Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12046 of 2005 ====================================================== Anchal Kumari, wife of Sri Brajesh Kumar, resident of Mohalla - Surkhikal, Tilkamanjhi, P.S. – Barari, District - Bhagalpur .... .... Petitioner Versus 1. The State Of Bihar 2. The Collector, Bhagalpur 3. The Deputy Collector of Land Reforms, Sadar, Bhagalpur 4. The Anchaladhikari, Jagdishpur, Bhagalpur (Respondents 1st Set) 5. Samarendra Kumar Mishra 6. Jainendra Kumar Mishra Both sons of Late Jitendra Kumar Mishra, resident of Mohalla - Bhikhanpur, Gumti No. – 3, P.S. – Ishakchak, District - Bhagalpur (Respondents 2nd Set) .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Diwakar Upadhyaya, Adv. For the Respondent/s : Mr. (AAG3) Mr. Bijendra Kumar Singh, Adv. Mr. Gopal Prasad Roy, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR CAV ORDER 7 18-03-2013 The present writ petition has been preferred for setting aside an order dated 20/7/2004 passed by learned Collector, Bhagalpur, in Mutation Revision Case No. 143 of 2003-04 as well as order dated 30/3/2005 passed by Deputy Collector Land Reforms, Sadar, Bhagalpur (hereinafter referred to as “D.C.L.R.”) in Mutation Appeal Case No. 8 of 2003-04. By order dated 20/7/2004 learned Collector, Bhagalpur/Respondent No. 2 had allowed Mutation Revision Case No. 143 of 2003-04, which was preferred by Respondent No. 5 & 6 against an order dated Patna High Court CWJC No.12046 of 2005 (7) dt. 18 -03-2013 2/12 24/2/2004 passed in Mutation Appeal Case No. 8 of 2003-04 by the D.C.L.R. The D.C.L.R., Sadar Bhagalpur/Respondent No. 3 had rejected Appeal preferred by Respondent No. 5 & 6 against the mutation order dated 3/1/2003 whereby, Circle Officer had allowed Mutation Case No. 494(9) of 2002-03 and directed for mutating land pertaining to Khata No. 326-327, Khesara No. 694 measuring 2 Katha 14 Dhurs in favour of the petitioner.
Decision
2- Short fact of the case as pleaded in the writ petition is that the petitioner purchased a house and some plot situated in Mohalla - Bhikhanpur, Ward No. 12, Khata No. 327 , Khesara No. 694 , Police Station - Ishakchak, Bhagalpur, from one Mosomat Man Mohini Mishra through two registered sale deeds, and thereafter, she came in possession of the house and plot in question. Thereafter, she filed an application before Circle Officer, Jagdishpur, for mutation of her name in the records. The Circle Officer, thereafter, summoned a report from Halka Karmchari, and subsequently, report was submitted in favour of the petitioner, and finally, on 3/1/2003, name of the petitioner was ordered to be mutated in Mutation Case No. 494(9) of 2002-03, and thereafter, rent receipt was also issued. Subsequently, the vendor of the land died due to her old age and illness. It has been claimed by the petitioner that she took complete possession of the Patna High Court CWJC No.12046 of 2005 (7) dt. 18 -03-2013 3/12 house and plot in question. Thereafter, Respondent No. 5 & 6 started creating trouble. A proceeding under Section 144 Cr.P.C. was also initiated in between the parties. After the mutation was allowed in favour of the petitioner, the Respondent No. 5 & 6 filed an Appeal vide Mutation Appeal No. 8 of 2003-04 before the D.C.L.R. along with limitation petition. After condoning delay the D.C.L.R. heard both the sides and finally on 24/2/2004 the D.C.L.R. assigning detailed reason rejected the Mutation Appeal No. 8 of 2003-04, which was preferred by Respondent No. 5 & 6. It has been pleaded that the Respondent No. 5 & 6 thereafter preferred a Revision vide Mutation Revision Case No. 143 of 2003-04 against order of rejection of Mutation Appeal before the Collector, Bhagalpur. According to the petitioner the said Revision petition was allowed on 20/7/2004 without hearing the petitioner and matter was remitted back to the D.C.L.R. It has been pleaded that even though Revision was time barred, without condoning delay, besides without hearing the petitioner the learned Collector, Bhagalpur, allowed the Revision and remitted back the matter to the D.C.L.R. Learned D.C.L.R. also in a similar manner without affording opportunity to the petitioner has passed order on 30/3/2005 and quashed the mutation order, which was passed by the Circle Officer in favour of the Patna High Court CWJC No.12046 of 2005 (7) dt. 18 -03-2013 4/12 petitioner. Accordingly, both orders i.e. order passed by the Revisional Court as well as order passed by D.C.L.R., Bhagalpur i.e. Annexure - 1 & 2 respectively have been assailed in the present writ petition. 