Patna High Court
Case Details
Patna High Court CWJC No.3706 of 2005 (6) dt.25-07-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3706 of 2005 ====================================================== 1. Md. Aiyub, son of Sk. Farid (since dead, his name has been expunged and is substituted by his heirs and legal representatives vide order dated 18.6.2013) i) Md. Rahbar ii) Md. Tanbeer Alam iii) Md. Tahmid All sons of Late Md. Aiyub, residents of village Jhawari, Tola Baluganj, P.S.-Jalalgarh, District-Purnea. iv) Bibi Shabnam, wife of Md. Washique and daughter of Late Md. Aiyub, resident of village-Barbatta, P.S.-Amour, District-Purnea. Barjish, wife of Salauddin and daughter of Late Md. Aiyub, resident of village-Satifur, P.S.-Jalalgarh, District-Purnea. Kulsum, wife of Md. Sagiruddin and daughter of Late Md. Aiyub, resident of Parsarari, P.S.-Amour, District-Purnea. v) vi) vii) Maruba, wife of Sajid and daughter of Late Md. Aiyub, resident of Bijaliya, P.S.-Amour, District-Purnea. 2. Sadruddin, son of late Sk. Hayat Ali( since dead, his name has been expunged and is substituted by his heirs and legal representatives vide order dated 18.6.2013) i) ii) iii) iv) v) Md. Faruque Alam Md. Mahjub Both sons of Late Sadruddin, resident of village-Jhawari Tola, Baluganj, P.S.-Jalalgarh, District-Purnea. Bibi Marjina, wife of Tohid and daughter of Late Sadruddin, resident of village-Sanjhaili, P.S.-Kasba, District-Purnea. Bibi Nargis, wife of Aziz and daughter of late Sadruddin, resident of village-Sakma, P.S.-Dagarwa, District-Purnea. Bibi Nurgaba, wife of Tauhid and daughter of late Sadruddin, resident of village-Jhawari, P.S.-Jalalgarh, District-Purnea. 3. Md. Mokhtar Alam, son of late Hasibur Rahman 4. Md. Azmal Hussain, son of Late Samim Akhtar Nos. 3 and 4 are residents of village-Jhawari Tola Baluganj, P.S.- Jalalgarh, Distt.-Purnea. .... .... Petitioner/s Versus 1. The State Of Bihar 2. Collector, Purnea 3. Anchal Adhikari, Amour, Distrtict-Purnea 4. Md. Nizamuddin 5. Md. Jalaluddin 6. Md. Mumtaz 7. Md. Aklaque 8. Md. Sahid 9. Md. Tanbir. Nos. 4 to 9 are sons of Late Abdul Sakoor, and are residents of village- Jhawari Tola Baluganj, P.S.-Jalalganj, District-Purnea.
Legal Reasoning
Patna High Court CWJC No.3706 of 2005 (6) dt.25-07-2013 2 10. Md. Yunus son of Late Sk. Karu 11. Sk. Habib son of Late Sk. Bajrul Nos. 10 and 11 are residents of village-Jhawari Tola Baluganj, P.S.- Jalalgarh, District-Purnea.
