Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 864 (PAT)

Ram Krishna Yadav v. State of Bihar

2013-07-24

BIRENDRA PRASAD VERMA

body2013
ORDER Heard the parties. 2. The petitioners have filed the present writ petition under Article 226 of the Constitution of India assailing the validity and correctness of the order dated 20.5.2003 (Annexure-1) passed by the respondent Sub-Divisional Officer, Forbesganj, in Appeal Case No. 261 of 1992-93, whereby and whereunder he has set aside the order dated 24.12.1992 (Annexure-8) passed in Case No. 71 of 1992-93 by the respondent Anchal Adhikari, Bhargama, declaring the original applicant viz. Rajeshwar Yadav, the father of the petitioners, to be raiyat over the lands under dispute in terms of Section 48D of the Bihar Tenancy Act, 1885 (in short B.T. Act). 3. Admittedly, father of the petitioners, namely, Rajeshwar Prasad Yadav @ Rajeshwar Yadav had filed an application under Section 48D of the B. T. Act before the respondent Circle Officer, Bhargama, which gave rise to Case No. 71 of 1992-93. Father of the petitioners claimed his raiyati right on the ground that he was declared a bataidar as far back as in 1957 by the competent authority in terms of Section 48E of the B.T. Act over the lands under dispute. Admittedly, at the relevant time, one Basudeo Yadav was the landholder/raiyat over the lands under dispute. However, he did not contest the claim made on behalf of the father of the petitioners. The claim made under Section 48D of the B. T. Act by the father of the petitioners appears to have been raised with respect to 6.02 acres of land equivalent to 7 ½ bighas of land situate at Mouza-Raghunathpur in the district of Araria. The private respondent Nos. 4 to 8 claim to be the purchasers from the original landholders. The claims raised on behalf of the father of the petitioners with respect to the lands under dispute under Section 48D of the B.T. Act was allowed by orders dated 21.12.1992/24.12.1992 (Annexure-8) passed by the respondent Circle Officer, Bhargama. 4. Though original landholder/raiyat Basudeo Yadav did not challenge the aforesaid order, as contained in Annexure-8, either in appeal or before any higher authority/court, yet respondent Nos. 4 to 8, claiming to be the purchasers, filed appeal before the respondent Sub-Divisional Officer, Forbesganj, which was finally allowed by an order dated 14.01.1997 (Annexure-11) and the order dated 24.12.1992 (Annexure-8) passed by the respondent Circle Officer, Bhargama, was set aside. 5. 4 to 8, claiming to be the purchasers, filed appeal before the respondent Sub-Divisional Officer, Forbesganj, which was finally allowed by an order dated 14.01.1997 (Annexure-11) and the order dated 24.12.1992 (Annexure-8) passed by the respondent Circle Officer, Bhargama, was set aside. 5. The aforesaid Rajeshwar Prasad Yadav, father of the petitioners, being aggrieved by the aforesaid appellate order, preferred C.W.J.C. No. 10901 of 1997, which was disposed of by a learned single Judge of this Court by an order dated 17.11.1998 (Annexure-12), whereby the impugned appellate order dated 14.1.1997 (Annexure-11) was set aside and the matter was remitted back to the respondent S.D.O., Forbesganj, with a direction to get a local enquiry conducted by the respondent Anchal Adhikari, Bhargama, in presence of the parties in order to ascertain the possession of the contesting parties over the lands under dispute. 6. In the light of aforesaid remand order of this Court, an enquiry is said to have been conducted by the respondent Anchal Adhikari, Bhargama, who came to a finding that petitioners are having possession over the lands under dispute. Accordingly, the respondent Anchal Adhikari, Bhargama passed a fresh order dated 12.11.2002 (Annexure-2) in Case No. 10 of 2002-03 declaring the petitioners a raiyat under Section 48D of the B.T. Act over the lands under dispute. However, respondent Sub-Divisional Officer, Forbesganj, by the impugned order dated 20.5.2003 passed in Case No. 261 of 1992-93 has once again allowed the appeal filed by the private respondents and has set aside the order dated 24.12.1992 (Annexure-8) passed by the Anchal Adhikari, Bhargama, in favour of the father of the petitioners. 7. Learned counsel appearing on behalf of the petitioners submits that in compliance of the order passed by this Court, fresh enquiry was conducted by the respondent Anchal Adhikari, Bhargama, and possession of the petitioners was found over the lands under dispute. Therefore, respondent Sub-Divisional Officer, Forbesganj, has committed an error of law in setting aside the original order of the respondent Anchal Adhikari, Bhargama. According to him, the impugned appellate order dated 20.5.2003 (Annexure-1) is not sustainable in law. 8. Therefore, respondent Sub-Divisional Officer, Forbesganj, has committed an error of law in setting aside the original order of the respondent Anchal Adhikari, Bhargama. According to him, the impugned appellate order dated 20.5.2003 (Annexure-1) is not sustainable in law. 8. Learned counsel appearing on behalf of the respondent State as also learned counsel appearing on behalf of the private respondents have opposed the prayer made on behalf of the petitioners and have submitted that in view of the remand made by this Court by an order dated 17.11.1998 (Annexure-12), the respondent Anchal Adhikari, Bhargama, was required to give only his findings about the possession of the parties over the lands under dispute, but the respondent Anchal Adhikari, Bhargama, has exceeded his jurisdiction and once again by his order dated 12.11.2012 (Annexure-2), he has declared the petitioners as raiyats over the lands under dispute in terms of Section 48D of the B.T. Act. Therefore, according to them, respondent Sub-Divisional Officer, Forbesganj, has rightly not accepted the enquiry report of the Anchal Adhikari, Bhargama, and has allowed the appeal filed on behalf of the private respondents. 