Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 729 (PAT)

Bijay Kumar Bhagat v. State of Bihar

2013-07-01

BIRENDRA PRASAD VERMA

body2013
ORDER In this batch of 5 writ petitions issues of facts and issues of law are common and identical. Therefore, with the consent of the parties, all the matters have been taken up together for their final disposal. 2. In all the above writ petitions, the petitioner is one and common, whereas the claimants under Section 48D of The Bihar Tenancy Act, 1885 (in short “B.T.Act”) are different. In all these writ petitions, the petitioner has challenged the original order passed separately by the respondent Anchal Adhikri, Barari in the District of Katihar under Section 48D of the B.T. Act, whereby and whereunder the petitions filed under Section 48D of the B.T. Act by the contesting respondents have been allowed and they have been declared raiyats under the meaning of B.T. Act with respect to the lands in dispute claimed by them separately. The appeal preferred by the petitioner before the Sub-Divisional Officer, Katihar, the appellate authority, in each of the cases has failed. Hence, the present writ petitions. 3. Learned Senior Counsel appearing on behalf of the petitioner has assailed the impugned original order passed by the respondent Anchal Adhikri, Barari primarily on two grounds; firstly, the impugned original order was passed by the respondent Anchal Adhikri without giving opportunity of hearing to the petitioner and, therefore, according to him, it is violative of the principles of nature justice. Secondly, sikmi rights of the ancestors of the contesting respondents recorded in the revisional survey khatian were challenged by the ancestor of the petitioner in a proceeding under Section 106 of the B.T. Act and that was allowed excepting in one case in which suit abated due to non-substitution of the deceased. It is contended that once sikmi rights of the ancestors of the contesting respondents were set at naught and since there was no order in terms of Section 48E of the B. T. Act, declaring the contesting respondents as bataidars having acquired the status of occupancy under-raiyat over the lands in question, their claim under Section 48D of the B.T. Act could not have been allowed by the respondent Anchal Adhikari, Barari. 4. 4. Learned counsel appearing on behalf of the respondent State of Bihar and its functionaries as also learned counsel appearing on behalf of the claimants- contesting respondents, have opposed the prayer made in this batch of writ petitions on behalf of the petitioner and have tried to support the impugned orders passed by the original authority as also by the appellate authority. 5. After having heard the parties and on consideration of entire materials available on record, this Court is of the opinion that all the matters require reconsideration and fresh decision in accordance with the provisions of the B.T. Act. From perusal of the order sheet of Case No. 11 of 2001-02 under Section 48D of the B.T. Act, brought on record as Annexure-4 to CWJC No. 1751 of 2006, this Court finds that direction was issued for issuance of notice to the landholder- petitioner, but there is nothing to show that, as a matter of fact, the notice was ever served upon him. Further this Court finds that the respondent Anchal Adhikari decided to hold enquiry on the spot, but there is nothing to show that for the said enquiry the petitioner was given any notice/ information or he was even present at the time of said enquiry. It appears that the entire proceeding under Section 48D of the B.T. Act was carried out behind the back of the petitioner in utter violation of the principles of natural justice. Similarly, in all other cases, rules of natural justice have not been followed. On that ground alone the impugned original order passed by the respondent Anchal Adhikari, Barari under Section 48D of the B.T. Act in each of the writ petitions cannot be sustained in the eye of law. The appellate authority while deciding the appeal of the petitioner has not examined this aspect of the matter in its proper perspective and has mechanically affirmed the original impugned order passed by the respondent Anchal Adhikari, Barari in each of the cases. Therefore, the impugned appellate order has also vitiated. 6. The appellate authority while deciding the appeal of the petitioner has not examined this aspect of the matter in its proper perspective and has mechanically affirmed the original impugned order passed by the respondent Anchal Adhikari, Barari in each of the cases. Therefore, the impugned appellate order has also vitiated. 6. For the reasons recorded above, the impugned original order dated 28.11.2001 passed in Case No. 11 of 2001-02 (Annexure-4) and the impugned appellate order dated 06.08.2004/ 02.09.2004 passed in Land Revenue Appeal No. 7 of 2004 (Annexure-5) in CWJC No. 1751 of 2006, the impugned original order dated 29.11.2001 passed in Case No. 10 of 2001-02 (Annexure-4) and the impugned appellate order dated 05.08.2004/02.09.2004 passed in Land Revenue Appeal No. 10 of 2004 (Annexure-5) in CWJC No. 1786 of 2006, the impugned original order dated 28.11.2001 passed in Case No. 13 of 2001-02 (Annexure-4) and the impugned appellate order dated 06.08.2004/ 02.09.2004 passed in Land Revenue Appeal No. 9 of 2004 (Annexure-5) in CWJC No. 2028 of 2006, the impugned original order dated 29.11.2001 passed in Case No. 17 of 2001-02 (Annexure-4) and the impugned appellate order dated 05.08.2004/ 02.09.2004 passed in Land Revenue Appeal No. 8 of 2004 (Annexure-5) in CWJC No. 2215 of 2006 and the impugned original order dated 28.11.2001 passed in Case No. 14 of 2001-02 (Annexure-4) and the impugned appellate order dated 06.01.2005 passed in Land Revenue Appeal No. 6 of 2004 (Annexure-5) in CWJC No. 2119 of 2006, are hereby set aside and all the matters are remitted back to the respondent Anchal Adhikari, Barari for deciding the claim of the claimants private- respondents afresh in accordance with law after giving an opportunity of hearing to all the parties including the petitioner. 7. It is made clear that all other issues raised on behalf of the parties in the present proceeding and which are available to them under law are left to be decided afresh by the authority concerned. The parties shall be at liberty to produce all the materials/ evidence in support of their respective claims. 8. 7. It is made clear that all other issues raised on behalf of the parties in the present proceeding and which are available to them under law are left to be decided afresh by the authority concerned. The parties shall be at liberty to produce all the materials/ evidence in support of their respective claims. 8. Since the matter has become very old, therefore, in order to expedite the matter the petitioner as also the contesting respondents are hereby directed to appear before the respondent Anchal Adhikari, Barari with a certified copy of the present order within a maximum period of two months from today, whereafter, respondent Anchal Adhikari shall fix a firm date for proceeding in the matter afresh in accordance with law. The respondent Anchal Adhikari shall make all endeavours to decide the matter afresh expeditiously within a maximum period of six months from the date of receipt/ production of a copy of the present order. 9. Till the matter is decided afresh, the parties are directed to maintain status quo, as obtaining today, with respect to the lands in dispute.