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2018 DIGILAW 219 (JHR)

Md. Ali Hasan v. State of Jharkhand

2018-01-29

ANUBHA RAWAT CHOUDHARY

body2018
JUDGMENT : 1. Heard the learned counsel for the parties. 2. This writ petition has been filed by the petitioner for quashing the order dated 01.02.2007 as contained in Annexure-3 to the writ petition passed by the respondent no. 2 in Revision Case No. 52/03 whereby the revision has been allowed by setting aside order dated 15.10.2003 (Annexure-2) passed in Misc. Appeal No. 5 R 15/02-03 as well as the order dated 30.01.2003 (Annexure-1) passed by the respondent no. 4 in preemption case no. 19/01-02 has been set aside. 3. The brief facts of this case as submitted by the petitioner is as follow:- a. land of Plot No. 340 appertaining to Khata No. 22 of village Pindorkam, P.S. Hatia, District Ranchi was recorded in the Revisional Survey Record of Rights as Raiyat lands jointly in the names of the ancestors of the petitioner and respondent nos. 6 to 19. b. on 07.08.2001, respondent nos. 6 to 12 sold a portion of the aforesaid land measuring 23 decimals to respondent no. 5 by virtue of Registered deed of sale being Deed No. 8734 dated 7.8.2001. c. The petitioner and his brothers after having come to know about the aforesaid transfer, filed an application under section 16(3) (1) of the Act before respondent no. 4 on 6.11.2001 after complying all the requirement under the Act and claimed reconveyance of the land in their favour on the grounds that they are co-shares as well as adjoining raiyat of the land whereas the respondent no. 5 is neither a co-sharer nor and adjoining raiyat of the said land. d. The application for preemption was allowed vide order dated 30.01.2003 (Annexure-1) against which appeal was dismissed vide order dated 15.10.2003 (Annexure-2). However, the revision filed against the appellate order has been allowed vide impugned order dated 1.2.2007(Annexure-3). e. At the outset counsel for the petitioner submits that without entering into the merits of the matter, it would be relevant to point out that the impugned order dated 01.02.2007 was passed interalia in favour of the respondent no. 5(since deceased and substituted in this writ petition) and 8 (since deceased and substituted in this writ petition) herein, who had expired in the year 2005 and 2004 respectively. f. This fact has been pointed out by the counsel for the petitioners from the order dated 08.01.2015 passed by this Court wherein respondent nos. 5(since deceased and substituted in this writ petition) and 8 (since deceased and substituted in this writ petition) herein, who had expired in the year 2005 and 2004 respectively. f. This fact has been pointed out by the counsel for the petitioners from the order dated 08.01.2015 passed by this Court wherein respondent nos. 8 and 5 herein have been inter alia substituted by their legal heirs. g. He further submits that in view of the fact that the original respondent no 5 and 8 of this writ petition had expired prior to passing of the impugned order dated 1.2.2007 , the impugned order has been passed inter alia in favour of the original Respondent nos. 5 & 8 herein, after their death. h. It is an admitted fact that no substitution was filed in Revision Case No. 52/03 in which the impugned order has been passed. i. Accordingly, it is submitted that the impugned order is not sustainable in the eyes of law. j. It is submitted that in view of such circumstances the matter may be remanded for fresh consideration. 4. Counsel for the respondents no 5(a) and 5(b) (for substituted respondent no. 5), Mr. K.K. Singh, submits that although the order dated 01.02.2007 has been passed in favour of dead persons, but there were other parties also in the said proceedings and accordingly the impugned order cannot be said to be nullity and there is no require to set aside the impugned order. However the counsel submit that in case the matter is remanded for fresh consideration by the respondent no 2 , his clients would file the necessary substitution petition before the respondent no-2 so that the matter may be heard afresh after hearing the legal representatives of the deceased persons. 5. After hearing the parties, I am of the view that the matter is fit to be remanded before the respondent no-2 for fresh consideration as admittedly on the date of passing of the impugned order the purchaser of the property who was original respondent no 5 in this writ petition and now been substituted as well as one of the sellers of the property who was original respondent no. 8 in this writ petition and now been substituted were dead. 8 in this writ petition and now been substituted were dead. In this view of the matter the impugned order dated 1.2.2007 (Annexure-3) passed by the respondent no 2 cannot be sustained in the eyes of law and is hereby set-aside. 6. The matter is hereby remanded back to the respondent no 2 for fresh consideration after hearing the parties if any petition for substitution of the deceased said persons is filed by the respondent no 5(a) and 5(b) within a period of 2 months from today . In case necessary substitution petitions are filed, the Respondent no 2 shall proceed to hear the matter and pass fresh reasoned order in accordance with law within a period of six months thereafter. 7. It is made clear that this Court has not entered into the merits of the matter. 8. The writ petition is disposed of with aforesaid observations and directions.