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2009 DIGILAW 1249 (PAT)

Abdul Raquib v. State Of Bihar

2009-09-16

RAVI RANJAN

body2009
JUDGEMENT 1. Reg. I.A. No. 6033/2009: This interlocutory application has been filed for expunging the name of respondent no. 6, Bibi Khudeja, who had died on 9.7.2007, and for substituting her legal representatives, as described in paragraph 2 of this application. 2. Mr. Uday Bhanu Roy, learned counsel appears on behalf of Respondent No. 4 and Mr. Bijay Kanl Mishra, learned counsel appears on behalf of the proposed legal representatives of the deceased respondent no. 6 as I.A. No. 5787/2007 has also been filed on their behalf for the same purpose. 3. Heard learned counsel for the parties. 4. None of the respondents have raised any objection to the aforesaid I.A. No.6033/2009. 5. Accordingly, I.A. No. 6033/2009 is allowed. Let the name of deceased respondent no. 6, Bibi Khudeja be expugned from the array of parties by substituting the names of her heirs and legal representatives, as mentioned in paragraph 2 of the interlocutory application aforesaid. 6. All the proposed legal representatives of the deceased respondent no. 6 have entered appearance by filing Vakalatnama. Let the same be accepted and, thus, no notice is required to be sent to the substituted legal representatives. Reg. I.A. No. 5787/2007: 7. In view of the order passed allowing I.A. No. 6033/2009, no order is required to be passed in this I.A. No. 5787/2007, which has also been filed for the selfsame purpose, i.e., for substitution of the legal representatives of the deceased respondent no. 6, Bibi Khudeja. 8. In view of that, I.A. No. 5787/2007 also stands disposed of. 9. Now I proceed to consider the writ application on its merit. 10. Heard learned counsel for the petitioner, learned counsel appearing for the respondent no. 4 as well as learned counsel appearing for respondents no. 5 and 6(i) to 6(vii). 11. The petitioner seeks quashing of order dated 30.5.2002 as well as the order dated 12.6.2002 passed by the Circle Officer, Palasi, Respondent No. 3 in Case No. 1/2002-2003 under Section 48D of the Bihar Tenancy Act, 1885 (hereinafter referred to as the Act) whereby he had allowed the claim of the respondent no. 4 and declared that he had acquired raiyati rights with regard to 41 decimals of land pertaining to Khata No. 55, Plot No. 1001 of Mauza-Sukhsaina and directed for issuance of purcha in his favour. 4 and declared that he had acquired raiyati rights with regard to 41 decimals of land pertaining to Khata No. 55, Plot No. 1001 of Mauza-Sukhsaina and directed for issuance of purcha in his favour. The petitioner is also aggrieved by the order dated 12.9.2003 of the Sub-Divisional Magistrate, Araria in an appeal preferred by the petitioners against the aforesaid order, which was numbered as Case No. 71/2002-2003, and has been dismissed. 12. Learned counsel for the petitioner submitted that the impugned order, as contained in Annexure-3, had been passed only on account of the fact that the right of the respondent no. 4 had been declared under Section 48E of the Act in Case No.33/1999-2000 by the authority concerned without recording a. finding that the respondent no. 4 was the occupancy raiyat. It is submitted that the petitioner had already purchased land from the concerned tenant and in view of that in the aforesaid proceeding by the order dated 20.7.2000, the land concerned was excluded by the Collector under the Act from the 48E proceedings since the factum of purchase was also admitted by the respondent no. 4 and he did not raise any objection for deletion of the aforesaid land from the aforesaid proceedings. However, though the matter was refered to the Conciliation Board with regard to only 201/2 decimals of lands (lands concerned after exclusion of the lands of the petitioner), the Board made recommendation for entire 41 decimals of land and that was illegally accepted by the D.C.L.R., Araria also. That order had been separately challenged in CWJC No. 11445/2004, which has been allowed and the matter has been remitted back for fresh determination by the D.C.L.R. concerned after taking into account the order passed by him excluding the lands of petitioner from the proceedings. 13. In view of the above it is urged that the impugned order which has been passed solely on the ground of the order passed in 48E proceedings is also illegal as the lands of the petitioner has illegally been clubbed therein on the basis of the order passed in 48E proceedings. 14. No counter affidavit has been filed either by the State or the private respondents. 15. Learned counsel for the respondent no. 4 fairly submitted that he is only concerned with 201/2 decimals of land of the concerned plot for which there is no challenged in this writ application. 14. No counter affidavit has been filed either by the State or the private respondents. 15. Learned counsel for the respondent no. 4 fairly submitted that he is only concerned with 201/2 decimals of land of the concerned plot for which there is no challenged in this writ application. 16. Learned counsel for the State also submitted that the order passed in 48D proceedings has been passed on the basis of the earlier order passed in 48E of the Act and the same has been set aside and the matter has been remitted back for fresh determination. 17. I find substance in the submissions raised on behalf of the petitioner. 18. Admittedly, by the order dated 20.7.2000 (Annexure-1) in a proceeding under Section 48E of the Act, the authority concerned has extended 201/2 decimals of land out of the total 48 decimals of lands in question of Plot No. 1001, which was purchased by the petitioner. However, final order was passed in that proceeding with regard to entire 41 decimals of land which had been set aside and remitted back for fresh determination on that account by this Court in CWJC No. 11445/2004 after considering the aforesaid exclusion of purchased land of the petitioner. The original order, as contained in Annexure-3, has been passed solely on the ground that certain orders have been passed in favour of the petitioner under Section 48E of the Act. However, this order suffers from several other errors apart from aforesaid error, for example, it has been passed in favour of the respondent no. 4 without considering the fact as to whether he had acquired status of occupancy right or not. 19. In the case of Dilip Goswami & Anr. V/s. State of Bihar, [ 2003 (2) PLJR 211 ], a Division Bench of this Court has held that the proceedings under Sections 48E and 48D of the Act lie in separate compartments having little nexus with each other, which has been considered by this Bench in CWJC No. 12798/2003, disposed of on 10.9.2009. However, since the petitioner is only aggrieved by 201/2 decimals of land pertaining to Plot No. 1001 in question and nobody has challenged the other order with regard to the remaining 201/2e decimals, this Court deems it fit and proper that the order, as contained in Annexure-3, is liable to be set aside only to the extent it affects the petitioner. Similarly, the appellate authority has also not considered the aforesaid questions and has confirmed the order passed by the learned D.C.L.R. concerned, thus, the appellate order is also liable to be set aside. 20. In view of that I set aside both the orders dated 30.5.2002/12.6.2002 and 11.10.2003, as contained in Annexure-3 and Annexure-5 to the extent they affect the petitioner. 21. Accordingly, this writ application is allowed.