Letters Patent Appeal No. 1490 of 2011 · Patna High Court · 2010
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No. 1490 of 2011 In Civil Writ Jurisdiction Case No. 6347 of 2010 ====================================================== Keshav Prasad Singh S/O Late Khantar Prasad Singh, resident of Village Bishariya, Police Station Korha, District Katihar. .... .... Petitioner / Appellant Versus 1. The State of Bihar through the Collector of the District Katihar. 2. The Commissioner, Purnea Division, Purnea. 3. The Land Reforms Deputy Collector, Katihar-cum-Additional Collector (Ceiling), Katihar. 4. The Circle Officer, Korha, District- Katihar. 5. Doman Singh @ Doman Prasad Singh S/O Late Khublal Mahto, resident of Village Bishariya, Police Station Korha, District - Katihar. .... .... Respondents / Respondents ====================================================== Appearance:
Legal Reasoning
For the Appellant/s : Mr. Dhananjay Kumar and Mr. Bipin Kumar, Advocates. For the Respondents-State: Md. Anis Akhtar, AC to GA 3. For the Respondent no 5: Mr. Vijay Shankar Shrivastava, Advocate. ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 6 22-10-2013 Feeling aggrieved by the order dated 15th April 2010 made by the learned single Judge in CWJC No. 6347 of 2010, the respondent no. 5 has preferred this Appeal under Clause 10 of the Letters Patent. The matter at dispute is the settlement of a parcel of land bearing Plot no. 1665 appertaining to Khata no. 131 Patna High Court LPA No.1490 of 2011 (6) dt.22-10-2013 2/5 admeasuring 46 decimals of Village - Bisharia, Block – Korha,
Decision
District – Katihar. Respondent no. 5, the writ petitioner, appears to have lodged claim to 23 decimals of the said land as a joint settlee in Misc. Case no. 21/2008 before the Additional Collector (Ceiling), Katihar. The said application came to be allowed by the Additional Collector on 28th July 2009. The Additional Collector held that the settlement of 46 decimals of land made in the name of Chhuthar Mahto be restricted to 23 decimals of land and the remaining 23 decimals of land be settled in the name of the writ petitioner. The said order was challenged by the appellant before the Divisional Commissioner, Purnea in Misc. Appeal no. 12/09- 10. The said appeal came to be allowed on 9th December 2009. The order dated 28th July 2009 made by the Additional Collector (Ceiling), Katihar was held to be ex parte against the appellant and was quashed. Feeling aggrieved, the writ petitioner approached this Court in above CWJC no. 6347 of 2010. He challenged the above referred order dated 28th July 2009 and prayed for settlement of 23 decimals of land out of the said land. The learned single Judge has, under the impugned order dated 15th April 2010, allowed the Writ Petition and has quashed the order dated 28th July 2009 being ex parte against the writ petitioner. The learned single Judge remitted the matter to the Commissioner, Purnea Division and directed the Commissioner, Purnea Division to make order afresh and to make settlement of the land in favour of the heirs of the sikmidars Chhuthar Mahto and Khublal Mahto. Feeling aggrieved, the respondent no. 5 has preferred this Appeal. It is apparent that the appellant claims a right to the aforesaid land through one Chhuthar Mahto. The said land was Patna High Court LPA No.1490 of 2011 (6) dt.22-10-2013 3/5 settled in favour of the said Chhuthar Mahto, the sikmidar, as early as in 1977. The writ petitioner claimed a share in the said land through one Khublal Mahto, the brother of the aforesaid Chhuthar Mahto. According to the writ petitioner, the aforesaid land was settled jointly in favour of Chhuthar Mahto and Khublal Mahto, the sons of one Kashi Mahto, the original sikmidar. It further appears that the Additional Collector (Ceiling), Katihar on 28th July 2009 allowed the claim of the writ petitioner ex parte against the appellant. Similarly, the Divisional Commissioner, Purnea allowed the Misc. Appeal no. 12/09-10 ex parte against the writ petitioner. The learned single Judge has also allowed the Writ Petition ex parte against the appellant. Learned advocate Mr. Vijay Shankar Shrivastava has appeared for the respondent no. 5, the writ petitioner. He has challenged the maintainability of this Appeal. He has submitted that the impugned order dated 15th April 2010 made by the learned single Judge has been implemented. Since the remand of the matter, the Divisional Commissioner, Purnea has made order dated 3rd March 2011 in consonance with the direction issued by the learned single Judge. The challenge to the said order dated 3rd March 2011 in CWJC no. 9366 of 2011 has failed. The order dated 21st June 2011 made in CWJC no. 9366 of 2011 has not been challenged by the appellant. We are alive to the fact that the impugned order dated 15th April 2010 has been implemented and that the order dated 21st June 2011 made in CWJC no. 9366 of 2011 has not been challenged in appeal before us. However, the grievance of the appellant in respect of the impugned order is real and genuine. Not only the learned single Judge has remanded the matter to the Patna High Court LPA No.1490 of 2011 (6) dt.22-10-2013 4/5 Commissioner, Purnea Division for reconsideration after notice to the respondent no. 5, the present appellant, and to make appropriate order; the learned single Judge has also issued direction to the Commissioner, Purnea Division to make settlement in favour of the heirs of both the above referred sikmidars. In other words, the learned single Judge has accepted the claim of the writ petitioner and has issued mandamus to decide the matter in a particular manner which has closed the fate of the matter. Without entering into the merits of the case, the learned single Judge ought not to have issued the mandamus in the aforesaid manner. For the aforesaid reasons, the Appeal is allowed to the extent the learned single Judge has issued the mandamus to the Commissioner, Purnea Division. The direction to “ensure settlement of the said land in favour of the heirs of both Chhuthar Mahto and Khublal Mahto” is set aside. As a necessary consequence of this order, the order dated 3rd March 2011 made by the Divisional Commissioner, Purnea in Misc. Appeal no. 12/09-10 stands quashed. The Misc. Appeal no. 12/09-10 is allowed. The order dated 28th July 2009 made by the Additional Collector (Ceiling), Katihar in Misc. Case no. 21 of 2008 is quashed and set aside. The Misc. Case no. 21 of 2008 filed before the Additional Collector (Ceiling), Katihar is revived. The Additional Collector (Ceiling), Katihar will hear and decide the Misc. Case no. 21 of 2008 afresh on merits and in accordance with law. Both the learned advocates assure this Court that the appellant and the respondent no. 5 will appear before the Additional Collector (Ceiling), Katihar on 3rd December 2013 and Patna High Court LPA No.1490 of 2011 (6) dt.22-10-2013 5/5 then on the date that may be fixed by the Additional Collector (Ceiling), Katihar. It is clarified that the Additional Collector (Ceiling), Katihar will not be required to issue notice afresh either to the appellant or to the respondent no. 5. The Registry will send copy of this order to the respondent nos. 2 and 3 forthwith. (R.M. Doshit, CJ) Dilip. (Ashwani Kumar Singh, J)