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2013 DIGILAW 692 (PAT)

Anandi Prasad v. State of Bihar

2013-06-25

BIRENDRA PRASAD VERMA

body2013
ORDER Heard the parties. 2. The petitioner is aggrieved by the order dated 04.10.2001 (Annexure-5) passed in Mutation Appeal No.32 of 2000-2001 by the respondent D.C.L.R., Bettiah (West Champaran), whereby and whereunder while allowing the aforesaid appeal filed on behalf of the private respondents, he has set aside the order dated 22.06.2000 (Annexure-2) passed in Mutation Case No. 257 of 2000-2001 by the respondent Circle Officer, Bairia in the district of West Champaran. The revision filed by the petitioner was also rejected by the impugned revisional order dated 15.04.2005 (Annexure-6) passed in R.M. 20 of 2002-03 by the respondent District Collector, West Champaran, Bettiah. Hence, the present writ petition. 3. Learned counsel for the petitioner submits that admittedly the petitioner and the private respondents are descendants of their common ancestor and both sides are having half share in the lands belonging to them. It is contended that a family partition had taken place and as per terms of family partition, both sides are coming in possession over the allotted area of land. It is next contended that in view of the aforesaid family partition, petitioner filed an application under Section 12 of the Bihar Tenant’s Holdings (Maintenance of Records) Act, 1973 (hereinafter referred to as “1973 Act”) before the respondent Anchal Adhikari, giving rise to Mutation Case No. 257 of 2000-2001. In the aforesaid mutation case the private respondents or their ancestors were parties and after giving opportunity of hearing to all concerned, by a final order dated 22.06.2000 (Annexure-2) the name of the petitioner was directed to be mutated with respect to the lands in his possession on the basis of aforesaid family partition. 4. The private respondents, being aggrieved by the order passed by the respondent Anchal Adhikari, preferred appeal before respondent D.C.L.R. in terms of Section 15 of the 1973 Act, which was allowed by the impugned order dated 04.10.2001 (Annexure-5) and the order passed by the respondent Anchal Adhikari was set aside. As stated above, revision preferred by the petitioner in terms of Section 16 of the 1973 Act was also rejected by the respondent District Collector. 5. Learned counsel for the petitioner has contended that there is no dispute that both sides are descendants of their common ancestor. As stated above, revision preferred by the petitioner in terms of Section 16 of the 1973 Act was also rejected by the respondent District Collector. 5. Learned counsel for the petitioner has contended that there is no dispute that both sides are descendants of their common ancestor. According to him, if the respondent D.C.L.R. was at all satisfied that order passed by the respondent Anchal Adhikari was not in accordance with the provisions of 1973 Act, then he could have remitted the matter back for fresh decision, but he has not done so and has simply allowed the appeal of the private respondents and thereby he has dropped the entire mutation proceeding. 6. Learned counsel appearing on behalf of the private respondents has opposed the prayer and has supported the impugned appellate order and the revisional order as contained in Annexure- 5 & 6. It is contended that family partition is not admitted and there is a serious dispute about such claim of family partition made by the petitioner. 7. After having heard the parties and on consideration of the materials available on record, this Court is of the opinion that entire matter requires reconsideration and fresh decision. The orders contained in Annexure-2, 5 and 6 do not appear to have been passed in consonance with the mandate of 1973 Act and as such these orders cannot be sustained in the eye of law. 8. For the reasons recorded above, order dated 22.06.2000 (Annexure-2) passed by the respondent Anchal Adhikari, impugned order dated 04.10.2001 (Annexure-5) passed by the respondent D.C.L.R. and impugned revisional order dated 05.04.2005 (Annexure-6) passed by the respondent District Collector are hereby set aside and the matter is remitted back to the original authority for deciding the matter afresh strictly in accordance with law, after giving opportunity of hearing to all the parties. 9. At this stage learned counsel for the petitioner and the learned counsel for the respondents are unanimous in their submissions that during the interregnum period, while the present matter was pending before this Court, The Bihar Land Mutation Act, 2011 (in short “2011 Act”) has been brought on the statute book and 1973 Act has been repealed. Now the mutation proceedings are required to be decided under the provisions of 2011 Act. The power for deciding the petition for mutation has been vested in the Circle Officer of the area concerned. Now the mutation proceedings are required to be decided under the provisions of 2011 Act. The power for deciding the petition for mutation has been vested in the Circle Officer of the area concerned. Therefore, in view of the present remand order, the respondent Anchal Adhikari shall decide the case of the parties in accordance with the provisions of the 2011 Act. 10. It is directed that the respondent Anchal Adhikari, Bairia shall decide the matter afresh, after giving an opportunity of hearing to all concerned, expeditiously within the time prescribed under 2011 Act from the date of receipt/ production of a copy of the present order. 11. For expeditious disposal of the matter both parties are directed to appear before the respondent Anchal Adhikari on 15th July 2013 with a certified copy of the present order. 12. The writ application stands finally disposed of with the observations and directions made above. The parties are left to bear their own costs.