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2007 DIGILAW 395 (PAT)

Jagdish Thakur v. State Of Bihar

2007-02-21

NAVANITI PRASAD SINGH

body2007
Judgment 1. Heard. 2. The present application is against the orders passed by the original authority and the appellate authority in a proceeding purporting to be a proceeding under Section 48D of the Bihar Tenancy Act. 3. Private-respondent no. 5 is the main contesting respondent, who has appeared and filed a counter affidavit. 4. Heard the parties and with their consent this application is being disposed of at the admission stage itself. 5. The petitioner submits that respondent no. 5 ciaims to be a raiyat and filed an application in terms of Section 48E, the correctness of which was not accepted by the petitioner, who is the landlord/raiyat. However, an order adverse to the petitioner was passed in a proceeding under Section 48E of the Act against which he has preferred an appeal and the matter is sub judice. Apparently being emboldened by an order obtained under Section 48E, respondent no. 5 now claiming herself to be an occupancy under raiyat, filed an application in terms of Section 48D of the Act for acquiring the raiyati interest itself. This application appears to have been filed on or about 3.6.2003 on which orders were passed by the Anchal Adhikari for the first time on 9.6.2003. A reference to the order-sheet would show that on 9.6.2003 or any time earlier no order was passed for issuance of notice to the raiyat-petitioner. However, in the counter affidavit filed by respondent no. 5, who is now trying to secure the raiyati interest itself virtually ousting the landlord and becoming landlord herself. She has annexed Annexure-B, certified copy of notice purported to be issued in the present proceeding under Section 48D of the Act. As reference to the said notice shows that the said notice has been issued under the signature of Anchal Adhikari dated 3.6.2003 fixing next date as 30.6.2003. may at the cost of repetation mention that neither nothing had happened on 3.6.2003 nor any notice had been ordered to be issued on the said date. On the face of it this notice is clearly fraudulent. A reference to the order dated 9.6.2003 would also show that straightway the Anchal Adhikari asked for an enquiry report and a proposal whereas the provision of Section 48D read with rule in respect thereof clearly mandate an enquiry by the officer himself. Nothing like this was done. On the face of it this notice is clearly fraudulent. A reference to the order dated 9.6.2003 would also show that straightway the Anchal Adhikari asked for an enquiry report and a proposal whereas the provision of Section 48D read with rule in respect thereof clearly mandate an enquiry by the officer himself. Nothing like this was done. The next order is dated 20.6.2003, in which it is recorded that the proposal from Anchal Inspector had been received. It is not known as to what was the basis for calling for proposal from Anchal Inspector and what was the basis of the said recommendation. The Halka Karamchari also submitted his report promptly. Now there is an order for issuance of notice to all parties. This itself vitiates the proceeding inasmuch as without notice to the parties enquiry and recommendation were sought for and then notices are being issued. This is impermissible. No enquiry or recommendation can be sought for or made in absence of a party. The important point here is that on 20.6.03 notices are ordered to be issued for the first time but as pointed out earlier notice shows that it was issued on 3.6.2003 itself. Promptly on 30.6.2003 the matter was decided finally declaring respondent no. 5 to be an occupancy raiyat, entitled to be declared a raiyat. On the same date depositions of certain witnesses are alleged to have been taken. In this regard learned counsel for the petitioner has urged that this record is absolutely false, as no witness was ever examined and that too in course of the proceedings. To my mind this stands corroborated with the fact that the order does not record as to when they were examined or their depositions are available on record. However, on that date final order was passed even though it was noticed in the matter under Section 48E of the Act that an appeal is pending. The order is substantially passed on the findings in the proceeding under Section 48E of the Act. 6. Counsel for respondent no. 5 submits that the petitioner cannot make a grievance as he had appeared in the proceeding under Section 48D of the Act. In support, he submits that notice was duly issued, duly served Vakalatnama filed on behalf of the petitioner and the petitioner filed Hazri also. 6. Counsel for respondent no. 5 submits that the petitioner cannot make a grievance as he had appeared in the proceeding under Section 48D of the Act. In support, he submits that notice was duly issued, duly served Vakalatnama filed on behalf of the petitioner and the petitioner filed Hazri also. He has thus referred to Annexures-A, A/1, B and B/1 of the counter affidavit respectively. 7. In respect of notice, I have already dealt above to show that it is bogus and fraudulent. So far as service of notice is concerned, it is equally bogus and fraudulent for the simple reason that it is invalid, undated and mentioned that the petitioner not being there, other refused to take the notice. To my mind an officer conducting any proceeding, the service of notice ought to have been rejected outright. The things were controverted otherwise. It was kept on record. 8. The next is the Vakalatnama filed in the case purporting on behalf of the petitioner, it is shown to be executed and filed on 20.3.2003. I have referred order sheets, which would show that no date was fixed on 20.3.2003. 9. The counsel for respondent no. 5 submits that it is not necessary that vakalatnama is to be filed only on the day when the matter is fixed. To the contrary petitioner submits that in all lower courts this is the usual practice because Vakalatnama has to be attached to records which are not available except on the day fixed. Lastly counsel for the respondent no. 5 draws my attention to Hazri filed (attendance), this again shows that someone has manipulated the entire records and authorities are accepting the things. The reason is simple. There being no date fixed on 20.6.2003 it is curious how Hazri is filed on that date and accepted. The order-sheet itself shows that there is no such date in the proceedings. Respondents are unable to point out as to how any one could file Hazri for a day which is not fixed in the case and who accepted such Hazri and placed it on records. These seems to be serious where interpolations in records are being made. 10. The order-sheet itself shows that there is no such date in the proceedings. Respondents are unable to point out as to how any one could file Hazri for a day which is not fixed in the case and who accepted such Hazri and placed it on records. These seems to be serious where interpolations in records are being made. 10. In view of the aforesaid facts I am left with no option but to set aside the entire proceedings of the Anchal Adhikari, Katihar in Case No. 1/2003-2004 appertaining to Section 48D of the Bihar Tenancy Act and direct that such a proceeding would now be taken up by any other officer other than Anchal Adhikari to be designated by the Collector of the district. 11. As the original Order dated 30.6.2003 passed by Anchal Adhikari, Katihar, in Case No. 1/2003 is set aside the consequential appellate order dated 14.7.2005 passed by Sub-Divisional Officer, Katihar, in Case No. 14/2004, cannot be sustained, which is also set aside., 12. This writ application is allowed.