MD. KHURSHID ALAM v. THE STATE OF BIHAR

: Mr. Raghib Ahsan, Sr. Advocate, Mr. Deepak Kumar Singh, Advocate, : Mr. J. P. Bhagat, Advocate, : Mr. S. K. Giri, A/c to SC 5 --------------- 4/

23.07.2009 Heard Mr. Raghib Ahsan, learned counsel for the petitioner, Mr. J.P. Bhagat, learned counsel for respondent no.4. Nobody appears on behalf of respondent nos. 5 and 6 despite service of notice. The writ petitioners are aggrieved by order dated

15.06.2001 passed by Anchaladhikari, Sri Nagar (respondent no.3) as well as order dated 20.12.2002 passed by Sub-divisional Officer, Sadar Purnea as contained in Annexure-2 (order allowing a petition filed under Section 48 D of the Bihar Tenancy Act, 1885) and 1 (appellate order) respectively. Dispute is with regard to 83 decimals of lands appertaining to R.S. plot nos. 88, 89, 95 and 96 of Khata no. 22, Chak Khata no. 44 and Chak Khesara no. 97 and 90 respectively of Mauza Uchhaipur. At the time of argument learned counsel for the petitioners raised only two short questions. - 2 - Firstly; that admittedly the petitioners purchased 2 acres 65 decimals land including 83 decimals land in dispute by a registered sale deed dated 26.07.1991. The sale deed was registered, its registration number admittedly being 8141 dated 26.07.1991. Thus, it is claimed, that thereafter the writ petitioners entered into the shoes of the original land holder Mangan Sah and as such, since the transfer was prior to filing of the case concerned, they should have been impleaded as a party in the proceeding under Section 48 D of the Bihar Tenancy Act, 1885. That having not been done and even that fact having not been disclosed by respondent no.4 before the Original authority, the entire proceeding is vitiated for non-joinder of necessary party affecting the right of the petitioners and, thus, is liable to be set aside. Secondly; it is submitted that the original land holder, namely Mangan Sah, died during the pendency of the case no. 01/2000-01on 16.04.2001, thus, the final order passed subsequently on

15.06.2001 is nullity as no order could have been passed against a dead person. It is further contended on behalf of the petitioners that after getting the knowledge of the order as contained in Annexure-2, an appeal was preferred before the Sub-divisional Officer, Purnea, who had dismissed the same on account of the fact that the sale deed concerned was yet to be released to the purchaser and, therefore, he had not acquired any right so as to entitle him to be impleaded as a party. According to the petitioners, it had also been held by the - 3 - appellate authority that since all the formalities were completed in the original proceedings as the verification reports etc. had already come into the record and merely an order was to be passed declaring the Raiyati rights of the respondent no.4, thus, there was no need to substitute the legal representatives of the deceased-opposite party namely Mangan Sah.

Mr. Bhagat, learned counsel appearing for respondent no.4, submitted that since the sale deed in question was not released in favour of the petitioners due to the fact that respondent no.4 had filed a petition before the Collector, Purnea, which was registered as Misc. case no. 591 of 1992 and an order staying the release of registered sale deed in favour of purchaser was passed by him, the purchaser was not required to be impleaded as party. His second submission is that all the formalities were completed in the original case which was pending before the Circle Officer concerned and since only formal order was to be passed in view of all those reports, there was no need to expunge the name of the deceased person and to substitute his legal representatives prior to the passing of final order. I do not find any force in the submissions made on behalf of respondent no.4. If an application under Section 48 D of the Bihar Tenancy Act, 1885 is allowed then it extinguishes the existing Raiyati right of the land holder in favour of the occupancy under raiyat, therefore, the land holder has to be heard before passing of the final order.

That admittedly having not been done and the land holder had admittedly died two months prior of the passing of the final order, it - 4 - was a mandatory requirement to substitute his legal representatives. Thus, the order as contained in Annexure-2 had admittedly been passed against a dead person. Secondly, the land was already purchased by the petitioners by execution of a sale deed in their favour and the sale deed was also registered. The Collector by an order, as contained in Annexure-4/A passed in Misc. case no. 591/92 has stayed only the release of the sale deed to the petitioner on ex parte submission on behalf of respondent no.4 that the land holder concerned has transferred the land without permission from the ceiling authority as was required under Section 5 of the Ceiling Act. However, learned counsel for respondent no.4 failed to show any provision for passing of such order by the Collector concerned, as the same was not passed in a Ceiling proceeding initiated under Section 5 of the Ceiling Act.

Even if assuming that the order had been passed under Section 5 of the Ceiling Act, then the order as contained in Annexure- 4A is not final determination of the issue as to whether any permission was accorded for such sale deed or not or whether that the lands transferred were beyond the Ceiling area admissible to the land holder. Apart from the aforesaid, the provisions under Section 5 (i) as well as (ii) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 concerns the transfer that has already been made. Therefore, such interim order withholding the sale deed would be deemed to have been passed considering the fact that such transfer had already taken place. - 5 - In view of that, I am of the opinion that on registration of the aforesaid sale deed the petitioners had definitely acquired right to be impleaded as party in a proceeding under Section 48 D of Bihar Tenancy Act, 1885.

On that score also the impugned orders are fit to be set aside. As a result, I allow this writ application and set aside the impugned orders dated 15.06.2001 and 20.12.2002, as contained in Annexures 1 and 2, and remit back the matter to the Anchaladhikari, Sri Nagar, Purnea to decide it afresh in accordance with law after affording opportunity of hearing to all the necessary parties. It is made clear that this court has not formed any opinion with regard to the cases of the respective parties and further that if the respondent no.4 files a petition before the concerned authority to expunge the name of original land holder and substitute his legal representatives, then the same shall be considered by him and disposed of in accordance with law. Uday/ ( Dr. Ravi Ranjan, J. )