3- In this case after notice Respondent No. 5 & 6 have appeared and filed counter affidavit. As per order dated 4/12/2006 , Respondent / State has also filed counter affidavit on 18th April , 2007. The present matter was heard on 27/2/2013 and order was reserved. 4- In the present case in the month of February, 2006, an interlocutory application vide I.A. No. 595 of 2006 was filed on behalf of one Smt. Indu Singh for impleading her as intervenor - respondent on the plea that subsequently she had purchased the house and plot in question by virtue of two registered sale deeds after paying consideration amount of Rs. 3 Lakhs. One another interlocutory application in this case was filed in the month of March , 2007, vide I.A. No. 1819 of 2007 on behalf of one Sanjay Kumar Bhagat for being impleaded as intervenor - respondent on the plea that he had purchased the said house from Respondent No. 5 & 6 respectively through registered sale deed for a consideration money of Rs. 5,50,000/- with a specific statement in paragraph no. 5 that intervenor - Sanjay Kumar Patna High Court CWJC No.12046 of 2005 (7) dt. 18 -03-2013 5/12 Bhagat will be given possession of the said house from the vendors when their possession will be restored by the court of law. Despite the fact that aforesaid intervention petitions were filed in the year 2006 & 2007 respectively, it was never allowed nor those petitions were pressed at the time of hearing at Admission stage on 27/2/2013 when order was reserved, and as such, there is no need to take any notice of aforesaid interlocutory applications. 5- Sri Diwakar Upadhyaya, learned counsel appearing on behalf of petitioner emphatically has argued that both the impugned orders are liable to be set aside only on the ground that both the orders are violative of principles of natural justice. Both the courts i.e. Revisional Court as well as Appellate Court has not given any opportunity to the petitioner to represent her case, and as such, the orders being violative of the principles of natural justice and void ab initio are liable to be set aside outrightly. While assailing the order of Revisional Court learned counsel for the petitioner has taken me to Annexure – 1 i.e. certified copy of entire order sheet in M.R. Case No. 143 of 2003-04. It was submitted that from the entire order sheet it is evident that notice was never directed to be issued to the petitioner in the said Revision and order was passed only after hearing learned Patna High Court CWJC No.12046 of 2005 (7) dt. 18 -03-2013 6/12 counsel for the Revisionists i.e. Respondent No. 5 & 6 to the present writ petition. It has further been argued that in similar manner after the Revision was allowed and matter was remitted back to the D.C.L.R. , Sadar Bhagalpur, the learned D.C.L.R., Sadar, Bhagalpur, too without receipt of any report showing service of notice after remand on the petitioner, has allowed Mutation Appeal No. 8 of 2003-04 and quashed the mutation order. It has also been argued that since the Revisionsal order itself was illegal, any subsequent action taken by the D.C.L.R., Sadar, Bhagalpur was not sustainable in the eye of law, and as such, both orders are liable to be set aside only on the ground of non compliance of principles of natural justice. 