@JUDGMENTTAG-ORDER
Mridula Mishra, J.@mdashHeard the counsel for the petitioners and the State. I.A. No. 2701 of 2008 has been filed for substituting the legal heirs and legal representatives of petitioner No. 1 Sukh Chandra Mishra who died on 11.12.2007 leaving behind his legal representatives. Their names have been mentioned in paragraph Nos. 2(a), 2(b) and 2(c). Substitution petition is allowed and Smt. Mohini Mishra, Smt. Usha Jha and Sri Ashok Kumar Mishra are substituted in place of Sukh Chandra Mishra as petitioner Nos. 1(a), 1(b) and 1(c).
2. Notices issued to respondent Nos. 5, 6 and 7 though duly served and the name of the counsel representing them appearing in the list, no one appears on behalf of respondent Nos. 5, 6 and 7.
3. Prayer of the petitioners is to quash the order dated 18.6.2001 (Annexure-6) passed by the Deputy Collector, Land Reforms, Sadar, Madhubani, allowing the claim of the respondents for being declared as Bataidar with respect to the lands situated in Mouza-Madandobh, Touzi No. 6424, Plot Nos. 436, 437, 442, 440 and 422 together measuring 1 Bigha 3 Katha and 4 Dhoor. Further prayer is for quashing of the order dated 17.6.2002 passed by the Additional Collector, Madhubani, in appeal affirming the order passed by respondent No. 3 in a mechanical manner. Petitioners have also prayed for quashing the ex parte enquiry report dated 8.5.2001.
4. Respondent No. 5 Smt. Bimala Devi filed an application in April 1996 before the Collector, Madhubani, stating that she is in possession of the land mentioned in her application, for more than 50 years. Landholders, namely, Umesh Chandra Mishra, Ramesh Chandra Mishra, Dinesh Chandra Mishra and Sukh Chandra Jha have started enhancing threat for her dispossession from the land as also to forcibly harvest the crops standing in the field, as such a proceeding be initiated against her threatened dispossession from the land, as she is cultivating the land as a Bataidar and sharing the crops. She also filed an affidavit regarding her continuous possession over the land for last 50 years. The application was entertained by D.C.L.R. and a direction was issued to B.D.O., Babubarhi to submit a report regarding continuous possession of Bataidar over the land in question. The report was submitted by B.D.O. on 26.7.1996. Thereafter, as provided u/s 48E(3) of B.T. Act, the D.C.L.R. constituted a Board for reconciliation headed by Anchal Adhikari, Babubarhi, and referred the dispute to the Board for reconciliation. Petitioners case is that in the application filed by respondent No. 5 for initiating a proceeding u/s 48E of the B.T. Act one of the landholders Umesh Chandra Mishra was also impleaded as party though he had died much before, on 31.12.1995. In this way, the legal heirs of Umesh Chandra Mishra were not represented before Reconciliation Board. There was no representation on behalf of Umesh Chandra Mishra, as he also died when matter was referred to Board. However, the surviving landlords appeared and filed their show cause praying to reject the Bataidari case. Another landlord Dinesh Chandra Mishra died in the year 1998. The report submitted by the Chairman of the Reconciliation Board was in favour of the claim of Bataidar. Against the findings of the Reconciliation Board, landlords filed their objections on the ground that there is a fraudulent dealing between the Chairman and under raiyat. Another lord lord Ramesh Chandra Mishra also died on 31.1.2001. On 20.2.2001 the landlords informed regarding death of Dinesh Chandra Mishra and Ramesh Chandra Mishra as such the D. C. L. R. duly recorded an order regarding death of landlords stating that since the legal heirs have not been brought on record, the claim of Bataidar against them will not survive. After recording this finding, the D.C.L.R. held local inspection of the lands on 8.5.2001 being completely aware of this fact that the landlords are not being represented on account of non-substitution. After this inspection, the matter was adjourned to 18.6.2001 "for orders". In the meantime, on 14.6.2001 a petition for substituting the sons of deceased landlords was filed on behalf of the Bataidar, without serving a copy of the same to the counsel for the landlords. The said petition was allowed on the same date in absence of the counsel for the landlords as there was no date fixed in the case for the same. The D.C.L.R. by order dated 18.6.2001 allowed the claim for declaration as Bataidar over three plots of land measuring 15 Katha 4 Dhoors. Pursuant to the order dated 18.6.2001, a consequential order was passed on 26.2.2001 declaring the respondent No. 5 as Bataidar of the petitioners. Appeal No. 26/2001-02 was filed by the petitioners and respondent No. 7 jointly, against the order dated 18.6.2001. Petitioner Nos. 2 to 4 also filed an intervention application in the appeal and they were also added as party respondents in the appeal. The Additional Collector, Madhubani, dismissed the appeal by a non-speaking order dated 17.6.2002.