Legal Reasoning
.... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Kumar Uday Singh, Advocate For the Respondent Nos. 1 to 3 : Mr. Sanjay Kumar No. 1, S.C. 12 For the Respondent Nos. 4 to 9 : Mr. M.Z.Quamar, Advocate Mr. Manish Kumar, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER 6 25-07-2013 Heard the parties. 2. The petitioners claiming to be landlord/raiyat of the lands under dispute have approached this Court in the present proceeding under Article 226 of the Constitution of India assailing the validity, correctness and propriety of the order dated 28.3.1998 (Annexure-3) passed in case No. 27 of 1997-98 by the respondent Anchal Adhikari, Amour (District Purnea) under the provisions of Bihar privileged Persons Homestead Tenancy Act, 1947 (in short Act), whereby respondent Nos.4 to 9 have been declared privileged tenants and homestead parcha has been issued in their favour with respect to the lands under dispute, as also the order dated 22.7.2004 (Annelxure-6) passed by the respondent District Collector, Purnea, in Revenue Case No. 59 of 1998, whereby petition filed on behalf of the petitioners under Section 21 of the Act has been rejected and order passed by respondent Anchal Adhikari has been affirmed. 3. Learned counsel for the petitioners submits that the impugned order dated 28.3.1998 (Annexure-3) passed by the respondent Anchal Adhikari, Amour, is nullity in law as it was Patna High Court CWJC No.3706 of 2005 (6) dt.25-07-2013 3 passed against the dead persons. He further submits that the plea taken before the respondent District Collector, Purnea, that the order was passed against the dead persons has not been taken into consideration and respondent District Collector, Purnea, has mechanically rejected the case filed on behalf of the petitioners by his impugned order dated 22.7.2004 (Annexure-6) and has affirmed the order of the respondent Anchal Adhikari, Amour, which is not sustainable in law. 4. Learned counsel appearing on behalf of the petitioners further submits that respondent nos. 4 to 9 filed a petition before the respondent Anchal Adhikari, Amour under the provisions of the Act and rules made thereunder for issuance of homestead parcha in their favour with respect to the lands of Khata No. 303 appertaining to plot Nos. 1026 and 1207 situate at Mouza-Kumrahwa, Anchal-Amour, District-Purnea which gave rise to Case No. 27 of 1997-98. It is pointed out that the aforesaid case was filed against Sk. Farid, father of original petitioner no.1, who is now dead and has been substituted by his heirs and legal representatives and Sk. Karu, father of respondent No. 10, but both of them were dead at the time of filing of the petition by respondent Nos. 4 to 9. It is contended that the aforesaid Basgit Parcha Case filed by the respondent Nos. 4 to 9 was allowed to continue against the dead persons and even impugned final order was passed in favour of respondent Nos. 4 to 9 without substituting the heirs and legal representatives of the deceased
Decision
landholders. In para-16 of the writ petition it is specifically stated that before intiation of proceeding, the aforesaid Sk. Farid and Sk. Karu were dead, yet notices were issued in their names. 5. Though a counter affidavit has been filed on behalf Patna High Court CWJC No.3706 of 2005 (6) dt.25-07-2013 4 of respondent Nos. 1 to 3 but there is no specific denial about the claims raised on behalf of the petitioners about the death of the original landholder/raiyat. 6. Respondent Nos. 4 to 9 are represented by their counsel but no counter affidavit has been filed on their behalf disputing the correctness of the averment made in the writ petition. 7. 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 a fresh decision. From perusal of the ordersheet of Case No. 27 of 1997-98, it is apparent that the proceeding at the behest of respondent Nos. 4 to 9 under the provisions of the Act was initiated against Sk. Farid and Sk. Karu, who were already dead at that time. From the impugned order passed by respondent Anchal Adhikari, Amour, it is further apparent that landlords/raiyat, who were dead, were never substituted by their heirs and legal representatives. Therefore, the impugned final order dated 28.3.1998 (Annexure-3) is not sustainable in law as it was passed against the dead persons and in violation of the principles of natural justice. The respondent District Collector, Purnea, while passing the impugned final order dated 22.7.2004 (Annexure-6) in terms of Section 21 of the Act has not gone into the aforesaid basic issues raised on behalf of the petitioners and has arbitrarily affirmed the order passed by respondent Anchal Adhikari, Amour, which cannot be sustained in law. 8. For the reasons recorded above, the impugned order dated 28.3.1998 (Annexure-3) passed by the respondent Anchal Adhikari, Amour, as also the impugned order dated 22.7.2004 (Annexure-6) passed by the respondent District Patna High Court CWJC No.3706 of 2005 (6) dt.25-07-2013 5 Collector, Purnea, in terms of Section 21 of the Act are hereby set aside and the matter is remitted back to the respondent Anchal Adhikari, Amour, for deciding the claim of respondent Nos. 4 to 9 afresh strictly in accordance with law after giving opportunity of hearing to all concerned including the petitioners and respondent Nos. 10 and 11. 9. In order to expedite the matter, the petitioners and respondent Nos. 4 to 9 are hereby directed to appear before the respondent Anchal Adhikari, Amour, with a certified copy of the present order within a period of six weeks from today. Thereafter, the respondent Anchal Adhikari, Amour, shall proceed to decide the matter afresh strictly in accordance with law under the provisions of the Act and rules made thereunder. However, before passing the final order he shall be obliged to give opportunity of hearing to all concerned. The respondent Anchal Adhikari, Amour, shall make all endeavours to decide the matter afresh at an early date preferably within a period of six months from the first date fixed for appearance of the petitioners and private respondents. 10. In the result, the writ petition succeeds to the extent indicated above. However, the parties are left to bear their own costs. (Birendra Prasad Verma, J) sudip/-