RAM PRABESH SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an application under Articles 226 and 227 of the Constitution of India for issuance of a writ in the nature of Certiorari quashing various orders passed by the consolidation authorities as contained in Annexures -10,11,12 and 14 to the writ application under the provisions of the Bihar Consolidation of Holdings and Prevention of Fragmentation Ac 1956 (hereinafter referred to as the Act). One of the questions formulated at the time of admission of this writ application ,s as follows:-

(2.) The dispute centres around 20 decimals of land in revisional survey plot no.14 and 19 decimals of land in tevisional survey plot no. 15 appertaining to Revisional Survey Khata no. 114 of Village Suara, Police Station Nokha District Rohtas. The said land correspond to cadastral survey plot no 20, measuring an area of 39 decimals, appertaining to cadastral survey khata no. 26. Khata no. 26 stood recorded in the names of Shiv Narain Sah Ram Narain Sah, Ganesh Sah and Birja Sah, all sons of late Khadu Sah. Due to non payment of rent, Rent Suit No. 68 of 1938 was instituted by the then landlord in the court of 2nd Munsif, Sasaram which was decreed. The decree was put in execution in Execution Case no 1371 of 1938. The land was put on sale through auction. On 25th March, 1939 it was purchased by the then landlord The sale was also confirmed on 17-4-1939. A certificate under Order XXI Rule 94 of the Code of Civil Procedure (as contained in annexure-1) was also issued. The then landlord came in khas possession. By a registered deed of Mokarari dated 21-12-1940 (Annexure-2) the then landlord settled the land in question in favour of petitioner no. 2 after taking a nazrana of Rs 100/- Petitioner no. 2 alone with his family members has been in peaceful possession of the said land. He also obtained rent receipts from the landlord for the year 1348 Fasli to 1363 fash i.e. 1941 to 1956 One of the rent receipt dated 16-9-1941 is annexure-2/1 to this writ application. The petitioners also Constructed a double storeyed house over 20 decimals of land situate towards north of cadastral survey plot no. 20 and that the remaining area was being used as their Sahan. The house was used as go/a up to the year 1960 and there after it was let out to the department of Animal Husbandry of the Government of Bihar till January 1971. This is evident from the letter bearing memo no. 1884 dated 3-6-1971 of the Deputy Director, Animal Husbandry, Central Range, Patna, as contained in Annexure-3 as also a certificate granted by the Touring Veterinary Officer, Nokha, as contained in Annexure-3/1. Since January, 1975 the said building was let out to M/s Shree Parshu Ramjee Gulla Chand of village Nokha but before that the petitioners were themselves in possession. At the submission of the return by the landlord at the time of the vesting the name of the petitioners, however, were not entered in the Jamabandi and thus petitioner no. 2 filed a petition before the Circle Officer for entering his name in regard to the lands which was registered as Case no. 7 of 1967-68 (8 of 1969-70). A recommendation was ma e by the Circle Officer, as contained in Annexure-4, for creating Jamabandi in favour of the petitioaers as the land in question was recorded as Anabad Bihar Sarkar during the Revisional Survey and in the records of rights No final order could be passed by the D.C.L.R. on the basis of tha recommendation (Annexure-4) as a notification bearing no S.O. 1108 dated 96th November 1970, under Section 3 of the Act was published (Annexurc-4/1) commending consolidation proceeding in Nokha Anchal of Sasaram subdivision of the district of Shahabad. This fact is evident from Entry no. 25 of Annexure-4/1 Thereafter the Governor of Bihar, by a notification bearing no S 0/779 published ia the Bihar Gazette dated 10th November 1971, exempted ali the Municipal notified Areas falling in the Anchals of the districts of Shahabadand Muzaffarpur, as notified under Revenue Notification No S.O. 1168 dated 26th November 1970 from the operation ot the Scheme of the Consolidation of holdings in the said Anchals. A suit under Section 106 of the Bihar Tenancy Act, . 885 was filed by petitioner no. 2 against the aforementioned illegal entry which was registered as Case no. 34o of 1970 m the court of Settlement Officer but due to the notification (Annexure-4/1) it was held to have been abated by the settlement authority. Proceedings under the Code of Criminal Procedure were also initiated between petitioner no. 2 and respondent To 7 which were disposed of by orders dated 30-1-1979 and 9-6-1979 as contained in Annexures-5 and 6 respectively. Thereafter respondent no. 4 Sarjoo Sah, one of the successors of one of the recorded tenants in the cadastral survey namely, Shiv Narayan Sah, filed no. application under Section 10 (B) of the Act against the State of Bihar before the Consolidation Officer, Nokha which was registered as Case no. 802 of 1978/79 stating therein that he is an heir of the original recorded tenant of the cadastral survey khata no. 26 and that the entry in favour of the State of Bihar was unauthorised, The petitioners also made an application for their addition which was allowed. The petitioners also filed documents before the Consolidation Officer. The claim of respondent no. 4 was rejected and the name of the petitioners was directed to be entered in the register of land by the Consolidation Officer vide his order dated 2-9-1984 as contained in anncxure-7. A notice was also given to the Anchal Adhikari' Nokha by the Consolidation Officer which is evident from Annexure-7. Against the ordtr (as contained in Annexure-7) respondents 4 to 7 filed an appeal under Section 10 (6) of the Act. The petitioners raised objection before the appellate authority that the village concerned has been brought under the notified area committee vide Notification No. 303 dated 18-1-1985 issued by the Government of Bihar in the Department of Urban Development and Housing and thus the appeal is not maintainable. The said objection was raised through a petition as contained in Annexure-y. The appellate authority relying upon the aforementioned notification (as contained in Annexure-8) held by an order (as contained in Annexure-10) that the appeal abates and the, aggrieved party should move the civil Court, after setting aside the order as contained in Annexure-7. He also directed that the entries in the revisional survey shall stand. Against the aforementioned order (Aanexure-10; the petitioners as well as respondends 4 to 7 field a revision application before the Director of Consolidation under Section 35 of the Act. The said applications were disposed of by orders dated 30-10-1987/27-11-1987 (Annexures-11 and 12) without issuing any notice to the petitioneis, about theit dates of hearing after they were admitted and transferred to the court of Joint Director of Consolidation, Muzaffarpur, Mr. S.P. Sinha. The petitioners also filed art application as contained in Annexure-13 to hear the case on merits on the ground that they were never apprised of the date of the hearing of the revision application by the same has been rejected by an order dated 13-5-1988 as contained in Annexure-14 on the ground that he has got no jurisdiction to review the orders as contained in Annexures-11 and 12.

(3.) The petitioners are represented by Mr. Parmeshwar Prasad Sinha and the State of Bihar through Mr. Anil Kumar Singh J.C. to S.C. IV, No. counter-affidavit was filed on the date of hearing fixed in this case. Today, on the second day of hearing at this stage of judgment, Mr Mahesh Prasad, learned counsel for Respondent no. 4 files a counter affidavit. The law is that a counter affidavit has to be filed by the respondent on the date fixed. No reason has been assigned by Mr, Mahesh Prasad for not tiling the counter-affidavit on the date fixed. In my view permitting a counsel to file a counter-affidavit amidst judgment will not be proper. Let the counter-affidavit be kept on the record.