out by Sri Singh authorising the Collector to Act suo motu in respect of matter of grant of parcha. However, it is not necessary to decide this point in this case as Annexure-5 is liable to be struck down as illegal on other grounds mentioned above. 6. In 1977 BBCJ 562 : 1977 PLJR 246 (Ganga Ram Bhagat and others v. Deputy Commissioner, Santhal Parganas), it was held by tbis Court that the Deputy Commissioner has no power to review or revise the ORDER :s passed in favour of the petitioner by the Anchal adhikari acting as 'Collector' under the Act and that section 18 of the Act gives finality to such ORDER :. Reliance was also placed on a Single Bench decision of this Court reported in 1981 BBCJ 198 (Bishwanath Singh v. State of Bihar and others) wherein it was held that if the earlier ORDER :granting the parcha to the petitioner was an ORDER :adverse to the Respondent inasmuch as it was passed without any notice to him, the Respondent had every right to challenge the same and the Anchaladhikari who passed that ORDER :can set aside the same. Even assuming that to be so, before setting aside any ORDER :, a notice to the party interested would be necessary, there being no such notice in the instant case. 7. Thus, for the reasons stated above, Annexure-5 to the writ application is liable to be quashed and is quashed. 8. It was next contended that the ORDER :as contained in Annexure-5 having been passed on 12.9.1980, this writ application filed on 23.3.1982 should not be entertained. In paragraph-21 of the writ application, it was stated that till 3.4.1981 no information was sent to the petitioner regarding the cancellation of the parcha and the petitioner, after fully enquiring into the matter, filed an application before the Anchaldhikari on 19.11.1981 which was rejected on 11.1.1982. In these facts and circumstances, the delay made cannot be regarded as inordinate. 9. Placing reliance on a decision of this Court reported in A.I.R. 1977 Patna 166 : 1977 PLJR 576 (Devendra Prasad Gupta v. The State of Bihar and others), it was lastly contended that the writ jurisdiction of this Court should not be exercised for the purpose of quashing an illegal ORDER :the effect whereof will be to revive another illegal ORDER :. 10. This takes us to the consideration of the question if the ORDER :contained in Annexure 2 is illegal. It is not in dispute that if a person claims to be a privileged tenant, a proceeding has to be initiated and the person against whom the tenancy is claimed shall be given an opportunity to be heard after service of due notice on him. While the assertion made in paragraph-7 of the writ application is that such a notice was served on Respondent no. 3 in case no. 48/1970-71, in the counter affidavit filed on behalf of Respondent no. While the assertion made in paragraph-7 of the writ application is that such a notice was served on Respondent no. 3 in case no. 48/1970-71, in the counter affidavit filed on behalf of Respondent no. 2 in paragraph 5, the averments made in paragraph-7 of the writ application was denied and it was stated that in fact no notice was served on Respondent no. 3 in person. Respondent no. 3, in her show cause in paragraph-28, described the assertion made in paragraph-7 of the w; it application as wrong and incorrect and asserted that no notice whatsoever was ever served to this Respondent at the point of time before issue of parcha to the petitioner and everything was done bala bala in collusion and connivance With the serving peon and it was done in such hot haste that everything was completed within a fortnight and final ORDER :was passed within the same time. It was further stated therein that on verification, it transpired that the signature of the witness who is said to have attested the service report of notice issued to the Respondent has been forged and fabricated in reply to the assertions made in para-5 of the counter affidavit filed on behalf of Respondent no. 2, it was stated in paragraph 17 of the rejoinder to the counter affidavit that the statement in the writ petition are being reaffirmed by the petitioner. The assertion made in paragraph-28 of the show cause has not been specifically denied in the rejoinder to the show cause though para-14 thereof states that the petitioner reaffirms all the statements made in the writ application and any statement contrary to the same is denied. Annexure-1 shows that merely a copy of the notice sent to the petitioner was sent to Respondent no. 3 for information and proper action. This notice, it must be said, falls short of the requirements of a valid notice. The service report of the notice has not been produced on record. The clear assertions made in paragraph-28 of the show cause, referred to above, has not been specifically denied. In such a situation, I accept the contention made on behalf of Respondent no. 3 that no notice of case no. 48/70-71 was validly served on Respondent no, 3. 11. The service report of the notice has not been produced on record. The clear assertions made in paragraph-28 of the show cause, referred to above, has not been specifically denied. In such a situation, I accept the contention made on behalf of Respondent no. 3 that no notice of case no. 48/70-71 was validly served on Respondent no, 3. 11. This being the position, without entering into the other controversial questions as to whether the petitioner was a privileged tenant or not, it must be held that the ORDER :as contained in Annexure-2 was also issued in violation of the principles of natural justice. 12. In the circumstances and for the reasons stated above, it is considered necessary to cancel the earlier ORDER :as contained in Annexure-2 and the parcha granted (Annexure-3) as well but with liberty to the• petitioner to proceed, if so advised, afresh in accordance with law. 13. The result is that the application is allowed and Annexure-5 as also Annexure-4 to the writ application are quashed. For the reasons stated above, Annexures 2 and 3 are also quashed with the liberty to the petitioner to proceed if so advised, in accordance with law. There shall be no ORDER :s for costs and the parties are directed to bear their own costs of this application.