Research › Search › Judgment

Patna High Court · body

2004 DIGILAW 1244 (PAT)

Awadhesh Kumar Singh v. State Of Bihar

2004-12-14

MRIDULA MISHRA

body2004
Judgment 1. Heard learned counsel for the petitioner and the counsel appearing for the respondents. 2. This application has been filed by the petitioner for a direction to the respondents not harass the petitioner by demanding Commercial Rent in respect of the raiyati land of the petitioner pertaining to Khata No. 413 Plot no. 1953 measuring an area of 2 katha which was purchased in the name of Shanti Devi since deceased. The petitioners case is that he is the son of Surendra Narayan Singh alias Rupa Singh and grand son of Late Triveni Singh. The land in question was purchased in the name of mother of the petitioner Shanti Devi on 11.4.1956 through registered sale deed no. 1566. Shanti Devi died, the petitioner being the legal heir of Shanti Devi has become the land holder. Since the date of purchase rent was being paid regularly till 2.4.2003 and the rent receipts are being granted by the State. Recently the Anchal Adhikari of Mohiuddin Nagar approached the petitioner and served with a notice dated 9.2.2004 showing dues of Rs. 41,250/- which is the commercial rent fixed in respect of the land of Khata No. 413, Plot No. 1553. The said notice has been annexed as Annexure-3 to the writ application. On enquiry the petitioner came to know that commercial rent case no. 15 of 1997-98 was initiated against Triveni Singh, who was the grand father of the petitioner and who died on 8.7.1382. Though this land does not stand in the name of Triveni Singh, Commercial Case No. 15 of 1997-98 was initiated against him. On the date of initiation of the case, he was already dead. The order-sheets of the case dated 23.12.1998 show that the peons report clearly indicated that Triveni Singh is dead even then the order was passed against a dead person without issuing any notice to the petitioner the land holder, after the death of his mother. In a proceeding which was conducted illegally, commercial rent has been fixed and demand notice has been issued. Being aggrieved by this demand notice the petitioner has approached this Court by filing this writ application for quashing the entire proceeding of Commercial Rent Case No. 15 of 1997-98 as well as the demand notice (Annexure-3) issued by the Circle Officer, Mohiuddin Nagar. 3. Being aggrieved by this demand notice the petitioner has approached this Court by filing this writ application for quashing the entire proceeding of Commercial Rent Case No. 15 of 1997-98 as well as the demand notice (Annexure-3) issued by the Circle Officer, Mohiuddin Nagar. 3. A counter affidavit has been filed by the State wherein it has been stated that the commercial rent has been fixed in respect to the iand of Holding No. 1102 which stands in the name of Triveni Singh and not with respect to the land of Holding No. 527 which stands in the name of Shanti Devi. Another stand taken in counter affidavit is that notice which was issued to Triveni Singh in the Commercial Case No. 15 of 1997-98, no show cause was filed. It has also been stated that there is provision of appeal under Section 23(5) of the Bihar Tenancy Act against the order passed in rent fixation case and as the petitioner has not exhausted the alternative remedy, the writ application is not maintainable. 4. Stand taken in the counter affidavit has no bearing in this case. The land with respect to which the rent fixation case was instituted against Triveni Singh, that land stood in the name of Shanti Devi. This admission of respondents in counter affidavit that Commercial rent fixation case was initiated with respect to lands of Holding No. 1102 Not with respect to the land of Holding No. 527 which were recorded in the name of Shanti Devi is sufficient to show the illegality in the order. Though commercial rent fixation case was instituted with respect to holding no. 1102 Even then land which fell under Holding No. 527 have been assessed for fixation of commercial rent. The commercial rent fixation case was instituted in the name of a dead person as such the entire proceeding was illegal and the order which was passed in such a proceeding be liable to be quashed. Lastly the petitioner cannot be asked to avail the alternative remedy before approaching this court under its writ jurisdiction, when entire proceeding is illegal, arbitrary and without jurisdiction. 5. In the facts and circumstances of the case entire proceeding of Commercial Case no. 15 of 1997-98 as well as the demand notice contained in Annexure-3 is quashed. This application is accordingly allowed.