6- Sri Gopal Prasad Roy, learned counsel appearing on behalf of Respondent No. 5 & 6 while opposing the prayer of the petitioner has argued that on merit there was no case in favour of the petitioner. He has argued that the petitioner had created two forged registered sale deeds purported to be executed by paternal aunt of Respondent No. 5 & 6. It was submitted that Mosomat Man Mohini Mishra was paternal aunt - Fua (Qwvk) of Respondent No. 5 & 6 , who was a school teacher and had given the house and plot in question to them through registered deed of gift in the 1994 itself. However, the petitioner on the strength of Patna High Court CWJC No.12046 of 2005 (7) dt. 18 -03-2013 7/12 two sale deeds of the year 2002 had claimed mutation which was allowed. Once the same property was already gifted by Late Mosomat Man Mohini Mishra - Fua (Qwvk) of Respondent no. 5 & 6, at subsequent stage, there was no occasion for executing any deed in favour of the petitioner by her. Many other points have been argued. Sri Roy, learned counsel for Respondent No. 5 & 6 while referring to 2nd paragraph of running page no. 19 internal page no. 5 of order dated 20/7/2004 passed by the Collector in M.R. Case No. 143 of 2003-04 submits that the plea of the petitioner that she was not heard is unsustainable, since before the Revisional Court an application was filed on behalf of the petitioner which was noticed by the learned Collector. Accordingly, as per private respondents the Revisional order can not be considered as an order passed behind back of the petitioner. 7- Sri Ravindra Kumar Priyadarshi, learned A.C. to Additional Advocate General No. 1 , too has argued that both the orders are in accordance with law. 8- Besides hearing the parties, I have also perused the materials available on record. From the record it appears that after mutation was allowed in favour of the petitioner, the Respondent No. 5 & 6 had preferred an Appeal vide Mutation Appeal No. 8 of 2003-04. The said Mutation Appeal was filed Patna High Court CWJC No.12046 of 2005 (7) dt. 18 -03-2013 8/12 though belatedly, the learned D.C.L.R., Sadar, Bhagalpur had condoned the delay and directed for issuance of notice. After hearing the parties, by a detailed order the learned D.C.L.R. on 24/2/2004 dismissed the Appeal. The learned D.C.L.R. had examined every aspect and was of the opinion that mutation was correctly ordered in favour of the petitioner. Typed copy of order dated 24/2/2004 has been brought on record as Annexure - 4 to the present writ petition. It is evident that against the order of D.C.L.R. dated 24/2/2004 in Mutation Appeal No. 8 of 2003-04 , the Respondent No. 5 & 6 preferred Revision vide M.R. Case No. 143 of 2003-04. In the said proceeding order sheet starts from 29.3.2004/31.3.2004, on which date M.R. Case was registered. On 10/4/2004 for the first time record was placed before the Collector, on which date there was attendance of Revisionists and next date was fixed to 17/4/2004. Thereafter, continuously on 17/4/2004, 24/4/2004, 22/5/2004, 12/6/2004, 21/6/2004, 26/6/2004, 3/7/2004 & 10/7/2004 there was only attendance of the Revisionists but none of the orders shows regarding issuance of notice to the other side. Subsequently, order sheet dated 19/7/2004 reads as follows:- “izkFkhZ dh vksj ls gktjh nh xbZ gSA izkFkhZ ds fo}ku vf/koDrk dks lqukA vkns”k lqjf{krA ” [“Attendance has been filed on behalf of the Patna High Court CWJC No.12046 of 2005 (7) dt. 18 -03-2013 9/12 petitioners. Petitioners’ counsel was heard. Order reserved.”]