5. Petitioners have assailed the appellate order dated 17.6.2002 on the ground that it is a non-speaking order. The appellate authority has simply stated that there is no factual and legal mistake in the order passed by the court below, which is completely against the material on record. The appellate court completely ignored this fact that the order of D.C.L.R. has been passed without considering that a dead person was impleaded as a party and at no point of time his legal heirs were substituted. Other landlords who died in between the proceeding, were also not represented on account of their non-substitution. A time barred substitution petition was allowed without giving any opportunity to the counsel representing the landlords. In spite of that, the appellate authority stated that he did not find any factual or legal error in the order.
6. Counsel for the petitioners placed reliance on a decision reported in
7. Further it is contended by the petitioners'' counsel that Bataidari proceeding was initiated against a dead person Umesh Chandra Mishra. He was made party though died much before the initiation of the proceeding. Local inspections were held in absence of the landlord. Exparte inspection reports were the basis for passing impugned order. Section 48E(8) provides that a reasonable opportunity of being heard will be given to the parties and enquiry, if any, will be held in presence of parties. The Act, provides that under raiyat as well as the landlord both will be given reasonable opportunity to represent their cases and only then an order can be passed declaring claim of Bataidar. So far the possession part is concerned, unless the local inspection is made in presence of both the parties, it cannot be a basis to declare possession. In support of this contention, reliance has been placed on a decision reported in 1979 B.L.J.R. 164 [:1979 PLJR 106] (Ram Saran Sah vs. Prayag Yadav and Another.)
8. It has also been contended by the petitioners'' counsel that the vital question involved for declaring the respondent No. 5 Bataidar were completely ignored by the D.C.L.R. The respondent No. 5 in her application has claimed that she is in cultivating possession of the land for more than 50 years. This was the question to be verified, as prior to initiation of the B.T. Act case, in the year 1975 a ceiling proceeding was initiated against the joint family, in the name of Umesh Chandra Mishra, who was the eldest brother. u/s 6 of the Ceiling Act the State Government is required to publish a notice calling upon the landlords, who holds land in excess of the ceiling area, to submit a return in Form LC 2. In this Form different particulars are to given like to whether land is in cultivating possession of landholder or in possession of the Bataidars. On the basis the detail provided in Form LC 2 verification is to be made by Anchal Adhikari under Rule 8 of the Ceiling Act. In the ceiling proceeding initiated against Umesh Chandra Mishra no land was shown in possession of any of the Bataidar. On, verification, it was found that no surplus land was possessed by the landholders and finally, the ceiling proceeding was dropped. In case, the respondent No. 5 would have been under raiyat of the land in question, she would have claimed for declaration of her status as occupancy raiyat u/s 21 of the Ceiling Act. It was not done, as verification report did not disclose possession of Respondent No. 5 on lands in question.
9. Counsel for petitioners have contended that impugned orders have been passed in total disregard of the provisions of the Bihar Tenancy Act, Bihar Land Ceiling Act as well as the rule of natural justice as such fit to be quashed. No any counter affidavit has been filed controverting submissions made by the counsel for the petitioners.
10. Considering submissions made by the parties and the legal provisions, I find that entire proceeding u/s 48E of B.T. Act was conducted in violation of rule of natural justice. A dead person was impleaded as a party. Other landholders who died during proceeding were not substituted. The final order of substitution was passed in absence of counsel representing the landholders. The appellate authority considering illegalities, passed a cryptic order dismissing the appeal.
11. For the reasons stated above, the order passed by Deputy Collector, Land Reforms, Sadar, Madhubani, dated 18.6.2001 and the order passed by the Additional Collector, Madhubani, dated 17.6.2002 are quashed. Respondents 5, 6 and 7 may present fresh application before the Collector under Bihar Tenancy Act for initiating a proceeding u/s 48E of the B.T. Act. This application is allowed.
