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2000 DIGILAW 1343 (PAT)

Kanik Mahto v. State Of Bihar

2000-12-20

RAVI S.DHAVAN, SHASHANK KR.SINGH

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Judgment 1. The petitioners have received a notice under the Bihar Tenancy Act, 1885 . The notice offers an opportunity to the petitioners to show cause why a certain demand be not met by the petitioners. There is no lack of opportunity in the show cause notice in permitting the petitioners to object to the authority on the requirement of the notice. Instead of doing that the petitioners have filed writ petitions straight away. They do not even appear before the authority who has given the notice. 2. The parameters on which a writ of certiorari may issue do not exist in the present writ petition for the Court to issue a writ upon it. There is no record in the present writ petition that the authority has passed an illegal order. The petitioners did not contend before the authority, though given an opportunity, and permitted ex-parte proceedings. 3. The contention that the notice is without jurisdiction cannot be accepted. The notice is not without jurisdiction as it has been issued under an Act. 4. In the writ petition the petitioners acknowledge that the land in their occupation is Raiyati land and that the petitioners have constructed a shop over the plot in question. The petitioners contend that the agricultural land is waste land and is not fit for agricultural purposes and thus it was put to commercial use. 5. The petitioners are not responding to the notice which has been issued under Section 23 of the Act because they have yet to bring it to the notice of the authority why they have put the agricultural land, to which the Act applies, to use other than agriculture. Impliedly, this means that if the petitioners were to respond to the notice they would be obliged (sicto ?) acknowledge that the agricultural land, to which the Act applies, has been or is being used for commercial purpose and not for agricultural purpose. 6. The petitioners do not desire to place on record before the authority concerned, who has issued the notice, that : (a) there was cause to issue a notice and (b) the aspect would come on record that the agricultural land has been abandoned in its conforming use and put to other use. 6. The petitioners do not desire to place on record before the authority concerned, who has issued the notice, that : (a) there was cause to issue a notice and (b) the aspect would come on record that the agricultural land has been abandoned in its conforming use and put to other use. The petitioners are evading answering the notice and, instead, they desire that the Court should declare the Section which permits the giving of notice as ultra vires. 7. The aspects on merits on issues of land user in violation of the Act are yet to be decided by the authority which issued the notices. But the petitioners would not respond. In the present circumstances, an ex-parte order is a situation of the petitioners making. The Court can only examine the contention after the record is complete in as much as the notice given to the petitioners under the Act, whatever be their explanation should be on the record and the authority concerned must have an occasion to notice the objections by considered orders on the petitioners reply to the notice which at present is not on record. The petitioners must reply to the notice instead of submitting before the High Court straightaway that they have a right to put agricultural land to commercial use or other use not permitted under the Act. 8. A writ of certiorari can only be made available provided the petitioners respond to the notice and permit the authority to fake a decision whatever it might be. 9. The next submission is that the provision of appeal is not available, as at present no notification has been issued by the State Government permitting the authority to hear an appeal. At present the issue is that there is a notice giving an opportunity to the petitioners to file objections, which have not been filed and the petitioners have invited ex-parte proceedings. In the circumstances, one cannot say that the ex-parte order was rendered incorrectly. 10. After this order was dictated learned senior counsel for the petitioners Mr. Bindkesnari Singh contended that the petitioners will acquiesce to the notice and respond to it and file their objections. To this learned counsel for the State Mr. S. S. Naiyar Hussain, G.P. 2, has no objection. 11. 10. After this order was dictated learned senior counsel for the petitioners Mr. Bindkesnari Singh contended that the petitioners will acquiesce to the notice and respond to it and file their objections. To this learned counsel for the State Mr. S. S. Naiyar Hussain, G.P. 2, has no objection. 11. In the circumstances, the petitioners may file their reply to the show cause notice within one month from today and the authority concerned, thereafter, may pass such orders as it may deem fit within next one month thereafter. 12. Let it be understood that any notice, or the consequential order, to which the petitioners have not responded and have not appeared before the authority concerned has not been set aside and upon the concession of the State counsel, the petitioners may make a prayer for its recall when they file their objections. Suffice it to say that the petitioners have accepted at the Bar of this Court that they will be replying to the show cause notice now. This they may do. 13. As the petitioners have consented to file their objections and the State has no objection to the petitioners seeking recall of the ex parte orders while filing their objections and the matter being considered on merits by the Authority, the record is consigned.