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Patna High CourtCWJC/7589/2007allowed

Shiv Nath Prasad v. The State Of Bihar Andors

2015-07-03Mr. Justice Rakesh Kumar4 pages

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.7589 of 2007 ====================================================== Shiv Nath Prasad, son of Patyug Baitha, resident of village- Baria Durg, Post-Jagarnatha, P.S. and Circle- Uchkagaon, District- Gopalganj .... .... Petitioner

Versus

1. The State of Bihar

2. The Commissioner, Saran Division, Chapra

3. The Collector, Gopalganj

4. The Deputy Collector, Land Reforms, Gopalganj

5. Janardan Baitha, son of Late Jagdish Baitha

6. Amrika Baitha

7. Indradeo Baitha, both sons of Late Rambrikchha Baitha

8. Kokil Baitha, son of Late Patyug Baitha

9. (i) Sohatum Mahto (ii)Kalej Mahto, both sons of Late Kishun Mahto

10. Radhika Devi, wife of Late Fulena Prasad

11. Fulendra Prasad, son of Ram Sagar Prasad Respondent no. 5 to 11 are residents of village- Bairia Durg, PostJagarnatha, P.S. and Circle- Uchkagaon, District- Gopalganj .... .... Respondents ====================================================== Appearance :

For the Petitioner/s : Mr. Gyan Prakash For the Respondent/s : Mr. Divya Verma, AC to AAG-3 Mr. Prabhakar Singh Mr. Shrawan Kumar ====================================================== CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR ORAL ORDER 03-07-2015 Heard Sri Gyan Prakash, learned counsel for the petitioner, learned AC to AAG-3, Sri Prabhakar Singh, learned counsel for Respondent nos. 5 to 7 and Sri Shrawan Kumar, learned counsel for Respondent nos.8, 9 and 10. Today again, none appeared on behalf of Respondent no.11, whereas on the last date i.e. 01.07.2015 after noticing that despite the fact that Respondent no.11 has already entered

appearance by filing Vakalatnama through counsel, no one was appearing, the case was adjourned with an indication that on the next date if again no one appears on behalf of Respondent no.11, the Court will proceed with the case ex parte against Respondent no.11. Accordingly, the case is being decided ex parte against Respondent no.11.

The petitioner, invoking writ jurisdiction of this Court under Article 226 of the Constitution of India, has prayed for quashing of an order dated 06.11.2006 passed by the learned Divisional Commissioner, Saran, Chapra in Mutation Revision No.33/2002-03. By the said order, the learned Commissioner has set aside the order of the D.C.L.R. as well as the Collector i.e. order dated 17.02.1986 passed in Bhoodan Case no.11/83-84 and also the order of the Collector passed in Bhoodan Case No.16/86 dated 07.05.2002.

Learned counsel for the petitioner submits that the land in question was allotted to the petitioner under the provisions of Bhoodan Yagna Act, even then the Circle Officer had recommended for entering the name of Respondent no.11 on his petition. He submits that the D.C.L.R. had rejected the claim of Respondent no.11, in which the petitioner was one of the necessary parties. Even the petitioner was impleaded in Bhoodan

Case no.16/86, which was preferred by Respondent no.11 and the case was decided in favour of the petitioner, the Respondent no.11, without impleading the petitioner as party preferred a Mutation Revision vide Mutation Revision No.33/2002-03. He submits that no such revision was maintainable and the Commissioner was not at all authorized to entertain the revision, even then the learned Commissioner entertained the revision and set aside the order of the D.C.L.R. as well as the Collector and directed for remitting the matter back to the concerned court. He submits that the fact regarding non-impleading the petitioner as party in Mutation Revision Case no.33/2002-03 has not been disputed. However, learned counsel for the State tried to persuade the court that from time to time the petitioner is changing his identity.

The State has filed counter affidavit and tried to persuade the Court that notices were issued and copy of notice has also been brought on record as Annexure-B to the counter affidavit. Besides hearing the parties, I have also perused the materials available on record. On perusal of order impugned, prima facie the Court is satisfied that the petitioner was not impleaded as party. This fact has also been corroborated from Annexure-B to the counter affidavit. Annexure-B has been brought on record to show that notices were validly served.

Annexure-B is a communication made by the Incharge Dy. Collector, whereby the Divisional Commissioner was intimated regarding service of report. This is letter dated 16.11.2006, whereas the order of the Divisional Commissioner was passed on 06.11.2006. Meaning thereby, even if for the time being it is presumed that notice was issued, though the petitioner was not a party on the date when the order was passed by the Commissioner, in absence of service report, the Commissioner was not authorized to pass order. In view of the fact that the petitioner was not at all impleaded as party before the Divisional Commissioner nor he was heard, the order itself is in violation of principles of natural justice and, as such, the order dated 06.11.2006 passed in Mutation Revision no.33/2002-03 is hereby set aside and the writ petition stands allowed.

(Rakesh Kumar, J) NKS/- U