9. After having heard the parties and on consideration of the materials available on record, this Court is of the opinion that the entire matter requires reconsideration and fresh decision right from beginning strictly in accordance with law. 10. I had an occasion to consider the scheme, scope and mandate of Section 48D of the B.T. Act recently in an unreported judgment/order dated 4.7.2013 passed in C.W.J.C. No. 1762 of 2007 (Pulin Bihari Das and ors. Vs. The State of Bihar & ors.), wherein I have held that the provisions under Section 48D of the B.T. Act are benevolent in nature for the occupancy under raiyat, but it is very harsh and detrimental in nature so far as the landholders are concerned. I am of the considered opinion that before passing any final order against the landholder under Section 48D of the B.T. Act, the procedure prescribed under Section 48D of the B.T. Act and rules made thereunder must be strictly followed, since it takes away all the valuable rights of a landholder with respect to the lands so claimed. 11. I am of the considered opinion that before passing any final order against the landholder under Section 48D of the B.T. Act, the procedure prescribed under Section 48D of the B.T. Act and rules made thereunder must be strictly followed, since it takes away all the valuable rights of a landholder with respect to the lands so claimed. 11. Coming to the present case, this Court finds that the procedure prescribed under Section 48D of the B.T. Act and the rules made thereunder have not been strictly complied with by the respondent Circle Officer, Bhargama, while allowing the claim of the petitioners or their father under Section 48D of the B.T. Act by two different orders dated 24.12.1992 (Annexure-8) and 12.11.2002 (Annexure-2). Similarly, respondent Sub-Divisional Officer, Forbesganj, has not applied his judicial mind to the facts of the case and in a most mechanical manner, he has reversed and set aside the first order dated 24.12.1992 passed by the Circle Officer, Bhargama, and has ignored the subsequent order dated 12.11.2002, which is not sustainable in law. 12. For the reasons recorded above, the impugned appellate order dated 20.5.2003 (Annexure-1) passed by the respondent Sub-Divisional Officer, Forbesganj, in Appeal Case No. 261 of 1992-93 as also the original order dated 24.12.1992 (Annexure-8) passed in Case No. 71 of 1992-93 and subsequent order dated 12.11.2002 (Annexure-2) passed in Case No. 10 of 2002-03 by the respondent Anchal Adhikari, Bhargama, are hereby set aside and the matter is remitted back to the respondent Anchal Adhikari, Bhargama, for deciding the claim of the petitioners under Section 48D of the B. T. Act afresh strictly in accordance with law. 13. It appears that with the passage of time many orders/documents are not in possession of the parties and further, there appears to have been change of ownership of lands under dispute also. Whether purchases made by the private respondents are bonafide and from the rightful owners, or, whether the original raiyat, Basudeo Yadav, is still owner of the lands under dispute are also required to be gone into by the respondent Anchal Adhikari, while passing the final order afresh. 14. The petitioners shall be at liberty to file a fresh application in the prescribed form ‘C’ laying their claims over the lands under dispute under Section 48D of the B.T. Act. 14. The petitioners shall be at liberty to file a fresh application in the prescribed form ‘C’ laying their claims over the lands under dispute under Section 48D of the B.T. Act. They shall be obliged to give full details of the lands under dispute as also full details of the landholders/raiyats and thereafter the matter shall be proceeded afresh after giving opportunity of hearing to all concerned including respondent Nos. 4 to 8. 15. In order to expedite the matter, the petitioners and respondent Nos. 4 to 8 are hereby directed to appear before the respondent Circle Officer, Bhargama, with a certified copy of the present order within a maximum period of two months from today, whereafter the respondent Circle Officer, Bhargama, shall fix a firm date and shall proceed to decide the claims of the petitioners with respect to the lands under dispute under Section 48 D of the B. T. Act in accordance with law, after giving opportunity of hearing to all concerned. All endeavours shall be made by the respondent Circle Officer to conclude the proceeding at an early date preferably within a period of six months from the date of receipt/production of a copy of the present order. 16. In the result, the writ petition is allowed to the extent indicated above. However, the parties are left to bear their own costs.