. Thereafter, on 20/7/2004 order was passed. On perusal of the entire order sheet this court is satisfied that the learned Collector without taking pain for directing for issuance of notice to opposite party (writ petitioner) has passed the impugned order taking away valuable right of the writ petitioner and quashed order dated 24/2/2004 in Mutation Appeal No. 8 of 2003-04, which was passed against Revisionists i.e. Respondent No. 5 & 6, that too, in gross violation of principles of natural justice. So far as paragraph no. 2 of running page no. 19 internal page no. 5 of order dated 20/7/2004 in M.R. Case No. 143 of 2003-04 is concerned, which was highlighted by learned counsel for Respondent No. 5 & 6 at the time of argument to persuade the court that present writ petitioner was heard , the court is of the opinion that the said fact does not substantiate that order was passed after hearing the writ petitioner. On the contrary it is evident from entire order sheet of Revision Case, that notice was never directed to be issued to the other side. Similarly, after order of Revisional Court, when the matter was remanded back to the D.C.L.R., said proceeding was also initiated ex-parte and D.C.L.R. after remand, without any cogent reason, has unsettled his earlier own order i.e. order dated 24/2/2004. After remand Patna High Court CWJC No.12046 of 2005 (7) dt. 18 -03-2013 10/12 the learned D.C.L.R. has not only unsettled his earlier order but he has also travelled beyond jurisdiction by recording Title in favour of Respondent No. 5 & 6. The D.C.L.R. has also observed that the two sale deeds which were executed in favour of the petitioner were doubtful and forged. This court is of the opinion that a Revenue Court has got no authority or jurisdiction to decide Title. Moreover from Annexure – A to the counter affidavit filed on behalf of State, it is clear that though learned D.C.L.R. after remand of the case from the Collector had “reserved order” on 17/3/2005, it was apparently without hearing the writ petitioner. From Annexure - A to the counter affidavit it appears that after the remand, before the D.C.L.R. a petition was filed on behalf of the writ petitioner with a request not to pass final order. The reason has been assigned that the writ petitioner only came to know about the proceeding of remand when order was “reserved” by the D.C.L.R. on 17/3/2005. In Annexure – A it was stated that the writ petitioner had applied for certified copy of Collector’s order vide Application No. 2486 dated 22/3/2005. It was further requested that after obtaining certified copy she will be approaching High Court and till that date delivery of order in Mutation Appeal No. 8 of 2003-04 after remand may be kept in abeyance. Even Patna High Court CWJC No.12046 of 2005 (7) dt. 18 -03-2013 11/12 though a petition was filed on behalf of the writ petitioner before D.C.L.R. on 30/3/2005, the learned D.C.L.R. on the same date allowed the Mutation Appeal No. 8 of 2003-04 and quashed the mutation order, which was passed in favour of the petitioner. So far as Revisional order is concerned, after going through the entire order sheet it is established that it was out and out an order in violation of principles of natural justice, and as such, this order has to be set aside, and accordingly, same is hereby set aside. Once the Revisional order whereby matter was remitted back to the D.C.L.R. is itself quashed, any subsequent order passed by the D.C.L.R. on the strength of Revisional order automatically goes. Moreover, the court is satisfied that even D.C.L.R. has proceeded ex-parte and without hearing all the parties has decided the Mutation Appeal, and as such, order of D.C.L.R. is also unsustainable in the eye of law. Accordingly, orders as contained in Annexure - 1 & 2 i.e. order dated 20/7/2004 & 30/3/2005 passed in Mutation Revision Case No. 143 of 2003-04 and Mutation Appeal No. 8 of 2003-04 respectively are hereby set aside. However, before parting with this order it would be necessary to indicate that in the present matter dispute is basically in relation to the Title over the disputed properties, which may not be adjudicated by the Patna High Court CWJC No.12046 of 2005 (7) dt. 18 -03-2013 12/12 Revenue Court or even by this Court, while exercising its writ jurisdiction. Accordingly, parties would be at liberty to approach the court of competent jurisdiction in respect of Title. 9- With above observation and direction, the writ petition stands allowed. Praful/- (Rakesh Kumar, J)